<PAGE>
As filed with the Securities and Exchange Commission on March 10, 1999.
Registration No. [ ]
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------
Form S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
--------------
UNITED TECHNOLOGIES CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 06-0570975
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Financial Plaza
Hartford, Connecticut 06101
(860) 728-7000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
William H. Trachsel, Esq.
Senior Vice President, General Counsel and Secretary
United Technologies Corporation
One Financial Plaza
Hartford, Connecticut 06101
(860) 728-7800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
David Lopez, Esq. David B. Harms, Esq.
Cleary, Gottlieb, Steen & Hamilton Sullivan & Cromwell
One Liberty Plaza 125 Broad Street
New York, New York 10006 New York, New York 10004
(212) 225-2000 (212) 558-4000
--------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities being offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
--------------
CALCULATION OF REGISTRATION FEE
<TABLE>
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<CAPTION>
Proposed Proposed
Amount maximum maximum
Title of each class of securities to be offering price aggregate Amount of
to be registered registered(1) per unit(2) offering price(2) registration fee(3)
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities, Debt
Warrants, Currency
Warrants
and Stock-Index
Warrants.............. $528,950,000(4) 100%(2) $528,950,000 $147,048
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</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies at the dates of
issuance.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Pursuant to Rule 429 promulgated under the Securities Act of 1933, the
amount of registration fees does not include $147,203 previously paid to
the Commission relating to $471,050,000 of Debt Securities, Debt Warrants,
Currency Warrants and Stock-Index Warrants previously registered pursuant
to Registration Statement No. 33-46916, which remain unissued at the close
of business on March [ ], 1999.
(4) Such amount represents the principal amount of any Debt Securities issued
at their principal face amount, the issue price rather than the principal
amount of any Debt Securities issued at an original issue discount, the
issue price of any Debt Warrants, Currency Warrants and Stock-Index
Warrants, and the exercise price of any Debt Securities issuable upon the
exercise of Debt Warrants. Debt Warrants, Currency Warrants and Stock-Index
Warrants may be sold separately or with Debt Securities or other Debt
Warrants, Currency Warrants and Stock-Index Warrants. It is not practicable
to determine the number of Debt Warrants, Currency Warrants and Stock-Index
Warrants and the proposed maximum offering prices thereof at this time.
--------------
This Registration Statement, which is a new Registration Statement, also
constitutes Post-Effective Amendment No. 1 to Registration Statement No. 33-
46916, which was declared effective on May 8, 1992. Such Post-Effective
Amendment shall hereafter become effective concurrently with the effectiveness
of this Registration Statement and in accordance with Section 8(c) of the
Securities Act of 1933. Pursuant to Rule 429 under the Securities Act of 1933,
the prospectus filed as part of this Registration Statement also constitutes a
prospectus for Registration Statement No. 33-46916; the $471,050,000 of Debt
Securities, Debt Warrants, Currency Warrants and Stock-Index Warrants remaining
unsold from Registration Statement No. 33-46916 will be combined with the
$528,950,000 aggregate amount of Debt Securities, Debt Warrants, Currency
Warrants and Stock-Index Warrants to be registered pursuant to this
Registration Statement to enable United Technologies Corporation to offer an
aggregate amount of $1,000,000,000 of securities pursuant to the combined
prospectus.
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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This prospectus is not an +
+offer to sell these securities and it is not the solicitation of an offer to +
+buy these securities in any state where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion. Dated March 10, 1999.
$1,000,000,000
[LOGO FOR UNITED TECHNOLOGIES APPEARS HERE]
Debt Securities, Debt Warrants,
Currency Warrants and Stock-Index Warrants
------------
United Technologies Corporation intends to offer from time to time debt
securities, debt warrants, currency warrants and stock-index warrants. United
Technologies Corporation will receive an aggregate amount of up to
$1,000,000,000 from the sales of the debt securities and warrants. The debt
securities and warrants may be offered together or separately and in one or
more series, in amounts, at prices and on other terms to be determined at the
time of the offering and described for you in an accompanying prospectus
supplement.
United Technologies Corporation may sell the debt securities and warrants
directly or to or through underwriters or dealers, and also to other purchasers
or through agents. The names of any underwriters or agents that are included in
a sale of debt securities or warrants to you, and any applicable commissions or
discounts, will be stated in an accompanying prospectus supplement.
------------
Neither the Securities and Exchange Commission nor any other regulatory body
has approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
------------
Prospectus dated March , 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the debt securities and warrants described in this
prospectus in one or more offerings. From the sales of the debt securities and
warrants we will receive an aggregate amount of up to $1,000,000,000 (which is
the aggregate issue price of all warrants issued, the principal face amount of
all debt securities issued at their principal face amount and the issue price
rather than the principal amount of any debt securities issued at original
issue discount and the exercise price of any debt securities issuable upon the
exercise of a warrant to purchase debt securities). This prospectus provides
you with a general description of the debt securities and warrants we may
offer. Each time we sell debt securities or warrants, we will provide one or
more prospectus supplements, attached to the front of this prospectus, that
will contain specific information about the terms of that offering. Those terms
may vary from the terms described in this prospectus. Thus, the summary
descriptions of the debt securities and warrants in this prospectus are subject
to, and qualified by reference to, the descriptions of the particular terms of
any series of the securities contained in any related prospectus supplements.
The prospectus supplements may also add, update or change other information
contained in this prospectus. Before you invest in a particular issue of debt
securities or warrants, you should read both this prospectus and any related
prospectus supplements together with additional information described under the
heading "Where You Can Find More Information".
UNITED TECHNOLOGIES
United Technologies Corporation and its consolidated subsidiaries provide
high technology products to the aerospace, building systems and automotive
industries throughout the world. United Technologies Corporation and its
consolidated subsidiaries conduct their business within five principal
operating segments. The operating units of United Technologies Corporation and
its consolidated subsidiaries are grouped based upon the operating segment in
which they participate. The units participating in each operating segment and
their respective principal products are as follows:
. Otis offers a wide range of elevators, escalators, moving walks and
shuttle systems and related installation, maintenance and repair
services; and modernization products and services for elevators and
escalators.
. Carrier provides heating, ventilating and air conditioning (HVAC)
equipment for commercial, industrial and residential buildings; HVAC
replacement parts and services; building controls; commercial and
transport refrigeration equipment; and aftermarket service and
components.
. UT Automotive manufactures automotive electrical distribution systems;
DC electric motors and actuators; motor driven cooling fan modules;
electro-mechanical and electronic controls, switches and components;
insulation and acoustical materials and systems; and automotive
exterior trim.
. Pratt & Whitney provides large and small commercial and military
turbofan (jet) and turboprop engines, spare parts and product support;
specialized engine maintenance, overhaul and repair services for
airlines, government and private fleets; and rocket engines and space
propulsion systems and industrial gas turbines.
. Flight Systems is made up of Sikorsky and Hamilton Standard. Sikorsky
offers military and commercial helicopters and maintenance services.
Hamilton Standard offers engine and flight
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controls, propellers, environmental controls systems and space life
support systems.
United Technologies Corporation was incorporated in Delaware in 1934.
Unless the context otherwise requires, "UTC", "we", "us" or "our" means United
Technologies Corporation. UTC's principal executive offices are located at
United Technologies Building, One Financial Plaza, Hartford, Connecticut,
06101, telephone (860) 728-7000.
RECENT DEVELOPMENTS
On February 22, 1999, UTC announced an agreement to acquire Sundstrand
Corporation in a merger valued at approximately $4.3 billion, including assumed
debt.
The merger will be subject to customary conditions including approvals by
Sundstrand shareowners, Hart-Scott-Rodino Act review and approval under the
European antitrust laws and by other U.S. and foreign regulatory agencies. The
merger will be accounted for using the purchase method.
In 1998, Sundstrand had approximately $2 billion in revenues and $226
million in net income. Despite the expected increase in interest expense and
amortization of goodwill associated with the merger, UTC anticipates that the
acquisition will be slightly accretive to earnings per share in 1999, with
accretion accelerating in later periods.
UTC plans to finance the cash portion of the purchase price through the
incurrence of long-term and short-term debt. These financings will result in
higher interest expense in future periods and higher levels of debt to capital.
As previously disclosed, UTC is exploring various strategic alternatives
for UT Automotive, including possible divestiture of all or part of the
business. UTC could use some or all of the proceeds from the possible sale of
UT Automotive to reduce the need for or retire these debt financings.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Years Ended December 31,
----------------------------------------------------------------------------------------------------
1998 1997 1996 1995 1994
---- ----- ----- ----- -----
<S> <C> <C> <C> <C>
7.59 7.10 5.76 4.93 3.78
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
are divided by fixed charges. Earnings represent the sum of income from
continuing operations before income taxes and minority interests for UTC and
its subsidiaries plus fixed charges, minus interest capitalized, plus
amortization of interest capitalized. Fixed charges represent interest paid or
accrued on indebtedness of UTC and its consolidated subsidiaries (including
interest capitalized) plus one-third (the proportion deemed representative of
the interest factor) of rents.
USE OF PROCEEDS
Except as otherwise provided in an accompanying prospectus supplement, the
net proceeds from the sale of the debt securities and warrants described in
this prospectus will be added to our general funds and will be used for our
general corporate purposes and those of our consolidated subsidiaries, which
may include financing of our pending acquisition of Sundstrand, other possible
acquisitions or repurchases of our stock.
From time to time, we may engage in additional public or private financings
of a character and amount which we may deem appropriate.
LEGAL OWNERSHIP
Street Name and Other Indirect Holders
Investors who hold debt securities or warrants in accounts at banks or
brokers will generally not be recognized by us as holders of those debt
securities or warrants. When we refer to the "holders" of debt securities or
warrants, we mean only the actual legal holders of the debt securities or
warrants, as we explain further below under the heading "--The Term "Holder' as
Used in This Prospectus and
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Elsewhere". Holding debt securities or warrants in accounts at banks or brokers
is called holding in "street name." If you hold debt securities or warrants in
street name, we will recognize only the bank or broker, or the financial
institution the bank or broker uses to hold debt securities or warrants, as a
holder. These intermediary banks, brokers and other financial institutions pass
along principal, interest and other payments on the debt securities or
warrants, either because they agree to do so in their customer agreements or
because they are legally required to. If you hold debt securities or warrants
in street name you should check with your own institution to find out:
. How it handles payments and notices with respect to debt securities or
warrants;
. Whether it imposes fees or charges;
. How it would handle voting if ever required;
. How and when you should notify it to exercise on your behalf any
rights or options that may exist under the debt securities or
warrants;
. Whether and how you can instruct it to send you debt securities or
warrants registered in your own name so you can be a direct holder as
described below; and
. How it would pursue rights under the debt securities or warrants if
there were a default or other event triggering the need for holders to
act to protect their interests.
Direct Holders
Our obligations, as well as the obligations of the trustee, any warrant
agent and any third parties employed by us, the trustee or any warrant agent,
run only to persons who are registered as holders of debt securities or
warrants, except as may be specifically provided for in a warrant agreement,
warrant certificate or other contract governing the debt securities or
warrants. As noted above, we do not have obligations to you if you hold in
street name or through other indirect means, either because you choose to hold
debt securities or warrants in that manner or because the debt securities or
warrants are issued in the form of "global securities" as described below. For
example, once we make payment to the registered holder, we have no further
responsibility for the payment even if that holder is legally required to pass
the payment along to you as a street name customer but does not do so.
Global Securities
A global security is a special type of indirectly held debt security or
warrant. If we choose to issue debt securities or warrants in the form of
global securities, the ultimate beneficial owners can only be indirect holders.
We do this by requiring that the global security be registered in the name of a
financial institution we select and by requiring that the debt securities or
warrants included in the global security not be transferred to the name of any
other direct holder unless the special circumstances described below occur. The
financial institution that acts as the sole direct holder of the global
security is called the "depositary". Any person wishing to own a debt security
or warrant must do so indirectly by virtue of an account with a broker, bank or
other financial institution that in turn has an account with the depositary.
The prospectus supplement or pricing supplement indicates whether your series
of debt securities or warrants will be issued only as global securities.
As an indirect holder, your rights relating to a global security will be
governed by the account rules of your financial institution and of the
depositary, as well as general laws relating to securities transfers. We do not
recognize you as a holder of debt securities or warrants and instead deal only
with the depositary that holds the global security.
You should be aware that if debt securities or warrants are issued only in
the form of global securities:
. you cannot have debt securities or warrants registered in your own
name;
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. you cannot receive physical certificates for your interest in the debt
securities or warrants;
. you will be a street name holder and must look to your own bank or
broker for payments on the debt securities or warrants and protection
of your legal rights relating to the debt securities or warrants;
. you may not be able to sell interests in the debt securities or
warrants to some insurance companies and other institutions that are
required by law to own their debt securities or warrants in the form
of physical certificates;
. the depositary's policies will govern payments, transfers, exchange
and other matters relating to your interest in the global security.
We, the trustee and any warrant agent have no responsibility for any
aspect of the depositary's actions or for its records of ownership
interests in the global security. We, the trustee and any warrant
agent also do not supervise the depositary in any way; and
. the depositary will require that interests in a global security be
purchased or sold within its system using same-day funds for
settlement.
In a few special situations described later, the global security will
terminate and interests in it will be exchanged for physical certificates
representing debt securities or warrants. After that exchange, the choice of
whether to hold debt securities or warrants directly or in street name will be
up to you. You must consult your bank or broker to find out how to have your
interests in debt securities or warrants transferred to your name, so that you
will be a direct holder.
Unless we specify otherwise in the prospectus supplement or pricing
supplement, the special situations for termination of a global security are:
. When the depositary notifies us that it is unwilling, unable or no
longer qualified to continue as depositary and we do not or cannot
appoint a successor depositary within 90 days;
. When we notify the trustee that we wish to terminate the global
security; or
. When an event of default on the debt securities has occurred and has
not been cured. (Defaults are discussed later under "Description of
Debt Securities--Events of Default").
The prospectus supplement may also list additional situations for
terminating a global security that would apply only to the particular series
of debt securities or warrants covered by the prospectus supplement. When a
global security terminates, the depositary (and not us, the trustee or any
warrant agent) is responsible for deciding the names of the institutions that
will be the initial direct holders.
The Term "Holder" as Used in This
Prospectus and Elsewhere
In the descriptions of the debt securities and warrants included in this
prospectus and any attached prospectus supplement, when we refer to the
"holder" of a given debt security or warrant as being entitled to specified
rights or payments, or being permitted to take specified actions, we are in
all cases referring to the actual legal holder of the debt security or
warrant. While you will be the holder if you hold a certificated security
registered in your name, more often than not the holder will actually be
either the broker, bank or other financial institution where you have your
street name account, or, in the case of a global security, the depositary.
This means that if you are an indirect holder, you will need to coordinate
with the institution through which you hold your interest in a debt security
or warrant in order to determine how the provisions involving holders
described in this prospectus and any prospectus supplement will actually apply
to you. For example, if the debt security or warrant in which you hold a
beneficial interest in street name can be repaid at the option of
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the holder, you cannot redeem it yourself by following the procedures described
in the prospectus supplement. Instead, you would need to cause the institution
through which you hold your interest to take those actions on your behalf. Your
institution may have procedures and deadlines different from or additional to
those described in the prospectus supplement relating to that debt security or
warrant.
DESCRIPTION OF DEBT SECURITIES
The Indenture
As required by federal law for all notes and debentures of companies that
are publicly offered, the debt securities offered pursuant to this prospectus
are governed by a document called the "indenture". The indenture is a contract
dated as of April 1, 1990, as supplemented from time to time, between UTC and
State Street Bank and Trust Company (as successor to The Connecticut National
Bank), which acts as trustee. The indenture is an exhibit to the registration
statement. See "Where You Can Find More Information" for information on how to
obtain a copy of the indenture.
The following description of the indenture and summaries of some provisions
of the indenture do not describe every aspect of the debt securities and are
subject, and are qualified in their entirety by reference, to all the
provisions of the indenture including definitions of terms used in the
indenture. For example, in this section we use some terms that have been given
special meaning in the indenture. We describe the meaning for only the more
important terms. We also include references in parentheses to some sections of
the indenture. Whenever we refer to particular sections or defined terms of the
indenture in this prospectus or in the prospectus supplement, those sections or
defined terms are incorporated by reference here or in the prospectus
supplement.
Terms of the Debt Securities to Be Described in the Prospectus Supplement
The particular terms of each issue of debt securities, as well as any
modifications or additions to the general terms of the indenture which may be
applicable in the case of that issue of debt securities, will be described in
the related prospectus supplement. This description will include, where
applicable:
. the title of that issue of debt securities;
. any limit upon the aggregate principal amount of that issue of debt
securities;
. the percentage of the principal amount for which that issue of debt
securities will be issued;
. the date or dates on which the principal of that issue of debt
securities will be payable, or the method by which this date or these
dates will be determined or extended;
. the rate or rates (which may be fixed or variable), at which that
issue of debt securities will bear interest, if any, or the method by
which this rate or these rates will be determined;
. the date or dates from which any interest will accrue, or the method
by which this date or these dates will be determined, the dates on
which payment of any interest will be payable on any registered
security and the regular record dates for these interest payment dates
and the basis on which any interest will be calculated if other than
on the basis of a 360-day year of twelve 30-day months;
. the place or places where the principal, premium, if any, and
interest, if any, on that issue of debt securities will be payable;
. the place or places where that issue of debt securities may be
surrendered for exchange, and notices or demands to or upon UTC in
respect of debt securities may be served and any registered securities
may be surrendered for registration of transfer;
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. the period or periods within which, the price or prices at which, the
currency, currencies, currency unit or units or composite currencies
in which, and the other terms and conditions upon which, that issue of
debt securities may be redeemed in whole or in part, at the option of
UTC;
. the obligation, if any, of UTC to redeem, repay or purchase that issue
of debt securities pursuant to any sinking fund or analogous provision
or at the option of a holder of debt securities and the period or
periods within which, the price or prices at which, the currency,
currencies, currency unit or units or composite currencies in which,
and the other terms and conditions upon which, that issue of debt
securities will be redeemed, repaid or purchased, in whole or in part,
pursuant to such obligation;
. the currency, currencies or currency unit or composite currency in
which that issue of debt securities will be denominated and/or in
which the principal, premium, if any, or interest on that issue of
debt securities will be payable;
. whether the amount of payments of principal, premium, if any, or
interest on that issue of debt securities may be determined with
reference to an index, formula or other method (which index, formula
or method may, without limitation, be based on one or more currencies,
currency units, composite currencies, commodities, equity indices or
other indices) and the manner in which these amounts will be
determined;
. whether UTC or a holder may elect payment of the principal, premium,
if any, or interest on that issue of debt securities in a currency,
currencies, currency unit or units or composite currency other than
that in which the debt securities are stated to be payable, and the
period or periods within which, and the terms and conditions upon
which, this election may be made, and the time and manner of
determining the exchange rate between the coin or currency,
currencies, currency unit or units or composite currency in which the
debt securities are denominated or stated to be payable and the coin
or currency, currencies, currency unit or units or composite currency
in which the debt securities are to be so payable;
. any deletions from, modifications of or additions to the events of
default or covenants of UTC with respect to that issue of debt
securities, whether or not these events of default or covenants are
consistent with the events of default or covenants contained in the
indenture as originally executed;
. whether the provisions of Article Fourteen of the indenture described
under "--Defeasance and Covenant Defeasance" apply to that issue of
debt securities and any change to those provisions that apply to that
issue of debt securities;
. provisions, if any, granting special rights to the holders of that
issue of debt securities if any specified events occur;
. the designation of any security registrars, paying agents,
depositaries or exchange rate agents for that issue of debt
securities;
. whether that issue of debt securities is to be issuable as registered
securities, bearer securities or both, whether any debt securities of
that issue are to be issuable initially in temporary global form and
whether any debt securities of that issue are to be issuable in
permanent global form with or without coupons and, if so, whether
beneficial owners of interests in any permanent global
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debt security may exchange these interests for debt securities of like
tenor of any authorized form and denomination and the circumstances
under which any exchanges of this kind may occur, and whether
registered securities may be exchanged for bearer securities (if
permitted by applicable laws and regulations) and the circumstances
under which and the place or places where exchanges of this kind, if
permitted, may be made;
. the person to whom any interest on any registered security will be
payable, if other than the person in whose name that debt security (or
one or more predecessor securities) is registered at the close of
business on the regular record date for the interest, the manner in
which, or the person to whom, any interest on any bearer security will
be payable, if otherwise than in exchange for the coupons appertaining
to the bearer security as they individually mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global debt security on an interest payment date will be paid;
. if the debt securities of that issue are to be issued upon the
exercise of warrants, the time, manner and place for the debt
securities to be authenticated and delivered;
. whether and under what circumstances UTC will pay additional amounts
as contemplated by Section 1010 of the indenture on that issue of debt
securities to any holder who is not a United States person in respect
of any tax, assessment or governmental charge, including any
modification to the definition of "United States person" as contained
in the indenture as originally executed, and, if so, whether and on
what terms UTC will have the option to redeem the debt securities
rather than pay additional amounts;
. the manner in which principal, premium, if any, and interest, if any,
will be payable;
. if applicable, a discussion of United States federal income tax,
accounting or other special considerations;
. the manner in which debt securities of that issue will be
transferable; and
. any other terms, conditions, rights and preferences, or limitations on
rights and preferences, of that issue of debt securities consistent
with the provisions of the indenture.
If any series of debt securities are sold for, are payable in or are
denominated in one or more foreign currencies, currency units or composite
currencies, applicable restrictions, elections, tax consequences, specific
terms and other information with respect to that series of debt securities and
such currencies, currency units or composite currencies will be set forth in
the related prospectus supplement.
We may issue debt securities other than the debt securities described in
this prospectus. There is no requirement that any other debt securities that we
issue be issued under the indenture. Thus, any other debt securities that we
issue may be issued under other indentures or documentation, containing
provisions different from those included in the indenture or applicable to one
or more issues of the debt securities described in this prospectus.
Indenture Provisions Relating to the Possible Issuance of One or More Series of
Debt Securities
The debt securities described in this prospectus and additional
unsubordinated, unsecured debt securities of UTC unlimited as to aggregate
principal amount may be issued in one or more series under the indenture
(Section 301). The debt securities described in this prospectus and any
additional debt
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securities so issued under the indenture are collectively referred to in this
prospectus, while a single trustee is acting for all holders of these debt
securities, as the "indenture securities." The indenture also provides that
there may be more than one trustee under the indenture, each with respect to
one or more different series of indenture securities. See "--Trustee" for a
discussion of the trustee's responsibilities if there is more than one trustee
under the indenture. At a time when two or more trustees are acting, each with
respect to only certain series of debt securities, the term "indenture
securities" as used in this prospectus will mean the one or more series with
respect to which each respective trustee is acting. If there is more than one
trustee under the indenture, the powers and trust obligations of each trustee
as described in this prospectus will extend only to the one or more series of
indenture securities for which it is trustee. The effect of the provisions
contemplating that at a particular time there might be more than one trustee
acting is that, in that event, those indenture securities (whether of one or
more than one series) for which each trustee is acting would be treated as if
issued under a separate indenture.
Each series of debt securities will constitute non-convertible, unsecured
and unsubordinated obligations of UTC and will rank on a parity with all other
unsecured and unsubordinated indebtedness of UTC, including each other series
of debt securities.
Debt securities may be issued under the indenture as original issue
discount securities to be offered and sold at a substantial discount from their
principal amount. Special federal income tax, accounting and other
considerations applicable to original issue discount securities will be
described under a separate heading in the prospectus supplement relating to any
original issue discount securities.
The indenture provides that in determining whether the holders of the
requisite principal amount of indenture securities of a series then outstanding
have given any request, demand, authorization, direction, notice, consent or
waiver under the indenture or whether a quorum is present at a meeting of
holders of indenture securities:
. the principal amount of an original issue discount security that will
be deemed to be outstanding will be the amount of the principal of
that security that would be due and payable as of the date of that
determination upon acceleration of the maturity of the security;
. the principal amount of an indenture security denominated in one or
more foreign currencies or currency units will be deemed to be the
U.S. dollar equivalent, determined on the date of original issuance of
that indenture security, of the principal amount or, in the case of an
original issue discount security, the U.S. dollar equivalent, on the
date of original issuance of the original issue discount security, of
the amount determined as provided in the immediately preceding bullet
point; and
. the principal amount that will be deemed outstanding of an indenture
security issued as an indexed security whose terms provide that its
principal amount payable at stated maturity may be more or less than
principal face amount at original issuance will be deemed to be its
principal face amount at original issuance (Section 101).
Denominations, Registration and Transfer
Debt securities of a series may be issuable solely as registered
securities, solely as bearer securities or as both registered securities and
bearer securities. The indenture also provides that debt securities of a series
may be issuable in global form. Unless otherwise indicated in the prospectus
supplement, bearer securities will have interest coupons attached (Sections
201, 203).
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Unless otherwise provided in the prospectus supplement:
. registered securities denominated in U.S. dollars, other than
registered securities issued in global form, will be issued in
denominations of $1,000 and integral multiples of $1,000;
. registered securities issued in global form may be issued in any
denomination;
. bearer securities denominated in U.S. dollars, other than bearer
securities issued in global form, will be issued in denominations of
$5,000; and
. bearer securities issued in global form may be issued in any
denomination (Section 302).
Registered securities of any series will be exchangeable for other
registered securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. If provided in the
prospectus supplement, bearer securities, with all unmatured coupons, except as
provided in the following sentence, and all matured coupons in default, of a
particular series may be converted into registered securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor. Bearer securities surrendered in a permitted exchange for registered
securities during the period (1) on and from a regular record date and before
the opening of business at the appropriate office or agency on the relevant
interest payment date or (2) on and from a special record date and before the
opening of business at the appropriate office or agency on the related proposed
date for payment of defaulted interest, will be surrendered without the coupon
relating to that interest payment date or proposed date for payment of
interest. Interest to be paid on that interest payment date or proposed date of
payment will not be payable in respect of the registered security issued in
exchange for the bearer security. Instead, the interest will be payable only to
the holder of the coupon when due in accordance with the terms of the
indenture. Unless otherwise specified in the prospectus supplement, bearer
securities will not be issued in exchange for registered securities (Section
305).
Debt securities may be presented for exchange or conversion as provided
above, and registered securities may be presented for registration of transfer,
at the corporate trust office of the trustee or at the office of any transfer
agent designated by UTC for this purpose with respect to any series of debt
securities and referred to in the prospectus supplement. Registered securities
presented for registration of transfer must be presented with a duly executed
form of transfer. Each registered security will specify the proper form of
transfer. No service charge will be made for any transfer or exchange of the
debt securities, but UTC may require payment of a sum to cover any tax or other
governmental charge payable in connection with the transfer or exchange
(Section 305). Any transfer, conversion or exchange will be effected if the
trustee or transfer agent, as the case may be, is satisfied with the documents
of title and identity of the person making the request. If a prospectus
supplement refers to any transfer agents initially designated by UTC with
respect to any series of debt securities in addition to the trustee, UTC may at
any time rescind the designation of any of these transfer agents or approve a
change in the location through which any of these transfer agents acts, except
that:
. if debt securities of a series are issuable solely as registered
securities, UTC will be required to maintain a transfer agent in each
place of payment for that series; and
. if debt securities of a series may be issuable as both registered
securities and as bearer securities, UTC will be required to maintain
a transfer agent in a place of payment for that series located outside
the United States, in addition to the trustee.
UTC may at any time designate additional transfer agents with respect to any
series of debt securities (Section 1002).
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If debt securities of any series are redeemed in part, UTC will not be
required to:
. issue, register the transfer of, exchange or convert debt securities
of any series during a period beginning at the opening of business 15
days before any debt securities of that series are selected to be
redeemed and ending at the close of business on:
(a) if debt securities of the series are issuable only as registered
securities, the day of mailing of the relevant notice of redemption;
(b) if debt securities of the series are issuable as bearer
securities, the day of the first publication of the relevant notice of
redemption ( ) or
(c) if debt securities of the series are also issuable as registered
securities and there is no publication, the mailing of the relevant
notice of redemption; or
. register the transfer of or exchange any portion of any registered
security called for redemption, except the unredeemed portion of any
registered security being redeemed in part; or
. exchange any bearer security called for redemption, except to exchange
the bearer security for a registered security of that series and like
tenor which is simultaneously surrendered for redemption (Section
305).
Payment, Paying Agents and Exchange
Rate Agents
Unless otherwise provided in the prospectus supplement, principal, premium,
if any, and interest, if any, on bearer securities will be payable, subject to
any applicable laws and regulations, at the offices of one or more paying
agents outside the United States as UTC may designate from time to time
(Section 1002). At the option of the holder, payment on bearer securities also
may be made by transfer to an account maintained by the payee with a bank
located outside the United States (Section 307). Unless otherwise provided in
the prospectus supplement, payment of interest on any bearer securities on or
before maturity will be made only against surrender of the individual coupons
for the interest installments as the coupons mature (Section 1001). Unless
otherwise provided in the prospectus supplement, no payment with respect to any
bearer security will be made at any office or agency of UTC in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States. However,
payments of principal, premium, if any, and interest, if any, on bearer
securities payable in dollars will be made at the office of UTC's paying agent
in The City of New York if, but only if, payment of the full amount of
principal, premium, if any, and interest, if any, in dollars at all offices or
agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions (Section 1002).
Unless otherwise provided in the prospectus supplement, principal, premium,
if any, and interest, if any, on registered securities will be payable at any
office or agency to be maintained by UTC in The City of New York, except that
at the option of UTC interest may be paid:
. by check mailed to the address of the person entitled to the interest
as that address appears in the security register; or
. by wire transfer to an account maintained by the person entitled to
the interest as specified in the security register (Sections 307 and
1002).
Unless otherwise provided in the prospectus supplement, payment of any
installments of interest on any registered security will be made to the person
in whose name the registered security is registered at the close of business on
the regular record date for interest (Section 307).
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Any paying agent in the United States and any paying agent outside the
United States initially designated by UTC for the debt securities will be named
in the prospectus supplement. UTC may at any time designate additional paying
agents or rescind the designation of any paying agent or approve a change in
the office through which any paying agent acts. However:
. if debt securities of a series are issuable only as registered
securities, UTC will be required to maintain a paying agent in each
place of payment for that series;
. if debt securities of a series are also issuable as bearer securities,
UTC will be required to maintain:
(a) a paying agent in The City of New York for payments with respect
to any registered securities of that series and for payments with
respect to bearer securities of that series in the limited
circumstances described above, but not otherwise; and
(b) a paying agent in a place of payment located outside the United
States where debt securities of that series and any coupons
appertaining to the securities may be presented and surrendered for
payment; and
. if the debt securities of a series are listed on the Luxembourg Stock
Exchange or any other stock exchange located outside the United States
and that stock exchange so requires, UTC will maintain a paying agent
in Luxembourg or any other required city located outside the United
States, as the case may be, for the debt securities of that series
(Section 1002).
Unless otherwise provided in the prospectus supplement, UTC will maintain
with respect to any series of debt securities denominated or payable in one or
more foreign currencies, currency units or composite currencies, one or more
exchange rate agents to make the foreign exchange determinations as are or may
be specified in this prospectus and the prospectus supplement (Sections 313 and
1002).
All moneys paid by UTC to the trustee or a paying agent for the payment of
principal, premium, if any, or interest, if any, on any debt security which
remains unclaimed at the end of two years after the principal, premium or
interest becomes due and payable will be repaid to UTC, and the holder of the
debt security or any related coupon will thereafter look only to UTC for
payment of these amounts (Section 1003).
The Indenture Does Not Limit UTC's Indebtedness, Prevent Dividends or Generally
Prevent Highly Leveraged Transactions.
The indenture does not
. limit the amount of unsecured indebtedness which UTC or any subsidiary
may incur; or
. limit the payment of dividends by UTC or its acquisition of any of its
equity securities.
When we say "subsidiary", we mean any corporation of which at the time of
determination UTC, directly and/or indirectly through one or more subsidiaries,
owns more than 50% of the shares of voting stock (Section 101).
Except as may be included in a supplemental indenture covering a specific
series of offered debt securities and described in the related prospectus
supplement and except for the covenants described below under "--Liens", "--
Sales and Leasebacks" and "--Restriction on Merger and Sales of Assets", there
are no covenants or any other provisions which may afford holders of debt
securities protection in the event of a highly leveraged transaction which may
or may not result in a change of control of UTC.
Liens
So long as any debt securities are outstanding under the indenture:
. UTC will not itself, and will not permit any wholly-owned domestic
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manufacturing subsidiary to, create, incur, issue or assume any debt
secured by any lien on any principal property owned by UTC or any
wholly-owned domestic manufacturing subsidiary; and
. UTC will not itself, and will not permit any subsidiary to, create,
incur, issue or assume any debt secured by any lien on any shares of
stock or debt of any wholly-owned domestic manufacturing subsidiary.
When we say "wholly-owned domestic manufacturing subsidiary" we mean any
subsidiary of which, at the time of determination, UTC directly and/or
indirectly owns all of the outstanding capital stock (other than directors'
qualifying shares) and which, at the time of determination, is primarily
engaged in manufacturing, except a subsidiary:
. which neither transacts any substantial portion of its business nor
regularly maintains any substantial portion of its fixed assets within
the United States; or
. which is engaged primarily in the finance business including, without
limitation, financing the operations of, or the purchase of products
which are products of or incorporate products of, UTC and/or its
subsidiaries; or
. which is primarily engaged in ownership and development of real
estate, construction of buildings, or related activities, or a
combination of the foregoing (Section 101).
When we say "debt", we mean notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed (Section 1008).
When we say "liens", we mean pledges, mortgages, liens, encumbrances and
other security interests (Section 1008).
When we say "principal property", we mean any manufacturing plant or
warehouse, together with the land upon which it is erected and fixtures
constituting a part of the manufacturing plant or warehouse, owned by UTC or
any wholly-owned domestic manufacturing subsidiary and located in the United
States, the gross book value (without deduction of any reserve for
depreciation) of which on the date as of which the determination is being made
is an amount which exceeds 1% of consolidated net tangible assets, other than
any manufacturing plant or warehouse or any portion of the manufacturing plant
or warehouse or any fixture:
. which is financed by industrial development bonds; or
. which, in the opinion of the board of directors of UTC, is not of
material importance to the total business conducted by UTC and its
subsidiaries, taken as a whole (Section 101).
However, any of the actions described in the first two bullet points under
"--Liens" above may be taken if
. the indenture securities are equally and ratably secured; or
. the aggregate principal amount of the secured debt then outstanding
plus the attributable debt of UTC and its wholly-owned domestic
manufacturing subsidiaries in respect of sale and leaseback
transactions described below involving principal properties entered
into after the date when UTC first issues securities pursuant to the
indenture, other than transactions that are permitted as described in
the second bullet point under "--Sales and Leasebacks", would not
exceed 10% of consolidated net tangible assets.
When we say "attributable debt", we mean, as to any particular lease under
which any person is at the time liable for a term of more than 12 months, at
any date as of which the amount of attributable debt is to be determined, the
total net amount of rent required to be paid by the person under the lease
during the remaining term of the lease
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(excluding any subsequent renewal or other extension options held by the
lessee and excluding amounts on account of maintenance and repairs, services,
taxes and similar charges, and contingent rents), discounted from the
respective due dates of the payments under the lease to the date of
determination at the rate of fifteen percent (15%) per annum, compounded
monthly (Section 101).
When we say "consolidated net tangible assets", we mean the total amount
of assets (less applicable reserves and other properly deductible items) after
deducting:
. all current liabilities, excluding any current liabilities which are
by their terms extendible or renewable at the option of the obligor on
the liabilities to a time more than 12 months after the time as of
which the amount of current liabilities is being computed; and
. all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all as set forth on
the most recent balance sheet of UTC and its consolidated subsidiaries
and computed in accordance with generally accepted accounting
principles (Section 101).
This restriction on liens will not apply to debt secured by permitted
liens. Therefore, for purposes of this restriction, debt secured by permitted
liens will be excluded in computing secured debt. Permitted liens include:
. liens existing as of the date when UTC first issued securities
pursuant to the indenture;
. liens existing on any property of or shares of stock or debt of any
corporation at the time it became or becomes a wholly-owned domestic
manufacturing subsidiary, or arising after that time (a) pursuant to
contractual commitments entered into before the corporation became a
wholly-owned domestic manufacturing subsidiary and (b) otherwise than
in connection with the borrowing of money arranged after the
corporation became a wholly-owned domestic manufacturing subsidiary;
. liens on property (including shares of stock or debt of a wholly-owned
domestic manufacturing subsidiary) existing at the time of acquisition
and certain purchase money or similar liens;
. liens to secure specified exploration, drilling, development,
operation, construction, alteration, repair or improvement costs;
. liens securing debt owing by a subsidiary to UTC or to a wholly-owned
domestic manufacturing subsidiary;
. liens in connection with legal proceedings or arising in the ordinary
course of business and not in connection with the borrowing of money;
. liens in connection with government contracts, including the
assignment of moneys due or to become due on government contracts;
. materialmen's, carriers', mechanics', workmen's, repairmen's or other
like liens which are not overdue or which are being contested in good
faith in appropriate proceedings; and
. extensions, substitutions, replacements or renewals of the foregoing.
In addition, production payments and other financial arrangements with regard
to oil, gas and mineral properties are not deemed to involve liens securing
debt (Section 1008).
Sales and Leasebacks
So long as any debt securities are outstanding under the indenture, UTC
will not,
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and will not permit any wholly-owned domestic manufacturing subsidiary to,
enter into any sale and leaseback transaction after the date when UTC first
issued securities pursuant to the indenture, covering any principal property,
which was or is owned or leased by UTC or a wholly-owned domestic manufacturing
subsidiary and which has been or is to be sold or transferred more than 120
days after the completion of construction and commencement of full operation of
that principal property.
However, a sale and leaseback transaction of this kind will not be
prohibited if
. attributable debt of UTC and its wholly-owned domestic manufacturing
subsidiaries in respect of the sale and leaseback transaction and all
other sale and leaseback transactions entered into after the date when
UTC first issued securities pursuant to the indenture (other than sale
and leaseback transactions that are permitted as described in the next
bullet point), plus the aggregate principal amount of debt secured by
liens on principal properties then outstanding (not otherwise
permitted or excepted) without equally and ratably securing the
indenture securities, would not exceed 10% of the consolidated net
tangible assets;
. an amount equal to the greater of the net proceeds of the sale or
transfer or the fair market value of the principal property sold or
transferred (as determined by UTC) is applied within 120 days to the
voluntary retirement of the indenture securities or other indebtedness
of UTC (other than indebtedness subordinated to the indenture
securities) or indebtedness of a wholly-owned domestic manufacturing
subsidiary, for money borrowed, maturing more than 12 months after the
voluntary retirement;
. the lease is for a temporary period not exceeding three years; or
. the lease is with UTC or another wholly-owned domestic manufacturing
subsidiary (Section 1009).
Restriction on Merger and Sales of Assets
UTC may not consolidate with or merge into any other corporation, or
convey, lease or transfer its properties and assets substantially as an
entirety to any person, unless all four of the following conditions are
satisfied:
. immediately after the transaction, no event of default (or event which
with notice or lapse of time, or both, would be an event of default)
with respect to the indenture securities will have happened and be
continuing;
. the corporation formed by the consolidation or into which UTC is
merged or the person which will have received the transfer or lease of
UTC's properties and assets will assume UTC's obligation for the due
and punctual payment of the principal, premium, if any, and interest
(including all additional amounts, if any, payable as contemplated by
Section 1010 of the indenture, on the indenture securities and the
performance and observance of every covenant to be performed by UTC
under the indenture, and will be organized under the laws of the
United States of America, one of the States thereof or the District of
Columbia;
. if any principal property of UTC or of any wholly-owned domestic
manufacturing subsidiary, or any shares of stock or debt of any
wholly-owned domestic manufacturing subsidiary, would become subject
to any lien, the indenture securities outstanding will be secured, as
to that principal property, equally and ratably with or prior to, the
debt which upon
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the transaction would become secured by the lien unless UTC or the
wholly-owned domestic manufacturing subsidiary could create the lien
under the indenture without equally and ratably securing the indenture
securities; and
. UTC has delivered to the trustee an officer's certificate and opinion
of counsel, each stating that the transaction complies with these
conditions (Sections 801 and 803).
For the purpose of providing the equal and ratable security referred to in the
preceding sentence, the outstanding principal amount of original issue
discount securities and indexed securities will mean that amount which would
at the time of providing the security be due and payable pursuant to Section
502 of the indenture and the terms of the original issue discount securities
and indexed securities upon their acceleration, and the extent of the equal
and ratable security will be adjusted, to the extent permitted by law, as and
when this amount changes over time pursuant to the terms of such original
issue discount securities and indexed securities (Sections 502 and 803). See
"--Events of Default" for further information about acceleration of original
issue discount securities and indexed securities.
In the event of any transaction other than a lease described in and
complying with the four conditions listed in the immediately preceding
paragraph, UTC would be discharged from all obligations and covenants under
the indenture and the indenture securities, and could be dissolved and
liquidated (Section 802).
Defeasance and Covenant Defeasance
The indenture provides that, if the provisions of Article Fourteen are
made applicable without modification to the debt securities of or within any
series and any related coupons pursuant to Section 301 of the indenture, UTC
may elect either "defeasance" or "covenant defeasance" as described below:
. ""defeasance'' means that UTC may elect to defease and be discharged
from any and all obligations with respect to the debt securities and
any related coupons, except for the obligation to pay additional
amounts, if any, upon the occurrence of specified events of tax,
assessment or governmental charge with respect to payments on the debt
securities and the obligations to register the transfer or exchange of
the debt securities and any related coupons, to replace temporary or
mutilated, destroyed, lost or stolen debt securities and any related
coupons, to maintain an office or agency in respect of the debt
securities and any related coupons and to hold moneys for payment in
trust;
. ""covenant defeasance" means that UTC may elect to be released from
its obligations with respect to the debt securities and any related
coupons that are described under "--Liens" and "--Sales and
Leasebacks," or, if provided pursuant to Section 301 of the indenture,
its obligations with respect to any other covenant, and any omission
to comply with these obligations will not constitute a default or an
event of default with respect to the debt securities and any related
coupons.
To elect either defeasance or covenant defeasance, UTC must irrevocably
deposit with the trustee or another qualifying trustee, in trust, an amount,
which through the payment of principal and interest in accordance with the
terms of the government obligations (as defined in the next paragraph) will
provide money in an amount sufficient to pay the principal, premium, if any,
and interest on the debt securities and any related coupons, and any mandatory
sinking fund or analogous payments on them, on the scheduled due dates for
them. This amount must be deposited in the currency, currencies or currency
unit in which the debt securities and any related coupons are then specified
as payable at stated maturity, and/or government obligations applicable to the
debt securities and any related coupons. This
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applicability will be determined on the basis of the currency or currency unit
in which the debt securities are then specified as payable at stated maturity.
If so specified in the applicable prospectus supplement, a trust of this kind
may only be established if, among other things, UTC has delivered to the
trustee an opinion of counsel (as specified in the indenture) to the effect
that the holders of the debt securities and any related coupons will not
recognize income, gain or loss for United States federal income tax purposes as
a result of the defeasance or covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if the defeasance or covenant defeasance
had not occurred. In the case of defeasance, the opinion of counsel must refer
to and be based upon a ruling of the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after April 1, 1990.
Unless otherwise specified in the applicable prospectus supplement,
"government obligations" means securities which are:
. direct obligations of the government which issued the currency in
which the debt securities are payable; or
. obligations of a person controlled or supervised by and acting as an
agency or instrumentality of the government which issued the currency
in which the debt securities of the applicable series are payable, the
payment of which is unconditionally guaranteed by that government,
which, in either case, are full faith and credit obligations of that
government payable in that currency and are not callable or redeemable
at the option of the issuer of the obligations and will also include
specified depository receipts issued by a bank or trust company as
custodian with respect to any government obligation of this kind
(Section 101 and Article Fourteen).
Unless otherwise provided in the prospectus supplement, if, after UTC has
deposited funds and/or government obligations to effect defeasance with respect
to any debt securities:
. the holder of a debt security is entitled to, and does, elect pursuant
to the terms of the debt security to receive payment in a currency or
currency unit other than that in which the deposit has been made in
respect of the debt security; or
. the currency or currency unit in which the deposit has been made in
respect of the debt security ceases to be used by its government of
issuance;
then the indebtedness represented by the debt security will be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal, premium, if any, and interest, if any, on the debt security as they
become due out of the proceeds yielded by converting the amount so deposited in
respect of the debt security into the currency or currency unit in which the
debt security becomes payable as a result of the holder's election or the
government's cessation of usage based on the applicable market exchange rate
(as defined in the prospectus supplement relating to the debt security) for
that currency or currency unit in effect on the second business day prior to
each payment date. If the holder elected to receive payment in a currency other
than the currency deposited in trust as described in the first bullet point of
this paragraph, the currency deposited in trust will be converted from time to
time. However, if there is a cessation of usage of the currency or currency
unit by its government of issuance which results in current exchange rates no
longer being available, the conversion will be based on the applicable market
exchange rate for the currency or currency unit (as nearly as possible) in
effect at the time of cessation (Section 1405). Unless otherwise provided in
the prospectus supplement, all payments of principal, premium, if any, and
interest, if any, on any debt security that is payable in a foreign currency or
currency unit that ceases to be used by its government of issuance will be made
in U.S. dollars (Section 312).
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If UTC effects covenant defeasance with respect to any debt securities and
any related coupons and the debt securities and any related coupons are
declared due and payable because of the occurrence of any event of default
other than the event of default described in the third bullet point under "--
Events of Default" with respect to Sections 1008 and 1009 of the indenture
(which sections would no longer be applicable to the debt securities or any
related coupons) or described in the third or fifth bullet point under "--
Events of Default" with respect to any other covenant with respect to which
there has been defeasance, the amount of cash and the amounts of principal and
interest payable on the government obligations on deposit with the trustee
will be sufficient to pay amounts due on the debt securities and any related
coupons at the time of their stated maturity but may not be sufficient to pay
amounts due on the debt securities and any related coupons at the time of the
acceleration resulting from the event of default. However, UTC would remain
liable to make payment of the amounts due at the time of acceleration.
The prospectus supplement may further describe the provisions, if any,
permitting defeasance or covenant defeasance, including any modifications to
the provisions described above, with respect to the debt securities of or
within a particular series and any related coupons.
Modification and Waiver
Modifications and amendments of the indenture may be made by UTC and the
trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of outstanding indenture securities which are
affected by the modification or amendment. However, the consent of the holder
of each indenture security affected by the modification or amendment is
required for any modification or amendment that would, among other things:
. change the stated maturity of principal of, or any installment of
interest or premium, if any, on, or change the obligation of UTC to
pay any additional amounts as contemplated by Section 1010 of the
indenture on, any security;
. reduce the principal amount of, or the rate of interest on, or any
premium payable on redemption of, any security, or reduce the amount
of principal of an original issue discount security that would be due
and payable upon declaration of acceleration of the maturity of the
original issue discount security or would be provable in bankruptcy;
. change the place of payment where, or the coin, currency, currencies,
currency unit or composite currency in which payment of principal,
premium, if any, or interest on any security is payable;
. impair the right to institute suit for the enforcement of any payment
on or with respect to any security;
. reduce the above stated percentage of holders of indenture securities
necessary to modify or amend the indenture or to consent to any waiver
under the indenture; or
. modify the foregoing requirements (Section 902).
The holders of at least a majority in aggregate principal amount of
outstanding indenture securities may, on behalf of all holders of outstanding
indenture securities, waive compliance by UTC with the restrictions described
in this prospectus under "--Liens" and "--Sales and Leasebacks" and some of
the restrictions described under "--Restriction on Merger and Sales of Assets"
and compliance with specified other covenants of UTC contained in the
indenture (Section 1011).
The indenture contains provisions for convening meetings of the holders of
indenture securities of a series if indenture securities of that series are
issuable as bearer securities (Section 1501). A meeting may be called at any
time by the trustee, and also, upon request, by UTC or the holders of at least
10% in principal
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amount of the indenture securities of that series outstanding. If a meeting is
called, notice must be given as provided in the indenture (Section 1502).
Except for any consent which must be given by the holder of each indenture
security affected by a modification or amendment of the indenture, as described
above, any resolution presented at a meeting or adjourned meeting at which a
quorum is present may be adopted by the affirmative vote of the holders of a
majority in principal amount of the indenture securities of that series;
provided, however, that any resolution with respect to any consent or waiver
which may be given by the holders of not less than a specified percentage in
principal amount of the indenture securities of a series may be adopted at a
meeting or adjourned meeting at which a quorum is present only by the
affirmative vote of that specified percentage in principal amount of the
indenture securities of that series; and provided further that any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which may be made, given or taken by the holders of a
specified percentage, which is less than a majority in principal amount of
indenture securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the holders of that specified percentage in principal amount of the indenture
securities of that series. Any resolution passed or decision taken at any
meeting of holders of indenture securities of any series duly held in
accordance with the indenture will be binding on all holders of indenture
securities of that series and the related coupons. The quorum at any meeting
called to adopt a resolution, and at any reconvened meeting, will be persons
holding or representing a majority in principal amount of the indenture
securities of a series. However, if any action is to be taken at the meeting
with respect to a consent or waiver which may be given by the holders of not
less than a specified percentage in principal amount of the indenture
securities of a series, the persons holding or representing that specified
percentage in principal amount of the indenture securities of the series will
constitute a quorum (Section 1504).
Events of Default
The indenture defines an "event of default" with respect to any series of
indenture securities as being any one of the following events:
. default in the payment of any interest upon any indenture security of
the series and any related coupon when due, continued for 30 days;
. default in the payment of the principal of, or premium, if any, on an
indenture security of the series at its maturity;
. default in the performance of any other covenant of UTC in the
indenture, continued for 60 days after written notice as provided in
the indenture, other than a covenant included in the indenture solely
for the benefit of series of indenture securities other than the
series in question or a covenant default the performance of which
would be covered by the fifth bullet point below;
. specified events in bankruptcy, insolvency or reorganization; and
. any other event of default provided with respect to indenture
securities of the series.
No event of default provided with respect to a particular series of indenture
securities, except as to events described in the third and fourth bullet points
above, necessarily constitutes an event of default with respect to any other
series of indenture securities (Section 501).
If an event of default described in the first, second or fifth bullet point
above with respect to indenture securities of any series at the time
outstanding occurs and is continuing, then the trustee or the holders of not
less than 25% in principal amount of the outstanding indenture securities of
that series may declare the principal amount of all of the indenture securities
of that series to be due and payable immediately, or, if the indenture
securities of that series are original issue discount securities
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or indexed securities, the trustee or the same minimum number of holders may
declare the portion of the principal amount that is specified in the terms of
that series to be due and payable immediately. If an event of default described
in the third or fourth bullet point above occurs and is continuing, then the
trustee or the holders of not less than 25% in principal amount of all the
indenture securities then outstanding may declare the principal amount of all
of the outstanding indenture securities to be due and payable immediately, or,
if any indenture securities are original issue discount securities or indexed
securities, the trustee or the same minimum number of holders may declare the
portion of the principal amount that is specified in the terms of that series
to be due and payable immediately. However, at any time after a declaration of
acceleration with respect to outstanding indenture securities of a series (or
of all outstanding indenture securities, as the case may be) has been made, but
before a judgment or decree for payment of the money has been obtained by the
trustee as provided in the indenture, the holders of a majority in principal
amount of outstanding indenture securities of that series or of all outstanding
indenture securities, as the case may be, may, subject to specified conditions,
rescind and annul the acceleration if all events of default, other than the
nonpayment of accelerated principal or specified portion of accelerated
principal, with respect to outstanding indenture securities of the series or of
all outstanding indenture securities, as the case may be, have been cured or
waived as provided in the indenture (Section 502). The indenture also provides
that the holders of not less than a majority in principal amount of the
outstanding indenture securities of a series or of all outstanding indenture
securities, as the case may be, may, subject to specified limitations, waive
any past default and its consequences (Section 513). The prospectus supplement
relating to any series of debt securities which are original issue discount
securities or indexed securities will describe the particular provisions
relating to acceleration of a portion of the principal amount of the original
issue discount securities or indexed securities upon the occurrence and
continuation of an event of default.
In case an event of default with respect to the indenture securities of a
series has occurred and is continuing, the trustee will be obligated to
exercise those rights and powers vested in it by the indenture with respect to
the series that a prudent man would exercise and to use the same degree of care
and skill in their exercise as a prudent man would use under the circumstances
in the conduct of his own affairs (Section 601).
Subject to the provisions of the indenture relating to the duties of the
trustee in case an event of default occurs and is continuing, the trustee is
under no obligation to exercise any of the rights or powers under the indenture
at the request, order or direction of any of the holders unless the holders
have offered to the trustee reasonable security or indemnity (Section 603).
Subject to these provisions for the indemnification of the trustee and
specified limitations contained in the indenture, the holders of a majority in
principal amount of the outstanding indenture securities of a series or of all
outstanding indenture securities, as the case may be, will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee, or exercising any trust or power conferred on the
trustee (Section 512).
UTC will be required to furnish to the trustee annually a statement as to
the fulfillment by UTC of all of its obligations under the indenture (Section
1004).
Governing Law
The indenture and the debt securities will be governed and construed in
accordance with the law of the State of New York.
Trustee
The trustee may resign or be removed with respect to one or more series of
indenture securities and a successor trustee may be appointed to act with
respect to the series (Section 610). If two or more persons are acting as
trustee with respect to different series of indenture securities, each trustee
will be a
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trustee of a trust under the indenture separate and apart from the trust
administered by any other trustee (Section 611), and any action described in
this prospectus to be taken by the "trustee" may then be taken by each trustee
with respect to, and only with respect to, the one or more series of indenture
securities for which it is trustee.
Listing
Unless otherwise provided in the applicable prospectus supplement or any
pricing supplement to the prospectus supplement, the debt securities will not
be listed on any securities exchange.
Foreign Currency Risks
Debt securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation, the possibility of
significant fluctuations in the foreign currency markets, the imposition or
modification of foreign exchange controls and possible illiquidity in the
secondary market. These risks will vary depending upon the currency or
currencies involved. These risks will be more fully described in the applicable
prospectus supplement.
DESCRIPTION OF DEBT WARRANTS
UTC may issue warrants for the purchase of debt securities. Debt warrants
may be issued separately or together with debt securities, currency warrants
(which are described under "Description of Currency Warrants") or stock-index
warrants (which are described under "Description of Stock-Index Warrants").
The debt warrants are to be issued under debt warrant agreements to be
entered into between UTC and one or more banks or trust companies, as debt
warrant agent, all as will be set forth in the prospectus supplement relating
to the debt warrants being offered by the prospectus supplement. A form of debt
warrant agreement, including a form of debt warrant certificate representing
the debt warrants, reflecting the alternative provisions that may be included
in the debt warrant agreements to be entered into with respect to particular
offerings of debt warrants, is incorporated by reference as an exhibit to the
registration statement. See "Where You Can Find More Information" for
information on how to obtain a copy of the form of debt warrant agreement.
The following description of the debt warrant agreements and the debt
warrant certificates and summaries of some provisions of the debt warrant
agreements and the debt warrant certificates do not describe every aspect of
the debt warrants and are subject to, and are qualified in their entirety by
reference to, all the provisions of the applicable debt warrant agreements and
the debt warrant certificates, including definitions of terms used in the debt
warrant agreements and not otherwise defined in this prospectus. For example,
in this section we use some terms that have been given special meaning in the
debt warrant agreements. We also include references in parentheses to some
sections of the debt warrant agreements. Whenever we refer to particular
sections or defined terms of the debt warrant agreements in this prospectus or
in the prospectus supplement, those sections or defined terms are incorporated
by reference here or in the prospectus supplement.
Terms of the Debt Warrants to Be Described in the Prospectus Supplement
The particular terms of each issue of debt warrants, the debt warrant
agreement relating to the debt warrants and the debt warrant certificates
representing debt warrants will be described in the applicable prospectus
supplement. This description will include:
. the initial offering price;
. the currency or currency unit in which the price for the debt warrants
is payable;
. the title, aggregate principal amount and terms of the debt securities
purchasable upon exercise of the debt warrants;
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. the title and terms of any related debt securities with which the debt
warrants are issued and the number of the debt warrants issued with
each debt security;
. the date, if any, on and after which the debt warrants and the related
debt securities will be separately transferable;
. the principal amount of debt securities purchasable upon exercise of
each debt warrant and the price at which that principal amount of debt
securities may be purchased upon exercise of each debt warrant;
. the date on which the right to exercise the debt warrants will
commence and the date on which this right will expire;
. if applicable, a discussion of United States federal income tax,
accounting or other considerations applicable to the debt warrants;
. whether the debt warrants represented by the debt warrant certificates
will be issued in registered or bearer form, and, if registered, where
they may be transferred and registered; and
. any other terms of the debt warrants.
Debt warrant certificates will be exchangeable for new debt warrant
certificates of different denominations and, if in registered form, may be
presented for registration of transfer and debt warrants may be exercised at
the corporate trust office of the debt warrant agent or any other office
indicated in the related prospectus supplement (Section 3.01). Before the
exercise of debt warrants, holders of debt warrants will not be entitled to
payments of principal, premium, if any, or interest, if any, on the debt
securities purchasable upon exercise of the debt warrants, or to enforce any of
the covenants in the indenture (Section 4.01).
Exercise of Debt Warrants
Unless otherwise provided in the related prospectus supplement, each debt
warrant will entitle the holder of debt warrants to purchase for cash the
principal amount of debt securities at the exercise price that will in each
case be set forth in, or be determinable as set forth in, the related
prospectus supplement (Sections 2.01 and 2.03). Debt warrants may be exercised
at any time up to the close of business on the expiration date specified in the
prospectus supplement relating to the debt warrants. After the close of
business on the expiration date or any later date to which the expiration date
may be extended by UTC, unexercised debt warrants will become void (Section
2.02).
Debt warrants may be exercised as set forth in the prospectus supplement
relating to the debt warrants. Upon receipt of payment and the debt warrant
certificate properly completed and duly executed at the corporate trust office
of the debt warrant agent or any other office indicated in the prospectus
supplement, UTC will, as soon as practicable, forward the debt securities
purchasable upon exercise of the debt warrants to the person entitled to them.
If fewer than all of the debt warrants represented by the debt warrant
certificate are exercised, a new debt warrant certificate will be issued for
the remaining amount of debt warrants (Section 2.03).
If you hold your interest in a debt warrant indirectly, you should check
with the institution through which you hold your interest in the debt warrant
to determine how these provisions will apply to you. See "Legal Ownership" for
a general description of the procedures and rights applicable to indirect
owners of debt warrants.
Modifications
The debt warrant agreement may be amended by UTC and the debt warrant
agent, without the consent of the holder of any debt warrant certificate, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective provision contained in the debt warrant agreement, or making any
provisions in regard to matters or questions arising under the debt warrant
agreement that UTC may deem necessary or desirable; provided that the amendment
may
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not adversely affect the interest of the holders of debt warrant certificates
in any material respect (Section 6.03). UTC and the debt warrant agent also may
modify or amend the debt warrant agreement and the terms of the debt warrants,
with the consent of the owners of not less than a majority in number of the
then outstanding unexercised debt warrants affected. However, any modification
or amendment that increases the exercise price, shortens the period of time
during which the debt warrants may be exercised or otherwise materially and
adversely affects the exercise rights of the owners of the debt warrants or
reduces the number of debt warrants the consent of whose owners is required for
modification or amendment of the debt warrant agreement or the terms of the
debt warrants may be made only with the consent of the owners affected by the
modification or amendment.
Merger, Consolidation, Sale or Other Dispositions
Under the debt warrant agreement, UTC may, to the extent permitted in the
indenture, consolidate with, or sell or convey all or substantially all of its
assets to, or merge with or into, any other corporation. If at any time there
is a merger, consolidation, sale, transfer, conveyance or other disposition of
substantially all of the assets of UTC, the successor or assuming corporation
will succeed to and be substituted for UTC, with the same effect as if it had
been named in the debt warrant agreement and in the debt warrants as UTC. UTC
will then be relieved of any further obligation under the debt warrant
agreement or under the debt warrants (Sections 6.01 and 6.02).
Enforceability of Rights; Governing Law
The debt warrant agent will act solely as an agent of UTC in connection
with the issuance and exercise of debt warrants and will not assume any
obligation or relationship of agency or trust for or with any holder of a debt
warrant certificate or any owner of a beneficial interest in debt warrants
(Section 5.02). The holders of debt warrant certificates, without the consent
of the debt warrant agent, the trustee, the holder of any debt securities
issued upon exercise of debt warrants or the holder of any other debt warrant
certificates, may, on their own behalf and for their own benefit, enforce, and
may institute and maintain any suit, action or proceeding against UTC suitable
to enforce, or otherwise in respect of, their rights to exercise debt warrants
evidenced by their debt warrant certificates (Section 4.02). Except as may
otherwise be provided in the related prospectus supplement, each issue of debt
warrants and the applicable debt warrant agreement will be governed by and
construed in accordance with the law of the State of New York (Section 6.07).
DESCRIPTION OF CURRENCY WARRANTS
UTC may issue warrants to receive from UTC the cash value in U.S. dollars
of the right to purchase or to sell the foreign currencies or units of two or
more foreign currencies that will be designated by UTC at the time of offering.
Currency warrants may be issued:
. in the form of currency put warrants, entitling their owners to
receive from UTC the currency warrant cash settlement value (as
defined under "Terms of the Currency Warrants to Be Described in the
Prospectus Supplement" below) in U.S. dollars of the right to sell a
specified foreign base currency or currency unit or units for a
specified amount of U.S. dollars;
. in the form of currency call warrants, entitling their owners to
receive from UTC the currency warrant cash settlement value in U.S.
dollars of the right to purchase a specified amount of a base currency
for a specified amount of U.S. dollars; or
. in any other form that is specified in the related prospectus
supplement.
Currency warrants may be issued separately or together with debt securities,
debt warrants or stock-index warrants.
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A currency warrant will be settled only in U.S. dollars and accordingly
will not require or entitle an owner to sell, deliver, purchase or take
delivery of any other currency or currency unit.
The currency warrants are to be issued under currency warrant agreements to
be entered into between UTC and one or more banks or trust companies, as
currency warrant agents, all as will be described in the prospectus supplement
relating to the currency warrants being offered by the prospectus supplement. A
form of currency warrant agreement, including a form of currency warrant
certificate representing the currency warrants, is incorporated by reference as
an exhibit to the registration statement. See "Where You Can Find More
Information" for information on how to obtain a copy of the form of currency
warrant agreement.
The following description of the currency warrant agreements and the
currency warrant certificates and summaries of some provisions of the currency
warrant agreements and the currency warrant certificates do not describe every
aspect of the currency warrants and are subject to, and are qualified in their
entirety by reference to, all the provisions of the applicable currency warrant
agreements and the currency warrant certificates, including definitions of
terms used in the currency warrant agreements and not otherwise defined in this
prospectus. For example, in this section we use some terms that have been given
special meaning in the currency warrant agreements. We also include references
in parentheses to some sections of the currency warrant agreements. Whenever we
refer to particular sections or defined terms of the currency warrant
agreements in this prospectus or in the prospectus supplement, those sections
or defined terms are incorporated by reference here or in the prospectus
supplement.
Terms of the Currency Warrants to Be Described in the Prospectus Supplement
The particular terms of each issue of currency warrants, the currency
warrant agreement relating to the currency warrants and the currency warrant
certificates representing the currency warrants will be described in the
applicable prospectus supplement. This description will include:
. the aggregate amount of the currency warrants;
. the initial offering price;
. whether the currency warrants shall be currency put warrants, currency
call warrants, or otherwise;
. the formula for determining the currency warrant cash settlement
value, if applicable, of each currency warrant;
. the procedures and conditions relating to the exercise of the currency
warrants;
. the circumstances which will cause the currency warrants to be deemed
to be automatically exercised;
. any minimum number of currency warrants which must be exercised at any
one time, other than upon automatic exercise;
. the date on which the right to exercise the currency warrants will
commence and the date on which the right will expire;
. the identity of the currency warrant agent;
. if applicable, a discussion of United States federal income tax,
accounting or other considerations applicable to the currency
warrants; and
. any other terms of the currency warrants.
If the currency warrants are to be offered either in the form of currency
put warrants or currency call warrants, an owner will receive a cash payment
upon exercise only if the currency warrants have a cash settlement value in
excess of zero at that time. The spot exchange rate of the applicable base
currency, as compared to the U.S. dollar upon exercise, will determine,
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together with the strike price, whether the currency warrants have a cash
settlement value on any given day prior to their expiration. The strike price
for a currency warrant will be the amount of the base currency that the holder
has the right to sell, in the case of a currency put warrant, or purchase, in
the case of a currency call warrant, in exchange for one U.S. dollar. The
currency warrants are expected to be "out-of-the-money" (i.e., the cash
settlement value will be zero) when initially sold and will be "in-the-money"
(i.e., their cash settlement value will exceed zero) if, in the case of
currency put warrants, the base currency depreciates against the U.S. dollar to
the extent that one U.S. dollar is worth more than the strike price or, in the
case of currency call warrants, the base currency appreciates against the U.S.
dollar to the extent that one U.S. dollar is worth less than the strike price.
The "exercise date" of the currency warrants will be defined in the applicable
prospectus supplement. "Cash settlement value" on an exercise date of currency
put warrants is an amount which is the greater of:
. zero; and
. an amount calculated as follows:
constant - (constant X strike price)
-----------------------
spot rate
The cash settlement value on an exercise date of currency call warrants is an
amount which is the greater of:
. zero; and
. an amount calculated as follows:
(constant X strike price) - constant
-----------------------
spot rate
The constant will be a specified fixed amount, for example, 50. The spot rate
means the spot exchange rate of the base currency for U.S. dollars on the
exercise date.
Book-Entry Procedures and Settlement
Except as may otherwise be provided in the related prospectus supplement,
each issue of currency warrants will be issued in book-entry form and
represented by a single global currency warrant certificate, registered in the
name of a depositary or its nominees. The cash settlement value on exercise of
a currency warrant will be paid by the currency warrant agent to the depositary
or to a depositary participant. See "Legal Ownership" for a further description
of book-entry issuance and other important matters relating to the currency
warrants.
Exercise of Currency Warrants
Unless otherwise provided in the related prospectus supplement, each
currency warrant will entitle the beneficial owner to the cash settlement value
of the currency warrant on the applicable exercise date, in each case as these
terms will further be defined in the related prospectus supplement (Section
2.02). If not exercised prior to 3:00 p.m., New York City time, on the fifth
business day preceding the expiration date, currency warrants will be deemed
automatically exercised on the expiration date (Section 2.03). Currency
warrants may also be deemed to be automatically exercised if they are delisted.
Procedures for exercise of the currency warrants will be set out in the related
prospectus supplement. In addition, if you hold your interest in a currency
warrant indirectly, either because it has been issued in global form or because
you otherwise hold it in street name, you should check with the institution
through which you hold your interest in the currency warrant to determine how
these provisions will apply to you. See "Legal Ownership" for a general
description of the procedures and rights that may be applicable to indirect
owners of currency warrants.
Listing
Unless otherwise provided in the related prospectus supplement, each issue
of currency warrants will be listed on a national securities exchange as
specified in the prospectus supplement, subject only to official notice of
issuance, as a pre-condition to the sale of any of the currency warrants. If
the currency warrants are delisted from, or permanently suspended from trading
on, that exchange, and,
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at or before the delisting or suspension, the currency warrants have not been
listed on another national securities exchange, currency warrants not
previously exercised will be deemed automatically exercised on the date the
delisting or permanent trading suspension becomes effective (Section 2.03). The
cash settlement value to be paid if the currency warrants are thus deemed
automatically exercised will be as described in the related prospectus
supplement. UTC will notify holders of currency warrants as soon as practicable
of the delisting or permanent trading suspension. The applicable currency
warrant agreement will contain a covenant of UTC not to seek delisting of the
currency warrants from, or permanent suspension of their trading on, the
exchange on which they are listed (Section 2.04).
Modifications
The currency warrant agreement and the terms of the currency warrants may
be amended by UTC and the currency warrant agent, without the consent of the
beneficial owners or the registered holder, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained in the currency warrant agreement and the
terms of the currency warrants, or in any other manner which UTC may deem
necessary or desirable and which will not adversely affect the interests of the
beneficial owners (Section 6.01).
UTC and the currency warrant agent also may modify or amend the currency
warrant agreement and the terms of the currency warrants with the consent of
the owners of not less than a majority in number of the then outstanding
unexercised currency warrants affected, provided that no modification or
amendment that increases the strike price in the case of a currency put
warrant, decreases the strike price in the case of a currency call warrant,
shortens the period of time during which the currency warrants may be exercised
or otherwise materially and adversely affects the exercise rights of the owners
of the currency warrants or reduces the number of outstanding currency warrants
the consent of whose owners is required for modification or amendment of the
currency warrant agreement or the terms of the currency warrants may be made
without the consent of the owners affected by the modification or amendment
(Section 6.01).
Merger, Consolidation, Sale or Other Dispositions
If at any time there is a merger, consolidation, sale, transfer, conveyance
or other disposition of substantially all of the assets of UTC, then the
successor or assuming corporation will succeed to and be substituted for UTC,
with the same effect as if it had been named in the currency warrant agreement
and in the currency warrants as UTC. UTC will then be relieved of any further
obligation under the currency warrant agreement or under the currency warrants,
and UTC as the predecessor corporation may then or at any later time be
dissolved, wound up or liquidated (Section 3.02).
Enforceability of Rights by Owners; Governing Law
The currency warrant agent will act solely as an agent of UTC in connection
with the issuance and exercise of currency warrants and will not assume any
obligation or relationship of agency or trust for or with any owner of a
beneficial interest in currency warrants or with the registered holder of the
currency warrants (Section 5.02). The currency warrant agent will have no duty
or responsibility in case of any default by UTC in the performance of its
obligations under the currency warrant agreement or currency warrant
certificate including, without limitation, any duty or responsibility to
initiate any proceedings at law or otherwise or to make any demand upon UTC
(Section 5.02). Owners may, without the consent of the currency warrant agent,
enforce by appropriate legal action, on their own behalf, their right to
exercise, and to receive payment for, their currency warrants (Section 3.01).
Except as may otherwise be provided in the applicable prospectus
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supplement, each issue of currency warrants and the applicable currency warrant
agreement will be governed by and construed in accordance with the law of the
State of New York (Section 6.05).
Risk Factors Relating to the Currency Warrants
The currency warrants may entail significant risks. These risks include,
without limitation, the possibility of significant fluctuations in the foreign
currency markets, the imposition or modification of foreign exchange controls,
possible illiquidity in the secondary market and the risk that the currency
warrants will expire worthless. These risks will vary depending on the
particular terms of the currency warrants and will be more fully described in
the related prospectus supplement.
DESCRIPTION OF STOCK-INDEX WARRANTS
UTC may issue warrants entitling the owners of the warrants to receive,
upon exercise, an amount in cash determined by reference to decreases or
increases in the level of a specified stock index which may be based on one or
more U.S. or foreign stocks or a combination of U.S. or foreign stocks. Stock-
index warrants may be issued:
. in the form of stock-index put warrants, entitling their owners to
receive from UTC the stock-index cash settlement value in cash in U.S.
dollars, which amount will be determined by reference to the amount,
if any, by which the exercise price exceeds the index value at the
time of exercise; and
. in the form of stock-index call warrants, entitling their owners to
receive from UTC the stock-index cash settlement value in cash in U.S.
dollars, which amount will be determined by reference to the amount,
if any, by which the index value at the time of exercise exceeds the
exercise price.
The "stock-index cash settlement value", the "exercise price" and the "index
value" will be defined in the applicable prospectus supplement. Stock-index
warrants may be issued separately or together with debt securities, debt
warrants or currency warrants.
The prospectus supplement for an issue of stock-index warrants will set
forth the formula by which the stock-index cash settlement value will be
determined, including any multipliers, if applicable. In addition, if so
specified in the related prospectus supplement, following the occurrence of a
market disruption event (as defined in the prospectus supplement), the stock-
index cash settlement value may be determined on a different basis than upon
normal exercise of a stock-index warrant. Unless otherwise indicated in the
related prospectus supplement, a stock-index warrant will be settled only in
cash in U.S. dollars, which is the only permissible method of settlement under
exchange rules currently approved by the SEC. Accordingly, a stock-index
warrant will not require or entitle an owner to sell, deliver, purchase or take
delivery of any shares of any underlying stock or any other securities. The
owners will not be entitled to any of the rights of the holders of any
underlying stock.
The stock-index warrants are to be issued under stock-index warrant
agreements to be entered into between UTC and one or more banks or trust
companies, as stock-index warrant agents, all as will be described in the
prospectus supplement relating to the stock-index warrants being offered by the
prospectus supplement. A form of stock-index warrant agreement, including a
form of stock-index warrant certificate, is incorporated by reference as an
exhibit to the registration statement. See "Where You Can Find More
Information" for information on how to obtain a copy of the form of stock-index
warrant agreement.
The following description of the stock-index warrant agreements and the
stock-index warrant certificates and summaries of some provisions of the stock-
index warrants and the stock-index warrant certificates do not describe every
aspect of the stock-index warrants and
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are subject to, and are qualified in their entirety by reference to, all of the
provisions of the applicable stock-index warrant agreements and the stock-index
warrant certificates, including definitions of terms used in the stock-index
warrant agreements and not otherwise defined in this prospectus. For example,
in this section we use some terms that have been given special meaning in the
stock-index warrant agreements. We also include references in parentheses to
some sections of the stock-index warrant agreements. Whenever we refer to
particular sections or defined terms of the stock-index warrant agreements in
this prospectus or in the prospectus supplement, those sections or defined
terms are incorporated by reference here or in the prospectus supplement.
Terms of the Stock-Index Warrants to Be Described in the Prospectus Supplement
The particular terms of each issue of stock-index warrants, the stock-index
warrant agreement relating to the stock-index warrants and the stock-index
warrant certificate representing the stock-index warrants will be described in
the applicable prospectus supplement. This description will include:
. the aggregate amount of the stock-index warrants;
. the initial offering price of the stock-index warrants;
. the stock index for the stock-index warrants, which may be based on
one or more U.S. or foreign stocks or a combination of U.S. or foreign
stocks and may be a preexisting U.S. or foreign stock index compiled
and published by a third party or an index based on one or more
underlying stock or stocks selected by UTC solely in connection with
the issuance of the stock-index warrants, and specified information
regarding the stock index and the underlying stock or stocks;
. whether the stock-index warrants are puts, calls or otherwise;
. the date on which the right to exercise the stock-index warrants
commences and the date on which this right expires;
. the manner in which the stock-index warrants may be exercised;
. the minimum number, if any, of the stock-index warrants exercisable at
any one time;
. the maximum number, if any, of the stock-index warrants that may,
subject to UTC's election, be exercised by all owners (or by any
person or entity) on any day;
. any provisions for the automatic exercise of the stock-index warrants
other than at expiration;
. the method of providing for a substitute index or otherwise
determining the amount payable in connection with the exercise of the
stock-index warrants if the stock index changes or ceases to be made
available by its publisher, which determination will be made by an
independent expert;
. if applicable, a discussion of United States federal income tax,
accounting or other considerations applicable to the stock-index
warrants;
. any provisions permitting an owner to condition an exercise notice on
the absence of specified changes in the index value after the exercise
date; and
. any other terms of the stock-index warrants.
Book-Entry Procedures and Settlement
Except as may otherwise be provided in the related prospectus supplement,
each issue of stock-index warrants will be issued in book-entry form and
represented by a single global stock-index warrant certificate, registered in
the name of a depositary or its nominees. The
28
<PAGE>
stock-index cash settlement value will be paid by the stock-index warrant agent
to the depositary or to a depositary participant. See "Legal Ownership" for a
further description of book-entry issuance and other important matters relating
to the stock-index warrants.
Exercise of Stock-Index Warrants
Unless otherwise provided in the related prospectus supplement, each stock-
index warrant will entitle the owner to the stock-index cash settlement value
of the stock-index warrant on the applicable valuation date, in each case as
these terms will further be defined in the related prospectus supplement
(Section 2.02). If not exercised prior to 3:00 p.m., New York City time, on the
stock-index warrant expiration date, stock-index warrants will be deemed
automatically exercised on the stock-index warrant expiration date (Section
2.03). Procedures for exercise of the stock-index warrants will be described in
the related prospectus supplement. In addition, if you hold your interest in a
stock-index warrant indirectly, either because it has been issued in global
form or because you otherwise hold it in street name, you should check with the
institution through which you hold your interest in the stock-index warrant to
determine how these provisions will apply to you. See "Legal Ownership" for a
general description of the procedures and rights applicable to indirect holders
of stock-index warrants.
Listing
Unless otherwise provided in the related prospectus supplement, each issue
of stock-index warrants will be listed on a national securities exchange, as
specified in the related prospectus supplement, subject only to official notice
of issuance, as a pre-condition to the sale of any of the stock-index warrants.
It may be necessary in certain circumstances for that national securities
exchange to obtain the approval of the SEC in connection with any listing of
the stock-index warrants. If the stock-index warrants are delisted from, or
permanently suspended from trading on, the exchange, and, at or before the
delisting or suspension, the stock-index warrants have not been listed on
another national securities exchange, stock-index warrants not previously
exercised will be deemed automatically exercised on the date the delisting or
permanent trading suspension becomes effective (Section 2.03). The stock-index
cash settlement value to be paid if the stock-index warrants are then deemed
automatically exercised will be described in the related prospectus supplement.
UTC will notify holders of stock-index warrants as soon as practicable of the
delisting or permanent trading suspension. The applicable stock-index warrant
agreement will contain a covenant of UTC not to seek delisting of the stock-
index warrants from, or permanent suspension of their trading on the exchange
on which they are listed (Section 2.05).
Modifications
The stock-index warrant agreement and the terms of the stock-index warrants
may be amended by UTC and the stock-index warrant agent, without the consent of
the beneficial owners or the registered holder, for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained in the stock-index warrant agreement and the
terms of the stock-index warrants, or in any other manner which UTC may deem
necessary or desirable and which will not adversely affect the interests of the
owners (Section 6.01).
UTC and the stock-index warrant agent also may modify or amend the stock-
index warrant agreement and the terms of the stock-index warrants, with the
consent of the owners of not less than a majority in number of the then
outstanding unexercised stock-index warrants affected, provided that no such
modification or amendment that increases the exercise price in the case of a
stock-index call warrant, decreases the exercise price in the case of a stock-
index put warrant, shortens the period of time during which the stock-index
warrants may be exercised or otherwise materially and adversely affects the
exercise rights of the owners of the stock-index warrants or reduces the number
of outstanding stock-index warrants the consent of whose owners is
29
<PAGE>
required for modification or amendment of the stock-index warrant agreement or
the terms of the stock-index warrants may be made without the consent of the
owners affected by the modification or amendment (Section 6.01).
Merger, Consolidation, Sale or Other Dispositions
If at any time there is a merger, consolidation, sale, transfer, conveyance
or other disposition of substantially all of the assets of UTC, then the
successor or assuming corporation will succeed to and be substituted for UTC,
with the same effect as if it had been named in the stock-index warrant
agreement and in the stock-index warrants as UTC. UTC will then be relieved of
any further obligation under the stock-index warrant agreement or under the
stock-index warrants, and UTC as the predecessor corporation may then or at any
later time be dissolved, wound up or liquidated (Section 3.02).
Enforceability of Rights by Owners; Governing Law
The stock-index warrant agent will act solely as an agent of UTC in
connection with the issuance and exercise of stock-index warrants and will not
assume any obligation or relationship of agency or trust for or with any owner
of a beneficial interest in stock-index warrants or with the registered holder
of the stock-index warrants (Section 5.02). The stock-index warrant agent will
have no duty or responsibility in case of any default by UTC in the performance
of its obligations under the stock-index warrant agreement or stock-index
warrant certificate including, without limitation, any duty or responsibility
to initiate any proceedings at law or otherwise or to make any demand upon UTC
(Section 5.02). Owners may, without the consent of the stock-index warrant
agent, enforce by appropriate legal action, on their own behalf, their right to
exercise, and to receive payment for, their stock-index warrants (Section
3.01). Except as may otherwise be provided in the applicable prospectus
supplement, each issue of stock-index warrants and the applicable stock-index
warrant agreement will be governed by and construed in accordance with the law
of the State of New York (Section 6.05).
Risk Factors Relating to the Stock-Index Warrants
The stock-index warrants may entail significant risks. These risks include,
without limitation, the possibility of significant fluctuations in the
applicable stock index, possible illiquidity in the secondary market and the
risk that the stock-index warrants will expire worthless. These risks will vary
depending on the particular terms of the stock-index warrants and will be more
fully described in the related prospectus supplement.
PLAN OF DISTRIBUTION
UTC may sell the securities described in this prospectus through agents,
underwriters or dealers, or directly to a limited number of institutional
purchasers or to a single purchaser.
The accompanying prospectus supplement will identify or describe:
. any underwriters, dealers or agents;
. their compensation;
. the net proceeds to UTC;
. the purchase price of the securities;
. the initial public offering price of the securities; and
. any exchange on which the securities are listed.
Agents
UTC may designate agents to solicit purchases for the period of their
appointment to sell securities on a continuing basis. Unless otherwise
indicated in the related prospectus supplement, any agent will be acting on a
reasonable best efforts basis for the period of its appointment.
30
<PAGE>
Underwriters
If UTC uses underwriters for a sale of securities, the securities will be
acquired by the underwriters for their own account. The underwriters may resell
the securities in one or more transactions, including negotiated transactions
at a fixed public offering price or at varying prices determined at the time of
sale. Unless otherwise set forth in the related prospectus supplement, the
obligations of the underwriters to purchase the securities will be subject to
customary conditions and the underwriters will be obligated to purchase all the
securities of the series offered if any of the securities of that series are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Direct Sales
UTC may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers, and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act of 1933, as
amended, and any discounts or commissions they receive from UTC and any profit
on their resale of the securities may be treated as underwriting discounts and
commissions under the Securities Act. UTC may have agreements with the
underwriters, dealers and agents to indemnify them against specified civil
liabilities, including liabilities under the Securities Act, or to contribute
to payments they may be required to make in respect of these liabilities.
Underwriters, dealers and agents may engage in transactions with or perform
services for UTC or its subsidiaries in the ordinary course of their
businesses.
VALIDITY OF THE SECURITIES
The validity of the securities described in this prospectus will be passed
upon for UTC by Cleary, Gottlieb, Steen & Hamilton, New York, New York and for
any underwriters or agents, as the case may be, by Sullivan & Cromwell, New
York, New York.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K of United Technologies Corporation
for the year ended December 31, 1998 have been so incorporated in reliance on
the report of Pricewaterhouse- Coopers LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-800-
SEC-0330 for further information on the public reference rooms.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities.
. Annual Report on Form 10-K for the year ended December 31, 1998.
. Current Report on Form 8-K filed with the SEC on February 23, 1999.
31
<PAGE>
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
William H. Trachsel
Senior Vice President, General Counsel and Secretary
United Technologies Corporation
Hartford, Connecticut 06101
(860) 728-7000
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these debt securities and warrants in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
32
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
Filing Fee for Registration Statement............................ $147,048
Legal Fees and Expenses.......................................... 200,000*
Accounting Fees and Expenses..................................... 55,000*
Trustee's Fees and Expenses (including counsel fees)............. 10,000*
Blue Sky Fees and Expenses....................................... 1,500*
Printing and Engraving Fees...................................... 25,000*
Rating Agency Fees............................................... 81,800*
Miscellaneous.................................................... 20,000*
--------
Total.......................................................... $540,348*
========
</TABLE>
- --------
* Estimated.
Item 15. Indemnification of Directors and Officers.
Section 6.5 of UTC's Bylaws requires UTC to indemnify, to the full extent
permitted from time to time under the General Corporation Law of the State of
Delaware, each person who is made or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that such person is or was a director or officer of UTC.
Section 145 of the Delaware General Corporation Law permits a Delaware
corporation to indemnify any person who is or was a party to any actual or
threatened legal action, whether criminal, civil, administrative or
investigative, by reason of the fact that the person is or was an officer,
director or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer or agent of another corporation,
partnership or other enterprise, against expenses (including attorney's fees),
judgments, fines and settlement payments reasonably and actually incurred by
him or her in connection with such proceeding, if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe was unlawful, except that, with
respect to any legal action by or in the right of the corporation itself, an
officer, director or agent of the corporation is entitled to indemnification
only for expenses (including attorney's fees) reasonably and actually incurred,
and is not entitled to indemnification in respect of any claim, issue or matter
as to which he or she is found liable to the corporation, unless the court
determines otherwise.
As authorized by a resolution of the Board of Directors, UTC has purchased
and maintains at its expense on behalf of directors, officers and managerial
employees insurance, within certain limits, covering liabilities which may be
incurred by them in such capacities.
Reference is made to the form of Underwriting Agreement incorporated by
reference as Exhibit 1 hereto for a description of indemnification arrangements
for offerings of debt securities or warrants pursuant thereto.
Article Ten of the Restated Certificate of Incorporation of UTC provides
that a director of UTC shall not be personally liable to UTC or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
UTC or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law for payment of unlawful
dividends or unlawful stock repurchases or redemption, or (iv) for any
transaction from which the director derived an improper personal benefit.
II-1
<PAGE>
Item 16. Exhibits.
<TABLE>
<C> <S>
1 --Form of Underwriting Agreement.
4(a) --Indenture, dated as of April 1, 1990, between UTC and The
Connecticut National Bank, Trustee.
4(b) --Form of Notes (incorporated by reference to Exhibit 4(b) to UTC's
Registration Statement on Form S-3, File No. 33-40163, filed with
the Commission on April 25, 1991).
4(c) --Form of Debt Warrant Agreement between UTC and the Debt Warrant
Agent, including a form of Debt Warrant Certificate (incorporated by
reference to Exhibit 4(c) to UTC's Registration Statement on Form S-
3, File No. 33-40163, filed with the Commission on April 25, 1991).
4(d) --Form of Currency Warrant Agreement between UTC and the Currency
Warrant Agent, including a form of Currency Warrant Certificate
(incorporated by reference to Exhibit 4(d) to UTC's Registration
Statement on Form S-3, File No. 33-40163, filed with the Commission
on April 25, 1991).
4(e) --Form of Stock-Index Warrant Agreement between UTC and the Stock-
Index Warrant Agent, including a form of Stock-Index Warrant
Certificate (incorporated by reference to Exhibit 4(e) to UTC's
Registration Statement on Form S-3, File No. 33-40163, filed with
the Commission on April 25, 1991).
5 --Opinion of Cleary, Gottlieb, Steen & Hamilton as to the validity of
the Securities.
12 --Computation of Ratio of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12 to UTC's Annual Report on Form 10-K, File
No. 1-812, for the fiscal year ended December 31, 1998).
23(a) --Consent of PricewaterhouseCoopers LLP.
23(b) --Consent of Cleary, Gottlieb, Steen & Hamilton (contained in their
opinion filed as Exhibit 5 to this Registration Statement).
24 --Powers of Attorney.
25 --Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of State Street Bank and Trust Company, as
successor to The Connecticut National Bank.
</TABLE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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; and
(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;
II-2
<PAGE>
provided, however, that paragraphs (i) and (ii) above 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.
The undersigned 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.
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 of whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this registration
statement and post-effective amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hartford, State of
Connecticut, on the 10th day of March, 1999.
United Technologies Corporation
/s/ David J. FitzPatrick
By: _________________________________
David J. FitzPatrick
Senior Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement and post-effective amendment has been signed below by
the following persons in the capacities indicated, on the 10th day of March,
1999.
<TABLE>
<CAPTION>
Signatures Title
---------- -----
<S> <C>
* Chairman, Director, President and Chief
______________________________________ Executive Officer
(George David)
/s/ David J. FitzPatrick Senior Vice President and Chief Financial
______________________________________ Officer
(David J. FitzPatrick)
/s/ Jay L. Haberland Vice President--Controller
______________________________________
</TABLE> (Jay L. Haberland)
<TABLE>
<S> <C>
*
______________________________________
(Antonia Handler Chayes)
*
______________________________________
(Charles W. Duncan, Jr.)
*
______________________________________
(Jean-Pierre Garnier)
*
______________________________________
(Pehr G. Gyllenhammar)
* Director
______________________________________
(Karl J. Krapek)
*
______________________________________
(Charles R. Lee)
*
______________________________________
(Robert H. Malott)
______________________________________
(Richard D. McCormick)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Signatures Title
---------- -----
<S> <C>
*
______________________________________
(William J. Perry)
*
______________________________________
</TABLE> (Frank P. Popoff)
<TABLE>
<S> <C>
*
______________________________________
(Andre Villeneuve)
* Director
______________________________________
(Harold A. Wagner)
*
______________________________________
(Jacqueline G. Wexler)
</TABLE>
/s/ William H. Trachsel
*By _____________________________
(Attorney-in-Fact)
II-5
<PAGE>
Exhibit 1
United Technologies Corporation
Debt Securities, Debt Warrants,
Currency Warrants and Stock-Index Warrants
UNDERWRITING AGREEMENT
----------------------
[Date]
To the [Underwriters named in Schedule 1]
[Representative[s] named in Schedule I
of the Underwriters named in Schedule I]
Dear Sirs:
United Technologies Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time (i) certain of its debt securities
("Debt Securities") and/or (ii) warrants to purchase Debt Securities ("Debt
Warrants" and the Debt Securities issuable upon exercise of Debt Warrants,
"Warrant Securities") and/or (iii) warrants to receive from the Company the cash
value in U.S. dollars of the right to purchase or sell foreign currencies or
units of two or more currencies ("Currency Warrants") and/or (iv) warrants
entitling the holders thereof to receive, upon exercise, an amount in cash
determined by reference to increases or decreases in the level of a specified
stock Index which may be based on U.S. or foreign stocks or combination thereof
("Stock-Index Warrants"), registered under the registration statement or
statements referred to in Section 1(a) (together, the "Securities"). The Debt
Securities will be issued under an Indenture, dated as of April 1, 1990, as
modified by the Trust Indenture Reform Act of 1990 (the "Indenture"), between
the Company and The Connecticut National Bank, Trustee, and the Debt Warrants,
the Currency Warrants and the Stock-Index Warrants will be issued under one or
more separate warrant agreements (each a "Warrant Agreement") between the
Company and one or more separate institutions, as warrant agent, each as
identified in the separate Warrant Agreement respecting the Debt Warrants, the
Currency Warrants or the Stock-index Warrants covered thereby (each a "Warrant
Agent"). The particular terms of any Issuance of Securities will be determined
at the time of offering. Debt Securities, Debt Warrants, Currency Warrants and
Stock-Index Warrants may be offered together or separately, and it offered
together, the Debt Warrants, Currency Warrants and Stock-Index Warrants my
detach from the Debt Securities after the time of offering. The Company intends
to enter into one or more Pricing Agreements (each a "Pricing Agreement" and
together the "Pricing Agreements") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) the particular Securities specified in Schedule II
to such Pricing Agreement (with respect to each such Pricing Agreement, the
"Designated Securities"). Each Pricing Agreement shall constitute an agreement
by the Company and the Underwriters to be bound by all of the provisions of this
Underwriting Agreement.
1. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, the Underwriters with respect to each offering of
Designated Securities that:
(a) One or more registration statements on Form S-3 in respect of the
Securities have been filed with the Securities and Exchange Commission (the
"Commission") and have become effective. Each such registration statement
(including the material incorporated therein by reference and all exhibits
thereto but excluding the Form T-1), as amended at the time of any Pricing
Agreement is hereinafter referred to, with respect to the transaction
<PAGE>
contemplated by such Pricing Agreement, as a "Registration Statement" and
collectively such registration statements are referred to as the
"Registration Statements". The prospectus then forming a part of the
Registration Statements or deemed to meet the requirements thereof (including
the material incorporated therein by reference), as then amended, and as
supplemented to reflect the terms of the Designated Securities and the terms
of offering thereof, and any other material reflected in such supplement, in
the form in which it is first filed, or mailed for filing with the Commission
pursuant to Rule 424 of the Securities Act of 1933, as amended (the "Act"),
including any documents incorporated by reference therein as of the date of
such filing or mailing, is hereinafter referred to as the "Prospectus" and
such supplement Is hereinafter referred to as the "Supplement".
(b) On its effective date and on the effective date of the most recent
post-effective amendment thereto, each registration statement relating to the
Securities (including the material Incorporated therein by reference)
conformed in all material respects with the requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission (the "Rules and Regulations"), and
did not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, on the date of each Pricing Agreement
and each time each Registration Statement is amended, each Registration
Statement as then amended, and, each time the Prospectus is amended, on the
date of each supplement thereto and on the date of the Supplement, the
Prospectus as then amended or supplemented, will conform in all material
respects with the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations and will not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, except that the
foregoing does not apply to statements in or omissions from any such
documents based upon information furnished to the Company in writing by any
Underwriter expressly for use therein.
2. Purchase and Offering. (a) Particular sales of Designated Securities may
be made from time to time to the Underwriters of such Securities for whom the
firm or firms designated as representatives of the Underwriters of such
Securities in the Pricing Agreement relating thereto will act as
representatives, which may include all such Underwriters in the absence of a
syndicate (the "Representatives"). This Underwriting Agreement, alone, shall
not be construed as an obligation of the Company to sell any of the Securities
or as an obligation of any Underwriters to purchase any of the Securities. Such
obligation shall come into existence only upon execution, by the Company and the
Representatives named therein, of the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the firms which will be Underwriters and their Representatives, the principal
amount and/or the number of the Securities to be purchased by each Underwriter,
the purchase price to be paid by the Underwriters, the initial public offering
price, the terms of the Designated Securities not already specified in the
Indenture, including, but not limited to, as applicable, currency in which
denominated and/or payable, interest rate, maturity, redemption provisions and
sinking fund requirements (if any), or not already specified in the Warrant
Agreement and whether any of the Designated Securities may be sold pursuant to
Delayed Delivery Contracts ("Delayed Delivery Contracts"). Each Pricing
Agreement shall also specify the date, time and manner of delivery and payment
for the Designated Securities. A Pricing Agreement shall be In the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of
<PAGE>
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
(b) Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such Designated
Securities for sale upon the terms and conditions set forth in the Supplement
relating to such Designated Securities.
(c) Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form to the extent practicable
(unless otherwise provided in the Pricing Agreement), and in such authorized
denominations and, if applicable, registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by certified or
official bank check or checks or otherwise as specified in such Pricing
Agreement, payable to the order of the Company in the funds specified in such
Pricing Agreement, all at the place and time and date specified in such Pricing
Agreement with respect to Designated Securities not being sold pursuant to
Delayed Delivery Contracts, or at such other place and time and date as the
Representatives and the Company may agree upon in writing, such time and date
being herein called the "Time of Delivery" for such Designated Securities.
3. Covenants of the Company. In connection with each offering of Designated
Securities, the Company covenants and agrees with the Underwriters:
(a) To make no further amendment or any supplement to any Registration
Statement or Prospectus after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be reasonably disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof and to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a) or (c), 14
or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") for so
long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to advise
the Representatives, promptly after it receives notice thereof, (i) of the
time when any amendment to any Registration Statement has become effective or
any supplement to the Prospectus or any amended Prospectus has been filed,
(ii) of the Issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Prospectus, (iii) of the suspension
of the qualification of such Securities for offering or sale in any
jurisdiction, (iv) of the initiation or threatening of any proceeding for any
such purpose, or (v) of any request by the Commission for the amending or
supplementing of any Registration Statement or Prospectus or for additional
information; and in the event of the Issuance of any such stop order or of
any such order preventing or suspending the use of any Prospectus or
suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal.
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities for offering and sale under
the securities laws of such jurisdictions as the Representatives may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as
<PAGE>
may be necessary to complete the distribution of such Securities, provided
that in connection therewith the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of process in
any jurisdiction.
(c) To furnish the Underwriters with copies of the Prospectus in such
quantities as the Representatives may from time to time reasonably request,
and, if the delivery of a prospectus is required at any time prior to the
expiration of nine months after the date of the Pricing Agreement in
connection with the offering or sale of such Securities and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus Is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Trust
Indenture Act, to notify the Representatives and upon their request to file
such document and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as the Representatives may
from time to time reasonably request of an amended Prospectus or a supplement
to the Prospectus which will correct such statement or omission or effect
such compliance.
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the date
of each Pricing Agreement, an earnings statement of the Company and its
consolidated subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the Rule and Regulations of the Commission thereunder
(including, at the option of the Company, Rule 158 of the Act).
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier of
(i) the termination of trading restrictions on such Designated Securities, of
which termination the Representatives agree to give the Company prompt notice
confirmed in writing, and (ii) the Time of Delivery for such Designated
Securities, not to offer, sell, contract to sell or otherwise dispose of any
debt securities, and, if the Designated Securities include Debt Warrants,
debt warrants to purchase debt securities, of the Company which mature more
than one year after such Time of Delivery and which are substantially similar
to such Designated Securities, and, if the Designated Securities include
Currency Warrants or Stock-Index Warrants, currency warrants which are
substantially similar to the Currency Warrants or stock-index warrants which
are substantially similar to the Stock-Index Warrants, respectively, in all
cases without the prior written consent of the Representatives, except
pursuant to arrangements of which the Representatives have been advised by
the Company prior to the time of execution of such Pricing Agreement, which
advice is confirmed in writing to the Representatives by the end of the
business day following the date of such Pricing Agreement.
(f) To pay all expenses incident to the performance of the Company's
obligations under this Agreement, and to reimburse the Underwriters for any
expenses (including fees and disbursements of counsel) incurred in connection
with qualifications of the Designated Securities for sale and determination
of their eligibility for investment under the laws of such jurisdictions as
the Representatives designate and the printing of memoranda relating thereto
and for any fees charged by investment rating agencies for rating of the
Designated Securities.
<PAGE>
4. Conditions. The obligations of the Underwriters of any Designated
Securities hereunder shall be subject, in the discretion of the Representatives,
to the accuracy of the representations and warranties on the part of the Company
herein, to the performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statements shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission.
(b) Counsel for the Underwriters, Sullivan & Cromwell, shall have
furnished to the Representatives an opinion or opinions, dated the Time of
Delivery of such Designated Securities, as to the incorporation of the
Company, the Designated Securities (including any Warrant Securities), the
Indenture and any Warrant Agreement, the Registration Statements and
Prospectus (and any amendments or supplements thereto) and such other matters
as the Representatives may reasonably request, in form and substance
reasonably satisfactory to them.
(c) Counsel for the company, Cleary, Gottlieb, Steen & Hamilton, shall
have furnished to the Representatives an opinion, dated the Time of Delivery
of such Designated Securities, to the effect set forth in Exhibit A hereto.
(d) The independent accountants of the Company who have certified the
consolidated financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statements shall
have furnished to the Representatives a letter or letters, dated the Time of
Delivery of such Designated Securities, in form and substance satisfactory to
the Representatives, to the effect set forth in Exhibit B hereto, and as to
such other matters as the Representatives and the Company may have agreed
upon at or prior to the execution of the Pricing Agreement.
(e) Since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the financial position,
shareowners' equity, results of operations, business, operations or
properties of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus, the effect of which is, when viewed in
relation to the Company and its subsidiaries taken as a whole, in the
reasonable judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus.
(f) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities, no downgrading shall have occurred in the rating
accorded to the Company's senior debt securities by Moody's Investors
Service, Inc. or Standard & Poor's Corporation.
(g) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities, there shall not have occurred any of the following:
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities, or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis if the effect of any
such event described in this clause (iii) on the financial markets of the
United States, in the reasonable judgment of the
<PAGE>
Representatives, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus.
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities
certificates of officers of the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as the Representatives
may reasonably request.
(i) If the Designated Securities include Currency Warrants or Stock-Index
Warrants, such warrants shall have been duly listed, subject to notice of
issuance, on a "national securities exchange" as such term is defined in the
Securities Exchange Act of 1934, as amended.
5. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, the Prospectus or any amendment or supplement thereto,
or any related preliminary prospectus supplement (or contained in any
Registration Statement after it first become effective but prior to the Pricing
Agreement or in any prospectus forming a part thereof during such period), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter, directly or through the
Representatives, expressly for use therein; and provided, further, that the
Company shall not be liable to any Underwriter under the indemnity agreement in
this subsection (a) to the extent that any such loss, claim, damage or liability
of such Underwriter results from the fact that such Underwriter sold Securities
to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus or the Prospectus as then
amended or supplemented (excluding documents incorporated by reference) in any
case where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in the Prospectus, any such amendment or
supplement thereto or any such other document was corrected in the Prospectus or
the Prospectus as then amended or supplemented if the Company has furnished
prior to such confirmation sufficient copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, the Prospectus or any amendment or supplement thereto,
or any related preliminary prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or
<PAGE>
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter, directly or through the Representatives, expressly for use therein;
and will reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of any claim or of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing thereof. The omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party,
provided that, in the case of any such omission relating to the commencement of
an action, such omission shall relieve the indemnifying party of liability under
such subsection, in case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified party,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it or
other indemnified parties, or both, which are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party or its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under such subsection for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof (other than reasonable costs of investigation conducted
at the request of such indemnifying party) unless (i) the indemnified party
shall have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by such indemnifying party,
representing the indemnified parties under such subsection who are parties to
such action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 5 shall be
unavailable to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as in appropriate to reflect the relative benefits received
by the Company on
<PAGE>
the one hand and the Underwriters on the other from the offering of the
Designated Securities and also the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other in connection with the offering of the Designated Securities shall
be deemed to be in the same proportion as the total net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
bears to the total underwriting discounts and commissions received by the
Underwriters in respect thereof, in each case as set forth on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the indemnified party failed to give the notice required
under subsection (c) above, including the consequences of such failure, and
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, of the Company on the one hand and the
Underwriters, directly or through the Representatives, on the other hand. With
respect to any Underwriter, such relative fault shall also be determined by
reference to the extent (if any) to which such losses, claims, damages or
liabilities (or actions in respect thereof) result from the fact that such
Underwriter sold Securities to a person to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus or
the Prospectus as then amended or supplemented (excluding documents incorporated
by reference) if the Company has furnished prior to such confirmation copies
thereof to such Underwriter.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined by
per-capita allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the applicable Designated
Securities, underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 5 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act, and the obligations of the Underwriters under
this Section 5 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each director of the Company, to each officer of the Company who
signs the Registration Statement and to each person, if any, who controls the
Company within the meaning of the Act.
6. Default of Underwriters. (a) If any Underwriter shall default in its
obligation to purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
<PAGE>
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representatives notify
the Company that they have so arranged for the purchase of such Designated
Securities, or the Company notifies the Representatives that it has so arranged
for the purchase of such Designated Securities, the Representatives or the
Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statements or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statements or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used in
the Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing Agreement
with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives or the Company, or both, as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default. As used in this subsection (b) and in subsection (c) below of this
Section 6, the "aggregate principal amount" of Designated Securities shall mean
the aggregate principal amount of the Designated Securities that are Debt
Securities plus the public offering price, if any, of any Debt Warrants,
Currency Warrants or Stock-Index Warrants included in the Designated Securities.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives or the Company, or both, as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or Underwriters, then the
Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the party of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters provided in Section 3(f) hereof and the indemnity and contribution
agreements in Section 5 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
7. Survival of Indemnities, Representations, Etc. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and the several Underwriters, as set forth in this Agreement or made by
or on behalf of them, respectively, pursuant to this Agreement, shall remain in
full force and effect, regardless of any investigation (or any statement
<PAGE>
as to the results thereof) made by or on behalf of any Underwriter or any
controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Securities.
8. Reimbursement of Underwriters' Expenses. If any Pricing Agreement shall
be terminated pursuant to Section 6 hereof or if the Designated Securities are
not delivered by or on behalf of the Company because of any of the events
referred to in Section 4(g), then the Company shall not then be under any
liability to any Underwriter with respect to Designated Securities covered by
such Pricing Agreement except as provided in Section 3(f) and Section 5 hereof;
but, if for any other reason Designated Securities are not delivered by or on
behalf of the Company as provided herein, the Company will reimburse the
Underwriters through the Representatives for all out-of-pocket expenses approved
in writing by the Representatives, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of such Designated Securities, but the Company shall then be
under no further liability to any Underwriter with respect to such Designated
Securities except as provided in Section 3(f) and Section 5 hereof.
9. Representatives; Notices. In all dealings hereunder, the Representatives
of the Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice, waiver or agreement on behalf of any Underwriter
made or given by such Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing or by telegram if promptly confirmed in writing and if to the
Underwriters shall be sufficient in all respects, if delivered or sent by
registered mail to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be sufficient in all respects if
delivered or sent by registered mail to the address of the Company set forth in
the Registration Statement: Attention: Secretary; provided, however, that any
notice to any Underwriter pursuant to Section 5(c) hereof shall be delivered or
sent by registered mail to such Underwriter at its address set forth in the
applicable Pricing Agreement or, if not so set forth, in its Underwriters'
Questionnaire delivered to the Company.
10. Binding Effect; Successors. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of, the Underwriters, the
Company and, to the extent provided in Section 5 and Section 7 hereof, the
officers and directors of the Company and each person who controls the Company
or any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No purchaser
of any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
11. Applicable Law. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
12. Counterparts. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof.
<PAGE>
Very truly yours,
United Technologies Corporation
By:
Title:
Accepted as of the date first above written:
[Insert signature block[s] for the
Representative[s], acting on behalf of the
Underwriters, or for each Underwriter if no
syndicate]
<PAGE>
EXHIBIT A
Matters to be Covered by Opinion of
Counsel for the Company
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority under the laws of such State to own its properties
and conduct its business as described in the Prospectus;
(ii) This Agreement and the Pricing Agreement with respect to the Designated
Securities and any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company;
(iii) The Designated Securities [(other than [the Designated Securities to
be delivered pursuant to Delayed Delivery Contracts] [and][the Warrant
Securities])] have been duly authorized, executed, authenticated, issued and
delivered to the Underwriters and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture
[and the Warrant Agreement[s]]; [the Designated Securities to be sold pursuant
to Delayed Delivery Contracts have been duly authorized and executed and, when
authenticated and delivered to and paid for by purchasers pursuant to such
Delayed Delivery Contracts, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture
[and the Warrant Agreement[s]];] [and the Warrant Securities have been duly
authorized and, when executed, authenticated, issued and delivered in the manner
provided in the Indenture and paid for as provided in the Warrant Agreement
related thereto and the Debt Warrants, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture;]
and the Designated Securities and the Indenture [and the Warrant
Agreement[s]]conform to the descriptions thereof contained in the Prospectus;
(iv) [Each of] the Indenture [and the Warrant Agreement[s]]has been duly
authorized, executed and delivered; the Indenture has been duly qualified under
the Trust Indenture Act; and [each of] the Indenture [and the Warrant
Agreement[s]] constitutes a valid and legally binding instrument enforceable in
accordance with its terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization or other similar laws relating to or affecting the
enforcement of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a proceeding in
equity or at law;
(v) Each Registration Statement has become effective under the Act and, to
the best knowledge of such counsel, no stop order suspending the effectiveness
of any Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the Act; each
Registration Statement and the Prospectus (other than the financial statements
and other financial or other statistical data therein or incorporated by
reference therein, as to which such counsel need express no opinion) appear on
their face to be appropriately responsive in all materials respects to the
requirements of the Act, the Trust Indenture Act and the Rules and Regulations;
nothing has come to the attention of such counsel which has caused such counsel
to believe that any part of any Registration Statement (other than the financial
statements and other financial or other statistical data therein or incorporated
by reference therein, as to which such counsel need express no opinion), when
such part became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that
<PAGE>
the Prospectus (other than the financial statements and other financial or other
statistical data therein or incorporated by reference therein, as to which such
counsel express no opinion), as of the date of the Supplement and the date of
such opinion, included or includes any untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and such counsel does not know of any legal or governmental
proceedings, pending or threatened, required to be described in the Prospectus
which are not described as required, nor of any contracts or other documents of
a character required to be described in the Registration Statements or the
Prospectus or to be filed as exhibits to the Registration Statements which are
not described or filed as required;
(vi) The documents incorporated by reference in the Prospectus (other than
the financial statements and other financial or other statistical data therein
or incorporated by reference therein, as to which such counsel need express no
opinion), when they were filed with the Commission, appeared on their face to be
appropriately responsive in all materials respect to the requirements of the
Exchange Act and the Rules and Regulations; and such counsel has no reason to
believe that any of such documents, when they were so filed, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading;
(vii) The issuance of the Designated Securities in accordance with the
Indenture [and the Warrant Agreement[s]] and the sale thereof in accordance with
this Agreement and the Pricing Agreement will not, and at the date of such
opinion the sale of any thereof covered by Delayed Delivery Contracts would not,
result in any violation of any of the provisions of the Company's Restated
Certificate of Incorporation or By-laws or of any indenture, mortgage, deed of
trust, loan agreement, lease financing agreement or other similar agreement or
instrument known to and specified by such counsel by which the Company, or any
of its domestic subsidiaries listed in Exhibit 22 to the Company's most recent
Annual Report on Form 10-K, is bound; and
(viii) No consent, approval or authorization from any regulatory board,
agency or instrumentality having jurisdiction over the Company (other than
registration under the Act and qualification under state securities or similar
laws or Blue Sky laws) is required for the issuance and sale of the Designated
Securities as contemplated by this Agreement, the Pricing Agreement and the
Indenture [and Warrant Agreement[s]].
<PAGE>
EXHIBIT B
Matters to be Covered by Letter of
Independent Accountants to the Company
and the Underwriters
This letter will state that they have audited the consolidated financial
statements and financial statement schedules of the Company and its subsidiaries
included or incorporated by reference in the Company's Annual Report on Form 10-
K for the latest fiscal year and have issued their opinions thereon for the
periods specified in such opinions, which have also been included or
incorporated by reference in such Annual Report, and have made a review of the
interim financial information of the Company and its subsidiaries for the
periods specified in such letter in accordance with standards established by the
American Institute of Certified Public Accountants, as indicated in their report
or reports to the Board of Directors of the Company specified in such letter.
This letter shall further state:
(i) They are independent accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the applicable published rules
and regulations thereunder;
(ii) In their opinion, the consolidated financial statements and
schedules audited by them and included or incorporated by reference in the
Registration Statements or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the published rules and regulations
thereunder with respect to registration statements on Form S-3;
(iii) With respect to any pro forma data included or incorporated by
reference in the Registration Statements or Prospectus, they have read such
data, have compared the historical amounts presented in connection therewith
with corresponding amounts appearing in the consolidated audited financial
statements included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year and found them to be in
agreement and have recalculated the mathematical accuracy of such pro forma
data and, in the event they have been engaged by the Company to make and have
made a review or examination of such pro forma data in accordance with
standards established by the American Institute of Certified Public
Accountants, they will refer to such review or examination in their letter;
(iv) On the basis of limited procedures (but not an audit in accordance
with generally accepted auditing standards), performed through a specified
date not more than five days prior to the date of delivery of such letter,
consisting of a reading of the latest available unaudited consolidated
interim financial information of the Company and its subsidiaries, a reading
of the minutes of the meetings of the shareowners and the Board or Directors
(and the Executive Committee, the Audit Review Committee, the Pension
Committee and the Special Securities Committee thereof) of the Company since
the date of the latest audited financial statements included or incorporated
by reference in the Registration Statements or the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial and
accounting matters regarding the specific items as to which statements are
requested below and such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that caused them to believe
that:
<PAGE>
(A) the unaudited information with respect to the consolidated results
of operations and financial position for the five years ended the most
recent fiscal year end included in the Prospectus, and included or
incorporated by reference in Item 6 in the Company's Annual Report on Form
10-K under the caption "Selected Financial Data", does not agree with the
corresponding amounts (if they appear therein and after restatement where
applicable) in the audited consolidated financial statements for the years
ended included in the Company's Annual Reports on Form 10-K for such
fiscal years, or with information derived from accounting records of the
Company, as the case may be;
(B) the unaudited condensed consolidated income statements, condensed
consolidated balance sheets and condensed consolidated statements of cash
flows included in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Registration Statement do not comply as
to form in all material respects with the applicable accounting
requirements of the Exchange Act as it applies to Form 10-Q and the
published rules and regulations thereunder or are not stated on a basis
substantially consistent with that of the audited consolidated statements
of income, consolidated balance sheets and consolidated statements of cash
flows included or incorporated by reference in the Company's most recent
Annual Report on Form 10-K;
(C) any other unaudited financial data included or incorporated by
reference in the Prospectus do not agree with the corresponding items in
the unaudited condensed consolidated financial statements from which such
data and items were derived [If the capsule information meets the minimum
disclosure requirements of APB Opinion No. 28, paragraph 30, insert--"or
are not stated on a basis substantially consistent with that of the
audited financial statements incorporated by reference in the Registration
Statements"], or that any such unaudited data and items, and the unaudited
condensed consolidated financial statements from which such data were
derived, were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(D) the unaudited financial statements which were not included in the
Prospectus but from which were derived the unaudited condensed financial
statements referred to in Clause (B) and any unaudited income statement
data and balance sheet items included in the Prospectus and referred to in
Clause (C) were not determined on a basis substantially consistent with
the basis for the audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(E) based on the procedures described in clause (iii), the pro forma
data included or incorporated by reference in the Registration Statements
or Prospectus have not been properly compiled on the pro forma bases
described therein;
(F) at the date of the latest available interim consolidated financial
information and as of a specified date not more than five days prior to
the date of delivery of such letter, there have been any changes in
consolidated capital stock or any increase in consolidated long-term debt
or consolidated short-term borrowings or any decreases in consolidated
working capital or shareowners' equity of the Company and its subsidiaries
<PAGE>
in each case as compared with amounts shown in the most recent balance
sheet included or incorporated by reference in the Registration Statement
or the Prospectus, except in each case for changes , decreases or
increases which the Registration Statements or the Prospectus discloses
have occurred or may occur or which are described in such letter, in which
case the Company shall deliver an explanation as to the significance
thereof unless said explanation is not deemed necessary by the
Representatives; and
(G) for the period from the date of the latest financial statements
included or incorporated by reference in the Registration Statement to
such specified date there were any decreases in the Company's consolidated
sales, income from continuing operations before income taxes, income from
continuing operations, net income or the fully diluted per share amounts
of consolidated income from continuing operations or net income, in each
case as compared with the comparable period of the preceding year and with
the period of corresponding length beginning on the first date of the next
preceding full fiscal quarter, except in each case for decreases which the
Registration Statements or the Prospectus discloses have occurred or may
occur or which are described in such letter, in which case the Company
shall deliver an explanation as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; and
(v) In addition to the audit referred to in their report included in the
Registration Statements and the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
subparagraph (iv) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information, specified by the Representatives, which are derived form the
general accounting records of the Company and its subsidiaries which are
subject to the system of internal controls, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statements specified by the
Representatives or in documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of the
Company and its subsidiaries which are subject to the system of internal
controls and have found them to be in agreement.
<PAGE>
ANNEX I
PRICING AGREEMENT
[Date]
To the [Underwriter[s] named in Schedule I]
[Representative[s] named in Schedule II
of the Underwriters named in Schedule I]
Dear Sirs:
United Technologies Corporation (the "Company") proposes subject to the terms
and conditions stated herein and in the Underwriting Agreement, dated [date]
(the "Underwriting Agreement"), between the Company on the one hand and [
] on the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provision had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions of
the Underwriting Agreement so incorporated by reference shall be deemed to refer
to you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company has delivered to you for each of the Underwriters copies of the
Registration Statements and Prospectus, including the documents incorporated
therein by reference. The Prospectus (including the Supplement relating to the
Designated Securities) in the form heretofore delivered to you is now proposed
to be filed, or mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the amount or principal amount, as applicable, of
Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
[The Company authorizes the Underwriters to solicit offers to purchase
Designated Securities from the Company pursuant to Delayed Delivery Contracts
substantially in the form of Schedule III hereto but with such changes therein
as the Company may approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, at the Time of Delivery a
commission in the amount set forth in Schedule II. Delayed Delivery Contracts
are to be with purchasers of the types approved by the Company and set forth in
the Prospectus and subject to other conditions set forth in such Delayed
Delivery Contracts. Except as the Company may otherwise agree, each Delayed
Delivery Contract must be for the minimum principal amount set forth in Schedule
II hereto and the aggregate principal amount of all Delayed Delivery
<PAGE>
Contracts may not exceed the amount set forth in such Schedule II. The
Underwriters will not have any responsibility in respect of the validity or
performance of any Delayed Delivery Contracts.]
[If the Company executes and delivers Delayed Delivery Contracts, the
Securities subject to such contracts shall be deducted from the Designated
Securities to be purchased by the several Underwriters and the aggregate
principal amount of Designated Securities to be purchased by each Underwriter
shall be reduced pro rata in proportion to the principal amount of Designated
Securities set forth opposite each Underwriter's name in Schedule I hereto,
except to the extent that the Representatives determine that such reduction
shall be otherwise and so advise the Company in writing; provided, however, that
the total principal amount of Designated Securities to be purchased by all
Underwriters shall be the total principal amount of Designated Securities set
forth in Schedule I hereto less the principal amount of Designated Securities
covered by Delayed Delivery Contracts. As used in this paragraph and in the
immediately preceding paragraph, the "aggregate principal amount" or "total
amount" of Designated Securities shall mean the aggregate principal amount of
the Designated Securities that are Debt Securities plus the public offering
price, if any, of any Debt Warrants, Currency Warrants or Stock-Index Warrants
included in the Designated Securities.]
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to authority granted to you
by such Underwriter.
Very truly yours,
United Technologies Corporation
By:
Title:
Accepted as of the date hereof:
[Insert signature block[s] for the
Representative[s], acting on behalf of the
Underwriters, or for each Underwriter if no
syndicate.]
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
<S> <C> <C>
Underwriters Principal Amount Number of
of Designated Designated
Securities [that Securities
are Debt that are
Securities] to Debt Warrants
be Purchased Currency Warrants
or Stock-Index
Warrants
to be Purchased]
[Names of Underwriters] [$]
Total [$]
</TABLE>
<PAGE>
SCHEDULE II
[Debt Securities]
[Warrant Securities]
Title of Designated Securities:
[. .]% [Floating Rate] [Zero Coupon] [Notes] [Debentures] due . . . . . . . .
Aggregate Principal Amount:
[$]. . . . . . . . . . . . . . . .
Price to Public:
. .% of the principal amount of the Designated Securities, plus accrued
interest from . . . . . . . to the Time of Delivery [and accrued
amortization, if any, from . . . . . . . to the Time of Delivery]
Purchase Price by Underwriters:
. .% of the principal amount of the Designated Securities, plus accrued
interest from . . . . . . . to the Time of Delivery [and accrued
amortization, if any, from . . . . . . . to the Time of Delivery]
Indenture:
Indenture, dated as of April 1, 1990, between the Company and The Connecticut
National Bank, Trustee, as modified by the Trust Indenture Reform Act of 1990
Maturity:
. . . . . . . . . . . . . . . . . . . . . .
Interest Rate:
[ . . ]% [Zero Coupon] [See Floating Rate Provisions] [See Event Risk
Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed [otherwise than through the
sinking fund,] in whole or in part at the option of the Company, in the
amount of [$]. . . . . . . . . .or an integral multiple thereof, ]
[on or after . . . . . . . . . . . . . . . at the following redemption
prices (expressed in percentages of principal amount). If redeemed on or
before . . . . . . . . . ., . . .%, and if] redeemed during the 12-month
period beginning . . . . . . . . . . . . . . .
Year Redemption Price
<PAGE>
. . . . . . . . . . and thereafter at 100% of their principal amount,
together in each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after . . . . . . . . . . . . . .
. . . . ., at the election of the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law.]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$]. . . . . . . . . principal amount of Designated Securities on . .
. . . . . . . . in each of the years . . . . . . . through . . . . . . . at
100% for their principal amount plus accrued interest] [, together with
[cumulative] [noncumulative] redemptions at the option of the Company to
retire an additional [$] . . . . . . . principal amount of Designated
Securities in the years . . . . . . . through . . . . . . . at 100% of their
principal amount plus accrued interest.]
[If Securities are extendable debt Securities, insert--
Extendable Provisions:
Securities are repayable on . . . . . . . . . . . ., . . . . . . .
[[insert date and years,] at the option of the holder, at their principal
amount with accrued interest. Initial annual interest rate will be . . .%,
and thereafter annual interest rate will be adjusted on . . . . . . ., . . .
. and . . . . . . to a rate not less than . . . . . .% of the effective
annual interest rate on U.S. Treasury obligations with . . . .-year
maturities as of the [insert date 15 days prior to maturity date] prior to
such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert--
Floating Rate Provisions:
Initial annual interest rate will be . . . .% through . . . . . . . . .
[and thereafter will be adjusted [monthly] [on each . . . . . . . . . , . . .
. . . . . . ., . . . . . . . and . . . . . . .] [to an annual rate of . . .
.% above the average rate for . . . . . . . . . .-year [month] [securities]
[certificates of deposit] by . . . . . . . . . . and . . . . . . . . . . .
[insert names of banks].] [and the annual interest rate [thereafter] [from .
. . . . . . through . . . . . . .] will be the interest yield equivalent of
the weekly average per annum market discount rate for . . . . . . . .-month
Treasury bills plus . . . .% of Interest Differential (the excess, if any, of
(i) then current weekly average per annum secondary market yield for . . . .
. . .-month certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate for . . . .
. . . .-month Treasury bills]; [from . . . . . . . . and thereafter the rate
will be the then current interest yield equivalent plus . . . .% of Interest
Differential].]
Issuable in temporary global form: [Yes] [No]
Issuable in permanent global form: [Yes] [No]
<PAGE>
Debt Warrants
Number of Debt Warrants to be issued:
Warrant Agreement:
Form of Debt Warrants: [Registered] [Bearer]
Issuable jointly with other Securities: [Yes] [No]
[Number of Debt Warranties issued with each........amount or $........
principal amount of other Securities]
[Detachable Date:]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price(s) of Debt Warrants:
Public offering price: $. . . . . . . .
Purchase price: $. . . . . . . .
Title and terms of Warrant Securities: As described above
Principal Amount of Warrant Securities purchasable upon exercise of one Warrant:
Currency Warrants
Title of Currency Warrants: [ Currency [Call] [Put] Warrants ]
Number of Currency Warrants to be issued:
Base Currency:
Warrant Agreement:
Warrant Agent:
Form of Currency Warrants: [Registered] [Bearer] [Book-entry form, represented
by single global Currency Warrant Certificate]
Issuable jointly with other Securities: [Yes] [No]
[Number of Currency Warrants issued with each amount of $........
principal amount of other Securities]
<PAGE>
[Detachable Date:]
Date from which Currency Warrants are exercisable:
Date on which Currency Warrants expire:
Strike Price of Currency Warrants:
Formula for Determining Cash Settlement Value:
Automatic Exercise:
Minimum Number of Currency Warrants which can be Exercised:
Listing:
Public offering price: $. . . . . . . .
Purchase price: $. . . . . . . .
Stock-Index Warrants
Title of Stock-Index Warrants: [ Stock-Index [Call] [Put] Warrants ]
Number of Stock-Index Warrants to be issued:
Stock Index:
Warrant Agreement:
Warrant Agent:
Form of Stock-Index Warrants: [Registered] [Bearer] [Book-entry form,
represented by single global Stock-Index Warrant Certificate]
Issuable jointly with other Securities: [Yes] [No]
[Number of Stock-Index Warrants issued with each amount or $........
principal amount of other Securities]
[Detachable Date:]
Date from which Stock-Index Warrants are exercisable:
Date on which Stock-Index Warrants expire:
Exercise Price of Stock-Index Warrants:
Formula for Determining Stock-Index Cash Settlement Value:
<PAGE>
Automatic Exercise:
Minimum/Maximum number of Stock-Index Warrants which can be Exercised:
Listing:
Public offering price: $. . . . . . . .
Purchase price: $. . . . . . . .
Time of Delivery:
. . . . . . . . . . . . . . . . . . . .
Closing Location:
. . . . . . . . . . . . . . . . . . . .
Funds in which Underwriters to make payment:
. . . . . . . . . . . . . . . . . . . .
Delayed Delivery:
[None]
[Underwriters' commission shall be . . . .% of the principal amount of
Designated Securities for which Delayed Delivery Contracts have been entered
into and the check given in payment of such commission shall be drawn to the
order of . . . . . . . .]
[Maximum aggregate principal amount of Designated Securities to be offered
and sold pursuant to Delayed Delivery Contracts: [$] . . . . . . . . ]
[Minimum principal amount of each Delayed Delivery Contract: [$] . . . . . .
. . ]
Names and addresses of Representatives:
Designated Representatives:
<PAGE>
Address for Notices, etc.:
[Additional Comfort Procedures: Identify any items being specified by
Representatives for comfort as contemplated by
paragraph (v) of Exhibit B to the Underwriting
Agreement.]
[Other Terms, including application of defeasance and/or covenant defeasance]*
- --------------------------
* A description of particular tax, accounting or other unusual features of the
Securities should be set forth, or referenced to an attached and accompanying
description, if necessary to the parties' understanding of the transaction
contemplated. Such a description might appropriately be in the form in which
such features will be described in the Prospectus, as supplemented, for the
offering.
Any additional terms and conditions appropriate to an offering of Securities
denominated or payable in or indexed to a currency, currencies, currency unit or
composite currency other than United States dollars should also be set forth.
<PAGE>
SCHEDULE III
Delayed Delivery Contract
United Technologies Corporation
c/o: [Date]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Untied Technologies
Corporation (hereinafter called the "Company"), and the Company agrees to sell
to the undersigned [[$]
principal amount] [number] of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus dated , 19 [as amended or supplemented],
receipt of a copy of which is hereby acknowledged, at a purchase price of [ %
of the principal amount thereof, plus accrued interest from the date from which
interest accrues as set forth below] [ per Debt Warrant, Currency
Warrant or Stock-Index Warrant], and on the further terms and conditions set
forth in this contract.
[The undersigned will purchase the Designated Securities from the Company on
, 19 (the "Delivery Date") [and interest on the Designated Securities so
purchased will accrue from , 19 .]]
[The undersigned will purchase the Designated Securities from the Company on
the delivery date or dates and in the principal amount or amounts set forth
below:
<TABLE>
<CAPTION>
Delivery Date Principal Amount Date from Which Number of
Interest Accrues Debt Warrants,
Currency
Warrants or
Stock-Index
Warrants
<S> <C> <C> <C>
, 19 [$] , 19
, 19 [$] , 19
</TABLE>
Each such date on which Designated Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has agreed to
purchase on [the] [each] Delivery Date shall be made to the Company or its order
by certified or official bank check in funds at the office of
, ,
, or by wire transfer to a bank account specified by the Company, on [the][such]
Delivery Date upon delivery to the undersigned of the Designated Securities then
to be purchased by the undersigned in definitive [bearer] [fully registered]
form and in such denominations and [registered
<PAGE>
in such names] as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five business days prior to
[the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities on [the] [each] Delivery Date shall be subject to the
conditions that (a) the purchase of Designated Securities to be made by the
undersigned shall not on [the] [such] Delivery Date be prohibited under the laws
of the jurisdiction to which the undersigned is subject and (b) the Company, on
or before ,19 , shall have sold to the several Underwriters, pursuant to
the Pricing Agreement dated , 19 with the Company, an [aggregate
principal amount and/or number] of Designated Securities equal to
, minus the aggregate principal amount and/or a number] of Designated Securities
to be covered by this contract and other contracts similar to this contract.
The obligation of the undersigned to take delivery of and make payment for
Designated Securities shall not be affected by the failure of any purchaser to
take delivery of and make payment for Designated Securities pursuant to other
contracts similar to this contract.
Promptly after completion of the sale of the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the Opinion or Opinions of Counsel for the
Company delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
This contract may be executed by either of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
It is understood that the acceptance by the Company of any Delayed Delivery
Contract (including this contract) is in the Company's sole discretion and that,
without limiting the foregoing, acceptances of such contracts need not be on a
first-come, first-serve basis. If this contract is acceptable to the Company, it
is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the Company.
Yours very truly,
By:
(Name and Title)
<PAGE>
(Address)
Accepted, , 19
United Technologies Corporation
By:
[Title]
<PAGE>
EXHIBIT 4(a)
================================================================================
UNITED TECHNOLOGIES CORPORATION
TO
THE CONNECTICUT NATIONAL BANK,
Trustee
------------------------------
Indenture
Dated as of April 1, 1990
------------------------------
================================================================================
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of April 1, 1990
------------------------------------------------------
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
------------------------ ------------------------
<S> <C>
(S)310(a)(1) ......................................................... 609
(a)(2) ......................................................... 609
(a)(3) ......................................................... Not Applicable
(a)(4) ......................................................... Not Applicable
(b) ......................................................... 608, 610
(S)311(a) ......................................................... 613(a)
(b) ......................................................... 613(b)
(b)(2) ......................................................... 703(a)(2), 703(b)
(S)312 (a) ......................................................... 701, 702(a)
(b) ......................................................... 702(b)
(c) ......................................................... 702(c)
(S)313(a) ......................................................... 703(a)
(b) ......................................................... 703(b)
(c) ......................................................... 703(a), 703(b)
(d) ......................................................... 703(c)
(S)314(a) ......................................................... 704
(b) ......................................................... Not Applicable
(c)(1) ......................................................... 102
(c)(2) ......................................................... 102
(c)(3) ......................................................... Not Applicable
(d) ......................................................... Not Applicable
(e) ......................................................... 102
(S)315(a) ......................................................... 601(a)
(b) ......................................................... 602, 703(a)(6)
(c) ......................................................... 601(b)
(d) ......................................................... 601(c)
(d)(1) ......................................................... 601(a)(1)
(d)(2) ......................................................... 601(c)(2)
(d)(3) ......................................................... 601(c)(3)
(e) ......................................................... 514
(S)316(a) ......................................................... 101
(a)(1)(A) ......................................................... 502, 512
(a)(1)(B) ......................................................... 513
(a)(2) ......................................................... Not Applicable
(b) ......................................................... 508
(S)317(a)(1) ......................................................... 503
(a)(2) ......................................................... 504
</TABLE>
1
<PAGE>
<TABLE>
<S> <C>
(b) ......................................................... 1003
(S)318(a) ......................................................... 107
</TABLE>
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
2
<PAGE>
Table of Contents
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PARTIES...........................................................................................................1
RECITALS OF THE COMPANY...........................................................................................1
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
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SECTION 101. Definitions:
Act....................................................................................2
Additional Amounts.....................................................................2
Affiliate; control.....................................................................2
Attributable Debt......................................................................2
Authenticating Agent...................................................................2
Authorized Newspaper...................................................................2
Bearer Security........................................................................2
Board of Directors.....................................................................3
Board Resolution.......................................................................3
Business Day...........................................................................3
CEDEL S.A..............................................................................3
Commission.............................................................................3
Common Depositary......................................................................3
Company................................................................................3
Company Request; Company Order.........................................................3
Consolidated Net Tangible Assets.......................................................3
Conversion Date........................................................................3
Conversion Event.......................................................................3
Corporate Trust Office.................................................................4
corporation............................................................................4
coupon.................................................................................4
Debt...................................................................................4
Defaulted Interest.....................................................................4
Dollar.................................................................................4
Dollar Equivalent of the Currency Unit.................................................4
Dollar Equivalent of the Foreign Currency..............................................4
ECU....................................................................................4
Election Date..........................................................................4
Euro-clear.............................................................................4
European Communities ..................................................................4
European Monetary System...............................................................4
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Event of Default.......................................................................4
Exchange Date..........................................................................4
Exchange Rate Agent....................................................................5
Exchange Rate Officer's Certificate....................................................5
Foreign Currency.......................................................................5
Government Obligations.................................................................5
Holder.................................................................................5
Indenture..............................................................................5
Indexed Security.......................................................................6
Industrial Development Bonds...........................................................6
interest...............................................................................6
Interest Payment Date..................................................................6
Lien...................................................................................6
Market Exchange Rate...................................................................6
Maturity...............................................................................7
Officers' Certificate..................................................................7
Opinion of Counsel.....................................................................7
Original Issue Discount Security.......................................................7
Outstanding............................................................................7
Paying Agent...........................................................................8
Person.................................................................................8
Place of Payment.......................................................................8
Predecessor Security...................................................................8
Principal Property.....................................................................9
Redemption Date........................................................................9
Redemption Price.......................................................................9
Registered Security....................................................................9
Regular Record Date....................................................................9
Repayment Date.........................................................................9
Repayment Price........................................................................9
Responsible Officer....................................................................9
Securities.............................................................................9
Security Register and Security Registrar..............................................10
Special Record Date...................................................................10
Stated Maturity.......................................................................10
Subsidiary............................................................................10
Trust Indenture Act...................................................................10
Trustee...............................................................................10
United States.........................................................................10
United States person..................................................................10
Valuation Date........................................................................10
Vice President........................................................................11
Voting Stock .........................................................................11
Wholly Owned Domestic Manufacturing Subsidiary........................................11
SECTION 102. Compliance Certificates and Opinions..................................................11
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SECTION 103. Form of Documents Delivered to Trustee................................................12
SECTION 104. Acts of Holders.......................................................................12
SECTION 105. Notices, Etc. to Trustee and Company..................................................13
SECTION 106. Notice to Holders; Waiver.............................................................14
SECTION 107. Conflict with Trust Indenture Act.....................................................15
SECTION 108. Effect of Headings and Table of Contents..............................................15
SECTION 109. Successors and Assigns................................................................15
SECTION 110. Separability Clause...................................................................15
SECTION 111. Benefits of Indenture.................................................................15
SECTION 112. Governing Law.........................................................................15
SECTION 113. Legal Holidays........................................................................15
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.......................................................................16
SECTION 202. Form of Trustee's Certificate of Authentication.......................................16
SECTION 203. Securities Issuable in Global Form....................................................16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series..................................................17
SECTION 302. Denominations.........................................................................21
SECTION 303. Execution, Authentication, Delivery and Dating........................................21
SECTION 304. Temporary Securities..................................................................23
SECTION 305. Registration, Registration of Transfer and Exchange...................................25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................................28
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest
Reset..............................................................................29
SECTION 308. Optional Extension of Maturity........................................................31
SECTION 309. Persons Deemed Owners.................................................................32
SECTION 310. Cancellation..........................................................................33
SECTION 311. Computation of Interest...............................................................33
SECTION 312. Currency and Manner of Payments in Respect of Securities..............................33
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent..........................37
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture...............................................37
SECTION 402. Application of Trust Money............................................................39
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ARTICLE FIVE
REMEDIES
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SECTION 501. Events of Default.....................................................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................................40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......................41
SECTION 504. Trustee May File Proofs of Claim......................................................42
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...........................43
SECTION 506. Application of Money Collected........................................................43
SECTION 507. Limitation on Suits...................................................................43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest...........................................................................44
SECTION 509. Restoration of Rights and Remedies....................................................44
SECTION 510. Rights and Remedies Cumulative........................................................45
SECTION 511. Delay or Omission Not Waiver..........................................................45
SECTION 512. Control by Holders....................................................................45
SECTION 513. Waiver of Past Defaults...............................................................45
SECTION 514. Undertaking for Costs.................................................................46
SECTION 515. Waiver of Stay or Extension Laws......................................................46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities...................................................46
SECTION 602. Notice of Defaults....................................................................47
SECTION 603. Certain Rights of Trustee.............................................................48
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities........................49
SECTION 605. May Hold Securities...................................................................49
SECTION 606. Money Held in Trust...................................................................49
SECTION 607. Compensation and Reimbursement........................................................49
SECTION 608. Disqualification; Conflicting Interests...............................................50
(a) Elimination of Conflicting
Interest or Resignation......................................................50
(b) Notice of Failure to Eliminate
Conflicting Interest or Resign...............................................50
(c) "Conflicting Interest" Defined...................................................50
(d) Definitions of Certain Terms
Used in This Section.........................................................53
(e) Calculation of Percentages of Securities.........................................54
SECTION 609. Corporate Trustee Required; Eligibility...............................................55
SECTION 610. Resignation and Removal; Appointment of Successor.....................................55
SECTION 611. Acceptance of Appointment by Successor................................................57
SECTION 612. Merger, Conversion, Consolidation or Succession to Busine(S)..........................58
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SECTION 613. Preferential Collection of Claims Against Company.....................................58
(a) Segregation and Apportionment of Certain
Collections by Trustee, Certain Exceptions...................................58
(b) Certain Creditor Relationships Excluded
from Segregation and Apportionment...........................................60
(c) Definitions of Certain Terms Used in
This Section.................................................................61
SECTION 614. Appointment of Authenticating Agent...................................................62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.............................63
SECTION 702. Preservation of Information; Communications to Holders................................64
SECTION 703. Reports by Trustee....................................................................65
SECTION 704. Reports by Company....................................................................66
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..................................67
SECTION 802. Successor Corporation Substituted.....................................................68
SECTION 803. Securities to be Secured in Certain Events............................................68
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders....................................69
SECTION 902. Supplemental Indentures with Consent of Holders.......................................70
SECTION 903. Execution of Supplemental Indentures..................................................71
SECTION 904. Effect of Supplemental Indentures.....................................................71
SECTION 905. Conformity with Trust Indenture Act...................................................71
SECTION 906. Reference in Securities to Supplemental Indentures....................................71
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest............................................72
SECTION 1002. Maintenance of Office or Agency.......................................................72
SECTION 1003. Money for Securities Payments to Be Held in Trust.....................................73
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SECTION 1004. Statement as to Compliance............................................................75
SECTION 1005. Payment of Taxes and Other Claims.....................................................75
SECTION 1006. Maintenance of Principal Properties...................................................75
SECTION 1007. Corporate Existence...................................................................75
SECTION 1008. Limitation upon Liens.................................................................76
SECTION 1009. Limitations upon Sales and Leasebacks.................................................78
SECTION 1010. Additional Amounts....................................................................80
SECTION 1011. Waiver of Certain Covenants...........................................................81
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..............................................................81
SECTION 1102. Election to Redeem; Notice to Trustee.................................................81
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.....................................81
SECTION 1104. Notice of Redemption..................................................................82
SECTION 1105. Deposit of Redemption Price...........................................................83
SECTION 1106. Securities Payable on Redemption Date.................................................83
SECTION 1107. Securities Redeemed in Part...........................................................84
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article..............................................................84
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.................................84
SECTION 1203. Redemption of Securities for Sinking Fund.............................................85
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article..............................................................86
SECTION 1302. Repayment of Securities...............................................................86
SECTION 1303. Exercise of Option....................................................................86
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable............................................................................87
SECTION 1305. Securities Repaid in Part.............................................................87
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.............................................................87
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SECTION 1402. Defeasance and Discharge..............................................................88
SECTION 1403. Covenant Defeasance...................................................................88
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.......................................89
SECTION 1405. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions..............................................90
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for which Meetings May be Called.............................................91
SECTION 1502. Call, Notice and Place of Meetings....................................................91
SECTION 1503. Persons Entitled to Vote at Meetings..................................................92
SECTION 1504. Quorum; Action........................................................................92
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings...........................................................................93
SECTION 1506. Counting Votes and Recording Action of Meetings.......................................94
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1601. Exemption from Individual Liability...................................................94
TESTIMONIUM...................................................................................................A-4-1
SIGNATURES AND SEALS..............................................................................................2
ACKNOWLEDGMENTS...................................................................................................2
EXHIBIT A. Forms of Certification............................................................................A.1-1
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INDENTURE, dated as of April 1, 1990, between UNITED TECHNOLOGIES
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
United Technologies Building, Hartford, Connecticut 06101, and THE CONNECTICUT
NATIONAL BANK, a national banking association duly organized and existing under
the laws of the United States of America, Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises 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 or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
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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;
(2) all other terms used herein which are defined in the Trust
Indenture Act, 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, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; 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.
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Certain terms, used principally in Articles Six and Fourteen are
defined in those Articles.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" has the meaning specified in Section 1010.
"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.
"Attributable Debt" means, as to any particular lease under which any
Person is at the time liable for a term of more than 12 months, at any date as
of which the amount thereof is to be determined, the total net amount of rent
required to be paid by such Person under such lease during the remaining term
thereof (excluding any subsequent renewal or other extension options held by the
lessee), discounted from the respective due dates thereof to such date at the
rate of 15% per annum, compounded monthly. The net amount of rent required to
be paid under any such lease for any such period shall be the aggregate amount
of the rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs, services,
insurance, taxes, assessments, water rates and similar charges and contingent
rents (such as those based on sales). In the case of any lease which is
terminable by the lessee upon the payment of a penalty in an amount which is
less than the total discounted net amount of rent required to be paid from the
later of the first date upon which such lease may be so terminated or the date
of the determination of such net amount of rent, as the case may be, such net
amount shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security except a Registered Security.
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"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 Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres, S.A.,
or its successor.
"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 at such time.
"Common Depositary" has the meaning specified in Section 304.
"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
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof which are by their
terms extendible or renewable at the option of the obligor thereon to a time
more than 12 months after the time as of which the amount thereof is being
computed), and (ii) all good will, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, all as set forth on the
most recent balance sheet of the Company and its consolidated Subsidiaries and
computed in accordance with generally accepted accounting principles.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
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institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"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, except that with respect to presentation of Securities for
payment or for registration of transfer or exchange, such term shall mean the
office or agency of the Trustee at which, at any particular time, its corporate
agency business shall be conducted.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 312(f).
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euro-clear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euro-clear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
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"Exchange Rate Agent," with respect to Securities of or within any
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank, designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant currency or currency unit), payable with respect to a
Security of any series on the basis of such Market Exchange Rate, sent (in the
case of a telex) or signed (in the case of a certificate) by the Treasurer, any
Vice President or any Assistant Treasurer of the Company.
"Foreign Currency" means any currency, composite currency or currency
unit, including without limitation, the ECU, issued by the government of one or
more countries other than the United States or by any recognized confederation
or association of such governments.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are (i) direct obligations of the government which issued the currency in which
the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such currency and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
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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 Government Obligation or the specific payment of interest or principal of
the Government Obligation evidenced by such depository receipt.
"Holder" means in the case of a Registered Security the Person in
whose name a Security is registered in the Security Register and in the case of
a Bearer Security the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"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
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and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that if at any time more than
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one Person is acting as Trustee under this instrument, "Indenture" shall mean
with respect to any one or more series of Securities for which such Person is
Trustee, 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 and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Industrial Development Bonds" means obligations issued by a State, a
Commonwealth, a Territory or a possession of the United States of America, or
any political subdivision of any of the foregoing, or the District of Columbia,
the interest on which is excludable from gross income of the holders thereof
pursuant to the provisions of Section 103(a) of the Internal Revenue Code of
1986, as amended (or any similar provision), as in effect at the time of the
issuance of such obligations.
"interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" has the meaning specified in Section 1008.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii) the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
New York City, London or other principal market for such currency or currency
unit in question, or such other quotations as the Exchange Rate
6
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Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any currency or currency
unit by reason of foreign exchange regulations or otherwise, the market to be
used in respect of such currency or currency unit shall be that upon which a
nonresident issuer of securities designated in such currency or currency unit
would purchase such currency or currency unit in order to make payments in
respect of such securities.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money 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 and any coupons appertaining thereto; provided that, if such
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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;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been
7
<PAGE>
presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Section 703, (i) the principal amount of an Original
Issue Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the maturity thereof pursuant to Section 502,
(ii) the principal amount of any Security denominated in a Foreign Currency that
may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the Dollar equivalent,
determined as of the date such Security is originally issued by the Company as
set forth in an Exchange Rate Officer's Certificate delivered to the Trustee, of
the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above), of such Security, (iii) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) 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 making such calculation or
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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any Securities on behalf of the
Company.
"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 the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"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
8
<PAGE>
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security or the Security to which the mutilated, destroyed, lost or stolen
coupons appertains, as the case may be.
"Principal Property" means any manufacturing plant or warehouse,
together with the land upon which it is erected and fixtures comprising a part
thereof, owned by the Company or any Wholly-Owned Domestic Manufacturing
Subsidiary and located in the United States, the gross book value (without
deduction of any reserve for depreciation) of which on the date as of which the
determination is being made is an amount which exceeds 1% of Consolidated Net
Tangible Assets, other than any such manufacturing plant or warehouse or any
portion thereof or any such fixture (together with the land upon which it is
erected and fixtures comprising a part thereof) (i) which is financed by
Industrial Development Bonds or (ii) which, in the opinion of the Board of
Directors, is not of material importance to the total business conducted by the
Company and its Subsidiaries, taken as a whole.
"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 the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"Repayment Date" means, 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.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or 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.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided,
--------
9
<PAGE>
however, that if at any time there is more than one Person acting as Trustee
- -------
under this instrument, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this instrument and shall more particularly mean Securities authenticated and
delivered under this instrument, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"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 or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
- -------- -------
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
10
<PAGE>
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of a corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Wholly-Owned Domestic Manufacturing Subsidiary" means any Subsidiary
of which, at the time of determination, all of the outstanding capital stock
(other than directors' qualifying shares) is owned by the Company directly
and/or indirectly and which, at the time of determination, is primarily engaged
in manufacturing, except a Subsidiary (a) which neither transacts any
substantial portion of its business nor regularly maintains any substantial
portion of its fixed assets within the United States, or (b) which is engaged
primarily in the finance business including, without limitation thereto,
financing the operations of, or the purchase of products which are products of
or incorporate products of, the Company and/or its Subsidiaries, or (c) which is
primarily engaged in ownership and development of real estate, construction of
buildings, or related activities, or a combination of the foregoing. In the
event that there shall at any time be a question as to whether a Subsidiary is
primarily engaged in manufacturing or is described in the foregoing clause (a),
(b) or (c), such matter shall be determined for all purposes of this Indenture
by a Board Resolution.
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
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<PAGE>
(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 the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, 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) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of such series may, alternatively, be embodied in
and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, 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
12
<PAGE>
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
(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 a certificate of a 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 by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of 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.
SECTION 105. Notices, Etc. to Trustee and Company. Any request,
------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other documents 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, Attention: Corporate
Trust Administration Division, or
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<PAGE>
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
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. Notice to Holders; Waiver. Where this Indenture
-------------------------
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in 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 of Registered Securities 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 of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in the City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
14
<PAGE>
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
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 Trust
Indenture Act, 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. Separability Clause. In case any provision in this
-------------------
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture. Nothing in this Indenture or in
---------------------
the Securities or coupons, express or implied, shall give to any Person, other
than the parties hereto, any Authenticating Agent, any Paying Agent, any
Securities Registrar and their successors hereunder and the Holders of
Securities or coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 112. Governing Law. This Indenture and the Securities and
-------------
coupons shall be governed by and construed in accordance with the law of the
State of New York.
SECTION 113. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date or Stated Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of any Security or coupon other than a provision in the Securities
of any series which specifically states that such provision shall apply in lieu
of this Section) payment of interest or principal (and premium, if any) 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; provided that no interest shall accrue for the period from and after
--------
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
15
<PAGE>
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. The Registered Securities, if any, of
---------------
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, 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 or as may, consistently herewith, be determined by the
officers executing such Securities or coupons, as evidenced by their execution
of the Securities or coupons. If the forms of Securities or coupons of any
series are established by action taken pursuant to a Board Resolution, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed
or engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers executing such Securities, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. This
-----------------------------------------------
is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
THE CONNECTICUT NATIONAL BANK,
as Trustee
By
-----------------------------
Authorized Officer
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301, any such Security
shall represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of
16
<PAGE>
a Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security as
shall be specified in a written statement, produced to the Trustee by such
Person, or (i) in the case of a permanent global Security in registered form,
the Holder of such permanent global Security in registered form, or (ii) in the
case of a permanent global Security in bearer form, Euro-clear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions, and subject to Section 303, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be
17
<PAGE>
determined from time to time by the Company with respect to unissued Securities
of the series and set forth in such Securities of the series when issued from
time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the 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 the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates on which the principal of the Securities of the
series is payable or the manner in which such dates are determined or
extended;
(4) the rate or rates, or the method by which such rate or rates
shall be determined, at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
or the method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such dates shall be
determined, and the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of (and premium, if any)
and any interest on Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, Securities of the series may be surrendered for exchange and
notices or demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the currency, currencies, currency units or composite currencies in which,
and other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the Company
is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the 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, the currency, currencies,
currency units or composite currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid 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 any Registered Securities of the series
shall be issuable and if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series
shall be issuable;
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<PAGE>
(9) if other than the Trustee, the identity of the Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(11) if other than Dollars, the coin or currency, currencies,
currency unit or composite currency in which payment of the principal of
(and premium, if any) or interest, if any, on the Securities of the series
shall be payable or in which the Securities of the series shall be
denominated and the particular provisions applicable thereto in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
(12) if the amount of payments of principal of (and premium, if any)
or interest on the Securities of the series may be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on one or more currencies,
currency units, composite currencies, commodities, equity indices or other
indices), the manner in which such amounts shall be determined;
(13) if the principal of (and premium, if any) and interest, if any,
on the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a coin or currency, currencies, currency
unit or composite currency other than that in which such Securities are
denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of determining the
exchange rate between the coin or currency, currencies, currency unit or
composite currency in which such Securities are denominated or stated to be
payable and the coin or currency, currencies, currency unit or composite
currency in which such Securities are to be so payable, in each case in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) the applicability, if at all, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of the provisions of Article Fourteen;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent
with the Events of Default or covenants set forth herein;
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<PAGE>
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series
are to be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and whether Registered Securities of the series
may be exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations) and the circumstances under which and the
place or places where such exchanges, if permitted, may be made and if
Securities of the series are to be issuable in global form, the identity of
any initial depository therefor;
(19) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first
Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, the manner in
which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(21) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and/or terms of
such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1010 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option); and
(24) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the provisions of this Indenture).
20
<PAGE>
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. Not all Securities of any one series need be issued at the same time,
and, unless otherwise provided, a series may be reopened for issuances of
additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations. All Securities shall be issuable in such
-------------
denominations as shall be specified as contemplated by Section 301. With
respect to Securities denominated in Dollars, in the absence of any such
provisions, the Registered Securities, other than Registered Securities issued
in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities other than the Bearer Securities issued in global form (which may be
of any denomination) of such series shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
or coupons may be the manual or facsimile signatures of the present or any
future such authorized officer and may be imprinted or otherwise reproduced on
the Securities.
Securities or coupons 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 and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
-------- -------
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
-------- -------
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A.l
to this Indenture, dated no earlier than 15 days prior to the earlier of the
date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes
21
<PAGE>
exchangeable for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture. If any Security shall be represented by a
permanent global Bearer Security, then, for purposes of this Section and Section
304, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining terms of particular Securities of such series such as interest rate,
maturity date, date of issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, 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 and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute the legal, valid and binding obligations of the Company,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of 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 and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Company of the Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of the Securities and any coupons and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such Securities
and any coupons, and has duly taken all necessary corporate action with
respect to such issuance; and
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<PAGE>
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or by-laws of the Company or
result in any violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement known to such
Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon 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, executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. Pending the preparation of
--------------------
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form or, if authorized, in
bearer form with one or more coupon or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary
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<PAGE>
Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series, upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto) the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
-------- -------
shall be delivered in exchange for a temporary Registered Security; and
provided, further, that a definitive Bearer Security shall be delivered in
- -------- -------
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
--------
however, that, unless otherwise specified in such temporary global Security,
- -------
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euro-clear as to the portion of such temporary global Security held
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL S.A. as to the portion of such
temporary global Security held for its account then to be exchanged, each in the
form set forth in Exhibit A.2 to this Indenture (or in such other form as may be
established pursuant to Section 301); and provided, further, that definitive
-------- -------
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
24
<PAGE>
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs Euro-
clear or CEDEL S.A., as the case may be, to request such exchange on his behalf
and delivers to Euro-clear or CEDEL S.A., as the case may be, a certificate in
the form set forth in Exhibit A.l to this Indenture (or in such other form as
may be established pursuant to Section 301), dated no earlier than 15 days prior
to the Exchange Date, copies of which certificate shall be available from the
offices of Euro-clear and CEDEL S.A., the Trustee, any authenticating agent
appointed for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like in the event that such Person
does not take delivery of such definitive Securities in person at the offices of
Euro-clear or CEDEL S.A. Definitive Securities in bearer form to be delivered
in exchange for any portion of a temporary global Security shall be delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euro-clear and CEDEL
S.A. on such Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A.3 to this Indenture (or in such other form as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euro-clear or CEDEL S.A., as the case may be, a
certificate in the form set forth in Exhibit A.4 to this Indenture (or in such
other form as may be established pursuant to Section 301). Any interest so
received by Euro-clear and CEDEL S.A. and not paid as herein provided shall be
returned to the Trustee immediately prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company in accordance
with Section 404.
SECTION 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept a register for each series of Securities (the
registers maintained in the Corporate Trust Office of the Trustee or 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 of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times, the Security Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed "Security Registrar" for the
purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
25
<PAGE>
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Registered Securities to be exchanged at such office or agency.
Whenever any Registered Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officers' Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face amount
of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to any Paying Agent any such missing coupon in respect of which such a
payment shall have been made, such Holder shall be entitled to receive the
amount of such payment; provided, however, that, except as otherwise provided in
-------- -------
Section 1002 interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
26
<PAGE>
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.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's Agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
-------- -------
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and provided, further, that no Bearer Security
-------- -------
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, interest or Defaulted Interest,
as the case may be, will not be payable on such Interest Payment Date or
proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange 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 upon such registration of transfer or exchange.
27
<PAGE>
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, 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 Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 or 1203 and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange of any Registered Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor; provided that such Registered Security shall be simultaneously
--------
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
------------------------------------------------
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security,
pay such Security or coupon.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security for which a
destroyed, lost or stolen coupon appertains
28
<PAGE>
(with all appurtenant coupons not destroyed, lost or stolen), a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains, or, in case any such
destroyed, lost or stolen Security or coupon has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, with coupons corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains, pay such Security or coupon.
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.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed lost or stolen Security or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon 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 that series and their
coupons, if any, 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 or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset. (a) Unless otherwise provided as contemplated by Section 301
- --------------
with respect to any series of Securities, interest on any Registered Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 1002; provided, however, that
-------- -------
each installment of interest on any Registered Security may at the Company's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 309, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euro-clear and CEDEL S.A. with
respect to that portion of such permanent global
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Security held for its account by the Common Depositary, for the purpose of
permitting each of Euro-clear and CEDEL, S.A. to credit the interest received by
it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
Any interest on any Registered Security of any 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 Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money in the currency or currency unit in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of 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 Registered Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose name the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
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(b) The provisions of this Section 307(b) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate on any Security of such series may be reset by the Company on
the date or dates specified on the face of such Security (each an "Optional
Reset Date"). The Company may exercise such option with respect to a Note by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Note. Not later than 40 days prior to
each Optional Reset Date, the Trustee shall transmit, in the manner provided for
in Section 106, to the Holder of any such Security a notice (the "Reset Notice")
indicating whether the Company has elected to reset the interest rate, and if so
(i) such new interest rate and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
provided for in the Reset Notice and establish a higher interest rate for the
Subsequent Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 106, notice of such higher interest rate to the Holder
of such Security. Such notice shall be irrevocable. All Securities with
respect to which the interest rate is reset on an Optional Reset Date will bear
such higher interest rate.
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
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. Optional Extension of Maturity. The provisions of this
------------------------------
Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity Date of any
Security of such series may be extended at the option of the Company for the
period or periods specified on the face of such Security (each an "Extension
Period") up to but not beyond the date (the "Final Maturity") set forth on the
face of such Security. The Company may exercise such option with respect to any
Security by notifying the
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Trustee of such exercise at least 50 but not more than 60 days prior to the
Stated Maturity of such Security in effect prior to the exercise of such option
(the "Original Stated Maturity"). If the Company exercises such option, the
Trustee shall transmit, in the manner provided for in Section 106, to the Holder
of such Security not later than 40 days prior to the Original Stated Maturity a
notice (the "Extension Notice") indicating (i) the election of the Company to
extend the Maturity, (ii) the new Stated Maturity Date, (iii) the interest rate
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity Date of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity Date is extended will
bear such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity Date and except that, if the Holder has tendered any Security
for repayment pursuant to an Extension Notice, the Holder may by written notice
to the Trustee revoke such tender for repayment until the close of business on
the tenth day before the Original Stated Maturity Date.
SECTION 309. Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Registered Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupons be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. Cancellation. All Securities and coupons surrendered
------------
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any current or future sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities and coupons so delivered to the Trustee shall be
promptly canceled 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, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered, shall be promptly
canceled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Unless by
Company Order the Company directs the return of any canceled Securities to it,
all canceled Securities shall be destroyed by the Trustee and the Trustee shall
deliver a certificate of such destruction to the Company.
SECTION 311. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 301 with respect to any Securities, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of
---------------------------------------------
Securities. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the
currency, currencies or currency unit in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section
312 may be modified or superseded with respect to any Securities pursuant to
Section 301.
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(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (and
premium, if any) or interest, if any, on such Registered Securities in any of
the currencies or currency units which may be designated for such election by
delivering to the Trustee for such series of Registered Securities a written
election with signature guarantees and in the applicable form established
pursuant to Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such currency or currency unit, such election
will remain in effect for such Holder or any transferee of such Holder until
changed by such Holder or such transferee by written notice to the Trustee for
such series of Registered Securities (but any such change must be made not later
than the close of business on the Election Date immediately preceding the next
payment date to be effective for the payment to be made on such payment date and
no such change of election may be made with respect to payments to be made on
any Registered Security of such series with respect to which an Event of Default
has occurred or with respect to which the Company has deposited funds pursuant
to Articles Four or Fourteen or with respect to which a notice of redemption has
been given by the Company). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant currency, currencies or currency unit as provided in Section 312(a).
The Trustee for each such series of Registered Securities shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the currency, currencies or currency
unit in which Registered Securities of such series are payable, the respective
aggregate amounts of principal of (and premium, if any) and interest, if any, on
the Registered Securities to be paid on such payment date, specifying the
amounts in such currency, currencies or currency unit so payable in respect of
the Registered Securities as to which the Holders of Registered Securities
denominated in any currency, currencies or currency unit shall have elected to
be paid in another currency or currency unit as provided in paragraph (b) above.
If the election referred to in paragraph (b) above has been provided for
pursuant to Section 301 and if at least one Holder has made such election, then,
unless otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officers' Certificate in
respect of the Dollar, Foreign Currency or currencies, ECU or currency unit
payments to be made on such payment date. Unless otherwise specified pursuant
to Section 301, the Dollar, Foreign Currency or currencies, ECU or currency unit
amount receivable by Holders of Registered Securities who have elected payment
in a currency or currency unit as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "Valuation Date") immediately preceding
each payment date.
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(d) If a Conversion Event occurs with respect to a Foreign Currency,
the ECU or any other currency unit in which any of the Securities are
denominated or payable other than pursuant to an election provided for pursuant
to paragraph (b) above, then with respect to each date for the payment of
principal of (and premium, if any) and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency, the ECU or such
other currency unit occurring after the last date on which such Foreign
Currency, the ECU or such other currency unit was used (the "Conversion Date"),
the Dollar shall be the currency of payment for use on each such payment date.
Unless otherwise specified pursuant to Section 301, the Dollar amount to be paid
by the Company to the Trustee of each such series of Securities and by such
Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of
a currency unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in paragraph (f) or
(g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any currency, currencies or currency
unit shall have elected to be paid in another currency, currencies or currency
unit as provided in paragraph (b) above, and a Conversion Event occurs with
respect to such elected currency or currency unit, such Holder shall receive
payment in the currency or currency unit in which payment would have been made
in the absence of such election; and if a Conversion Event occurs with respect
to the currency, currencies or currency unit in which payment would have been
made in the absence of such election, such Holder shall receive payment in
Dollars as provided in paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of paragraph (h) below
shall be the sum of each amount obtained by converting the Specified Amount of
each Component Currency into Dollars at the Market Exchange Rate for such
Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall have
the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were represented in
the relevant currency unit, including, but not limited to, the ECU, on the
Conversion Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination
35
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or subdivision, the Specified Amount of such Component Currency shall be divided
or multiplied in the same proportion. If after the Conversion Date two or more
Component Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an amount in
such single currency equal to the sum of the respective Specified Amounts of
such consolidated Component Currencies expressed in such single currency, and
such amount shall thereafter be a Specified Amount and such single currency
shall thereafter be a Component Currency. If after the Conversion Date any
Component Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement shall be equal to the Dollar
Equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, the ECU, a Conversion Event (other than any
event referred to above in this definition of "Specified Amount") occurs with
respect to any Component Currency of such currency unit and is continuing on the
applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on the
Conversion Date of such Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to Section 301(13) by which the written
election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee for the appropriate series of Securities and all Holders of
such Securities denominated or payable in the relevant currency, currencies or
currency units. The Exchange Rate Agent shall promptly give written notice to
the Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good
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faith that any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Company will similarly
give written notice to the Trustee of the appropriate series of Securities and
to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate
------------------------------------------------------
Agent. (a) Unless otherwise specified pursuant to Section 301, if and so long
- -----
as the Securities of any series (i) are denominated in a currency other than
Dollars or (ii) may be payable in a currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued currency or currency unit into the applicable payment currency or
currency unit for the payment of principal (and premium, if any) and interest,
if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same currency, currencies or currency units).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Company Request cease to be of further effect with respect to any
series of Securities
37
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(except as to any surviving rights of registration of transfer or exchange of
Securities of such series herein expressly provided for and the obligation of
the Company to pay any Additional Amounts as contemplated by Section 1010) and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when:
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons of such series for whose payment money has
theretofore been deposited with the Trustee or any Paying Agent and
thereafter repaid to the Company, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the 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, in the currency, currencies or currency unit in which
the Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(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 as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money. Subject to the provisions
--------------------------
of the last paragraph of Section 1003, all money 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, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money has been deposited with the Trustee; but such money need not
be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default", wherever used
-----------------
herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series and any related coupon when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of all
Outstanding Securities a written notice specifying such default or breach
39
<PAGE>
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under the Federal Bankruptcy
Code or any other applicable Federal or State law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 90
consecutive days; or
(5) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the
Federal Bankruptcy Code or any other applicable Federal or State law, or
the consent by it to the filing of any such petition or to the appointment
of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due; or
(6) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default described in clause (1), (2) or (6) of Section 501 with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then 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 principal amount (or, if the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal amount
as may be specified in the terms of that series) of all of 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 amount (or specified portion thereof) shall become immediately
due and payable. If an Event of Default described in clause (3), (4) or (5) of
Section 501 occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of all the Securities then
Outstanding may declare the principal amount (or, if any such Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms of that series) of all of the
Outstanding Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by the Holders) and upon any such
declaration such principal amount (or specified portion thereof) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) 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
40
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provided, the Holders of a majority in principal amount of the Outstanding
Securities of that series (or of all series, as the case may be), 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 in the currency, currency unit or composite currency in
which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest on all Outstanding Securities of that
series (or of all series, as the case may be) and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series (or of all series, as the case may be) which
has become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is legally
enforceable, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration, have
been cured or waived 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 interest on any Security and
any related coupon when such interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons
41
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for principal (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such 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 such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) 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 such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 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 of 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, premium, if any, or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be
specified in the terms of such series, and interest 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;
and any custodian, 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
42
<PAGE>
to the Holders, to pay to the Trustee any amount due 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.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or the
- ----------
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons 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 premium, if any) or interest, upon
presentation of the Securities or coupons, or both, as the case may be, 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 for
principal of (and premium, if any) and interest on the Securities and
coupons 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 and
coupons for principal (and premium, if any) and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of any
-------------------
series or any related coupons shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
43
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2) or (6) of Section 501, or, in the case of any
Event of Default described in clause (3), (4) or (5) of Section 501, the
Holders of not less than 25% in principal amount of all Outstanding
Securities, 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 not less
than a majority in principal amount of the Outstanding Securities of that
series in the case of any Event of Default described in clause (1), (2) or
(6) of Section 501, or, in the case of any Event of Default described in
clause (3), (4) or (5) of Section 501, by the Holders of not less than a
majority in principal amount of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2) or (6) of Section 501, or of Holders of all
Securities in the case of any Event of Default described in clause (3), (4) or
(5) of Section 501, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2) or (6) of Section 501, or of Holders of all
Securities in the case of any Event of Default described in clause (3), (4) or
(5) of Section 501.
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium 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, as provided herein (including, if applicable,
Article Fourteen) and in such Security, of the principal of (and premium, if
any) and (subject to Section 1307) interest on such Security on the Stated
Maturity or Maturities expressed in such Security or coupon (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, subject to any determination in such proceeding, the
Company, the Trustee and the Holders of Securities and coupons shall be restored
severally and respectively to their former positions hereunder and
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<PAGE>
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 or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons 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 of any Securities or coupons 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. With respect to the Securities of
------------------
any series, the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, relating to
or arising under clause (1), (2) or (6) of Section 501, and, with respect to all
Securities, the Holders of not less than a majority in principal amount of all
Outstanding Securities 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, not relating to or
arising under clause (1), (2) or (6) of Section 501, provided that in each case
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults. Subject to Section 502, the
-----------------------
Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default described in clause (1), (2) or (6) of
Section 501 (or, in the case of a default described in clause (3), (4) or (5) of
Section 501, the Holders of not less than a majority in principal amount of all
Outstanding Securities may waive any such past default), and its consequences,
except a default
(1) in respect of the payment of the principal of (or premium, if
any) or interest on any Security or any related coupon, or
45
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(2) 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 such series affected.
Upon any such waiver, any 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 Event of Default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security or coupon by his acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit relating to or arising under clause (6)
of Section 501 and instituted by any Holder of Securities of the affected
series, or group of such Holders, holding in the aggregate more than 10% in
principal amount of the Outstanding Securities of such series (or, in the case
of any suit relating to or arising under clause (3), (4) or (5) of Section 501,
10% in principal amount of all Outstanding Securities), or to any suit
instituted by any Holder of any Security or coupon for the enforcement of the
payment of the principal of (or premium, if any) or interest on any Security or
the payment of any coupon on or after the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on or after
the Redemption Date).
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
hereafter 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 with respect to the Securities of a
series,
(1) the Trustee undertakes to perform such duties and only such
duties with respect to such series as are specifically set forth in this
Indenture, and no implied
46
<PAGE>
covenants or obligations with respect to such series 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, with respect to such series, 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 with respect to the Securities of a
series has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture with respect to such series,
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
------
(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 a direction
of Holders, given as provided in Section 512, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend 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 the Securities of any series, the
Trustee shall transmit in the
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manner and to the extent provided in Section 106, notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the
-------- -------
payment of the principal of (or premium, if any) or interest on any Security of
such series or in the payment of any sinking fund installment with respect to
Securities of such 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 or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons; and provided,
--------
further, that in the case of any default of the character specified in Section
- -------
501(3) with respect to Securities of such series, 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 with respect
to Securities of such series.
SECTION 603. Certain Rights of Trustee. Subject to the provisions of
-------------------------
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, note, other evidence of indebtedness 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 written 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 of Securities of any series or any related coupons
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, debenture, note, other evidence of indebtedness
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or other paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry
or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(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. Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
Securities. The recitals contained herein and in the Securities, except the
- ----------
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein. The
Trustee or any Authenticating Agent 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, any Authenticating
-------------------
Agent, any Paying Agent, any Security Registrar or any other agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to Sections 608 and
613, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security 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 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
49
<PAGE>
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 the trust or trusts 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.
SECTION 608. Disqualification; Conflicting Interests. (a) If the
---------------------------------------
Trustee has or shall acquire any conflicting interest, as defined in this
Section, with respect to the Securities of any series, it shall, within 90 days
after ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign with respect to the Securities of that series in
the manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such 90-
day period, transmit, in the manner and to the extent provided in Section
703(c), to all Holders of Securities of that series notice of such failure.
(c) For the purposes of this Section, the Trustee shall be deemed to
have a conflicting interest with respect to the Securities of any series if:
(1) the Trustee is trustee under this Indenture with respect to the
Outstanding Securities of any series other than that series or is trustee
under another indenture under which any other securities, or certificates
of interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust indenture
under which the only collateral consists of Securities issued under this
Indenture; provided that there shall be excluded from the operation of this
--------
paragraph (x) the Indenture dated as of August 1, 1982 as supplemented by a
First Supplemental Indenture dated as of June 15, 1986, a Second
Supplemental Indenture dated as of March 31, 1989 and a Third Supplemental
Indenture dated as of November 1, 1989 between United Technologies
Corporation and The Connecticut National Bank, Trustee, under which the
Company's unsecured and unsubordinated debt securities, including a series
of $100,000,000 aggregate principal amount of 8-1/8% Notes due March 1,
1996, a series of $300,000,000 aggregate principal amount of 8-7/8% Sinking
Fund Debentures due December 15, 2016, a series of $164,650,000 aggregate
principal amount of Medium-Term Notes Due from Nine Months to Thirty Years
from Date of Issue, a series of $100,000,000 aggregate principal amount of
9-5/8% Notes due May 15, 1999, a series of $300,000,000 aggregate principal
amount of 8-7/8% Debentures due November 15, 2019, and a series of
$102,700,000 aggregate principal amount of Medium-Term Notes, Series A Due
from Nine Months to Thirty Years from Date of Issue, are outstanding, the
Indenture dated as of January 1, 1978 as supplemented by a First
Supplemental Indenture dated as of February 15, 1988 and a Second
Supplemental Indenture dated as of March 1, 1988 between UT Finance
Corporation, United Technologies Corporation and The
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Connecticut National Bank, Trustee, under which UT Finance Corporation's
$75,000,000 aggregate principal amount of 8.85% Sinking Fund Debentures due
January 1, 2003 are outstanding, the Indenture dated as of June 1, 1976 as
supplemented by a First Supplemental Indenture dated as of July 1, 1977, a
Second Supplemental Indenture dated as of February 15, 1988 and a Third
Supplemental Indenture dated as of March 1, 1988 between UT Finance
Corporation, United Technologies Corporation and The Connecticut National
Bank, Trustee, under which UT Finance Corporation's $75,000,000 aggregate
principal amount of 8-1/4% Series B Sinking Fund Notes due July 1, 2002 are
outstanding, the Indenture dated as of May 15, 1986 as supplemented by a
First Supplemental Indenture dated as of March 1, 1988 between UT Finance
Corporation, United Technologies Corporation and The Connecticut National
Bank, Trustee, under which UT Finance Corporation's unsecured and
unsubordinated debt securities, including an initial series of up to
$200,000,000 aggregate principal amount of Medium-Term Notes, Series A are
outstanding, (y) this Indenture with respect to the Securities of any
series other than that series and (z) any indenture or indentures under
which other securities, or certificates of interest or participation in
other securities, of the Company are outstanding, if
(i) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are
(hereafter, in the case of those referred to in the preceding clause
(z)) qualified under the Trust Indenture Act, unless the Commission
shall have found and declared by order pursuant to Section 305(b) or
Section 307(c) of the Trust Indenture Act that differences exist
between the provisions of this Indenture with respect to Securities of
that series and one or more other series or the provisions of such
other indenture or indentures which are so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to the
Securities of that series and such other series or under such other
indenture or indentures, or
(ii) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that trusteeship under this Indenture with respect to the
Securities of that series and such other series or such other
indenture or indentures is not so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to the Securities of that
series and such other series or under such other indenture or
indentures;
(2) the Trustee or any of its directors or executive officers is an
obligor upon the Securities or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
the Company or an underwriter for the Company;
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(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of the
Company, or of an underwriter (other than the Trustee itself) for the
Company who is currently engaged in the business of underwriting, except
that (i) one individual may be a director or an executive officer, or both,
of the Trustee and a director or an executive officer, or both, of the
Company but may not be at the same time an executive officer of both the
Trustee and the Company; (ii) if and so long as the number of directors of
the Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of the Trustee and a director of
the Company; and (iii) the Trustee may be designated by the Company or by
any underwriter for the Company to act in the capacity of transfer agent,
registrar, custodian, paying agent, fiscal agent, escrow agent or
depositary, or in any other similar capacity, or, subject to the provisions
of paragraph (1) of this Subsection, to act as trustee, whether under an
indenture or otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Company or by any director, partner or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), (i) 5% or more of the voting securities, or 10% or
more of any other class of security, of the Company not including the
Securities issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or (ii) 10% or
more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 5% or more of the voting securities of any person who,
to the knowledge of the Trustee, owns 10% or more of the voting securities
of, or controls directly or indirectly or is under direct or indirect
common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default (as hereinafter in this
Subsection defined), 10% or more of any class of security of any person
who, to the knowledge of the Trustee, owns 50% or more of the voting
securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year, in the capacity
of executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an aggregate of
25% or more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which would
have constituted a conflicting interest under paragraph (6), (7) or (8) of
this Subsection. As to any such securities of which the Trustee acquired
ownership through
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becoming executor, administrator or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not apply,
for a period of two years from the date of such acquisition, to the extent
that such securities included in such estate do not exceed 25% of such
voting securities or 25% of any such class of security. Promptly after May
15 in each calendar year, the Trustee shall make a check of its holdings of
such securities in any of the above-mentioned capacities as of such May 15.
If the Company fails to make payment in full of the principal of (or
premium, if any) or interest on any of the Securities when and as the same
becomes due and payable, and such failure continues for 30 days thereafter,
the Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration of
such 30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the Trustee,
with sole or joint control over such securities vested in it, shall, but
only as long as such failure shall continue, be considered as though
beneficially owned by the Trustee for the purposes of paragraphs (6), (7)
and (8) of this Subsection.
The specification of percentages in paragraphs (5) to (9), inclusive,
of this Subsection shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this Subsection.
For the purposes of paragraphs (6), (7), (8) and (9) of this
Subsection only, (i) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (ii) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
30 days or more and shall not have been cured; and (iii) the Trustee shall not
be deemed to be the owner or holder of (A) any security which it holds as
collateral security, as trustee or otherwise, for an obligation which is not in
default as defined in clause (ii) above, or (B) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (C) any security which it holds as agent for collection, or as custodian,
escrow agent or depositary, or in any similar representative capacity.
(d) For the purposes of this Section:
(1) The term "underwriter", when used with reference to the Company,
means every person who, within three years prior to the time as of which
the determination is made, has purchased from the Company with a view to,
or has offered or sold for the Company in connection with, the distribution
of any security of the Company outstanding at such time, or has
participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission.
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(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Securities.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(1) A specified percentage of the voting securities of the Trustee,
the Company or any other person referred to in this Section (each of whom
is referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(2) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(3) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares and the number of units if relating to
any other kind of security.
(4) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
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(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or interest
or otherwise; and
(iv) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
-------- -------
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof.
(5) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
-------- -------
the case of secured evidences of indebtedness, all of which are issued
under a single indenture, differences in the interest rates or maturity
dates of various series thereof shall not be deemed sufficient to
constitute such series different classes and provided, further, that, in
-------- -------
the case of unsecured evidences of indebtedness, differences in the
interest rates or maturity dates thereof shall not be deemed sufficient to
constitute them securities of different classes, whether or not they are
issued under a single indenture.
SECTION 609. 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, any State thereof
or the District of Columbia, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $20,000,000
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 said 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 610. 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 in accordance with the applicable
requirements of Section 611.
(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 the
instrument of acceptance by a successor Trustee required by Section 611 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
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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 series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months, 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 or Trustees.
(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 or Trustees 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 only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. 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 series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all
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others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for in Section 106. Each notice shall include the name
of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. 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.
(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 Trustee co-trustees of the
same trust and that 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 to 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
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of such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this instrument, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(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 rights, powers and trusts referred to
in paragraph (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.
SECTION 612. 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 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;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate of
the Trustee shall have; provided, however, that the right to adopt the
-------- -------
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 613. Preferential Collection of Claims Against Company. (a)
-------------------------------------------------
Subject to Subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within four months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities and
coupons and the holders of other indenture securities, as defined in Subsection
(c) of this Section:
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this Subsection, or from the exercise of any right of set-
off
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which the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four months'
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
------- -------
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third Person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such four months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such four
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
Subsection (c) of this Section, would occur within four months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such four months' period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account
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and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Holders and the holders of other indenture securities dividends on claims filed
against the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
but after crediting thereon receipts on account of the indebtedness represented
by their respective claims from all sources other than from such dividends and
from the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion among the Trustee, the Holders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee and the Holders and the holders of
other indenture securities with respect to their respective claims, in which
event it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for any
such claim, or to make a specific allocation of such distributions as between
the secured and unsecured portions of such claims, or otherwise to apply the
provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such four months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
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(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Holders at the time and in the manner
provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper, as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable;
(2) the term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account;
(3) the term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(4) the term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously
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constituting the security, provided the security is received by the Trustee
simultaneously with the creation of the creditor relationship with the
Company arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation;
(5) the term "Company" means any obligor upon the Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy Act of
Title 11 of the United States Code.
SECTION 614. Appointment of Authenticating Agent. The Trustee may
-----------------------------------
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $20,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent 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
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of
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Securities of the series with respect to which such Authenticating Agent will
serve, in the manner provided for in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CONNECTICUT NATIONAL BANK,
as Trustee
By
--------------------------
as Authenticating Agent
By
--------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of
-------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee
- -------
(a) semiannually, 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, on June 30 and December 31), a list, in such form
as such Trustee may reasonably require, containing all the information in
the possession or control of the Company or any of its Paying Agents other
than such Trustee as to the names and addresses of the Holders as of such
dates,
(b) on semi-annual dates on each year to be determined pursuant to
Section 301 if the Securities of any series do not bear interest, a list of
similar form and content, and
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(c) at such other times as the Trustee may request in writing, within
30 days after the 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;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Securities (1) contained in the most recent list furnished to it as provided in
Section 701, (2) received by it in the capacity of Paying Agent or Security
Registrar (if so acting) hereunder and (3) filed with it within the two
preceding years pursuant to Section 703(c)(2).
The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished and may destroy not earlier
than two years after filing, any information filed with it pursuant to Section
703(c)(2).
(b) If three or more Holders of Securities of any series (herein
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 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 the same series or of all series with respect to their rights
under this Indenture or under the Securities of such series or of all series, as
the case may be, 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 such series or of all series, as the case may be, 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 such series or of all series,
as the case may be, 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 Trustee, such
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mailing would be contrary to the best interest of the Holders of Securities of
such series or of all series, as the case may be, 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) Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of either of them 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. (a) Within 60 days after May 15 of
------------------
each year commencing with the first May 15 after the first issuance of
securities pursuant to this instrument, the Trustee shall transmit to the
Holders of Securities, in the manner and to the extent provided in Section
703(c), a brief report dated as of such day 15 with respect to:
(1) its eligibility under Section 609 and its qualifications under
Section 608, or in lieu thereof, if to the best of its knowledge it has
continued to be eligible and qualified under said Sections, a written
statement to such effect;
(2) the character and amount of any advances (and if Trustee elects
so to state, the circumstances surrounding the making thereof) made by the
Trustee (as such) which remain unpaid on the date of such report, and for
the reimbursement of which it claims or may claim a lien or charge, prior
to that of the securities, on any property or funds held or collected by it
as Trustee, except that the Trustee shall not be required (but may elect)
to report such advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Securities Outstanding
on the date of such report;
(3) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section 613(b)(2), (3), (4)
or (6);
(4) the property and funds, if any, physically in the possession of
the Trustee as such on the date of such report;
(5) any additional issue of Securities which the Trustee has not
previously reported; and
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(6) any action taken by the Trustee in the performance of its duties
hereunder which it has not previously reported and which in its opinion
materially affects the securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee in accordance
with Section 602.
(b) The Trustee shall transmit to Holders of securities, in the
manner and to the extent provided in Section 703(c), and to the Company, a brief
report with respect to the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) since the date of the last report transmitted
pursuant to Subsection (a) of this Section 703 (or if no such report has yet
been so transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities, on property or funds held or collected by it as Trustee and
which it has not previously reported pursuant to this Subsection, except that
the Trustee shall not be required (but may elect) to report such advances if
such advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section 703 shall be transmitted by
mail:
(1) to all Holders of Registered Securities, as the names and
addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within the two
years preceding such transmission, filed their names and addresses with the
Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b) of this
Section, to each Holder of a Security whose name and address is preserved
at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which any Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Securities are listed on any
securities exchange.
SECTION 704. Reports by Company. The Company shall:
------------------
(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 shall file with the Trustee and the Commission, in accordance with rules
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
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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 to all Holders, in the manner and to the extent provided
in Section 703(c), 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, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other corporation or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, 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, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
Company's obligation for the due and punctual payment of the principal of
(and premium, if any) and interest (including all Additional Amounts, if
any, payable as contemplated by Section 1010) on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
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This Section shall only apply to a merger or consolidation in which
the Company is not the surviving corporation and to conveyances, leases and
transfers by the Company as transferor or lessor.
SECTION 802. Successor Corporation Substituted. Upon any
---------------------------------
consolidation by the Company with or merger by the Company into any other
corporation or any conveyance, transfer or lease of the properties and assets of
the Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease 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 become such in the manner described in
Section 801), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and the
coupons and may be dissolved and liquidated.
SECTION 803. Securities to be Secured in Certain Events. If, upon
------------------------------------------
any such consolidation of the Company with or merger of the Company into any
other corporation, or upon any conveyance, lease or transfer of the property of
the Company as an entirety or substantially as an entirety to any other Person,
any Principal Property of the Company or of any Wholly-Owned Domestic
Manufacturing Subsidiary (or any shares of stock or Debt of any Wholly-Owned
Domestic Manufacturing Subsidiary) would thereupon become subject to any Lien,
then unless such Lien could be created pursuant to Section 1008 without equally
and ratably securing the Securities, the Company, prior to or simultaneously
with such consolidation, merger, conveyance, lease or transfer, will, as to such
Principal Property, shares of stock or Debt, secure the Securities Outstanding
hereunder (together with, if the Company shall so determine, any other Debt of
the Company now existing or hereafter created which is not subordinate to the
Securities) equally and ratably with (or prior to) the Debt which upon such
consolidation, merger, conveyance, lease or transfer is to become secured as to
such Principal Property, shares of stock or Debt by such Lien, or will cause
such Securities to be so secured; provided that for the purpose of providing
--------
such equal and ratable security the principal amount of Original Issue Discount
Securities and Indexed Securities shall mean that amount which would at the time
of making such effective provision be due and payable pursuant to Section 502
and the terms of such Original Issue Discount Securities and Indexed Securities
upon a declaration of acceleration of the Maturity thereof, and the extent of
such equal and ratable security shall be adjusted, to the extent permitted by
law, as and when said amount changes over time pursuant to the terms of such
Original Issue Discount Securities and Indexed Securities.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, 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 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 of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities and any related coupons (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; or
(3) to add any additional Events of Default (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 being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form; provided that any such action shall not adversely
--------
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) 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
(6) to secure the Securities pursuant to the requirements of Section
803 or 1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) 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
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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 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; provided such action shall not adversely affect the
--------
interests of the Holders of Securities of any particular series and any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
--------
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With
-----------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, 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 of Securities under this
Indenture; provided, however, that no such supplemental indenture shall, without
-------- -------
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change any obligation of the Company to pay
Additional Amounts contemplated by Section 1010 (except as contemplated by
Section 801(i) and permitted by Section 901(1)), or reduce the amount of
the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or change any Place of Payment where, or the coin, currency,
currencies, currency unit or composite currency in which, any Security or
any premium 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 or repayment at the
option of the Holder, on or after the Redemption Date or Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
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(3) modify any of the provisions of this Section, Section 513 or
Section 1011, 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 Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
-------- -------
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1011, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
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.
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 Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any 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 Company, 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.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. The
------------------------------------------
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of (and premium, if any) and
interest (including all Additional Amounts, if any, contemplated by Section
1010) on the Securities of that series in accordance with the terms of the
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency. If the Securities of
-------------------------------
a series are issuable only as Registered Securities, the Company will maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for 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. If Securities of a
series are issuable as Bearer Securities, the Company will maintain (A) in The
City of New York, an office or agency where any Registered Securities of that
series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series as contemplated by Section 1010); provided, however, that if the
-------- -------
Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange, and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for 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 any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
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Additional Amounts payable on Bearer Securities of that series as contemplated
by Section 1010) at the offices specified in the Security, in London, and the
Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
-------- -------
the Securities of a series are payable in Dollars, payment of principal of and
any premium and interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series contemplated by Section 1010) shall
be made at the office of the Company's Paying Agent in The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a currency other than Dollars or (ii) may be payable in a currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
-------------------------------------------------
the Company shall at any time act as its own Paying Agent with respect to any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the currency, currencies or currency unit in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal of (and
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premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum (in the currency, currencies or currency unit described in
the preceding paragraph) sufficient to pay the principal (and premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any 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:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest 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 of that series) in the making of any
payment of principal (and premium, if any) or interest on the 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 sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
-------- -------
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
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SECTION 1004. Statement as to Compliance. The Company will deliver
--------------------------
to the Trustee, within 120 days after the end of each fiscal year, commencing
with its fiscal year ending December 31, 1990, a written statement signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Controller or an Assistant Controller of the Company, stating, as
to each signer thereof, that
(1) a review of the activities of the Company during such year and of
the Company's performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled all its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof, and (b) no event has occurred and is continuing which is,
or after notice or lapse of time or both would become, an Event of Default
under Section 501, or, if such event has occurred and is continuing,
specifying each such event known to him and the nature and status thereof.
SECTION 1005. Payment of Taxes and Other Claims. The Company will
---------------------------------
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Wholly-Owned Domestic Manufacturing
Subsidiary or upon the income, profits or property of the Company or any Wholly-
Owned Domestic Manufacturing Subsidiary, and (2) all material lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien upon
any Principal Property of the Company or any Wholly-Owned Domestic Manufacturing
Subsidiary; provided, however, that the Company shall not be required to pay or
-------- -------
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 1006. Maintenance of Principal Properties. The Company will
-----------------------------------
cause all Principal Properties to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
-------- -------
Section shall prevent or restrict the sale, abandonment or other disposition of
any of such properties if such action is, in the judgment of the Company,
desirable in the conduct of the business of the Company and its Subsidiaries as
a whole.
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 and the rights (charter and
statutory) and franchises of the Company and any Wholly Owned Domestic
Manufacturing Subsidiary; provided, however, that the Company shall not be
-------- -------
required to preserve any such right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries as a whole.
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SECTION 1008. Limitation upon Liens. The Company will not itself,
---------------------
and will not permit any Wholly-Owned Domestic Manufacturing Subsidiary to,
create, incur, issue or assume any notes, bonds, debentures or other similar
evidences of indebtedness for money borrowed (notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being hereinafter in this
Section, in Section 803 and in Section 1009 called "Debt") secured by any pledge
of, or mortgage, lien, encumbrance, or security interest on (such pledges,
mortgages, liens, encumbrances and security interests being hereinafter in this
Section, in Section 803 and in Section 1009 collectively called "Liens"), any
Principal Property owned by the Company or any Wholly-Owned Domestic
Manufacturing Subsidiary, and the Company will not itself, and will not permit
any Subsidiary to, create, incur, issue or assume any Debt secured by any Lien
on any shares of stock or Debt of any Wholly-Owned Domestic Manufacturing
Subsidiary, without in any such case effectively providing that, the Securities
(together with, if the Company shall so determine, any other Debt of the Company
then existing or thereafter created which is not subordinate to the Securities)
shall be secured equally and ratably with (or prior to) such secured Debt, so
long as such secured Debt shall be so secured, unless, after giving effect
thereto, the aggregate principal amount of all such secured Debt then
outstanding plus Attributable Debt of the Company and its Wholly-Owned Domestic
----
Manufacturing Subsidiaries in respect of sale and leaseback transactions (as
defined in Section 1009) involving Principal Properties entered into after the
date of the first issuance by the Company of securities issued pursuant to this
instrument (other than such sale and leaseback transactions as are permitted by
Section 1009(b)) would not exceed an amount equal to 10% of Consolidated Net
Tangible Assets; provided, however, that nothing contained in this Section shall
-------- -------
prevent, restrict or apply to, and there shall be excluded from secured Debt in
any computation under this Section, Debt secured by:
(a) Liens on any property or assets of the Company or any subsidiary
(including shares of stock or Debt owned by the Company or any Subsidiary)
existing as of the date of the first issuance by the Company of securities
issued pursuant to this instrument;
(b) Liens on any property or assets of, or on any shares of stock or
Debt of, any corporation existing at the time such corporation becomes a
Wholly-Owned Domestic Manufacturing Subsidiary, or arising thereafter (i)
otherwise than in connection with the borrowing of money arranged
thereafter and (ii) pursuant to contractual commitments entered into prior
to and not in contemplation of such corporation's becoming a Wholly-Owned
Domestic Manufacturing Subsidiary;
(c) Liens on any property or assets or shares of stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or securing the payment of all or any part of the
purchase price or construction cost thereof or securing any Debt incurred
prior to, at the time of or within 120 days after, the acquisition of such
property or assets or shares of stock or Debt or the completion of any such
construction, whichever is later, for the purpose of financing all or any
part of the purchase price or construction cost thereof (provided such
--------
Liens are limited to such shares of stock or Debt or such other property or
assets, improvements thereon and the
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land upon which such property, assets and improvements are located and any
other property or assets not then constituting a Principal Property);
(d) Liens on any property or assets to secure all or any part of the
cost of exploration, drilling, development, operation, construction,
alteration, repair or improvement of all or any part of such property or
assets, or to secure Debt incurred prior to, at the time of or within 120
days after, the completion of such exploration, drilling, development,
operation, construction, alteration, repair or improvement, whichever is
later, for the purpose of financing all or any part of such cost (provided
--------
such Liens are limited to such property or assets, improvements thereon and
the land upon which such property, assets and improvements are located and
any other property or assets not then constituting a Principal Property);
(e) Liens which secure Debt owing by a Subsidiary to the Company or
to a Wholly-Owned Domestic Manufacturing Subsidiary;
(f) Liens arising from the assignment of moneys due and to become due
under contacts between the Company or any Subsidiary and the United States
of America, any State, Commonwealth, Territory or possession thereof or any
agency, department, instrumentality or political subdivision of any
thereof; or Liens in favor of the United States of America, any State,
Commonwealth, Territory or possession thereof or any agency, department,
instrumentality or political subdivision of any thereof, pursuant to the
provisions of any contract not directly or indirectly in connection with
securing Debt;
(g) any materialmen's, carriers', mechanics', workmen's, repairmen's
or other like liens arising in the ordinary course of business in respect
of obligations which are not overdue or which are being contested in good
faith by appropriate proceedings; any deposit or pledge as security for the
performance of any bid, tender, contract, lease, or undertaking not
directly or indirectly in connection with the securing of Debt; any deposit
or pledge with any governmental agency required or permitted to qualify the
Company or any Subsidiary to conduct business, to maintain self-insurance
or to obtain the benefits of any law pertaining to workmen's compensation,
unemployment insurance, old age pensions, social security or similar
matters, or to obtain any stay or discharge in any legal or administrative
proceedings; deposits or pledges to obtain the release of mechanics',
workmen's, repairmen's, materialmen's or warehousemen's liens or the
release of property in the possession of a common carrier; any security
interest created in connection with the sale, discount or guarantee of
notes, chattel mortgages, leases, accounts receivable, trade acceptances or
other paper, or contingent repurchase obligations, arising out of sales of
merchandise in the ordinary course of business; liens permitted by Section
1005; or other deposits or pledges similar to those referred to in this
subdivision (g);
(h) Liens arising by reason of any judgment, decree or order of any
court, so long as any appropriate legal proceedings which may have been
initiated for the review of such judgment, decree or order shall not have
been finally terminated or so long as the
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period within which such proceedings may be initiated shall not have
expired; any deposit or pledge with any surety company or clerk of any
court, or in escrow, as collateral in connection with, or in lieu of, any
bond on appeal from any judgment or decree against the Company or any
Subsidiary, or in connection with other proceedings or actions at law or in
equity by or against the Company or any Subsidiary; and
(i) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), as a whole
or in part, of any of the Liens referred to in subdivisions (a) through (h)
above or the Debt secured thereby; provided that (1) such extension,
---------
renewal, substitution or replacement Lien shall be limited to all or any
part of the same property or assets or shares of stock or Debt that secured
the Lien extended, renewed, substituted or replaced (plus improvements on
such property, and plus any other property or assets not then constituting
a Principal Property) and (2) in the case of subdivisions (a) through (c)
above, the Debt secured by such Lien at such time is not increased.
For the purposes of this Section 1008 and Section 1009, the giving of
a guarantee which is secured by a Lien on a Principal Property, and the creation
of a Lien on a Principal Property or shares of stock or Debt to secure Debt
which existed prior to the creation of such Lien, shall be deemed to involve the
creation of Debt in an amount equal to the principal amount guaranteed or
secured by such Lien; but the amount of Debt secured by Liens on Principal
Properties and shares of stock and Debt shall be computed without cumulating the
underlying indebtedness with any guarantee thereof or Lien securing the same.
For purposes of this Section 1008 and Section 1009, the following
shall not be deemed to be Liens securing Debt and, accordingly, nothing
contained in this Section or Section 1009 shall prevent, restrict or apply to:
(x) any acquisition by the Company or any Wholly-Owned Domestic Manufacturing
Subsidiary of any property or assets subject to any reservation or exception
under the terms of which any vendor, lessor or assignor creates, reserves or
excepts or has created, reserved or excepted an interest in oil, gas and/or any
other mineral and/or the process thereof, (y) any conveyance or assignment under
the terms of which the Company or any Wholly-Owned Domestic Manufacturing
Subsidiary conveys or assigns to any Person or Persons an interest in oil, gas
and/or any other mineral and/or the proceeds thereof, or (z) any Lien upon any
property or assets owned or leased by the Company or any Wholly-Owned Domestic
Manufacturing Subsidiary or in which the Company or any Wholly-Owned Domestic
Manufacturing Subsidiary owns an interest to secure to the Person or Persons
paying the expenses of developing and/or conducting operations for the recovery,
storage, transportation and/or sale of the mineral resources of the said
property (or property with which it is utilized) the payment to such Person or
Persons of the Company's or the Wholly-Owned Domestic Manufacturing Subsidiary's
proportionate part of such development and/or operating expense.
SECTION 1009. Limitations upon Sales and Leasebacks. The Company
-------------------------------------
will not itself, and will not permit any Wholly-Owned Domestic Manufacturing
Subsidiary to, enter into any arrangement after the date of the first issuance
by the Company of securities issued pursuant to this instrument with any bank,
insurance company or other lender or investor (other than the
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Company or another Wholly-Owned Domestic Manufacturing Subsidiary) providing for
the leasing by the Company or any such Wholly-Owned Domestic Manufacturing
Subsidiary of any Principal Property (except a lease for a temporary period not
to exceed three years by the end of which it is intended that the use of such
Principal Property by the lessee will be discontinued), which was or is owned or
leased by the Company or a Wholly-Owned Domestic Manufacturing Subsidiary and
which has been or is to be sold or transferred, more than 120 days after the
completion of construction and commencement of full operation thereof by the
Company or such Wholly-Owned Domestic Manufacturing Subsidiary, to such lender
or investor or to any Person to whom funds have been or are to be advanced by
such lender or investor on the security of such Principal Property (herein
referred to as a "sale and leaseback transaction") unless, either:
(a) the Attributable Debt of the Company and its Wholly-Owned
Domestic Manufacturing Subsidiaries in respect of such sale and leaseback
transaction and all other sale and leaseback transactions entered into
after the date of the first issuance by the Company of securities issued
pursuant to this instrument (other than such sale and leaseback
transactions as are permitted by Section 1009(b)), plus the aggregate
principal amount of Debt secured by Liens on Principal Properties then
outstanding (excluding any such Debt secured by Liens covered in
subdivisions (a) through (i) of the first paragraph of Section 1008)
without equally and ratably securing the Securities, would not exceed 10%
of Consolidated Net Tangible Assets, or
(b) the Company, within 120 days after the sale or transfer, applies
or causes a Wholly-Owned Domestic Manufacturing Subsidiary to apply an
amount equal to the greater of the net proceeds of such sale or transfer or
fair market value of the Principal Property so sold and leased back at the
time of entering into such sale and leaseback transaction (in either case
as determined by any two of the following: the Chairman, the President,
any Vice President, the Treasurer and the Controller of the Company) to the
retirement of Securities of any series or other indebtedness of the Company
(other than indebtedness subordinated to the Securities) or indebtedness of
a Wholly-Owned Domestic Manufacturing Subsidiary, for money borrowed,
having a stated maturity more than 12 months from the date of such
application or which is extendible at the option of the obligor thereon to
a date more than 12 months from the date of such application (and, unless
otherwise expressly provided with respect to any one or more series of
Securities, any redemption of Securities pursuant to this provision shall
not be deemed to constitute a refunding operation or anticipated refunding
operation for the purposes of any provision limiting the Company's right to
redeem Securities of any one or more such series when such redemption
involves a refunding operation or anticipated refunding operation);
provided that the amount to be so applied shall be reduced by (i) the
--------
principal amount of Securities delivered within 120 days after such sale or
transfer to the Trustee for retirement and cancellation, and (ii) the
principal amount of any such indebtedness of the Company or a Wholly-Owned
Domestic Manufacturing Subsidiary, other than Securities, voluntarily
retired by the Company or a Wholly-Owned Domestic Manufacturing Subsidiary
within 120 days after such sale or transfer. Notwithstanding the
foregoing, no retirement referred to in this subdivision (b) may be
effected by payment at maturity or
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pursuant to any mandatory sinking fund payment or any mandatory prepayment
provision.
Notwithstanding the foregoing, where the Company or any Wholly-Owned
Domestic Manufacturing Subsidiary is the lessee in any sale and leaseback
transaction, Attributable Debt shall not include any Debt resulting from the
guarantee by the Company or any other Wholly-Owned Domestic Manufacturing
Subsidiary of the lessee's obligation thereunder.
SECTION 1010. Additional Amounts. If any Securities of a series
------------------
provide for the payment of additional amounts to any Holder who is not a United
States person in respect of any tax, assessment or governmental charge
("Additional Amounts"), the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto such Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of a series or payment of any
related coupon or the net proceeds received on the sale or exchange of any
security of a series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled to (i) assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise
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advised. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 1011. Waiver of Certain Covenants. The Company may omit in
---------------------------
any particular instance to comply with any term, provision or condition set
forth in Section 803 or Sections 1005 to 1009, inclusive, if before the time for
such compliance the Holders of at least a majority in principal amount of all
Outstanding Securities, by Act of such Holders, waive such compliance in such
instance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable 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 1102. Election to Redeem; Notice to Trustee. The election of
-------------------------------------
the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the
Securities of any series, 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 of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. 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 of any series are to be redeemed, the particular
securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee 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 amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for securities of that series.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities 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 Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided in Section 106 not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together with
accrued interest to the Redemption Date payable as provided in Section
1106) will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities, together in the case
of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price or security or indemnity satisfactory to
the Company, the Trustee for such series and any Paying Agent is furnished,
and
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Company, on which such exchanges may be
made.
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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 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 in the currency, currencies or
currency unit in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such Series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Redemption Price of, and accrued interest on, 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 in the currency, currencies or currency unit in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such Series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) (together with accrued interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
-------- -------
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest, and provided further that installments of interest on Registered
-------- -------
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that interest represented by coupons shall be payable only at an office
- -------
or agency located outside the United States (except as otherwise
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provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
---------------------------
which is to be redeemed only in part (pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. Retirements of Securities of
------------------------
any series pursuant to any sinking fund 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.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver to the Trustee Outstanding Securities of a series
(other than any previously called for redemption) theretofore purchased or
otherwise acquired by the Company together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto, and (2) receive
credit for Securities of a series which have been previously delivered to the
Trustee by the Company or for 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 the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
--------
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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 1203. Redemption of Securities for Sinking Fund. Not less
-----------------------------------------
than 60 days prior to each sinking fund payment date for any 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 in the currency, currencies or currency unit in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) and the portion
thereof, if any, which is to be satisfied by delivering or crediting Securities
of that series pursuant to Section 1202 (which Securities will, if not
previously delivered, accompany such certificate) and whether the Company
intends to exercise its right to make a permitted optional sinking fund payment
with respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
certificate, the sinking fund payment due on the next succeeding sinking fund
payment date for that series shall be paid entirely in cash and shall be
sufficient to redeem the principal amount of such Securities subject to a
mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date 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.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee in cash a sum equal to any interest accrued to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, shall not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash in the next
succeeding year or, at the request of the Company, shall be applied at any time
or from time to time to the purchase of Securities of such series, by public or
private purchase, in the open market or otherwise, at not in excess of
(excluding
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accrued interest and brokerage commissions, for which the Trustee or any paying
agent will be reimbursed by the Company) the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. 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 1302. 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 it 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 in the currency, currencies or currency unit in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such Series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so
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 on, all the Securities or portions thereof, as the case
may be, to be repaid on such date.
SECTION 1303. 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 or
which the Company shall from time to time notify the Holders of such Securities)
not earlier than 45 days nor later than 30 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 the minimum denomination for Securities
of such series, 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.
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If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
-------- -------
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
SECTION 1304. 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.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered 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
Registered 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 FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance. If pursuant to Section 301 provision is made
- ---------------------------------
for either or both of (a) defeasance of the Securities of or within a series
under Section 1402 or (b) covenant defeasance of the Securities of or within a
series under Section 1403, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article Fourteen
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
related coupons, and the Company may at its option by Board Resolution, at any
time, with respect to such Securities and any related coupons, elect to have
either Section 1402 (if applicable) or Section 1403 (if applicable) be applied
to such Outstanding Securities and any related coupons upon compliance with the
conditions set forth below in this Article Fourteen.
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SECTION 1402. Defeasance and Discharge. Upon the Company's exercise
------------------------
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any related coupons
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 and discharged the entire indebtedness represented by
such Outstanding Securities and any related coupons, 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 any related
coupons and this Indenture insofar as such Securities and any related coupons
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 such Outstanding Securities and any related coupons 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 on such Securities and any related coupons when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1010, (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 such Securities
and any related coupons.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
-------------------
the above option applicable to this Section with respect to any Securities of or
within a series, the Company shall be released from its obligations under
Sections 1008 and 1009, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any related coupons shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
Sections 1008 and 1009, 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 such Outstanding Securities and any
related coupons, 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
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 Section 501(3) or Section 501(6) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any related coupons shall be unaffected
thereby.
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SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of either Section 1402 or
Section 1403 to any Outstanding Securities and any related coupons:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 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 and any
related coupons, (A) an amount (in such currency, currencies or currency
unit in which such Securities and any related coupons are then specified as
payable at Stated Maturity), or (B) Government Obligations applicable to
such Securities (determined on the basis of the currency, currencies or
currency units in which such Securities are then specified as payable at
Stated Maturity) 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 of principal
(including any premium) and interest, if any, under such Securities and any
related coupons, 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 on such Outstanding
Securities and any related coupons on the Stated Maturity of such principal
or installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any related coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any related coupons.
(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 such Securities
and any related coupons shall have occurred and be continuing on the date
of such deposit or, insofar as subsections 501(4) and (5) 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 such Securities to have a conflicting interest as defined in
Section 608 and for purposes of 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) If, but only if, specified pursuant to Section 301 as being
required with respect to the Securities and any related coupons that are
the subject of defeasance, in the case of an election under Section 1402,
the Company shall have delivered to the Trustee
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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 April 1, 1990 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 such Outstanding Securities and
any related coupons 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) If, but only if, specified pursuant to Section 301 as being
required with respect to the Securities and any related coupons that are
the subject of covenant defeasance, 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 such Outstanding Securities and
any related coupons 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.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officer's
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 and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to Section 1404(1) and the related
exercise of the Company's option under Section 1402 or Section 1403 (as the
case may be), registration is not required under the Investment Company Act
of 1940, as amended, by the Company, the trust funds representing such
deposit or the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
SECTION 1405. Deposited Money and Government Obligations to be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
- ----------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities and any related coupons of such series
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and any related coupons 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 and any related coupons 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.
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Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(1) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 312(d) or
312(e) or by the terms of any Security in respect of which the deposit pursuant
to Section 1404(1) has been made, the indebtedness represented by such Security
and any related coupons shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (premium, if
any, on), and interest, if any, on such Security as they become due out of the
proceeds yielded by converting (from time to time as specified below in the case
of any such election) the amount or other property deposited in respect of such
Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the applicable
Market Exchange Rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such currency or currency unit in effect (as nearly as feasible) at
the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the 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 such outstanding Securities and any related
coupons.
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 money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
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.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for which Meetings May be Called. If
-----------------------------------------
Securities of a series are issuable as Bearer Securities, a meeting of Holders
of Securities of such series may be called at any time and from time to time
pursuant to this Article to make, give or take any request demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee
----------------------------------
may at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
The City of New York, or in London as the
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Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in The City
of New York, or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled
------------------------------------
to vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder of Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Person entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a
--------------
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
- -------- -------
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
of the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount of
the Outstanding Securities of such series which shall constitute a quorum.
92
<PAGE>
Except as limited by the proviso to Section 902 any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 902, any
- -------- -------
resolution with respect to any consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than a majority in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of a majority in principal amount of
the Outstanding Securities of that series; and provided further that, except as
-------- -------
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
-------------------------------------------------------
of Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee
- -----------
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
93
<PAGE>
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him (determined as specified in
the definition of "Outstanding" in Section 101); provided, however, that no vote
-------- -------
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The
-----------------------------------------------
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
Series shall be prepared by the Secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1601. 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
94
<PAGE>
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.
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.
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.
UNITED TECHNOLOGIES CORPORATION
By: /s/ F.C. Flynn, Jr.
-------------------------
Name: F.C. Flynn, Jr.
Title: Vice President Treasurer
[Corporate Seal]
Attest: A. Henley
Assistant Secretary
THE CONNECTICUT NATIONAL BANK
By: /s/ Susan T. Keller
-------------------------
Name: Susan T. Keller
Title: Vice President
[Seal]
Attest: Donald Cowly
95
<PAGE>
STATE OF CONNECTICUT )
) ss. Hartford
COUNTY OF HARTFORD )
On the 16th day of April, 1990, before me, personally came Frederick
C. Flynn, Jr., to me known, who, being by me duly sworn, did depose and say that
he is Vice President-Treasurer of UNITED TECHNOLOGIES CORPORATION, one of the
corporations described in and which executed the foregoing instrument; that he
knows the corporate seal of said corporation; that the seal affixed to the 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 is this certificate first above written.
By: /s/ Patricia J. Nolan
----------------------
Notary
My Commission Expires: 3/31/94
[NOTARIAL SEAL]
A-4-1
<PAGE>
STATE OF CONNECTICUT )
) ss.:
COUNTY OF HARTFORD )
On the 16th day of April, 1990, before me personally came
Susan T. Keller, to me known, who, being by me duly sworn, did depose and say
that he is Vice President of UNITED TECHNOLOGIES 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 authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[Notarial Seal]
` /s/ Debra A. Johnson
-----------------------
Notary Public
2
<PAGE>
EXHIBIT A
[FORMS OF CERTIFICATION]
EXHIBIT A.1
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
-----------------------------------------
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person or any person inside the United States or,
if a beneficial interest in the Securities is being acquired by or on behalf of
a United States person or any person inside the United States, that such United
States person is a financial institution within the meaning of Section 1.165-
12T(c)(1)(v) of the United States Treasury regulations which agrees to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986 and the regulations thereunder and which is not purchasing
for offer to resell or for resale inside the United States. If the undersigned
is a dealer, the undersigned agrees to obtain a similar certificate from each
person entitled to delivery of any of the above-captioned Securities in bearer
form purchased from it; provided, however, that if the undersigned has actual
-------- -------
knowledge that the information contained in such a certificate is false, the
undersigned will not deliver a Security in temporary or definitive bearer form
to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the above-
captioned Securities in bearer form as to all of such Securities.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or
A-1-1
<PAGE>
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated: , 19
-------------- ---
[To be dated on or after , 19
----------- ---
(the date determined as provided in the Indenture)]
[Name of Person Entitled to Receive Bearer
Security]
---------------------------------------
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE>
EXHIBIT A.2
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY]
CERTIFICATE
---------------------------------------
[Insert title or sufficient description
--------------------------------------
of Securities to be delivered]
-----------------------------
This is to certify with respect to $_____________ principal amount of
the above-captioned Securities (i) that we have received from each of the
persons appearing in our records as persons entitled to a portion of such
principal amount (our "Qualified Account Holders") a certificate with respect to
such portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: , 19
--------------- ---
[To be dated no earlier than the Exchange Date]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euro-clear
System]
[CEDEL S.A.]
By
-----------------------------
A-2-1
<PAGE>
EXHIBIT A.3
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL S.A. TO
OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
-----------------------------------------------------
[Insert title or sufficient description of Securities]
----------------------------------------------------
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
- ------------
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
Dated: , 19
--------------- ---
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euro-clear
System]
[CEDEL S.A.]
By
---------------------------
A-3-1
<PAGE>
EXHIBIT A.4
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL
OWNERS TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]
CERTIFICATE
-----------------------------------------------------
[Insert title or sufficient description of Securities]
----------------------------------------------------
This is to certify that as of the Interest Payment Date on [Insert
------
Date] and except as provided in the third paragraph hereof, none of the above-
- ----
captioned Securities held by you for our account was beneficially owned by a
United States person or, if any of such Securities held by you for our account
were beneficially owned by a United States person, such United States person
either provided an Internal Revenue Service Form W-9 with respect to such
interest payment or certified with respect to such interest payment that it was
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury regulation.
As used herein, "United States person" means any citizen or resident
of the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States federal income taxation regardless
of its source, and "United States" means the Unites States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
This certificate excepts and does not relate to U.S.$ principal amount
of the above-captioned Securities appearing in your books as being held for our
account as to which we are not yet able to certify and as to which we understand
interest cannot be credited unless and until we are able so to certify.
A-4-1
<PAGE>
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
--------------- ---
[To be dated on or after the
relevant Interest Payment Date]
[Name of Person Entitled to Receive Interest]
---------------------------------------
(Authorized Signatory)
--------------------
Name:
Title:
A-4-2
<PAGE>
EXHIBIT 5
[LETTERHEAD OF CLEARY, GOTTLIEB, STEEN & HAMILTON]
March 10, 1999
United Technologies Corporation
One Financial Plaza
Hartford, Connecticut 06101
Ladies and Gentlemen:
We have acted as special counsel to United Technologies Corporation, a
Delaware corporation (the "Company"), in connection with the preparation and
filing with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
Registration Statement on Form S-3 (the "Registration Statement") relating to
the offering from time to time, together or separately and in one or more series
of (i) unsubordinated, non-convertible debt securities (the "Debt Securities"),
(ii) warrants to purchase Debt Securities (the "Debt Warrants"), (iii) warrants,
the value of which is related to the value of various currencies (the "Currency
Warrants") and (iv) warrants, the value of which is related to various stock or
other indices (the "Stock-Index Warrants"). The Debt Warrants, Currency
Warrants and Stock-Index Warrants are referred to herein collectively as the
"Warrant Securities", and the Debt Securities and Warrant Securities are
referred to herein collectively as the "Offered Securities." The Offered
Securities being registered under the Registration Statement, together with
securities registered under a previously filed registration statement
(Registration No. 33-46916), will have an aggregate initial offering price of up
to $1,000,000,000 or the equivalent thereof in foreign currencies or composite
currencies and will be offered on a continuous or delayed basis pursuant to the
provisions of Rule 415 under the Securities Act.
The Debt Securities are to be issued under an indenture dated as of
April 1, 1990 (the "Indenture") between the Company and State Street Bank and
Trust Company (as successor to The Connecticut National Bank), as trustee (the
"Trustee"). The Debt Warrants are to be issued from time to time under one or
more debt warrant agreements (each a "Debt Warrant Agreement"), the Currency
Warrants are to be issued from time to time under one or more currency warrant
agreements (each a "Currency Warrant Agreement") and the Stock-Index Warrants
are to be issued from time to time under one or more stock-index warrant
agreements
<PAGE>
(each a "Stock-Index Warrant Agreement" and, together with the Debt Warrant
Agreements and the Currency Warrant Agreements, the "Warrant Agreements"), each
to be entered into by the Company and one or more institutions, as warrant
agents (each a "Warrant Agent"), each as identified in the applicable Warrant
Agreement.
We have reviewed the originals or copies certified or otherwise
identified to our satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below. In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified the accuracy as to factual matters of each
document we have reviewed.
With regard to the Indenture, we draw your attention to the fact that
the Trust Indenture Reform Act of 1990 (the "Trust Indenture Reform Act") became
law on November 15, 1990. The Trust Indenture Reform Act provides, among other
things, that outstanding indentures such as the Indenture shall be deemed to be
amended and certain provisions thereof superseded. Our opinions are given on
the basis that the Indenture has been so amended and certain of its provisions
so superseded, as contemplated by the Trust Indenture Reform Act, and the term
"Indenture", as hereinafter used, shall mean the indenture so amended and
superseded.
Based upon the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The Company is validly existing as a corporation in good standing under the
laws of the State of Delaware.
2. The execution and delivery of the Indenture have been duly authorized by all
necessary corporate action of the Company, and the Indenture has been duly
executed and delivered by the Company, and qualified under the Trust Indenture
Act of 1939, as amended, and is a valid, binding and enforceable agreement of
the Company.
3. The execution and delivery of the Debt Securities to be issued under the
Indenture have been duly authorized by all necessary corporate action of the
Company and the Debt Securities will be duly issued and will constitute valid,
binding and enforceable obligations of the Company, entitled to the benefits of
the Indenture.
4. The execution and delivery of the Warrant Securities have been duly
authorized by all necessary corporate action of the Company and the Warrant
Securities will be duly issued and will constitute valid, binding and
enforceable obligations of the Company.
5. The execution and delivery of the Warrant Agreements have been duly
authorized by all necessary corporate action of the Company and the Warrant
Agreements will constitute valid, binding and enforceable obligations of the
Company.
2
<PAGE>
Insofar as the foregoing opinions relate to the valid existence and
good standing of the Company, they are based solely on a certificate of good
standing received from the Secretary of State of the State of Delaware and on a
telecopy confirmation from such Secretary of State. Insofar as the foregoing
opinions relate to the validity, binding effect or enforceability of any
agreement or obligation of the Company (a) we have assumed that each other party
to such agreement or obligation has satisfied or, prior to issuance of the
Offered Securities, will satisfy those legal requirements that are applicable to
it to the extent necessary to make such agreement or obligation enforceable
against it and (b) such opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
In rendering the opinion expressed in paragraph 3 above, we have
assumed that each series of Debt Securities will be issued with an original
aggregate principal amount (or in the case of Debt Securities issued at original
issue discount, an aggregate issue price) of $2,500,000 or more.
In rendering the opinions expressed in numbered paragraphs 3, 4 and 5
above, we have further assumed that (i) all Offered Securities will be issued
and sold in compliance with applicable law, (ii) the Offered Securities will be
sold and delivered to, and paid for by, the purchasers at the price and in
accordance with the terms of an agreement or agreements duly authorized and
validly executed and delivered by the parties thereto, (iii) the Company will
authorize the offering and issuance of the Offered Securities and will
authorize, approve and establish the final terms and conditions thereof and of
any applicable Warrant Agreement and will take any other appropriate additional
corporate action, and (iv) certificates representing the Offered Securities will
be duly executed and delivered and, to the extent required by the applicable
Indenture or Warrant Agreement, duly authenticated and countersigned.
We note that by statute New York provides that a judgment or decree
rendered in a currency other than the currency of the United States shall be
converted into U.S. dollars at a rate of exchange prevailing on the date of
entry of the judgment or decree. There is no corresponding federal statute and
no controlling federal court decision on this issue. Accordingly, we express no
opinion as to whether a federal court would award a judgment in a currency other
than U.S. dollars or, if it did so, whether such court would order the
conversion of such judgment into U.S. dollars.
The foregoing opinions are limited to the federal law of the United
States of America, the law of the State of New York and the General Corporation
Law of the State of Delaware.
We hereby consent to the use of our name in the prospectus
constituting a part of the Registration Statement and in any prospectus
supplements related thereto under the heading "Validity of the Securities" as
counsel for the Company who have passed on the validity of the Debt Securities,
Debt Warrants, Currency Warrants and Stock-Index Warrants being registered by
the Registration Statement and as having prepared this opinion, and to the use
of this opinion as a part (Exhibit 5) of the Registration Statement. In giving
such consent, we do not thereby
3
<PAGE>
admit that we are within the category of persons whose consent is required under
Section 7 of the Securities Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
CLEARY, GOTTLIEB, STEEN & HAMILTON
By /s/ David Lopez
----------------------
David Lopez, a Partner
4
<PAGE>
[LOGO OF PRICEWATERHOUSECOOPERS APPEARS HERE]
Exhibit 23(a)
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 21, 1999 which appears on page 10 of the 1998 Annual Report to
Shareowners of United Technologies Corporation, which is incorporated by
reference in United Technologies Corporation's Annual Report on Form 10-K for
the year ended December 31, 1998. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule, which appears on
page S-I of such Annual Report on Form 10-K. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
/s/PricewaterhouseCoopers LLP
----------------------------
PricewaterhouseCoopers LLP
Hartford, Connecticut
March 9, 1999
<PAGE>
EXHIBIT 24
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ George David
---------------------------------
George David
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ Antonia Handler Chayes
---------------------------------
Antonia Handler Chayes
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ Charles W. Duncan, Jr.
---------------------------------
Charles W. Duncan, Jr.
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ Jean-Pierre Garnier
---------------------------------
Jean-Pierre Garnier
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
3rd day of February, 1999.
/s/ Pehr G. Gyllenhammar
---------------------------------
Pehr G. Gyllenhammar
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
1st day of February, 1999.
/s/ Karl J. Krapek
---------------------------------
Karl J. Krapek
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ Charles R. Lee
---------------------------------
Charles R. Lee
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
1st day of February, 1999.
/s/ Robert H. Malott
---------------------------------
Robert H. Malott
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ William J. Perry
---------------------------------
William J. Perry
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ Frank P. Popoff
---------------------------------
Frank P. Popoff
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
3rd day of February, 1999.
/s/ Andre Villeneuve
---------------------------------
Andre Villeneuve
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
11th day of February, 1999.
/s/ Harold A. Wagner
---------------------------------
Harold A. Wagner
<PAGE>
UNITED TECHNOLOGIES CORPORATION
Power Of Attorney
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned director or
officer, or both, of UNITED TECHNOLOGIES CORPORATION, a Delaware corporation
(the "Corporation"), hereby constitutes and appoints William H. Trachsel, David
J. FitzPatrick, Gilles Renaud and Jay L. Haberland and each of them, his or her
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign a registration statement on Form S-3, or such
other form as may be recommended by counsel, to be filed with the Securities and
Exchange Commission (the "Commission"), and any and all amendments and
post-effective amendments thereto and supplements to the prospectus contained
therein, and any and all instruments and documents filed as a part of or in
connection with the said registration statement or amendments thereto, or
supplements or amendments to such prospectus, covering the offering and issuance
for aggregate gross proceeds to the Corporation of up to U.S. $528,950,000 (or
its equivalent in one of more foreign currencies or currency units as determined
at the date of issuance) of unsubordinated non-convertible debentures, notes
and/or other debt obligations of the Corporation, warrants to purchase such debt
obligations, warrants relating to the purchase or sale of one or more foreign
currencies or currency units and/or warrants relating to increases or decreases
in any specified stock index or indices; granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that the said attorneys-in-
fact and agents, or any one of them, shall do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
1st day of February, 1999.
/s/ Jacqueline G. Wexler
---------------------------------
Jacqueline G. Wexler
<PAGE>
EXHIBIT 25
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)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
United Technologies Corporation
(Exact name of obligor as specified in its charter)
Delaware 06-0570975
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Financial Plaza, Hartford, Connecticut 06101
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of indenture securities)
<PAGE>
GENERAL
Item 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.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe each such
affiliation.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility.
1. A copy of the articles of association of the trustee as now in
effect.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) and is incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate
trust powers, if such authorization is not contained in the documents
specified in paragraph (1) or (2), above.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE>
5. A copy of each indenture referred to in item 4. If the obligor is
in default.
Not applicable.
6. The consents of United States Institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or examining
authority is annexed hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 4th day of March 1999.
STATE STREET BANK AND TRUST COMPANY
By: /s/ James E. Mogavero
---------------------------------
Name James E. Mogavero
TITLE Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed Issuance by United
Technologies Corporation, of its Debt Securities. We hereby consent that reports
of examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ James E. Mogavero
----------------------------------
NAME James E. Mogavero
TITLE Vice President
Dated: March 4, 1999
3
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company.
Massachusetts and foreign and domestic subsidiaries, a state banking institution
organized and operating under the banking laws of this commonwealth and a member
of the Federal Reserve System, at the close of business September 30, 1998,
------------------
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act and in accordance
with a call made by the Commissioner of Banks under General Laws, Chapter 172,
Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin....................... 2,008,956
Interest-bearing balances................................................ 12,286,877
Securities....................................................................... 9,654,241
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary...................................... 10,922,779
Loans and leases financing receivables:
Loans and leases, net of unearned income................... 7,457,235
Allowance for loan and lease losses........................ 82,851
Allocated transfer risk reserve............................ 0
Loans and leases, net of unearned income and allowances.................. 7,374,384
Assets held in trading accounts.................................................. 1,898,804
Premises and fixed assets........................................................ 513,372
Other real estate owned.......................................................... 100
Investments in unconsolidated subsidiaries....................................... 484
Customers' liability to this bank on acceptances outstanding..................... 48,563
Intangible assets................................................................ 220,613
Other assets..................................................................... 1,333,210
-----------
Total assets..................................................................... 46,262,383
===========
LIABILITIES
Deposits:
In domestic offices...................................................... 9,557,938
Noninterest-bearing................................ 7,158,356
Interest-bearing................................... 2,399,582
In foreign offices and Edge subsidiary................................... 18,451,054
Noninterest-bearing................................ 429,797
Interest-bearing................................... 18,021,257
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and its Edge subsidiary......................................... 12,023,438
Demand notes issued to the U.S. Treasury......................................... 451,424
Trading liabilities...................................................... 1,582,933
Other borrowed money............................................................. 323,782
Subordinated notes and debentures................................................ 0
Bank's liability on acceptances executed and outstanding......................... 48,563
Other liabilities................................................................ 1,226,129
Total liabilities................................................................ 43,665,261
-----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus.................................... 0
Common stock..................................................................... 29,931
Surplus.......................................................................... 462,782
Undivided profits and capital reserves/Net unrealized holding gains (losses).... 2,080,148
Net unrealized holding gains (losses) on available-for-sale securities... 27,376
Cumulative foreign currency translation adjustments.............................. (3,115)
Total equity capital............................................................. 2,597,122
-----------
Total liabilities and equity capital............................................. 46,262,383
===========
</TABLE>
4
<PAGE>
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE>
5. A copy of each indenture referred to in Item 4, if the obligor is in
default.
Not applicable.
6. The consents of United States institutional trustees required by
Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any Item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter of
the obligor, the trustee has relied upon the information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation duly
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 4th day of March.
STATE STREET BANK AND TRUST COMPANY
By: /s/ James E. Mogavero
--------------------------------
NAME James E. Mogavero
TITLE Vice President
2
<PAGE>
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by United
Technologies Corporation of its Debt Securities, we hereby consent that reports
of examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By:/s/ James E. Mogavero
----------------------
NAME James E. Mogavero
Title Vice President
Dated: March 4, 1999
3
