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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 5, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TEXTRON INC. DELAWARE 05-0315468
TEXTRON CAPITAL II DELAWARE 05-6110106
TEXTRON CAPITAL III DELAWARE 05-6110107
(EXACT NAME OF REGISTRANT (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
AS SPECIFIED IN ITS CHARTER) INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
40 WESTMINSTER STREET
PROVIDENCE, RHODE ISLAND 02903
(401) 421-2800
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF EACH REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
MICHAEL D. CAHN
ASSOCIATE GENERAL COUNSEL AND
ASSISTANT SECRETARY
TEXTRON INC.
40 WESTMINSTER STREET
PROVIDENCE, RHODE ISLAND 02903
(401) 421-2800
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE FOR EACH REGISTRANT)
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COPIES TO:
MARGARET A. BROWN
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
ONE BEACON STREET
BOSTON, MASSACHUSETTS 02108
(617) 573-4800
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement, as determined
by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following box. [
]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
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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]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a) MAY DETERMINE.
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED(1) PER UNIT (1)(2)(3) PRICE(1)(2)(3) REGISTRATION FEE(2)
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Common Stock of Textron
Inc.........................
Preferred Stock of Textron
Inc.........................
Preferred Securities of
Textron Capital II..........
Preferred Securities of
Textron Capital III.........
Senior Debt Securities of
Textron Inc.................
Subordinated Debt Securities
of Textron Inc..............
Junior Subordinated Debt
Securities of Textron
Inc.........................
Guarantees of Preferred
Securities of Textron
Capital II and Textron
Capital III by Textron
Inc.(4).....................
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Total......................... $2,000,000,000 100% $2,000,000,000 $556,000
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(1) Includes such indeterminate number of preferred securities of Textron
Capital II and Textron Capital III and such indeterminate principal amount
of common stock, preferred stock, senior debt securities, subordinated debt
securities or junior subordinated debt securities of Textron Inc. as may be
periodically issued at indeterminate prices. Junior subordinated debt
securities may be issued and sold to Textron Capital II and Textron Capital
III, in which event such junior subordinated debt securities may later be
distributed to the holders of preferred securities upon a dissolution of
Textron Capital II or Textron Capital III and the distribution of the
respective assets.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457. The aggregate public offering price of the preferred
securities of Textron Capital II and Textron Capital III and the common
stock, preferred stock, senior debt securities, subordinated debt securities
or junior subordinated debt securities of Textron Inc. registered will not
exceed $2,000,000,000.
(3) Exclusive of accrued interest and distributions, if any.
(4) Includes back-up undertakings, consisting of obligations by Textron Inc. to
provide certain indemnities in respect of, and pay and be responsible for
certain expenses and debts of, as applicable, Textron Capital II and Textron
Capital III. No separate consideration will be received for any guarantees
or any back-up undertakings.
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD AND OFFERS
TO BUY THESE SECURITIES MAY NOT BE ACCEPTED BEFORE THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. WE ARE NOT OFFERING TO SELL THESE SECURITIES AND WE ARE NOT
SOLICITING AN OFFER TO BUY THE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 5, 1999
PROSPECTUS
$2,000,000,000
TEXTRON INC.
COMMON STOCK, PREFERRED STOCK, SENIOR DEBT SECURITIES,
SUBORDINATED DEBT SECURITIES AND JUNIOR SUBORDINATED DEBT SECURITIES
------------------------
TEXTRON CAPITAL II
TEXTRON CAPITAL III
PREFERRED SECURITIES GUARANTEED TO THE EXTENT DESCRIBED IN THIS PROSPECTUS BY
TEXTRON INC.
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Textron Inc. may periodically sell the following securities to the public:
- common stock;
- preferred stock; and
- debt securities, including any of senior debt securities, subordinated
debt securities and junior subordinated debt securities.
Textron Capital II and Textron Capital III, each a Delaware statutory
business trust, may periodically sell trust preferred securities to the public.
Trust preferred securities are preferred securities which represent undivided
beneficial interests in the assets of the respective business trust. Textron
Inc. guarantees the payment of periodic cash distributions and payments on
liquidation, redemption or otherwise of the trust preferred securities on a
subordinated basis to the extent described in this prospectus. Textron Inc.'s
obligations to guarantee the trust preferred securities rank equally with its
obligations under its senior most preferred stock. Textron Inc. may periodically
sell junior subordinated debt securities in one or more series to Textron
Capital II or Textron Capital III, a trustee of either such trust or to the
public.
Specific terms of the preferred stock, debt securities and trust preferred
securities will be set forth in a prospectus supplement with respect to the
specific type or types of securities then being offered.
The securities described in this prospectus may be offered in amounts, at
prices and on terms to be determined at the time of the offering. However, the
aggregate initial public offering price of all such securities will not exceed
$2,000,000,000 or its equivalent, based on the applicable exchange rate at the
time of sale, if debt securities are issued with principal amounts denominated
in one or more foreign currencies or currency units as designated by us.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT IS TRUTHFUL OR COMPLETE.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We urge you to carefully read this prospectus and the accompanying
prospectus supplement, which will describe the specific terms of the common
stock, the preferred stock, the debt securities or the trust preferred
securities being offered, before you make your investment decision.
This prospectus may not be used to sell securities unless it is accompanied
by a prospectus supplement.
The date of this prospectus is August [ ], 1999
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No person is authorized to give any information or to make any representations
other than those contained or incorporated by reference in this prospectus or
the accompanying prospectus supplement and, if given or made, such information
or representations must not be relied upon as having been authorized. This
prospectus and accompanying prospectus supplement do not constitute an offer to
sell or the solicitation of an offer to buy any securities other than the
securities described in this prospectus and prospectus supplement or an offer to
sell or the solicitation of an offer to buy such securities in any circumstance
in which such offer or solicitation is unlawful. Neither the delivery of this
prospectus or the prospectus supplement, nor any sale made under this prospectus
or accompanying prospectus supplement shall, under any circumstances, create any
implication that there has been no change in the affairs of Textron since the
date of this prospectus or prospectus supplement or that the information
contained or incorporated by reference in this prospectus or accompanying
prospectus supplement is correct as of any time subsequent to the date of such
information.
TABLE OF CONTENTS
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About this Prospectus....................................... 3
Textron..................................................... 3
Textron Trusts.............................................. 3
Use of Proceeds............................................. 4
Description of Textron Capital Stock........................ 4
Description of Debt Securities.............................. 7
Description of Trust Preferred Securities................... 14
Description of Trust Guarantees............................. 15
Plan of Distribution........................................ 17
Legal Opinions.............................................. 18
Experts..................................................... 18
Where You Can Find More Information......................... 18
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a "shelf" registration process. Under
this shelf registration process, we may sell any combination of the securities
described in this prospectus in one of more offerings up to an aggregate total
initial public offering price of $2,000,000,000. This prospectus provides you
with a general description of the securities we may offer. Each time we sell
securities, we will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
TEXTRON
Textron Inc. is a global, multi-industry company with operations in four
business segments -- Aircraft, Automotive, Industrial and Finance. Our products
include commercial and military helicopters, light and mid-size business jets,
plastic fuel tanks, automotive trim products, golf cars and utility vehicles,
turf-care equipment, industrial pumps and gears, engineered fastening systems
and solutions and other industrial products. We also are a leading commercial
finance company for select markets.
We are incorporated under the laws of Delaware. Our principal executive
offices are located at 40 Westminster Street, Providence, Rhode Island 02903 and
our telephone number is (401) 421-2800.
TEXTRON TRUSTS
Each of the Textron Capital II and Textron Capital III (collectively, the
"Textron Trusts") is a statutory business trust formed under Delaware law. Each
of the Textron Trusts exists only for the purpose of:
- issuing trust preferred securities and trust common securities
representing undivided beneficial interests in the assets of the
respective trust; and
- investing the proceeds from the sale of those securities in junior
subordinated debt securities issued by Textron.
If the trusts issue preferred securities, they will also issue common
securities. All of the trust common securities will be owned by us. We will
acquire the trust common securities in an aggregate amount equal to at least 3%
of the total capital of each Textron Trust. The trust common securities will
rank equally, and payments on the trust common securities will be made pro rata,
with the trust preferred securities. However, upon an event of default, the
rights of the holders of the trust common securities to any payment will be
subordinated to the rights of the holders of the trust preferred securities.
Each Textron Trust has a term of approximately 55 years but may terminate
earlier, as provided in the document creating the trust which is called a
Declaration. The business of each trust will be conducted by the trustees
appointed by us as the holder of all the trust common securities. The duties and
obligations of the trustees will be governed by the Declaration. Each trust will
have two trustees who are employees or officers of or who are affiliated with us
and one institutional trustee which is a financial institution that is not
affiliated with us. The institutional trustee will have aggregate capital,
surplus, and undivided profits of not less than $50,000,000. The institutional
trustee will act as property trustee and as indenture trustee for the purposes
of compliance with the provisions of Trust Indenture Act of 1939, as amended.
Each trust must also have one trustee that has a principal place of
business or resides in the State of Delaware. The Delaware trustee for each of
the Textron Trusts is The Bank of New York (Delaware) whose address is White
Clay Center, Route 273, Newark, Delaware, 19711, Attention: Corporate Trust
Administration. The address for each Textron Trust is c/o Textron, Sponsor of
the Textron Trusts, at our
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corporate headquarters located at 40 Westminster Street, Providence, Rhode
Island 02903, telephone (401) 421-2800.
We will pay all fees and expenses related to the Textron Trusts and the
offering of securities by the trusts.
USE OF PROCEEDS
We expect to use all of the net proceeds from the sale of the securities
described in this prospectus for general corporate purposes including, but not
limited to, any of the following: capital expenditures, investments in
subsidiaries, working capital, repurchases of outstanding common shares,
acquisitions and other business opportunities. The proceeds from the sale by
Textron Capital II and Textron Capital III of their trust preferred securities
and trust common securities will be invested in our junior subordinated debt
securities.
DESCRIPTION OF TEXTRON CAPITAL STOCK
We have authority to issue up to 515,000,000 shares of capital stock of
which 15,000,000 shares may be designated as Textron preferred stock, no par
value, and 500,000,000 shares may be designated as Textron common stock, $.125
par value. On July 31, 1999, there were 248,919 shares of Textron preferred
stock outstanding and 150,180,097 shares of Textron common stock outstanding.
COMMON STOCK
Voting rights. Each holder of common stock is entitled to one vote for
each share held on all matters to be voted upon by stockholders.
Dividends. The holders of common stock, after any preferences of holders
of any preferred stock, are entitled to receive dividends as determined by our
board of directors.
Liquidation and dissolution. If we are liquidated or dissolved, the
holders of the common stock will be entitled to share in our assets available
for distribution to stockholders in proportion to the amount of common stock
they own. The amount available for distribution to common stockholders is
calculated after payment of all liabilities and after holders of preferred stock
receive their preferential share of our assets.
Other terms. Holders of the common stock have no right to:
- convert the stock into any other security;
- have the stock redeemed; or
- purchase additional stock or to maintain their proportionate ownership
interest.
The common stock does not have cumulative voting rights.
Directors' liability. Our restated certificate of incorporation provides
that no member of the board of directors will be personally liable to Textron or
its stockholders for monetary damages for breaches of their fiduciary duties as
a director, except for liability:
- for any breach of the director's legal duty to act in the best interests
of Textron and its stockholders;
- for acts or omissions by the director in bad faith or which involve
intentional misconduct or an intentional violation of the law;
- for declaring dividends or authorizing the purchase or redemption of
shares in violation of Delaware law; or
- for transactions where the director derived an improper personal benefit.
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Our by-laws require us to indemnify directors and officers to the fullest
extent permitted by Delaware law.
Transfer agent and registrar. First Chicago Trust Company of New York is
transfer agent and registrar for the common stock.
Stockholder rights plan. Under Delaware law, a corporation may create and
issue rights entitling the holders of such rights to purchase from the
corporation shares of its capital stock of any class or classes. We have entered
into a rights agreement which provides for the creation and issuance of
preferred stock purchase rights. The terms of our rights agreement are complex
and not easily summarized. The summary that follows may not contain all of the
information that is important to you. You should carefully read our rights
agreement, which is incorporated into this prospectus by reference in its
entirety.
Currently, each outstanding share of our common stock has attached to it
one-half of a preferred stock purchase right. One preferred stock purchase right
entitles the holder to buy one one-hundredths of a share of a series of
preferred stock. The purchase price per one one-hundredths of a share of
preferred stock is $250, but this purchase price may be adjusted in some
circumstances.
The preferred stock purchase rights are exercisable only in some
circumstances in which a person or group acquires or offers to acquire
beneficial ownership of 15% or more of our common stock. Generally:
- if a person or group acquires or has the right to acquire more than 15%
of our common stock, then each preferred stock purchase right will
entitle the holder to purchase a number of shares of our common stock
with a then current market value equal to twice the purchase price,
unless this amount is adjusted. The holder of a preferred stock purchase
right will not be entitled to exercise this right in connection with some
transactions which our board of directors determines to be at a fair
price and in the best interests of Textron; and
- each preferred stock purchase right will entitle the holder to purchase a
number of shares of the acquiror's common stock having a then current
market value equal to twice the purchase price, unless this amount is
adjusted, if we:
-- merge into another entity;
-- another entity merges into us; or
-- sell more than 50% of our assets or earning power.
Any rights that are or were owned by an acquiror of more than 15% of our
outstanding common stock will be null and void.
The rights will expire on September 27, 2005, unless earlier redeemed by
us. At its option, our board of directors may redeem all the outstanding rights
at a price of $.05 per right prior to ten days following the time that an
acquiror obtains 15% or more of our outstanding common stock.
The rights may have anti-takeover effects and may cause substantial
dilution to a person or group that attempts to acquire Textron. The rights,
however, should not affect any potential acquiror willing to make an offer at a
price that is fair and in the best interest of Textron and our stockholders.
In addition, the following provisions in our restated certificate of
incorporation, by-laws and Delaware law may have anti-takeover effects.
Classified Board of Directors. Our restated certificate of incorporation
divides our board of directors into three classes. Each class is to consist as
nearly as possible of one-third of the directors. Each director serves for a
term of three years and until his or her successor is elected and qualified. The
number of directors of Textron will be fixed from time to time by our board of
directors.
Removal of Directors by Stockholders. Delaware law and our by-laws provide
that members of a classified board of directors may only be removed for cause by
a vote of the holders of a majority of the outstanding shares entitled to vote
on the election of directors.
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Stockholder nomination of directors. Our by-laws provide that a
stockholder must notify us in writing of any stockholder nomination of a
director at least 90 but not more than 120 days prior to the date of the annual
meeting for the election of directors. However, if the date for the annual
meeting is not within 30 days of the anniversary of the immediately preceding
year's annual meeting, or if a stockholder wishes to make a nomination at a
special meeting held instead of an annual meeting, the notice must be received
by us no later than ten days after the date notice of the meeting is mailed or
the date the meeting date is publicly disclosed, whichever occurs first.
No action by written consent. Our restated certificate of incorporation
provides that our stockholders may act only at duly called meetings of
stockholders and by unanimous written consent.
10% Stockholder Provision. Under our restated certificate of
incorporation, the holders of at least two-thirds of the outstanding shares of
our voting stock must approve transactions between a 10% stockholder and Textron
or any of our subsidiaries. The vote of two-thirds of the outstanding shares of
our voting stock is required unless:
- a majority of disinterested directors who were directors before the 10%
stockholder became a 10% stockholder approve the transaction; or
- the form and value of the consideration to be received by our
stockholders is fair in relation to the price paid by the 10% stockholder
in connection with his or her prior acquisition of our stock.
Under Delaware law, a vote of the holders of at least two-thirds of the
outstanding shares of our voting stock is required to amend or repeal this
provision of our restated certificate of incorporation.
The terms of our restated certificate of incorporation and by-laws outlined
above are complex and not easily summarized. The above summary may not contain
all of the information that is important to you. Accordingly, you should
carefully read our restated certificate of incorporation and by-laws, which are
incorporated into this prospectus by reference in their entirety.
Delaware Business Combination Statute. We are subject to Section 203 of
the Delaware General Corporation Law. Section 203 restricts some types of
transactions and business combinations between a corporation and a 15%
stockholder. A 15% stockholder is generally considered by Section 203 to be a
person owning 15% or more of the corporation's outstanding voting stock. A 15%
stockholder is referred to as an "interested stockholder." Section 203 restricts
these transactions for a period of three years from the date the stockholder
acquired 15% or more of our outstanding voting stock. With some exceptions,
unless the transaction is approved by our board of directors and the holders of
at least two-thirds of our outstanding voting stock, Section 203 prohibits
significant business transactions such as:
- a merger with, disposition of significant assets to or receipt of
disproportionate financial benefits by the 15% stockholder; or
- any other transaction that would increase the 15% stockholder's
proportionate ownership of any class or series of our capital stock.
The shares held by the 15% stockholder are not counted as outstanding when
calculating the two-thirds of the outstanding voting stock needed for approval.
The prohibition against these transactions does not apply if:
- prior to the time that any stockholder became a 15% stockholder, the
board of directors approved either the business combination or the
transaction in which such stockholder acquired 15% or more of our
outstanding voting stock; or
- the 15% stockholder owns at least 85% of the outstanding voting stock of
the corporation as a result of the transaction in which such stockholder
acquired 15% or more of our outstanding voting stock.
Shares held by persons who are both directors and officers or by some types
of employee stock plans are not counted as outstanding when making this
calculation.
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PREFERRED STOCK
We are authorized to issue 15,000,000 shares of preferred stock. As of July
31, 1999, 248,919 shares of preferred stock were outstanding. Our board of
directors may issue shares of preferred stock, without shareholder approval, and
may determine their terms, including the following:
- the designation of the series of preferred stock and the number of shares
which will constitute such series;
- the public offering price;
- any discount paid to, or received by, any underwriters;
- the voting powers, if any;
- the dividend rate of such series and any preferences in relation to the
dividends payable on any other class or series of our capital stock and
any limitations or conditions on the payment of dividends;
- the redemption price and terms of redemption, if redeemable;
- the amount payable upon our liquidation, dissolution or winding up;
- the amount of a sinking fund, if any;
- conversion rights, if any, including the conversion price or rate of
exchange and the adjustment, if any, to be made to the conversion price
or rate of exchange;
- any other designation, preferences and relative, participating, optional
or other special rights; and
- any other qualifications, limitations or restrictions relating to the
preferred stock.
Our board of directors may delegate the power to determine the terms listed
above to the finance committee of our board of directors. The terms of the
preferred stock, as determined by our board of directors or finance committee
will be described in the accompanying prospectus supplement.
In addition to the terms set by our board of directors or finance
committee, Delaware law provides that the holders of preferred stock have the
right to vote separately as a class on any proposal involving a fundamental
change in the rights of holders of such preferred stock.
DESCRIPTION OF DEBT SECURITIES
The following is a general description of the debt securities which may be
issued from time to time by us. The particular terms relating to each debt
security will be set forth in a prospectus supplement.
The debt securities will be our direct, unsecured obligations. The senior
debt securities will rank equally with all of our other senior and
unsubordinated debt. The subordinated debt securities will have a junior
position to all of our senior debt. The junior subordinated securities will have
a junior position to all of our senior debt and all of our other subordinated
debt.
Since a significant part of our operations are conducted through
subsidiaries, a significant portion of our cash flow, and consequently, our
ability to service debt, including the debt securities, is dependent upon the
earnings of our subsidiaries and the transfer of funds by those subsidiaries to
us in the form of dividends or other transfers, supplemented with borrowings.
Some of our operating subsidiaries may finance their operations by
borrowing from external creditors. Lending agreements between some of the
operating subsidiaries and external creditors may restrict the amount of net
assets available for cash dividends and other payments to us.
In addition, holders of the debt securities will have a junior position to
claims of creditors of our subsidiaries, including trade creditors, debtholders,
secured creditors, taxing authorities, guarantee holders and any preferred
stockholders, except to the extent that we are recognized as a creditor of our
subsidiary.
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Any claims of Textron as the creditor of its subsidiary would be subordinate to
any security interest in the assets of such subsidiary and any indebtedness of
such subsidiary senior to that held by us.
Each series of the debt securities will be issued under an indenture
between Textron and The Bank of New York, as trustee.
We have summarized below the material provisions of the indenture. The
indenture is filed as an exhibit to the registration statement and is
incorporated into this prospectus by reference. You should read the indenture
for provisions that may be important to you. In the summary, we have included
references to section numbers of the indenture so that you can easily locate
these provisions.
TERMS APPLICABLE TO SENIOR DEBT SECURITIES, SUBORDINATED DEBT SECURITIES AND
JUNIOR SUBORDINATED DEBT SECURITIES
No limit on debt amounts. The indenture does not limit the amount of debt
which can be issued under the indenture. That amount is set from time to time by
our board of directors. (sec.3.1)
Prospectus Supplements. The prospectus supplements will contain the
specific terms for the debt securities including some or all of the following:
- title of the securities;
- offering price;
- any limit on the amount that may be issued;
- whether or not the debt securities will be issued in global form and who
the depository will be;
- maturity date(s);
- interest rate or the method of computing the interest rate;
- dates on which interest will accrue, or how the dates will be determined,
the interest payment dates and any related record dates;
- place(s) where payments will be made;
- terms and conditions on which the debt securities may be redeemed at the
option of Textron;
- date(s), if any, on which, and the price(s) at which Textron is obligated
to redeem, or at the holder's option to purchase, the debt securities and
related terms and provisions;
- any provisions granting special rights to holders when a specified event
occurs;
- details of any required sinking fund payments;
- any changes to or additional events of default or covenants;
- any special tax implications of the debt securities;
- subordination terms of any subordinated debt securities;
- terms, if any, on which a series of debt securities may be convertible
into or exchangeable for our common stock, preferred stock or other debt
securities, including provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at our option; and
- any other terms that are not be inconsistent with the indenture.
Covenants. Under the indenture, we will:
- pay the principal, interest and any premium on the debt securities when
due (sec.10.1); and
- maintain a place of payment (sec.10.2).
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Consolidation, Merger and Sale of Assets. The indenture provides that we
will not consolidate with or merge into any other corporation or transfer our
assets substantially as an entirety unless:
- the successor is a corporation organized in the United States and
expressly assumes the due and punctual payment of the principal and
interest on all debt securities issued under the indenture and the
performance of every other covenant of the indenture; and
- immediately after we consolidate or merge, 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. (sec.8.1)
Upon any such consolidation, merger or transfer, the successor corporation
shall be substituted for Textron under the indenture and Textron shall be
relieved of all obligations and covenants under the indenture and the debt
securities. (sec.8.2)
Events of default. The indenture provides that the following are events of
default:
- we fail to pay the principal, any premium or any sinking fund payment
when due;
- we fail to pay interest within 30 days of the due date;
- we fail to observe or perform any other covenant contained in the debt
security or indenture and such failure continues for 90 days after we
receive notice from the trustee or holders of at least 25% in aggregate
principal amount of the outstanding debt securities of that series; and
- certain events of bankruptcy or insolvency, whether voluntary or not.
(sec.5.1).
An event of default with respect to one series of debt securities does not
necessarily constitute an event of default with respect to any other series of
debt securities.
The applicable trustee may withhold notice to the holders of any series of
debt securities of any default with respect to such series (except in the
payment of principal, premium or interest) if it considers such withholding to
be in the interests of such holders. (sec.6.2)
If an event of default with respect to any series of debt securities shall
have occurred and be continuing, the trustee or the holders of 25% in aggregate
principal amount of the debt securities of such series may declare the principal
of all the debt securities of such series, or in the case of discounted debt
securities, such portion of the discounted debt securities as may be described
in the prospectus supplement, to be immediately due and payable. (sec.5.2)
The indenture contains a provision entitling the trustee to be indemnified
by the holders before proceeding to exercise any right or power at the request
of any of the holders. (sec.6.3) The indenture provides that the holders of a
majority in principal amount of the outstanding debt securities of any series
may direct the time, method and place of conducting any proceeding for any
remedy available to the trustee or with respect to the debt securities.
(sec.5.12) The right of a holder to institute a proceeding with respect to the
indenture is subject to certain conditions, including giving notice and
indemnity to the trustee. However, the holder has an absolute right to receipt
of principal, premium, if any, and interest at the stated maturities (or, in the
case of redemption, on the redemption date) or to institute suit for the
enforcement of such payment. (sec.sec.5.7 and 5.8)
The holders of a majority in principal amount of the outstanding debt
securities of any series may waive any past defaults except:
- a default in payment of the principal or interest; and
- a default in respect of a covenant or provision of the indenture which
cannot be amended or modified without the consent of the holder of each
debt security affected. However, if junior subordinated debt securities
of such series are held by a Textron Trust or a trustee of such trust, a
waiver shall not be effective until the holders of a majority in
liquidation preference of trust securities of the applicable Textron
Trust shall have consented to such waiver. In addition, if the
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consent of the holder of each outstanding junior subordinated debt
security is required, the waiver shall not be effective until each holder
of the trust securities of the applicable Textron Trust shall have
consented to such waiver. (sec.5.13)
We will periodically file statements with the trustees regarding our
compliance with covenants in the indenture. (sec.10.6)
Modifications and Amendments. Subject to the qualifications set forth
below, modifications and amendments to the indenture may be made by us and the
trustee without the consent of the holders of a majority in principal amount of
the outstanding debt securities. (sec.9.1). The following changes can only be
made with the consent of each affected holder:
- a change in the terms of payment of principal, premium, or interest; and
- a reduction in the percentage of holders necessary to amend the indenture
or waive any default. (sec.9.2)
In addition, if junior subordinated debt securities are held by a Textron
Trust or a trustee of such trust:
- if a modification requiring a majority of the holders of the outstanding
junior subordinated debt is required, the modification shall not be
effective until the holders of a majority in the liquidation amount of
trust securities shall have consented to the waiver; and
- if a modification requires the consent of each holder of junior
subordinated debt securities, the modification shall not be effective
until each holder of the trust securities shall have consented to the
waiver. (sec.9.2)
Satisfaction and Discharge. Except for junior subordinated debt securities
issued to a Textron Trust and unless otherwise specified in the prospectus
supplement, we can satisfy our obligations under outstanding debt securities and
need not comply with most of the covenants in the indenture if we deposit with
the trustee funds sufficient to pay all amounts owed in the future and obtain an
opinion of counsel that the deposit itself will not cause the holders of debt
securities to recognize gain or loss for income tax purposes. (sec.4.2)
Upon our request, the indenture will no longer be effective for almost all
purposes if either:
- all outstanding securities have been delivered to the trustee for
cancellation; or
- the only securities which are still outstanding have, or within one year
will, become due and payable or are to be called for redemption, and we
have deposited with the trustee funds which are sufficient to make all
future payments. (sec.4.1)
Concerning the Debt Trustees. The trustee has extended substantial credit
facilities to Textron. Textron and certain of its subsidiaries and affiliates
may also maintain bank accounts, borrow money and have other customary banking
or investment banking relationships with the trustee in the ordinary course of
business.
Form, exchange, transfer. Unless otherwise specified in the prospectus
supplement, debt securities will be issued in registered form without coupons.
They may also be issued in global form with accompanying book-entry procedures
as outlined below.
A holder of debt securities of any series can exchange the debt securities
for other debt securities of the same series, in any authorized denomination and
with the same terms and aggregate principal amount. They are transferrable at
the corporate trust office of the trustee or at any transfer agent designated by
us for that purpose. No charge will be made for any such exchange or transfer
except for any tax or governmental charge related to such exchange or transfer.
(sec.3.7)
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Global Securities. The indenture provides that the registered debt
securities may be issued in the form of one or more fully registered global
securities that will be deposited with and registered in the name of a
depositary or with a nominee for a depositary identified in the prospectus
supplement. (sec.3.1)
The specific terms of the depositary arrangement with respect to any debt
securities to be represented by a registered global security will be described
in the prospectus supplement.
Ownership of beneficial interests in a registered global security will be
limited to persons that have accounts with the depositary for such registered
global security ("participants") or persons that may hold interests through
participants. Upon the issuance of a registered global security, the depositary
will credit, on its book-entry registration and transfer system, the
participants' accounts with the principal amounts of the debt securities
represented by the registered global security beneficially owned by such
participants. Ownership of beneficial interests in such registered global
security will be shown on, and the transfer of such ownership interests will be
effected, only through records maintained by the depositary for such registered
global security or on the records of participants for interests of persons
holding through participants.
So long as the depositary for a registered global security, or its nominee,
is the registered owner of a registered global security, the depositary or the
nominee will be considered the sole owner or holder of the debt securities
represented by the registered global security for all purposes. Except as set
forth below, owners of beneficial interests in a registered global security will
not:
- be entitled to have the debt securities represented by such registered
global security registered in their names;
- receive or be entitled to receive physical delivery of such debt
securities in definitive forms; and
- be considered the owners or holders of the debt securities.
Accordingly, each person owning a beneficial interest in a registered
global security must rely on the procedures of the depositary for such
registered global security and, if such person is not a participant, on the
procedures of the participant through which such person owns its interest, to
exercise any rights of a holder under the applicable indenture. We understand
that under existing industry practices, if we request any action of holders, or
if an owner of a beneficial interest in a registered global security desires to
take any action which a holder is entitled to take under the applicable
indenture, the depositary would authorize the participants holding the relevant
beneficial interests to take such action, and such participants would authorize
beneficial owners owning through such participants to take such action.
Principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to such depositary or its nominee, as the
case may be, as the registered owner of such registered global security. Neither
Textron or the trustee will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests in such registered global security.
We expect that the depositary for any debt securities represented by a
registered global security, upon receipt of any payment of principal, premium or
interest will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such registered global
security as shown on the records of such depositary. We also expect that
payments by participants to owners of beneficial interests in such a registered
global security held by the participants will be governed by standing customer
instructions and customary practices, as is now the case with the securities
held for the accounts of customers in bearer form or registered in "street
name."
We may at any time determine not to have any of the debt securities of a
series represented by one or more registered global securities and, in such
event, will issue debt securities of such series in definitive form in exchange
for all of the registered global security or securities representing such debt
securities. Any debt securities issued in definitive form in exchange for a
registered global security will be registered in such name or names as the
depositary shall instruct the relevant trustee. We expect that such
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instructions will be based upon directions received by the depositary from
participants with respect to ownership of beneficial interests in such
registered global security.
The debt securities may also be issued in the form of one or more bearer
global securities that will be deposited with a common depositary for Euro-clear
and Cedel Bank, or with a nominee for such depositary identified in the
prospectus supplement. The specific terms and procedures, including the specific
terms of the depositary arrangement, with respect to any portion of a series of
debt securities to be represented by a bearer global security will be described
in the prospectus supplement.
PARTICULAR TERMS OF THE SENIOR DEBT SECURITIES
Ranking of Senior Debt Securities. The senior debt securities will
constitute part of our senior debt and rank equally with all our other unsecured
debt, except that it will be senior to our subordinated debt.
Limitation upon Mortgages. Indenture provisions applicable to senior debt
securities prohibit us and our Restricted Subsidiaries, as defined below, from
issuing, assuming or guaranteeing any mortgage, security interest, lien or other
encumbrance ("mortgages") upon any Principal Property, as defined below, of
Textron or any Restricted Subsidiary, as defined below, or upon any shares of
stock or indebtedness of any Restricted Subsidiary without equally and ratably
securing the senior debt securities. This restriction, however, will not apply
to:
- mortgages on property, shares of stock or indebtedness of any corporation
existing at the time such corporation becomes a Restricted Subsidiary;
- mortgages on property existing at the time of acquisition of such
property by Textron or a Restricted Subsidiary, or mortgages to secure
the payment of all or any part of the purchase price of such property
upon the acquisition of such property or to secure indebtedness incurred
prior to, at the time of, or within 180 days after, the acquisition of
such property for the purpose of financing all or any part of the
purchase price thereof, or mortgages to secure the cost of improvements
to such acquired property;
- mortgages to secure indebtedness of a Restricted Subsidiary owing to
Textron or another Restricted Subsidiary;
- mortgages existing at the date of the indenture;
- mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with Textron or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an
entirety to Textron or a Restricted Subsidiary;
- certain mortgages in favor of governmental entities; or
- extensions, renewals or replacements of any mortgage referred to in the
preceding six bullets. (sec.10.4)
Notwithstanding the restrictions outlined in the preceding paragraph,
Textron or any Restricted Subsidiary will be permitted to issue, assume or
guarantee any mortgage without equally and ratably securing the senior debt
securities, provided that, after giving effect to such mortgage, the aggregate
amount of all debt so secured by mortgages (not including permitted mortgages as
described above) does not exceed 10% of the stockholders' equity of Textron and
its consolidated subsidiaries. (sec.10.4)
Limitation upon Sale and Leaseback Transactions. Indenture provisions
applicable to senior debt securities prohibit Textron and its Restricted
Subsidiaries, from entering into any sale and leaseback transaction with respect
to any Principal Property other than any such transaction involving a lease for
a
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term of not more than three years or any such transaction between Textron and a
Restricted Subsidiary or between Restricted Subsidiaries, unless either:
- Textron or such Restricted Subsidiary would be entitled to incur
indebtedness secured by a mortgage on Principal Property at least equal
in amount to the Attributable Debt, as defined below, with respect to
such sale and leaseback transaction, without equally and ratably securing
the senior debt securities; or
- Textron shall apply an amount equal to the greater of the net proceeds of
such sale or the Attributable Debt with respect to such sale and
leaseback transaction to:
-- the retirement of senior indebtedness that matures more than twelve
months after the creation of such senior indebtedness; or
-- the acquisition, construction, development or improvement of
properties, facilities or equipment which are, or upon such
acquisition, construction, development, or improvement will be, or
will be a part of, a Principal Property. (sec.10.5)
The term "Attributable Debt" when used in connection with a sale and
leaseback transaction referred to above shall mean the total net amount of rent
(discounted at the rate per annum borne by the senior debt securities) required
to be paid during the remaining term of the applicable lease. (sec.1.1)
The term "Principal Property" means any manufacturing plant or
manufacturing facility which is (i) owned by Textron or any Restricted
Subsidiary, (ii) located within the continental United States, and (iii) in the
opinion of the Board of Directors materially important to the total business
conducted by Textron and the Restricted Subsidiaries taken as a whole. (sec.1.1)
The term "Restricted Subsidiary" means any Subsidiary (i) substantially all
the property of which is located within the continental United States and (ii)
which owns any Principal Property; provided that the term "Restricted
Subsidiary" shall not include any Subsidiary which is principally engaged in
leasing or in financing receivables, or which is principally engaged in
financing Textron's operations outside the continental United States. (sec.1.1)
The term "Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by Textron or by one or
more other Subsidiaries. (sec.1.1)
Waiver of Certain Covenants. We will not be required to comply with the
covenants listed above and certain other restrictive covenants with respect to
the senior debt securities if the holders of a majority of the outstanding
principal amount waive such compliance. (sec.10.7)
PARTICULAR TERMS OF THE SUBORDINATED DEBT SECURITIES
Ranking of Subordinated Debt Securities. The subordinated debt securities
will rank senior to any junior subordinated debt securities and will be
subordinated and junior in right of payment to any senior debt securities and
certain other indebtedness of Textron to the extent set forth in the prospectus
supplement. (sec.3.1)
PARTICULAR TERMS OF THE JUNIOR SUBORDINATED DEBT SECURITIES
General. Junior subordinated debt securities are issuable in one or more
series pursuant to a resolution of our board of directors or as established in a
supplemental indenture.
Ranking of Junior Subordinated Debt Securities. The junior subordinated
debt securities will be subordinated and junior in right of payment to any
senior debt securities and subordinated debt securities and certain other
indebtedness of Textron to the extent set forth in the prospectus supplement.
(sec.14.1)
Events of Default. In addition to the events of default applicable to all
debt securities which are described above on page 11 of this prospectus, if a
Textron Trust or a trustee of a Textron Trust holds
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junior subordinated debt securities, there will be an event of default if the
Textron Trust is dissolved or otherwise terminates its existence unless:
- the junior subordinated debt securities are distributed to holders of
beneficial interests in the trust;
- the trust securities held by the holders of the beneficial interests in
the trust are redeemed and fully paid; or
- the trust is involved in certain mergers or consolidations permitted by
the indenture. (sec.5.1)
Certain Provisions Applicable to Textron Trusts. In the event junior
subordinate debt securities are issued to a Textron Trust, they subsequently may
be distributed equally to the holders of the securities issued by the trust in
connection with the dissolution of a Textron Trust upon the occurrence of
certain events described in the prospectus supplement. Only one series of junior
subordinated debt securities will be issued to a Textron Trust. If junior
subordinated debt securities are issued to a Textron Trust and there is an event
of default or we do not make required payments under the related trust guarantee
or trust common guarantee (as described below), or we have given notice of an
election to defer payments or interest on the junior subordinated debt
securities, then:
- we will not pay any dividend or make any other distribution with respect
to our capital stock, except for a stock dividend; and
- we will not make any payments with respect to any debt securities which
rank equal to or junior to the junior subordinated debt securities.
If junior subordinated debt securities are issued to a Textron Trust, we
will promise:
- that we or a permitted successor will maintain 100% ownership of the
trust common securities; and
- that we will not terminate the trust, and will use our reasonable efforts
to cause the trust to remain a statutory business trust and a grantor
trust for tax purposes except in connection with the distribution of
junior subordinated debt securities to the holders of the trust
securities issued by the trust upon certain events or in connection with
mergers or consolidations permitted by the trust documents. (sec.10.8)
DESCRIPTION OF TRUST PREFERRED SECURITIES
Each Textron Trust may periodically issue only one series of trust
preferred securities having terms described in the prospectus supplement. The
Declaration forming the trust will be qualified as an indenture under the Trust
Indenture Act. The trust preferred securities will have terms, including
distributions, redemption, voting, liquidation rights and such other rights or
such restrictions as are set forth in the Declaration or made part of the
Declaration by the Trust Indenture Act. The prospectus supplement relating to
the trust preferred securities of a Textron Trust will contain specific terms of
the trust preferred securities including:
- the designation of the trust preferred securities;
- the number of trust preferred securities to be issued;
- the annual payments to be made with respect to the trust preferred
securities, or the method of determining the payments, and the dates when
payments will be made;
- terms relating to any cumulative payments;
- amounts to be paid upon dissolution or other termination of the trust;
- the obligation, if any of the trust to redeem or purchase the trust
preferred securities and the terms relating to any redemption or
purchase;
- voting rights; and
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- other rights or restrictions of the trust preferred securities.
All trust preferred securities offered by this prospectus and the related
prospectus supplement will be guaranteed by us to the extent set forth below
under "Description of Trust Guarantees." Certain United States federal income
tax considerations applicable to any offering of trust preferred securities will
be described in the prospectus supplement relating to such trust preferred
securities.
In connection with the issuance of trust preferred securities, each Textron
Trust will issue one series of trust common securities. The terms of the trust
common securities will be substantially identical to the terms of the trust
preferred securities issued by such trust. The trust common securities will rank
equally with the trust preferred securities. Payments will be made equally to
the trust preferred securities and the trust common securities except that, upon
an event of default under the Declaration, the rights of the holders of the
trust common securities to payments will be subordinated to the rights of the
holders of the trust preferred securities. Except in certain limited
circumstances, trust common securities will also carry the right to vote and to
appoint, or replace any of the trustees. All of the trust common securities will
be directly or indirectly owned by Textron.
DESCRIPTION OF TRUST GUARANTEES
Set forth below is a summary of information concerning the trust guarantees
that will be executed and delivered by us for the benefit of the holders of
trust preferred securities. Each trust guarantee will be qualified as an
indenture under the Trust Indenture Act. The Bank of New York will act as
indenture trustee under each trust guarantee.
GENERAL
To the extent set forth in each trust guarantee and to the extent that the
trust has funds available to make the payments, we will irrevocably and
unconditionally agree to pay in full to the holders of the trust preferred
securities when due, regardless of any defense, right of set-off or counterclaim
which the Textron Trust may have or assert, the following payments.
- any unpaid amounts that are required to be paid on the trust preferred
securities;
- the payment of the redemption price for trust preferred securities called
for redemption; and
- amounts due to holders of trust preferred securities in the event of
dissolution or termination of the trust.
If we do not make interest or other payments on the junior subordinated
debt securities held by the trust, there will be no funds available for the
trust to make payments to holders of the trust preferred securities, and we will
not have to make payments under the trust guarantee. However, the trust
guarantee when taken together with our obligations under the junior subordinated
debt securities provide a full and unconditional guarantee, on a subordinated
basis, by us of payments due on the trust preferred securities.
We have also agreed to irrevocably and unconditionally guarantee the
obligations of each Textron Trust with respect to the trust common securities to
the same extent as the trust guarantees of trust preferred securities. However,
upon an event of default under the junior subordinated debt securities, holders
of trust preferred securities will have priority over holders of trust common
securities with respect to distributions and payments on liquidation, redemption
or otherwise.
CERTAIN COVENANTS OF TEXTRON
In each trust guarantee, we will covenant that, so long as any trust
preferred securities issued by a Textron Trust remain outstanding, if there
shall have occurred any event that would constitute an event of default under
the trust guarantee or the Declaration:
- we will not pay any dividend or make any other distribution with respect
to our capital stock, except for a stock dividend; and
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- we will not make any payments with respect to any debt securities which
rank equal to or junior to the junior subordinated debt securities.
MODIFICATION OF THE TRUST GUARANTEES; ASSIGNMENT
Except for changes that do not adversely affect the rights of holders of
trust preferred securities, each trust guarantee may be amended only with the
approval of the holders of not less than a majority in liquidation amount of the
outstanding trust preferred securities. The manner of obtaining any such
approval of holders of such trust preferred securities will be set forth in the
prospectus supplement. All guarantees and agreements contained in a trust
guarantee bind our successors, assignees, receivers, trustees and
representatives.
EVENTS OF DEFAULT
An event of default under the trust guarantee will occur if we fail to make
any of our payments or perform other obligations under the trust guarantee. The
holders of a majority in liquidation amount of the trust preferred securities
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the trustee under the guarantee.
In addition, any holder of trust preferred securities may institute a legal
proceeding directly against us to enforce such holder's rights under the trust
guarantee without first instituting a legal proceeding against a Textron Trust,
the trustee under the guarantee or any other person or entity.
INFORMATION CONCERNING THE TRUST PREFERRED SECURITIES GUARANTEE TRUSTEE
Prior to the occurrence of a default, the trustee under the guarantee
undertakes to perform only such duties as are specifically set forth in the
trust guarantee. After a default, the trustee will exercise the same degree of
care as a prudent individual would exercise in the conduct of his or her own
affairs. Subject to such provision, the trustee is under no obligation to
exercise any of the powers vested in it by a Trust Guarantee Agreement at the
request of any holder of trust preferred securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred as a result of the trustee's exercise of such powers.
TERMINATION OF THE TRUST GUARANTEES
Each trust guarantee will terminate as to the trust preferred securities
issued by a Textron Trust upon full payment of the redemption price of all trust
preferred securities of such Textron Trust, upon distribution of the junior
subordinated debt securities held by such Textron Trust to the holders of the
trust preferred securities or upon full payment of the amounts payable in
accordance with the Declaration of such Textron Trust upon liquidation of the
Textron Trust.
STATUS OF THE TRUST GUARANTEES
Each trust guarantee will constitute an unsecured obligation of Textron and
will rank:
- subordinate and junior in right of payment to all other liabilities of
Textron;
- equal with the most senior preferred stock issued by Textron and with any
guarantee entered into by Textron in respect of any preferred or
preference stock of any affiliate of Textron; and
- senior to Textron's common stock.
By accepting the trust preferred securities, each holder of such trust
preferred securities agrees to the subordination provisions and other terms of
the applicable trust guarantee.
Each trust guarantee will constitute a guarantee of payment and not of
collection. Therefore, the guaranteed party may institute a legal proceeding
directly against the guarantor to enforce its rights under a trust guarantee
without instituting a legal proceeding against any other person or entity.
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GOVERNING LAW
The trust guarantees will be governed by and construed in accordance with
the law of the State of New York.
PLAN OF DISTRIBUTION
Textron may periodically sell common stock, preferred stock or any series
of debt securities, and the Textron Trusts may periodically sell trust preferred
securities in one or more of the following ways:
- to underwriters or dealers for resale to the public or to institutional
investors;
- directly to the public or institutional investors; or
- through agents to the public or to institutional investors.
The accompanying prospectus supplement will state the terms of the offering
of the securities, including:
- the name or names of any underwriters, dealers or agents;
- the purchase price of such securities and the proceeds to be received by
Textron, and the Textron Trusts;
- any underwriting discounts, commissions or agency fees and other items
constituting underwriters' or agents' compensation;
- any initial public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchanges on which the securities may be listed.
If we use underwriters in the sale, the underwriters will acquire the
securities for their own account and may resell them in one or more
transactions, including:
- negotiated transactions;
- at a fixed public offering price or prices; or
- at varying prices determined at the time of sale.
Unless otherwise stated in a prospectus supplement, the obligations of the
underwriters to purchase any securities will be conditioned on customary closing
conditions and the underwriters will be obligated to purchase all of such series
of securities, if any are purchased.
If we use dealers in the sale, the dealers will acquire the securities as
principals and may resell them to the public at varying prices to be determined
by the dealers at the time of resale.
Unless otherwise stated in a prospectus supplement, any agent selling
securities on behalf of Textron or the Textron Trusts will be acting on a best
efforts basis for the period of its appointment.
Textron and the Textron Trusts may authorize agents, underwriters and
dealers to solicit offers from certain types of institutions to purchase the
securities described in this prospectus at the public offering price set forth
in the prospectus supplement pursuant to delayed delivery contracts. The delayed
delivery contracts will provide for payment and delivery on a specified date or
dates in the future. The delayed delivery contracts will be subject to the
following two conditions:
- that the purchase of the securities by an institution is not prohibited
at the time of delivery by the laws of any jurisdiction in the United
States to which such institution is subject; and
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- if the securities are being sold to underwriters, we will have sold to
such underwriters the total principal amount of the securities being
offered, less the principal amount of securities covered by the delayed
delivery contracts.
Underwriters, agents and dealers may be entitled under agreements entered
into with Textron to indemnification by Textron against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the underwriters, agents or dealers may be
required to make. Underwriters, agents and dealers may be customers of, engage
in transactions with, or perform services for Textron and its affiliates in the
ordinary course of business.
Each series of securities will be a new issue of securities and will have
no established trading market other than the common stock which is listed on the
New York Stock Exchange, the Chicago Stock Exchange and the Pacific Exchange.
Any common stock sold will be listed on the New York Stock Exchange, the Chicago
Stock Exchange and the Pacific Exchange, upon official notice of issuance. Any
underwriters to whom securities are sold by Textron and the Textron Trusts for
public offering and sale may make a market in the securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. The securities, other than the common stock,
may or may not be listed on a national securities exchange. We give no assurance
that there will be a market for the securities, other than the common stock.
LEGAL OPINIONS
The validity of any common stock, preferred stock, senior debt securities,
subordinated debt securities, junior subordinated debt securities and trust
guarantees and certain legal matters relating to those securities will be passed
upon for Textron and the Textron Trusts by Michael D. Cahn, Associate General
Counsel and Assistant Secretary of Textron. The validity of any trust preferred
securities and certain legal matters relating to those securities will be passed
upon for Textron and the Textron Trusts by Skadden, Arps, Slate, Meagher & Flom
LLP, Boston, Massachusetts.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedules included in our Annual Report on Form 10-K
for the year ended January 2, 1999, as set forth in their report, which is
incorporated into this prospectus by reference. Our financial statements and
schedules are incorporated into this prospectus by reference in reliance on
Ernst & Young LLP's report, given on their authority as experts in accounting
and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus incorporates documents by reference which are not presented
in or delivered with this prospectus.
All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934 after the date of this prospectus and before
the termination of the offering are incorporated into this prospectus by
reference.
The following documents were filed by us with the Securities and Exchange
Commission and incorporated into this prospectus by reference:
- Annual Report on Form 10-K for the fiscal year ended January 2, 1999
(filing date of March 15, 1999);
- Quarterly Report on Form 10-Q, for the quarterly period ended April 3,
1999 (filing date of May 12, 1999);
- Current Report on Form 8-K dated January 6, 1999 (filing date of January
6, 1999); and
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- the description of Textron common stock set forth in our registration
statement filed with the Securities and Exchange Commission pursuant to
Section 12 of the Securities Exchange Act, including any amendment or
reports filed for the purpose of updating such description.
Any statement contained in a document incorporated into this prospectus by
reference will be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or any
other subsequently filed document that is deemed to be incorporated by reference
into this prospectus modifies or supersedes the statement. Any statement so
modified or superseded will not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
The documents incorporated into this prospectus by reference are available
from us upon request. We will provide a copy of any or all of the information
that is incorporated into this prospectus by reference (not including exhibits
to the information unless those exhibits are specifically incorporated by
reference into this prospectus) to any person, including any beneficial owner,
to whom a prospectus is delivered, without charge, upon written or oral request.
Requests for documents should be directed to:
Textron Inc.
40 Westminster Street
Providence, Rhode Island 02903
Attention: Communications and
Investor Relations Department
We file reports, proxy statements and other information with the Securities
and Exchange Commission. Copies of our reports, proxy statements and other
information may be inspected and copied at the public reference facilities
maintained by the Securities and Exchange Commission at:
SEC Public Reference Room
450 Fifth Street, N.W.
Washington, D.C. 20549
For further information on the Securities and Exchange Commission's Public
Reference Room, please call the Securities and Exchange Commission at
1-800-SEC-0330. The Securities and Exchange Commission maintains an Internet
site at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding companies that file electronically,
including Textron. This prospectus is part of a registration statement filed by
us with the Securities and Exchange Commission. The full registration statement
can be obtained from the Securities and Exchange Commission, or directly from
us, as indicated above.
In addition, these reports and other information may be read at:
The New York Stock Exchange
20 Broad Street
New York, New York 10005
The Chicago Stock Exchange
440 South LaSalle Street
Chicago, Illinois 60605
The Pacific Stock Exchange
115 Sansome Street
Second Floor
San Francisco, California 94104
19
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth our expenses in connection with the
offerings described in this registration statement. Expenses other than the
Securities and Exchange Commission registration fee are estimates.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 556,000
Transfer Agents, Trustees and Depositary's Fees and
Expenses.................................................. 25,000
Printing and Engraving Fees and Expenses.................... 100,000
Accounting Fees and Expenses................................ 100,000
Legal Fees.................................................. 150,000
Rating Agency Fees.......................................... 100,000
Miscellaneous (including Listing Fees, if applicable)....... 69,000
----------
Total....................................................... $1,200,000
==========
</TABLE>
The expenses listed above assume that all of the securities registered by
this registration statement will be issued in one transaction. If we issue the
securities in more than one transaction, the expenses listed above may increase.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 145 of the Delaware General Corporation Law, each
director and officer of Textron may be indemnified by us against expenses
(including attorney's fees, judgments, fines and amounts paid in settlement)
actually and reasonably incurred in connection with the defense or settlement of
any threatened, pending or completed legal proceedings in which he or she is
involved by reason of the fact that he or she is or was a director or officer of
Textron if he or she acted in good faith and in a manner that he or she
reasonably believed to be in or not opposed to the best interests of Textron and
with respect to any criminal action or proceeding, if he or she had no
reasonable cause to believe that his or her conduct was unlawful. If the legal
proceeding, however, is by or in the right of Textron, the director or officer
may not be indemnified in respect of any claim, issue or matter as to which he
or she shall have been adjudged to be liable to Textron unless and to the extent
that a court determines otherwise.
Our by-laws require us to indemnify each officer and director to the
fullest extent permitted by law. In addition, we maintain directors' and
officers' liability policies.
Article Sixth of our restated certificate of incorporation provides that,
to the fullest extent permitted by law, directors of Textron will not be liable
for monetary damages to Textron or its stockholders for breaches of their
fiduciary duties.
ITEM 16. EXHIBITS
The following is a list of all exhibits filed as a part of this
registration statement on Form S-3, including those incorporated into this
registration statement by reference.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <S>
1.1 Form of underwriting agreement for offering of trust
preferred securities.
1.2 Form of underwriting agreement for offering of debt
securities.
4.1 Restated Certificate of Incorporation of Textron,
incorporated into this registration statement by reference
to Exhibit 3.1 to Textron's Annual Report on Form 10-K for
the fiscal year ended January 3, 1998.
</TABLE>
II-1
<PAGE> 23
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <S>
4.2 By-Laws of Textron, incorporated into this registration
statement by reference to Exhibit 3.2 to Textron's Annual
Report on Form 10-K for the fiscal year ended January 2,
1999.
4.3 Renewed Rights Agreement dated as of September 27, 1995, by
and between Textron and First Chicago Trust Company of New
York, incorporated into this registration statement by
reference to exhibit 4 to Textron's Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1995.
4.4 Amended and Restated Certificate of Trust of Textron Capital
II.
4.5 Amended and Restated Certificate of Trust of Textron Capital
III.
4.6 Form of indenture.
*4.7 The form of any senior debt security.
*4.8 The form of any subordinated debt security.
*4.9 The form of any junior subordinated debt security.
*4.10 The form of any certificate of designation with respect to
any preferred stock.
*4.11 Form of trust preferred security.
*4.12 Form of trust guaranty relating to the trust preferred
securities.
*5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
*5.2 Opinion of Michael D. Cahn, Associate General Counsel of
Textron Inc.
*12.1 Statement re: Computation of ratio of earnings to fixed
charges.
23.1 Consent of independent auditors, Ernst & Young LLP.
*23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
*23.3 Consent of Michael D. Cahn, Associate General Counsel of
Textron Inc. (included in Exhibit 5.2)
24.1 Powers of attorney.
24.2 Certified resolutions of the board of directors of Textron.
25.1 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the indenture with respect to the senior
debt securities.
25.2 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the indenture with respect to the
subordinated debt securities.
25.3 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the indenture with respect to the junior
subordinated debt securities.
25.4 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the Declaration of Trust of Textron Capital
II.
25.5 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the Declaration of Trust of Textron Capital
III.
</TABLE>
II-2
<PAGE> 24
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <S>
25.6 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee of the Trust Guarantees of Textron Inc. for the
benefit of the holders of Trust Preferred Securities of
Textron Capital II.
25.7 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee of the Trust Guarantees of Textron Inc. for the
benefit of the holders of Trust Preferred Securities of
Textron Capital III.
</TABLE>
- ---------------
* To be filed as an exhibit to a Current Report on Form 8-K and incorporated
into this registration statement by reference.
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; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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; provided, however, that paragraphs (1)(i) and 1(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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; and
(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 herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth in Item 15,
II-3
<PAGE> 25
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Textron Inc.
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Providence, and State of Rhode Island, on this 5th day
of August, 1999.
TEXTRON INC.
By: /s/ MICHAEL D. CAHN
------------------------------------
Name: Michael D. Cahn
Title: Attorney-in-Fact
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below on this 5th day of August, 1999 by
the following persons in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Chairman, Chief Executive Officer and Director
- --------------------------------------------------- (Principal Executive Officer)
Lewis B. Campbell
* Director
- ---------------------------------------------------
H. Jesse Arnelle
* Director
- ---------------------------------------------------
Teresa Beck
* Director
- ---------------------------------------------------
R. Stuart Dickson
* Director
- ---------------------------------------------------
Lawrence K. Fish
* Director
- ---------------------------------------------------
Joe T. Ford
* Director
- ---------------------------------------------------
Paul E. Gagne
* Director
- ---------------------------------------------------
John A. Janitz
* Director
- ---------------------------------------------------
John D. Macomber
</TABLE>
II-5
<PAGE> 27
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
* Director
- ---------------------------------------------------
Dana G. Mead
* Director
- ---------------------------------------------------
Brian H. Rowe
* Director
- ---------------------------------------------------
Sam F. Segnar
* Director
- ---------------------------------------------------
Jean Head Sisco
* Director
- ---------------------------------------------------
Martin D. Walker
* Director
- ---------------------------------------------------
Thomas B. Wheeler
* Executive Vice President and Chief Financial
- --------------------------------------------------- Officer (Principal Financial Officer)
Stephen L. Key
* Vice President and Controller (Principal
- --------------------------------------------------- Accounting Officer)
Richard L. Yates
*By: /s/ MICHAEL D. CAHN
---------------------------------------------
Name: Michael D. Cahn
Title: Attorney-in-Fact
</TABLE>
II-6
<PAGE> 28
Pursuant to the requirements of the Securities Act of 1933, each of Textron
Capital II and Textron Capital III certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Providence, in the State
of Rhode Island on August 5, 1999.
TEXTRON CAPITAL II
By: /s/ Edward C. Arditte
------------------------------------
Edward C. Arditte, as trustee
TEXTRON CAPITAL III
By: /s/ Edward C. Arditte
------------------------------------
Edward C. Arditte, as trustee
II-7
<PAGE> 29
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
1.1 Form of underwriting agreement for offering of trust
preferred securities.
1.2 Form of underwriting agreement for offering of debt
securities.
4.1 Restated Certificate of Incorporation of Textron,
incorporated into this registration statement by reference
to Exhibit 3.1 to Textron's Annual Report on Form 10-K for
the fiscal year ended January 3, 1998.
4.2 By-Laws of Textron, incorporated into this registration
statement by reference to Exhibit 3.2 to Textron's Annual
Report on Form 10-K for the fiscal year ended January 2,
1999.
4.3 Renewed Rights Agreement dated as of September 27, 1995, by
and between Textron and First Chicago Trust Company of New
York, incorporated into this registration statement by
reference to Exhibit 4 to Textron's Quarterly Report on Form
10-Q for the quarterly period ended September 30, 1995.
4.4 Amended and Restated Certificate of Trust of Textron Capital
II.
4.5 Amended and Restated Certificate of Trust of Textron Capital
III.
4.6 Form of indenture.
*4.7 The form of any senior debt security.
*4.8 The form of any subordinated debt security.
*4.9 The form of any junior subordinated debt security.
*4.10 The form of any certificate of designation with respect to
any preferred stock.
*4.11 Form of trust preferred security.
*4.12 Form of trust guaranty relating to the trust preferred
securities.
*5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
*5.2 Opinion of Michael D. Cahn, Associate General Counsel of
Textron Inc.
*12.1 Statement re: Computation of ratio of earnings to fixed
charges.
23.1 Consent of independent auditors, Ernst & Young LLP.
*23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit 5.1).
*23.3 Consent of Michael D. Cahn, Associate General Counsel of
Textron Inc. (included in Exhibit 5.2)
24.1 Powers of attorney.
24.2 Certified resolutions of the board of directors of Textron.
25.1 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the indenture with respect to the senior
debt securities.
25.2 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the indenture with respect to the
subordinated debt securities.
25.3 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the indenture with respect to the junior
subordinated debt securities.
25.4 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the Declaration of Trust of Textron Capital
II.
25.5 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee under the Declaration of Trust of Textron Capital
III.
</TABLE>
<PAGE> 30
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
------- -----------------------
<C> <S>
25.6 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee of the Trust Guarantees of Textron Inc. for the
benefit of the holders of Trust Preferred Securities of
Textron Capital II.
25.7 Statement of Eligibility on Form T-1 under the Trust
Indenture Act of 1939, as amended, of The Bank of New York,
as trustee of the Trust Guarantees of Textron Inc. for the
benefit of the holders of Trust Preferred Securities of
Textron Capital III.
</TABLE>
- ---------------
* To be filed as an exhibit to a Current Report on Form 8-K and incorporated
into this registration statement by reference.
<PAGE> 1
Exhibit 1.1
TEXTRON CAPITAL _
UNDERWRITING AGREEMENT
________ _, ____
[Name of Underwriters]
Dear Sirs:
Textron Capital _________, a Delaware business trust (the "Trust"),
proposes, upon the terms and conditions set forth herein, to issue and sell
__________ of its ____% Trust Preferred Securities (the "Preferred Securities")
to the several Underwriters named in Schedule I hereto (the "Underwriters").
The Preferred Securities will be guaranteed by Textron Inc., a Delaware
corporation ("Textron"), as described in the Prospectus (as defined below). The
Trust will use the proceeds from the sale of the Preferred Securities to
purchase from Textron $___________ aggregate principal amount of its ____%
___________________ due _____ __, ____ (the "Junior Subordinated Debentures") to
be issued under the Indenture (the "Base Indenture") dated as of _______ __,
____ between Textron and The Bank of New York, as Trustee (the "Indenture
Trustee").
Each of the Trust and Textron wish to confirm as follows their
agreement with you (the "Representatives") and the several Underwriters
on whose behalf you are acting in connection with the several purchases
of the Preferred Securities by the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. The Trust and
Textron have prepared and filed with the Securities and
<PAGE> 2
Exchange Commission (the "Commission") in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a registration
statement on Form S-3 under the Act (the "registration statement"),
including a prospectus relating to the Preferred Securities, the Junior
Subordinated Debentures and the guarantee (the "Guarantee") of the
Preferred Securities by Textron. The term "Registration Statement" as
used in this Agreement means the registration statement (including all
financial schedules and exhibits), as supplemented or amended prior to
the execution of this Agreement. The term "Base Prospectus" as used in
this Agreement means the prospectus included in the Registration
Statement. The term "Prospectus" means the Base Prospectus together
with the prospectus supplement or supplements specifically relating to
the Preferred Securities as filed with or promptly hereafter filed with
the Commission pursuant to Rule 424(b) under the Act. The term
"Prepricing Prospectus" as used in this Agreement means the prospectus
supplement subject to completion specifically relating to the Preferred
Securities together with the Base Prospectus as such prospectus shall
have been amended from time to time prior to the date of such prospectus
supplement and filed with the Commission pursuant to Rule 424(b) under
the Act. Any reference in this Agreement to the registration statement,
the Registration Statement, any Prepricing Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Act, as of
the date of the registration statement, the Registration Statement, such
Prepricing Prospectus or the Prospectus, as the case may be, and any
reference to any amendment or supplement to the registration statement,
the Registration Statement, any Prepricing Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") which, upon filing, are incorporated by reference
therein, as required by paragraph (b) of Item 12 of Form S-3. As used
herein, the term "Incorporated Documents" means the documents which at
the time are incorporated by reference in the registration statement,
the Registration Statement, any Prepricing Prospectus, the Prospectus,
or any amendment or supplement thereto.
2. AGREEMENTS TO SELL AND PURCHASE. The Trust hereby
agrees, subject to all the terms and conditions set forth herein, to
issue and sell to each Underwriter and, upon the basis of the
representations, warranties and agreements of the Trust and Textron
herein contained and subject to all the terms and conditions set forth
herein, each Underwriter agrees, severally and not jointly, to purchase
from the Trust, at a purchase price of $__ per Preferred Security (the
"Purchase Price"), the number of Preferred Securities set forth opposite
the name of such Underwriter in Schedule I hereto (or such number of
Preferred Securities increased as set forth in Section 10 hereof).
In consideration of such purchases on the Closing Date, the
proceeds of which will be used to purchase Junior Subordinated
<PAGE> 3
Debentures, Textron shall pay to the Underwriters as compensation, on
the Closing Date $.____ per Preferred Security, provided, however, that
such compensation shall be $.__ per Preferred Security for each sale of
______ or more Preferred Securities to a single purchaser. The
Underwriters shall inform Textron in writing on the Closing Date of the
number of Preferred Securities so sold.
Each of the Trust and Textron hereby agree, during the period
beginning on the date of this Agreement and continuing to and including
the date that is 60 days after the Closing Date, not to offer, sell,
contract to sell or otherwise dispose of any preferred securities, any
preferred stock or any other securities (including any backup
undertakings for such preferred stock or other securities) of Textron or
preferred securities of the Trust, in each case that are substantially
similar to the Preferred Securities, or any securities convertible into
or exchangeable for the Preferred Securities or such substantially
similar securities of either the Trust or Textron, without the prior
written consent of ________________.
3. TERMS OF PUBLIC OFFERING. The Trust and Textron have
been advised by you that the Underwriters propose to make a public
offering of their respective portions of the Preferred Securities as
soon after this Agreement has become effective as in your judgment is
advisable and initially to offer the Preferred Securities upon the terms
set forth in the Prospectus.
4. DELIVERY OF THE PREFERRED SECURITIES AND PAYMENT
THEREFOR. Delivery to the Underwriters of and payment for the Preferred
Securities shall be made at the office of Skadden, Arps, Slate, Meagher
& Flom, One Beacon Street, Boston, Massachusetts at 10:00 A.M., New York
City time, on ________ _, ____ (the "Closing Date"). The place of
closing for the Preferred Securities and the Closing Date may be varied
by agreement among you, the Trust and Textron.
The Preferred Securities shall be delivered to you for the
accounts of the several Underwriters against payment of the Purchase
Price therefor by certified or official bank check or checks payable in
New York Clearing House (next day) funds to the order of the Trust and
registered in the name of CEDE & Co., as nominee for The Depositary
Trust Company. The Preferred Securities to be delivered to the
Underwriters shall be made available to you in New York City for
inspection and packaging not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date.
5. AGREEMENTS OF THE TRUST AND TEXTRON. Each of the Trust
and Textron jointly and severally agree with the several Underwriters as
follows:
(a) The Trust and Textron will advise you promptly and, if
requested by you, will confirm such advice in writing: (i) of any
request by the Commission for amendment of or a supplement to
- 3 -
<PAGE> 4
the Registration Statement, any Prepricing Prospectus or the Prospectus or
for additional information; (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of qualification of the Preferred
Securities and the Guarantee for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the
period of time referred to in paragraph (e) below, of any change in the
condition (financial or other), business, prospects, properties, net
worth or results of operations of the Trust or of Textron and Textron's
subsidiaries taken as a whole, or of the happening of any event, which
makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or
which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or
supplemented) in order to state a material fact required by the Act or
the regulations thereunder to be stated therein or necessary in order to
make the statements therein not misleading, or of the necessity to amend
or supplement the Prospectus (as then amended or supplemented) to comply
with the Act or any other law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, the Trust and Textron will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(b) The Trust and Textron will make available for review by
each Representative a signed copy of the registration statement as
originally filed with the Commission and of each amendment thereto,
including financial statements and all exhibits to the registration
statement, and a copy of the exhibits to the Incorporated Documents and
furnish to you, without charge (i) such number of conformed copies of
the registration statement as originally filed and of each amendment
thereto, including exhibits, as you may reasonably request and (ii) such
number of copies of the Declaration (as hereinafter defined), the
Guarantee, the Indenture and the Incorporated Documents, without
exhibits, as you may reasonably request.
(c) Neither the Trust nor Textron will file any amendment to
the Registration Statement or make any amendment or supplement to the
Prospectus or, prior to the end of the period of time referred to in the
first sentence in subsection (e) below, file any document which, upon
filing becomes an Incorporated Document, of which you shall not
previously have been advised or to which, after you shall have received
a copy of the document proposed to be filed, you shall reasonably
object.
(d) Prior to the execution and delivery of this Agreement,
the Trust and Textron have delivered to you, without charge, in such
quantities as you have requested, copies of each Prepricing Prospectus.
Each of the Trust and Textron consent to the use, in accordance with the
provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Preferred Securities and the Guarantee are
offered by the several
-4-
<PAGE> 5
Underwriters and by dealers prior to the date of the Prospectus, of each
Prepricing Prospectus so furnished by the Trust and Textron.
(e) As soon after the execution and delivery of this
Agreement as possible and thereafter from time to time for such period
as in the judgment of the Representatives a prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or
dealer, the Trust and Textron will expeditiously deliver to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement thereto) as you may
request. Each of the Trust and Textron consent to the use of the
Prospectus (and of any amendment or supplement thereto) in accordance
with the provisions of the Act and with the securities or Blue Sky laws
of the jurisdictions in which the Preferred Securities and the Guarantee
are offered by the several Underwriters and by all dealers to whom
Preferred Securities may be sold, both in connection with the offering
and sale of the Preferred Securities and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Trust
and Textron or in the judgment of the Representatives is required to be
set forth in the Prospectus (as then amended or supplemented) or should
be set forth therein in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary to supplement or amend the Prospectus (or to file
under the Exchange Act any document which, upon filing, becomes an
Incorporated Document) in order to comply with the Act or any other law,
the Trust and Textron will forthwith prepare and, subject to the
provisions of paragraph (c) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and
will expeditiously furnish to the Underwriters and dealers a reasonable
number of copies thereof.
(f) Each of the Trust and Textron will cooperate with you and
with counsel for the Underwriters in connection with the registration or
qualification of the Preferred Securities and the Guarantee for offering
and sale by the several Underwriters and by dealers under the securities
or Blue Sky laws of such jurisdictions as you may designate and will
file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification;
provided that in no event shall the Trust or Textron be obligated to
qualify to do business in any jurisdiction where they are not now so
qualified or to take any action which would subject them to service of
process in suits in any jurisdiction where they are not now so subject.
(g) The Trust and Textron will make generally available to
the Trust's security holders consolidated earnings statements, which
need not be audited, covering a twelve-month period commencing after the
effective date of the Registration Statement and ending not later than
15 months thereafter, as soon as practicable after the end of such
period, which consolidated
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earnings statements shall satisfy the provisions of Section ll(a) of the Act.
(h) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than
pursuant to the second paragraph of Section 10 hereof or by notice given
by you terminating this Agreement pursuant to Section 10 or Section 11
hereof) or if this Agreement shall be terminated by the Underwriters
because of any failure or refusal on the part of the Trust or Textron to
comply with the terms or fulfill any of the conditions of this
Agreement, Textron agrees to reimburse the Representatives for all
reasonable out-of-pocket expenses (including fees and expenses of
counsel for the Underwriters) incurred by you in connection herewith.
(i) The Trust will apply the net proceeds from the sale of
the Preferred Securities, and Textron will apply the net proceeds from
the sale of the Junior Subordinated Debentures, substantially in
accordance with the description set forth in the Prospectus.
(j) The Trust and Textron will timely file the Prospectus
pursuant to Rule 424(b) under the Act and will advise you of the time
and manner of such filing.
6. REPRESENTATIONS AND WARRANTIES OF THE TRUST AND TEXTRON.
Each of the Trust and Textron jointly and severally represent and
warrant to each Underwriter that:
(a) The Trust and Textron and the transactions contemplated
by this Agreement meet the requirements for using Form S-3 under the
Act. The registration statement in the form in which it became
effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectus complied or
will comply in all material respects with the provisions of the Act and
will not at any such times contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of
the Prospectus in light of the circumstances under which they are made),
except that this representation and warranty does not apply to
statements in or omissions from the registration statement or the
Prospectus made in reliance upon and in conformity with (i) information
relating to any Underwriter furnished to the Trust or Textron in writing
by or on behalf of any Underwriter through you expressly for use
therein, or (ii) the Indenture Trustee's, the Institutional Trustee's or
the Guarantee Trustee's Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended (the "1939 Act").
The terms "Institutional Trustee" and "Guarantee Trustee" shall have the
meanings given to them in the Prospectus.
(b) The Incorporated Documents heretofore filed, when they
were filed (or, if any amendment with respect to any such
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<PAGE> 7
document was filed, when such amendment was filed), conformed in all material
respects with the requirements of the Exchange Act and the rules and
regulations thereunder, any further Incorporated Documents so filed
will, when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations
thereunder; no such document when it was filed (or, if an amendment with
respect to any such document was filed, when such amendment was filed),
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; and no such further document, when
it is filed, will contain an untrue statement of a material fact or will
omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(c) The execution and delivery of, and the performance by the
Trust of its obligations under, this Agreement have been duly authorized
by the Trust, and this Agreement has been duly executed and delivered by
the Trust. The execution and delivery of, and the performance by
Textron of its obligations under this Agreement, the Trust's Amended and
Restated Declaration of Trust (the "Declaration"), the Guarantee, the
Indenture and the Junior Subordinated Debentures have been duly
authorized by Textron, and this Agreement has been duly executed and
delivered by Textron.
(d) The Preferred Securities to be issued will be duly
authorized by the Declaration and, when executed in accordance with the
terms of the Declaration and delivered to you against payment therefor
in accordance with the terms hereof, will have been validly issued and
(subject to the terms of the Declaration) will represent fully paid and
nonassessable undivided beneficial interests in the assets of the Trust,
not subject to any preemptive or similar rights and will conform to the
description thereof in the Registration Statement and the Prospectus.
Holders of Preferred Securities will be entitled to the same limitation
of liability extended to stockholders of private corporations for profit
under the General Corporation Law of the State of Delaware. The Common
Securities (as defined in the Prospectus) to be issued to Textron will
be authorized by the Declaration and, when executed in accordance with
the terms of the Declaration and delivered to Textron against payment
therefor as described in the Registration Statement and the Prospectus,
will represent validly issued undivided beneficial interests in the
assets of the Trust.
(e) Each of the Declaration and the Guarantee have been duly
authorized by Textron and upon execution and delivery thereof by
Textron, and assuming due authorization, execution and delivery thereof
by the trustees (the "Trustees") of the Trust, the Declaration will, as
of the Closing Date, be a valid and legally binding obligation of
Textron and the Regular Trustees, enforceable against Textron and the
Regular Trustees in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy,
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<PAGE> 8
insolvency or other similar laws affecting creditors' rights generally and
by general principles of equity and will conform to the description thereof
in the Registration Statement and the Prospectus. As of the Closing Date, the
Guarantee will have been duly executed and delivered by Textron and will be a
valid and legally binding obligation of Textron, enforceable against
Textron in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights and by general principles of equity and will conform
to the description thereof in the Registration Statement and Prospectus.
(f) The Indenture has been duly authorized and, upon
execution and delivery thereof by Textron, and assuming due execution
and delivery by the Indenture Trustee, will be, as of the Closing Date,
a valid and legally binding agreement of Textron, enforceable against
Textron in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally and by general principles of equity, has
been duly qualified under the 1939 Act and will conform to the
description thereof in the Registration Statement and the Prospectus.
(g) The Junior Subordinated Debentures have been duly
authorized and, when executed by Textron, authenticated by the Indenture
Trustee and issued in accordance with the Indenture and delivered to the
Trust against payment therefor as described in the Registration
Statement and the Prospectus, will constitute valid and legally binding
obligations of Textron entitled to the benefits of the Indenture and
enforceable against Textron in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity, and the Junior Subordinated
Debentures will conform to the description thereof in the Registration
Statement and the Prospectus.
(h) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust
Act, is a "grantor trust" for Federal income tax purposes under existing
law in effect on the date hereof and on the Closing Date, has the
business trust power and authority to conduct its business as presently
conducted and as described in the Registration Statement and the
Prospectus, and is not required to be authorized to do business in any
other jurisdiction.
(i) Textron is a corporation duly organized and validly
existing in good standing under the laws of the State of Delaware with
full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or
place where the nature of its properties or the conduct of its business
requires such registration or
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<PAGE> 9
qualification, except where the failure so to register or qualify does not
have a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of Textron and its subsidiaries
taken as a whole.
(j) Each of [Insert name of Subsidiaries] (collectively, the
"Significant Subsidiaries") is a corporation duly organized, validly existing
and in good standing in the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly registered and qualified to conduct its business and is
in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify does not have
a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of Textron and its subsidiaries
taken as a whole. Except as disclosed in the Registration Statement and the
Prospectus, Textron owns of record, directly or indirectly, all of the
outstanding shares of capital stock of each of the Significant Subsidiaries free
and clear of any lien, adverse claim, security interest, equity or other
encumbrance.
(k) The execution and delivery of this Agreement by the Trust
and Textron and the performance by the Trust and Textron of their
obligations hereunder, the execution and delivery by Textron of, and the
performance by Textron of its obligations under, the Declaration, the
Guarantee and the Indenture, the issuance and sale of the Preferred
Securities by the Trust, the extension of the Guarantee, the issuance
and sale of the Junior Subordinated Debentures by Textron and the
consummation of the transactions contemplated by this Agreement will not
contravene any provision of applicable law or the Declaration of the
Trust or the certificate of incorporation or by-laws of Textron or any
other agreement or instrument binding upon the Trust or Textron or any
of Textron's Significant Subsidiaries or any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Trust, Textron or such Significant Subsidiaries, except such
contraventions as would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Trust or of
Textron and its subsidiaries taken as a whole and no consent, approval
or authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Trust and Textron
of their obligations under this Agreement, the performance by Textron of
its obligations under the Declaration, the Guarantee or the Indenture,
the consummation of the transactions contemplated hereby, the issuance
and sale of the Preferred Securities, the extension of the Guarantee or
the
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<PAGE> 10
issuance and sale of the Junior Subordinated Debentures, except
such as are required pursuant to state securities or Blue Sky Laws.
(l) The statements under the caption "Legal Proceedings" in
Textron's Annual Report on Form 10-K insofar as they describe statements
of law or legal conclusions are accurate and present fairly the
information required to be shown.
(m) Neither the Trust nor Textron is, or after giving effect
to the consummation of the transaction contemplated hereby, will be, and
neither the Trust nor Textron is directly or indirectly controlled by,
or acting on behalf of any person which is, an investment company within
the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
(n) Each of the Trust and Textron have complied with all
provisions of Florida Statutes, Sec. 517.075, relating to issuers doing
business with Cuba.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Trust
and Textron jointly and severally agree to indemnify and hold harmless
each of you and each other Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable costs of
investigation) arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Prepricing
Prospectus or in the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities
or expenses arise out of or are based upon any untrue statement or
omission or alleged untrue statement or omission which has been made
therein or omitted therefrom in reliance upon and in conformity with
information relating to such Underwriter furnished in writing to the
Trust and Textron by or on behalf of any Underwriter through you
expressly for use in connection therewith; provided, however, that the
indemnification contained in this paragraph (a) with respect to any
Prepricing Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising
from the sale of the Preferred Securities by such Underwriter to any
person if a copy of the Prospectus shall not have been delivered or sent
to such person within the time required by the Act and the regulations
thereunder, and the untrue statement or alleged untrue statement or
omission or alleged omission of a material fact contained in such
Prepricing Prospectus was corrected in the Prospectus, provided that the
Trust and Textron have delivered the Prospectus to the several
Underwriters in requisite quantity on a timely basis to permit such
delivery or sending. The foregoing indemnity agreement shall be
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<PAGE> 11
in addition to any liability which the Trust and Textron may otherwise
have.
(b) If any action, suit or proceeding shall be brought
against any Underwriter or any person controlling any Underwriter in
respect of which indemnity may be sought against the Trust and Textron,
such Underwriter or such controlling person shall promptly notify the
Trust and Textron and the Trust and Textron shall assume the defense
thereof, including the employment of counsel and payment of all fees and
expenses. Such Underwriter or any such controlling person shall have
the right to employ separate counsel in any such action, suit or
proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the Trust and Textron have agreed in
writing to pay such fees and expenses, (ii) either the Trust or Textron
have failed to assume the defense and employ counsel, or (iii) the named
parties to any such action, suit or proceeding (including any impleaded
parties) include both such Underwriter or such controlling person and
the Trust or Textron and such Underwriter or such controlling person
shall have been advised by its counsel that representation of such
indemnified party and the Trust or Textron by the same counsel would be
inappropriate under applicable standards of professional conduct
(whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them
(in which case the Trust and Textron shall not have the right to assume
the defense of such action, suit or proceeding on behalf of such
Underwriter or such controlling person). It is understood, however,
that the Trust and Textron shall, in connection with any one such
action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of only one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriters and
controlling persons not having actual or potential differing interests
with you or among themselves, which firm shall be designated in writing
by Smith Barney Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. Neither the Trust nor Textron shall be
liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, each of the Trust and Textron jointly and
severally agree to indemnify and hold harmless any Underwriter, to the
extent provided in the preceding paragraph, and any such controlling
person from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Trust, the Trustees, Textron's
directors, Textron's officers who sign the Registration Statement, and
any person who controls the Trust or Textron within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, to the
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<PAGE> 12
same extent as the foregoing indemnity from the Trust and Textron to each
Underwriter, but only with respect to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the
Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the
Trust or Textron, any of the Trustees, Textron's directors, any such
officer of Textron, or any such controlling person, based on the
Registration Statement, the Prospectus or any Prepricing Prospectus, or
any amendment or supplement thereto, and in respect of which indemnity
may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Trust and
Textron by paragraph (b) above (except that if the Trust and Textron
shall have assumed the defense thereof such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof, but the fees and expenses of such
counsel shall be at such Underwriter's expense), and the Trust, the
Trustees, Textron, Textron's directors, any such officer of Textron, and
any such controlling person, shall have the rights and duties given to
the Underwriters by paragraph (b) above. The foregoing indemnity
agreement shall be in addition to any liability which the Underwriters
may otherwise have.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under paragraphs (a) or (c) hereof
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then an indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to
reflect the relative benefits received by the Trust and Textron on the
one hand and the Underwriters on the other hand from the offering of the
Preferred Securities, or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Trust and Textron on
the one hand and the Underwriters on the other in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Trust and Textron
on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Trust bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Trust and Textron on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, 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 Trust and Textron on the one
hand or by
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<PAGE> 13
the Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(e) The Trust, Textron and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section
7 were determined by a pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 7,
no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price of the Preferred Securities
underwritten by it and distributed 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 Underwriters' obligations to contribute pursuant to this Section 7
are several in proportion to the number of Preferred Securities set
forth opposite their names in Schedule I hereto (or such number of
Preferred Securities increased as set forth in Section 10 hereof) and
not joint.
(f) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all
liability on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying
party to the indemnified party as such losses, claims, damages,
liabilities or expenses are incurred. The indemnity and contribution
agreements contained in this Section 7 and the representations and
warranties of the Trust and Textron set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter, the Trust, the Trustees, Textron, Textron's
directors or officers or any person controlling the Trust, (ii)
acceptance of any Preferred Securities and payment therefore hereunder
and (iii) any termination of this Agreement. A successor to any
Underwriter or
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<PAGE> 14
any person controlling any Underwriter, or to the Trust, the Trustees,
Textron, Textron's directors or officers, or any person controlling
the Trust, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 7.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Preferred Securities
hereunder are subject to the following conditions:
(a) All filings, if any, required by Rule 424 under the Act
shall have been timely made; no stop order suspending the effectiveness
of the registration statement shall have been issued and no proceeding
for that purpose shall have been instituted and not withdrawn or, to the
knowledge of the Trust, Textron or any Underwriter, threatened by the
Commission, and any request of the Commission for additional information
(to be included in the registration statement or the prospectus or
otherwise) shall have been complied with or withdrawn to your
satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Trust,
or of Textron and its subsidiaries taken as a whole not contemplated by
the Prospectus, which in your opinion, as Representatives of the several
Underwriters, would materially adversely affect the market for the
Preferred Securities.
(c) You shall have received on the Closing Date, an opinion
of Skadden, Arps, Slate, Meagher & Flom, special counsel for Textron and
the Trust, dated the Closing Date and addressed to you, as
Representatives of the several Underwriters, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Business Trust Act and has the business trust power and authority to
conduct its business as presently conducted and as described in the
Registration Statement and the Prospectus and is not required to be
authorized to do business in New York;
(ii) This Agreement has been duly authorized, executed and
delivered by Textron and the Trust;
(iii) Assuming due authorization, execution and delivery of
the Declaration by the Regular Trustees, the Declaration and the
Guarantee have each been duly authorized, executed and delivered by
Textron and the Declaration is a valid and legally binding agreement of
Textron and the Trustees, and the Guarantee is a valid and binding
agreement of Textron, in each case enforceable against Textron and, in
the case of the Declaration, the Trustees, in accordance with its terms,
except as enforcement
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<PAGE> 15
thereof may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally and by general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity);
(iv) The Common Securities have been duly authorized for
issuance and when issued, delivered and paid for as set forth in the
Registration Statement, will represent validly issued, undivided
beneficial interests in the assets of the Trust. The issuance of the
Common Securities is not subject to preemptive or other similar rights
under the Delaware Business Trust Act or the Declaration.
(v) The Preferred Securities have been duly authorized
for issuance and, subject to the qualification set forth below, when
issued, executed, delivered and paid for in accordance with this
Agreement, will represent validly issued, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust; the holders
of the Preferred Securities will be entitled to the same limitation of
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware. Such counsel may state, however, that the holders of
Preferred Securities may be obligated, pursuant to the Declaration, to
(i) provide indemnity and/or security in connection with and pay taxes
or governmental charges arising from transfers of Preferred Securities
and the issuance of replacement Preferred Securities, and (ii) provide
security and indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the
Declaration. The issuance of the Preferred Securities is not subject to
preemptive or other similar rights under the Delaware Act or the
Declaration.
(vi) The execution and delivery of this Agreement by the
Trust and the performance by the Trust of its obligations hereunder, the
issuance and sale of the Preferred Securities by the Trust and the
consummation of the other transactions contemplated by this Agreement
will not violate any provision of Applicable Law or the Declaration or,
to the knowledge of such counsel, any agreement or instrument binding
upon the Trust as set forth in a schedule to the opinion or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Trust as set forth in a schedule to the
opinion, except such contraventions as would not, individually or in the
aggregate, have a material adverse effect on the condition (financial
and other), business, properties, net worth or results of operations of
the Trust and no Governmental Approval is required for the performance
by the Trust of its obligations under this Agreement, the consummation
of the transactions contemplated hereby or the issuance of the Preferred
Securities, except such as are required pursuant to state securities or
Blue Sky laws;
(vii) To the knowledge of such counsel based on inquiry of
responsible officers of the Trust and review of letters
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<PAGE> 16
of counsel to the Trust obtained in connection with preparation of financial
statements, there are no legal or governmental proceedings pending or
threatened against the Trust or to which the Trust or any of its
property is subject, that are required to be described in the
Registration Statement or the Prospectus that are not described as
required and there are no agreements, contracts, indentures, leases or
other instruments of the Trust that are required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement that are not described or filed as required
by the Act;
(viii) The statements in the Registration Statement and
Prospectus under the captions "Textron Capital ___", "Risk Factors",
"Description of Preferred Securities", "Description of Trust Preferred
Securities", "Description of Junior Subordinated Debentures", "Effect of
Obligations Under the Junior Subordinated Debentures and the
Guarantees", "Description of Debt Securities" and "Description of Trust
Guarantees" insofar as they describe legal documents or refer to
statements of law or legal conclusions, are accurate and present fairly
the information required to be shown;
(ix) Neither the Trust nor Textron is required to be
registered under the Investment Company Act of 1940, as amended.
(x) No Governmental Approval is required in connection
with the performance by Textron of its obligations under this Agreement,
the consummation of the transactions contemplated hereby or the issuance
and sale of the Junior Subordinated Debt Securities, or the Guarantees,
except that such counsel need not express any opinion in this paragraph
with respect to state securities (blue sky) laws.
(xi) The Registration Statement, as of its effective date,
and the Prospectus, as of its date, appeared on their face to be
appropriately responsive in all material respects to the requirements of
the Act and the Rules and Regulations, except that in each case we
express no opinion as to the financial statements, schedules and other
financial and statistical data included therein or excluded therefrom or
the exhibits to the Registration Statement, including the Form T-1, and
we do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
the Prospectus except for those made under the captions listed in
paragraph (viii) above and paragraph (d)(3) below in the Prospectus
insofar as they relate to provisions of documents therein described.
Such counsel has been orally advised by the Commission that
the Indenture has been qualified under the Trust Indenture Act and the
Registration Statement was declared effective under the Act and, such
counsel has been advised by the Commission that no stop order suspending
the effectiveness of the Registration Statement has been issued and, to
the best of such counsel's knowledge, no
- 16 -
<PAGE> 17
proceedings for that purpose have been instituted or are pending or
threatened by the Commission. Such counsel shall also state the date
on which the Prospectus was filed pursuant to Rule 424(b) under the Act.
In addition, such counsel shall state that it has participated
in conferences with officers and representatives of the Company and the
Trust, and representatives of the independent accountants of the Company
at which the contents of the Registration Statement and the Prospectus
and related matters were discussed and, although such counsel is not
passing upon, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus and have made no independent check or
verification thereof except for those made under the captions listed in
paragraph (viii) above and paragraph (d)(3) below in the Prospectus
insofar as they relate to provisions of documents therein described, on
the basis of the foregoing, no facts have come to such counsel's
attention that have led such counsel to believe that the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date and as of
the date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, except that such counsel need not
express any opinion or belief with respect to the financial statements,
schedules and other financial and statistical data included therein or
excluded therefrom or the exhibits to the Registration Statement,
including the Form T-1.
For purposes of the foregoing opinion, such counsel may state
that (a) "Applicable Law" shall mean only the laws of the United States,
the Delaware Trust Act and those other laws of the State of Delaware and
the State of New York which, in our experience, are normally applicable
to transactions of the type contemplated by the Underwriting Agreement
(but without our having made any special investigation as to the
applicability of any specific law, rule or regulation except as
specified herein), and (b) "Governmental Approval" shall mean any
consent, approval, license, authorization or validation of, or filing,
recording or registration with, any governmental authority pursuant to
Applicable Law.
(d) You shall have received on the Closing Date, an
opinion of Skadden, Arps, Slate, Meagher & Flom, special tax counsel to
the Company and the Trust, dated the Closing Date and addressed to you,
as Representatives of the several Underwriters, to the effect that:
(1) The Trust will be classified as a grantor trust and
not as an association taxable as a corporation. Accordingly,
- 17 -
<PAGE> 18
for United States federal income tax purposes, each holder of Preferred
Securities will generally be considered the owner of an undivided interest
in the Junior Subordinated Debt Securities, and each holder will be required to
include in its gross income any original issue discount accrued with
respect to its allocable share of those Subordinated Debt Securities.
(2) The Junior Subordinated Debt Securities will be
classified for United States federal income tax purposes as indebtedness
of the Company.
(3) Although the discussion set forth in the Prospectus
under the heading "UNITED STATES TAXATION" does not purport to discuss
all possible United States federal income tax consequences of the
purchase, ownership and disposition of Preferred Securities, in our
opinion such discussion constitutes, in all material respects, a fair
and accurate summary of the United States federal income tax
consequences of the purchase, ownership and disposition of Preferred
Securities under current law.
(e) You shall have received on the Closing Date, an opinion of Michael
D. Cahn, Associate General Counsel and Assistant Secretary for Textron, dated
the Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
(i) Textron is a corporation duly incorporated and
validly existing in good standing under the laws of the State of
Delaware with full corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto) and is duly registered and qualified to conduct its
business and is in good standing in each jurisdiction or place where the
nature of its properties or the conduct of its business requires such
registration or qualification; except where the failure so to register
or qualify does not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of
operations of Textron and its subsidiaries taken as a whole;
(ii) Each of the Significant Subsidiaries is a corporation
duly organized and validly existing in good standing under the laws of
the jurisdiction of its organization, with full corporate power and
authority to own, lease, and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) and is duly registered and
qualified to conduct its business and is in good standing in each
jurisdiction or place where the nature of its properties or the conduct
of its business requires such registration or qualification; except
where the failure so to register or qualify does not have a material
adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of Textron and its
subsidiaries taken as a whole;
- 18 -
<PAGE> 19
(iii) The Indenture has been duly authorized, executed
and delivered by Textron and is a valid and legally binding agreement of
Textron enforceable against Textron in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally and by rights of
acceleration and the availability of remedies may be limited by
equitable principles of general applicability, and has been duly
qualified under the 1939 Act;
(iv) The Junior Subordinated Debt Securities have been
duly authorized by the Company and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the purchasers thereof, will be valid and binding
obligations of the Company enforceable in accordance with their terms
and will be entitled to the benefits of the Indenture, except as (1)
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (2) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(v) The execution, delivery and performance of this
Agreement, the Declaration, the Guarantee and the Indenture and the
performance by Textron of its obligations hereunder and thereunder, the
extension of the Guarantee, the issuance and sale of the Junior
Subordinated Debentures by Textron and the consummation of the other
transactions contemplated by this Agreement will not contravene any
provision of applicable law (except as rights to indemnity and
contribution under this Agreement may be limited by applicable law) or
the certificate of incorporation or by-laws of Textron or, to the
knowledge of such counsel after due inquiry, any agreement or instrument
binding upon Textron or its Significant Subsidiaries or any judgement,
order or decree of any governmental body, agency or court having
jurisdiction over its subsidiaries, except such contraventions as would
not, individually or in the aggregate, have a material adverse effect on
the condition (financial and other), business, properties, net worth or
results of operations of Textron and its subsidiaries taken as a whole
and (assuming compliance with applicable state securities and Blue Sky
laws) no consent, approval authorization or order of, or qualification
with, any governmental body or agency is required for the performance by
Textron of its obligations under this Agreement, except such as are
specified and have been obtained;
(vi) The statements in Textron's Annual Report on Form
10-K under the caption "Legal Proceedings" insofar as they describe
legal documents or refer to statements of law or legal conclusions, are
accurate and present fairly the information required to be shown and, to
the knowledge of such counsel, there are no agreements, contracts,
indentures, leases or other instruments (other than those relating to
the Trust) that are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration
- 19 -
<PAGE> 20
Statement or any Incorporated Document that are not described or filed
as required by the Act or the Exchange Act;
(vii) The Registration Statement and the Prospectus and any
supplements or amendments thereto (except for the financial statements
and the notes thereto and the schedules and other financial and
statistical data included therein, as to which such counsel need not
express any opinion) comply as to form in all material respects with the
requirements of the Act; and each of the Incorporated Documents (except
for the financial statements and the notes thereto and the schedules and
other financial and statistical data included therein, as to which
counsel need not express any opinion) complies as to form in all
material respects with the Exchange Act and the rules and regulations of
the Commission thereunder;
(viii) Although counsel has not undertaken,except as
otherwise indicated in his opinion, to determine independently, and does
not assume any responsibility for, the accuracy or completeness of the
statements in the Registration Statement, such counsel has participated
in the preparation of the Registration Statement and the Prospectus,
including the contents of all Incorporated Documents, and including
review and discussion of the contents thereof, and nothing has come to
the attention of such counsel that has caused them to believe that the
Registration Statement (including the Incorporated Documents) at the
time the Registration Statement became effective, or the Prospectus, as
of its date and as of the Closing Date, contained an untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading or that any amendment or supplement to the Prospectus, as of
its date and as of the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial statements
and the notes thereto and the schedules and other financial and
statistical data included in the Registration Statement or the
Prospectus or any Incorporated Document).
In rendering the opinion as aforesaid, counsel may rely upon
an opinion or opinions, each dated the Closing Date, of other counsel
retained by Textron as to laws of any jurisdiction other than the United
States or the State of New York or the General Corporation Law of the
State of Delaware, provided that (1) each such local counsel is
acceptable to the Representatives, (2) such reliance is expressly
authorized by each opinion so relied upon and a copy of each such
opinion is delivered to the Representatives and is, in form and
substance satisfactory to them and their counsel, and (3) counsel shall
state in their opinion that they believe that they and the Underwriters
are justified in relying thereon. In rendering the opinions, each
counsel may also rely as to matters of
- 20 -
<PAGE> 21
fact on certificates of responsible officers of Textron and public officials.
(f) You shall have received on the Closing Date an opinion of
counsel for the Underwriters, dated the Closing Date and addressed to
you with respect to the matters referred to in clauses (ii) and (viii)
(but only as to captions 3, 4, 5, 7 and 8 and "Underwriting" and "Plan
of Distribution") of the foregoing paragraph (c), clauses (iii), (iv),
(vii) (but only as to the Registration Statement and Prospectus) and
(viii) of the foregoing paragraph (e) and such other related matters as
you may reasonably request.
(g) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof
and the Closing Date from Ernst & Young LLP, independent certified
public accountants, substantially in the forms heretofore approved by
you.
(h) (i) There shall not have been any material increase in
the short-term or long-term debt of the Trust or of Textron and its
consolidated subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); (ii) there shall not have been, since
the respective dates as of which information is given in the
Registration Statement and the Prospectus (or any amendment or
supplement thereto), except as may otherwise be stated in the
Registration Statement and Prospectus (or any amendment or supplement
thereto), any material adverse change in the condition (financial or
other), business, prospects, properties, net worth or results of
operations of the Trust or of Textron and its subsidiaries taken as a
whole; (ii) neither the Trust nor Textron and its subsidiaries shall
have any liabilities or obligations, direct or contingent (whether or
not in the ordinary course of business), that are material to the Trust
or to Textron and its subsidiaries, taken as a whole other than those
reflected in the Registration Statement or the Prospectus (or any
amendment or supplement thereto); and (iv) all the representations and
warranties of the Trust and Textron contained in this Agreement shall be
true and correct on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date, and you shall
have received a certificate, dated the Closing Date and signed by the
Regular Trustees of the Trust in the case of the Trust and by the
Executive Vice President and Chief Financial Officer and Executive Vice
President and Treasurer of Textron (or such other officers as are
acceptable to you) in the case of Textron, to the effect set forth in
this Section 8(g) and in Section 8(i) hereof.
(i) There shall not have been any announcement by any
"nationally recognized statistical rating organization", as defined for
purposes of Rule 436(g) under the Act, that (i) it is downgrading its
rating assigned to the Preferred Securities of the Trust or the rating
assigned to the preferred stock or long term
- 21 -
<PAGE> 22
debt of Textron, or (ii) it is reviewing any of such ratings with a view
to possible downgrading, or with negative implications, or direction not
determined.
(j) The Trust and Textron shall have, at or prior to the
Closing Date, performed or complied in all material respects with any of
their respective agreements herein contained and required to be
performed or complied with by them hereunder at or prior to the Closing
Date.
(k) Prior to the Closing Date, the Preferred Securities shall
have been approved for listing, subject to notice of issuance, on the
New York Stock Exchange.
(l) Each of the Trust and Textron shall have furnished or
caused to be furnished to you such further certificates and documents
customary for transactions similar to those contemplated herein as you
shall have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the Trust
or Textron and delivered to you, as Representatives of the Underwriters,
or to counsel for the Underwriters, shall be deemed a representation and
warranty by the Trust and Textron to each Underwriter as to the
statements made therein.
The several obligations of the Underwriters to purchase
Additional Preferred Securities hereunder are subject to the delivery to
you on the Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the Trust and Textron, to
due authorization and issuance of the Additional Preferred Securities,
the Guarantee and the Junior Subordinated Debentures and other matters
related to the issuance of the Additional Preferred Securities.
9. EXPENSES. Textron agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by
the Trust and Textron of their obligations hereunder: (i) the
preparation, printing (or reproduction), and filing with the Commission
of the registration statement (including financial statements and
exhibits thereto), each Prepricing Prospectus, the Prospectus, each
amendment or supplement to any of them, this Agreement, the Indenture,
the Guarantee and the Statement of Eligibility and Qualification of the
Indenture Trustee, the Institutional Trustee and the Guarantee Trustee;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies
of the registration statement, each Prepricing Prospectus, the
Prospectus, the Incorporated Documents, and all amendments or
supplements to any of them, as may be reasonably requested for use
- 22 -
<PAGE> 23
in connection with the offering and sale of the Preferred Securities; (iii)
the preparation, printing (or reproduction), execution and delivery of
the Preferred Securities, the Indenture, the Junior Subordinated
Debentures and the Guarantee and the preparation, printing,
authentication, issuance and delivery of the Preferred Securities,
including any stamp taxes in connection with the original issuance of
the Preferred Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, the preliminary and supplemental Blue Sky
Memoranda and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Preferred
Securities; (v) the registration of the Preferred Securities under the
Exchange Act and the listing of the Preferred Securities on the New York
Stock Exchange; (vi) the registration or qualification of the Preferred
Securities and the Guarantee for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 5(g) hereof
(including the reasonable fees, expenses and disbursements of counsel
for the Underwriters relating to the preparation, printing (or
reproduction), and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the fees and
expenses of the Indenture Trustee, the Institutional Trustee, the
Guarantee Trustee and the Trustees; (viii) the fees and expenses
associated with obtaining ratings for the Preferred Securities from
nationally recognized statistical rating organizations; (ix) the
transportation and other expenses incurred by or on behalf of
representatives of the Trust and Textron in connection with
presentations to prospective purchasers of the Preferred Securities; and
(x) the fees and expenses of the accountants and counsel (including
local and special counsel) for the Trust and Textron.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
Until such time as this Agreement shall have become effective, it may be
terminated by the Trust and Textron, by notifying you, or by you, as
Representatives of the several Underwriters, by notifying the Trust and
Textron.
If any one or more of the Underwriters shall fail or refuse to
purchase Preferred Securities which it or they are obligated to purchase
hereunder on the Closing Date and the number of Preferred Securities
which such defaulting Underwriter or Underwriters are obligated but fail
or refuse to purchase is not more than one-tenth of the aggregate number
of the Preferred Securities then to be purchased, each non-defaulting
Underwriter shall be obligated, severally, in the proportion which the
number set forth opposite its name in Schedule I hereto bears to the
aggregate number of Preferred Securities set forth opposite the names of
all non-defaulting Underwriters or in such other proportion as you may
specify in accordance with Section of the Master Agreement Among
Underwriters of ________________, to purchase the Preferred Securities
which such defaulting Underwriter or Underwriters are obligated, but
failed or refused, to purchase.
- 23 -
<PAGE> 24
If any Underwriter or Underwriters shall fail or refuse to purchase
Preferred Securities and the aggregate number of Preferred Securities
with respect to which such default occurs is more than one-tenth of the
aggregate number of the Preferred Securities then to be purchased and
arrangements satisfactory to you and to the Trust and Textron for the purchase
of such Preferred Securities by one or more non-defaulting Underwriters or
other party or parties approved by you and the Trust are not made within 36
hours after such default, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter, the Trust or Textron. In any such
case which does not result in termination of this Agreement, either you or
the Trust and Textron shall have the right to postpone the Closing Date
but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and the Prospectus or any
other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under
this Agreement. The term "Underwriter" as used in this Agreement
includes, for all purposes of this Agreement, any party not listed in
Schedule I hereto who, with your approval and the approval of the Trust
and Textron, purchases Preferred Securities which a defaulting
Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. This Agreement shall be
subject to termination in your absolute discretion, without liability on
the part of any Underwriter to the Trust or Textron by notice to the
Trust and Textron, if prior to the Closing Date: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking
activities in New York or Rhode Island shall have been declared by
either federal or state authorities, or (iii) there shall have occurred
any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or
inadvisable to commence or continue the offering of the Preferred
Securities on the terms set forth on the cover page of the Prospectus or
to enforce contracts for the resale of the Preferred Securities by the
Underwriters. Notice of such termination may be given to the Trust and
Textron by telegram, telecopy or telephone and shall be subsequently
confirmed by letter.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The
statements set forth in the last paragraph on the cover page, the
stabilization legend on the inside cover page, and the statements in the
first and third paragraphs under the caption "Underwriting"
- 24 -
<PAGE> 25
in any Prepricing Prospectus and in the Prospectus, constitute the only
information furnished by or on behalf of the Underwriters through you as
such information is referred to in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10 and
11 hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Trust or Textron, at the office of
the Trust and Textron at 40 Westminster Street, Providence, Rhode Island 02903,
Attention: Executive Vice President and Associate General Counsel; or (ii) if to
you, as Representatives of the several Underwriters, care of _______________,
Attention: ____________ _____________________.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Trust, the Trustees, Textron, Textron's
directors and officers, and the other controlling persons referred to in
Section 7 hereof and their respective successors and assigns, to the
extent provided herein, and no other person shall acquire or have any
right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from any Underwriter of any of the
Preferred Securities in his status as such purchaser.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of
New York applicable to contracts made and to be performed within the
State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in
counterparts, this Agreement shall not become effective unless at least
one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
- 25 -
<PAGE> 26
Please confirm that the foregoing correctly sets forth the
agreement among the Trust, Textron and the several Underwriters.
Very truly yours,
TEXTRON CAPITAL _____
By
________________________
___________________, solely as Trustee
and not in his individual capacity
TEXTRON INC.
By
_________________________
Name: ___________________
Title: _____________________________
Confirmed as of the date first
above mentioned on behalf of
themselves and the other several
Underwriters named in Schedule I
hereto.
By __________________________
By
__________________________
Name: __________________________
Title: __________________________
- 26 -
<PAGE> 27
<TABLE>
SCHEDULE I
TEXTRON CAPITAL _____
<CAPTION>
Number
of Preferred
Underwriter Securities
- ----------- ------------
<S> <C>
</TABLE>
- 27 -
<PAGE> 28
<TABLE>
<CAPTION>
Number
of Preferred
Underwriter Securities
- ----------- ------------
<S> <C>
------------
Total.....
------------
</TABLE>
- 28 -
<PAGE> 1
Exhibit 1.2
UNDERWRITING AGREEMENT
________ __, ____
Textron Inc.
40 Westminster Street
Providence, Rhode Island 02903
Dear Sirs:
We (the "Managers") understand that Textron Inc., a Delaware
corporation (the "Company"), proposes to issue and sell [Currency and Principal
Amount] aggregate principal amount of its [Full Title of Debt Securities] (the
"Offered Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Company hereby agrees to sell and the
Managers agree to purchase, severally and not jointly, the principal amounts of
the Offered Securities set forth opposite their names below at _______% of
their principal amount, together with accrued interest from _______ __, ____ to
the date of payment and delivery.
<TABLE>
<CAPTION>
Principal
Amount of
Name Offered Securities
---- ------------------
<S> <C>
[Names of Underwriters] $
Total: $
============
</TABLE>
Upon delivery of the Offered Securities, the Underwriters will
make payment therefor at the offices of __________________, at 10:00 A.M. (New
York time) on ______ __, ____ or at such other time, not later than ______ __,
____ as shall be designated by the Managers.
<PAGE> 2
The Offered Securities shall have the following terms:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Initial Price to Public:
All the provisions contained in the document entitled Textron
Inc. Underwriting Agreement Standard Provisions (Debt) dated ___________________
a copy of which you have previously received, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein.
Please confirm your agreement by having an authorized officer
sign a copy of this Agreement in the space set forth below and returning the
signed copy to us and in addition have an authorized officer send us no later
than 9:00 a.m. (New York City time), ______ __, ____ by wire, telex or other
written means, the following message:
"We have entered into the Underwriting Agreement dated ______
__, ____ relating to the Offered Securities referred to therein by
signing a copy of the Underwriting Agreement and returning the same or
depositing the same in the mail to you."
Very truly yours,
[Names of Managers]
Acting severally on behalf of
themselves and the several
Underwriters named herein
By: [Lead Manager]
By: ________________________
Title:
Accepted:
TEXTRON INC.
By:_____________________
2
<PAGE> 3
TEXTRON INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
Dated: ___________________
<PAGE> 4
From time to time, Textron Inc., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in
any such underwriting agreement (an "Underwriting Agreement"). The
Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Unless otherwise defined
herein, terms defined in the Underwriting Agreement are used herein as therein
defined.
I.
The Company proposes to issue from time to time (i) senior debt
securities (the "Senior Securities") to be issued pursuant to the provisions of
the Indenture, dated as of ________________, between the Company and The Bank of
New York, as Trustee, as the same may be from time to time amended or
supplemented (the "Indenture"); (ii) subordinated debt securities (the
"Subordinated Securities") to be issued pursuant to the provisions of the
Indenture, and (iii) junior subordinated securities (the "Junior Subordinated
Securities") to be issued pursuant to the provisions of the Indenture. The term
Securities means the Senior Securities, the Subordinated Securities and the
Junior Subordinated Securities. The Securities will have varying designations,
maturities, rates and times of payment of interest, selling prices and
redemption terms.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement including a prospectus
relating to the Securities and has filed with, or mailed for filing to, the
Commission a prospectus supplement specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of
<PAGE> 5
1933. The term Registration Statement means the registration statement as
amended to the date of the Underwriting Agreement. The term Basic Prospectus
means the prospectus included in the Registration Statement. The term
Prospectus means the Basic Prospectus together with the prospectus supplement
specifically relating to the Offered Securities, as filed with, or mailed for
filing to, the Commission pursuant to Rule 424. The term preliminary
prospectus means any preliminary form of the Prospectus filed with the
Commission pursuant to Rule 424. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term Underwriters' Securities means the Offered Securities
to be purchased by the Underwriters herein. The term Contract Securities means
the Offered Securities, if any, to be purchased pursuant to the delayed
delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities
pursuant to delayed delivery contracts, the Company hereby authorizes the
Underwriters to solicit offers to purchase Contract Securities on the terms and
subject to the conditions set forth in the Prospectus pursuant to delayed
delivery contracts substantially in the form of Schedule I attached hereto
("Delayed Delivery Contracts") but with such changes therein as the Company may
authorize or approve. Delayed Delivery Contracts are to be with institutional
investors approved by the Company and of the types set forth in the Prospectus.
On the Closing Date (as hereinafter defined), the Company will pay the Managers
as compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Contract Securities shall be
deducted from the Offered Securities to be purchased by the several
Underwriters and the aggregate principal amount of Offered Securities to be
purchased by each Underwriter shall be reduced pro rata in proportion to the
principal amount of Offered Securities set forth opposite each Underwriter's
name in the Underwriting Agreement, except to the extent that the Managers
determine that such reduction shall be otherwise and so advises the Company.
2
<PAGE> 6
III.
The Company is advised by the Managers that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Managers' judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by wire
transfer of immediately available funds to an account designated by the Company,
upon delivery to the Managers for the respective accounts of the several
Underwriters of the Underwriters' Securities registered in such names and in
such denominations as the Managers shall request in writing not less than two
full business days prior to the date of delivery. The time and date of such
payment and delivery with respect to the Underwriters' Securities are herein
referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are
subject to the following conditions:
(a) Subsequent to the execution and delivery of the
Underwriting Agreement and prior to the Closing Date,
(i) no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission and
there shall have been no material adverse change in the condition of
the Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus; and the
Managers shall have received, on the Closing Date, a certificate,
dated the Closing Date and signed by an executive officer of the
Company, to the foregoing effect. Such certificate will also provide
that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date. The
officer making such certificate may rely upon the best of his
knowledge as to proceedings pending or threatened;
3
<PAGE> 7
(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(iii) there shall not have occurred any change in the
condition, financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus, that, in the judgment of the
Managers, is material and adverse and that makes it, in the judgment
of the Managers, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
(b) The Managers shall have received on the Closing Date an
opinion of counsel for the Company identified in Exhibit A hereto,
dated the Closing Date, to the effect set forth in Exhibit A.
(c) The Managers shall have received on the Closing Date an
opinion of counsel for the Underwriters identified in Exhibit B
hereto, dated the Closing Date, to the effect set forth in Exhibit B.
(d) The Managers shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Managers, from Ernst & Young independent public accountants,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the
Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Managers, without charge, four signed
copies of the Registration Statement including exhibits and materials,
if any, incorporated by reference therein and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus,
4
<PAGE> 8
any documents incorporated by reference therein and any supplements
and amendments thereto as the Managers may reasonably request. The
terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents filed by the Company with the
Commission subsequent to the date of the Basic Prospectus, pursuant to
the Securities Exchange Act of 1934, which are deemed to be
incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to
furnish the Managers a copy of each such proposed amendment or
supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities, as in the opinion of counsel for
the Underwriters the Prospectus is required by law to be delivered,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to prepare and
furnish, at its own expense, to the Underwriters, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law.
(d) To qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
Managers shall reasonably request and to pay all expenses (including
fees and disbursements of counsel) in connection with such
qualification and in connection with the determination of the
eligibility of the Offered Securities for investment under the laws of
such jurisdictions as the Managers may designate.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering a
twelve-month period beginning after the date of the Underwriting
Agreement, which shall satisfy the provisions of Section 11(a) of the
Securities Act of 1933 and the applicable rules and regulations
thereunder.
(f) The Company will, whether or not any sale of the Offered
Securities is consummated, pay all expenses incident to the performance
of its obligations under this Agreement, including the fees and
disbursements of its accountants and counsel, the cost of printing and
delivery of the Registration Statement, any preliminary prospectus, the
Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and delivering the
Offered Securities, the fees and disbursements, including fees of
counsel, incurred in connection with the qualification of the Offered
Securities for sale and determination of eligibility for investment of
the Offered Securities under the securities or Blue Sky laws of each
such jurisdiction as the Agents may reasonably designate, the fees and
disbursements of the Trustee and the fees of any agency that rates the
Offered Securities, the cost of providing any CUSIP or other
identification for the notes, the fees and expenses of any depository
for the Offered Securities.
(g) During the period beginning on the date of the
Underwriting Agreement and continuing to and
5
<PAGE> 9
including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially
similar to the Offered Securities, without the prior written consent
of the Managers.
VII.
The Company represents and warrants to each Underwriter that
(i) each document, if any, filed or to be filed pursuant to the Securities
Exchange Act of 1934 and incorporated by reference in the Prospectus complied
or will comply when so filed in all material respects with such Act and the
rules and regulations thereunder, (ii) each part of the registration statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Securities Act of 1933 relating to the Securities,
when such part became effective, did not contain any untrue statement of
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) each preliminary
prospectus, if any, filed pursuant to Rule 424 under the Securities Act of 1933
complied when so filed in all material respects with such Act and the
applicable rules and regulations thereunder, (iv) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and (v) the Registration Statement
and the Prospectus do not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; except
that these representations and warranties do not apply to statements or
omissions (a) in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter expressly for use therein or (b) in the Statements of Eligibility
and Qualification on Form T-1 under the Trust Indenture Act of 1939 of the
trustees under the Indenture.
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act of 1933 or Section 20 of the
Securities Exchange Act of 1934, from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact
6
<PAGE> 10
contained in the Registration Statement, any preliminary prospectus or the
Prospectus (if used within the period set forth in paragraph (c) of Article VI
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished in writing to the Company by any Underwriter expressly for use
therein.
Each Underwriter agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
any person controlling the Company to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
information relating to such Underwriter furnished in writing by such
Underwriter expressly for use in the Registration Statement, any preliminary
prospectus or the Prospectus.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or relating proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
7
<PAGE> 11
designated in writing by the Managers in the case of parties indemnified
pursuant to the second preceding paragraph and by the Company in the case of
parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of
any proceeding in respect of which any indemnified party is a party unless such
settlement includes an unconditional release of such indemnified party from all
liability on claims that are the subject matters of such proceeding.
If the indemnification provided for in this Article VII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other from
the offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, 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 Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, 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 or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
8
<PAGE> 12
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Article VII were determined
by pro rata allocation or by any other method of allocation which does not take
account of the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, 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 Article VII, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Offered Securities underwritten and distributed to the
public by such Underwriter 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 Securities Act of 1933) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Article VII are
several, in proportion to the respective principal amounts of Offered
Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this
Article VII and the representations and warranties of the Company in this
Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by any
Underwriter or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its directors or officers or any
person controlling the Company and (iii) acceptance of and payment for any of
the Offered Securities.
VIII.
This Agreement shall be subject to termination in the absolute
discretion of the Managers, by notice given to the Company, if (a) after the
execution and delivery of the Underwriting Agreement and prior to the Closing
Date (i) trading generally shall have been suspended or materially limited on
or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange, the National Association of Securities Dealers, Inc., the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of
9
<PAGE> 13
the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Managers, is material and adverse and (b) in the
case of any of the events specified in clauses (a)(i) through (iv), such event,
singly or together with any other such event, makes it, in the judgment of the
Managers, impracticable to market the Offered Securities on the terms and in
the manner contemplated in the Prospectus.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase the Offered Securities which it or they have
agreed to purchase hereunder, and the aggregate principal amount of the Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Offered Securities, the other Underwriters shall be obligated
severally in the proportions which the amounts of the Offered Securities set
forth opposite their names in the Underwriting Agreement bear to the aggregate
principal amount of the Offered Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase; provided that in no
event shall the principal amount of the Offered Securities which any
Underwriter has agreed to purchase hereunder be increased pursuant to this
Article VIII by an amount in excess of one-ninth of such principal amount of
the Offered Securities without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase the Offered Securities which it or they agreed to purchase hereunder
and the aggregate principal amount of the Offered Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is more than one-tenth of the aggregate principal amount of the Offered
Securities, and arrangements satisfactory to you and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or of the Company. In any such case either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph or any
such termination shall not
10
<PAGE> 14
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
IX.
If this Agreement shall be terminated by the Underwriters or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement, with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
the Offered Securities.
This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
11
<PAGE> 15
SCHEDULE I
DELAYED DELIVERY CONTRACT
[insert date]
Dear Sirs:
The undersigned hereby agrees to purchase from
Textron Inc., a Delaware corporation (the "Company"), and
the Company agrees to sell to the undersigned
$
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated ___________, ______ and Prospectus
Supplement dated ____________, _____, receipt of copies of which are hereby
acknowledged, at a purchase price of ___ of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in
the principal amounts and on the delivery dates set forth below:
<TABLE>
<CAPTION>
Delivery Principal Plus Accrued
Date Amount Interest From:
-------- --------- -------------
<S> <C> <C>
_________________ $________________ _______________
_________________ $________________ ________________
_________________ $________________ ________________
</TABLE>
Each such date on which Securities are to be purchased hereunder is
hereinafter referred to as a "Delivery Date".
<PAGE> 16
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds at the office
of _____________, New York, N.Y., at 10:00 A.M. (New York time) on the Delivery
Date, upon delivery to the undersigned of the Securities to be purchased by the
undersigned on the Delivery Date, in such denominations and registered in such
names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than five full business days prior to the
Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for the Securities on the Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall have
sold, and delivery shall have taken place to the underwriters (the
"Underwriters") named in the Prospectus Supplement referred to above of, such
part of the Securities as is to be sold to them. Promptly after completion of
sale and delivery to the Underwriters, the Company will mail or deliver to the
undersigned at its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
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.
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, as of the date first above written,
between the Company and the undersigned when such counterpart is so mailed or
delivered.
2
<PAGE> 17
This contract shall be governed by and construed in accordance
with the laws of the State of New York.
Yours very truly,
______________________________
(Purchaser)
By____________________________
______________________________
(Title)
______________________________
(Address)
Accepted:
TEXTRON INC.
By_________________________
Title:
3
<PAGE> 18
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
is as follows: (Please Print.)
<TABLE>
<CAPTION>
Telephone No.
Name (Including Area Code) Department
-------- ------------------- ----------
<S> <C> <C>
___________________ ______________________ __________________
___________________ ______________________ __________________
___________________ ______________________ __________________
___________________ ______________________ __________________
___________________ ______________________ __________________
</TABLE>
4
<PAGE> 19
EXHIBIT A
OPINION OF ASSOCIATE
GENERAL COUNSEL OF THE COMPANY
The opinion of Associate General Counsel of the Company, to be
delivered pursuant to Article V, paragraph (b) of the document entitled Textron
Inc. Underwriting Agreement Standard Provisions (Debt) shall be to the effect
that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
the ownership or leasing of property requires such qualification and
where the failure to be so qualified or in good standing would have a
material adverse effect upon its operations or financial condition,
(ii) [insert names of significant subsidiaries] have been duly
incorporated, are validly existing as corporations in good standing
under the laws of the State of Delaware and are duly qualified to
transact business and are in good standing in each jurisdiction in
which the conduct of their respective businesses or the ownership or
leasing of their respective property requires such qualification and
where the failure to be so qualified or in good standing would have a
material adverse effect upon their respective operations or financial
conditions,
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms, except as (1) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (2) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability, and has been duly
<PAGE> 20
qualified under the Trust Indenture Act of 1939, as amended,
(iv) the Offered Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters or by institutional investors, if any, pursuant to Delayed
Delivery Contracts, will be valid and binding obligations of the
Company enforceable in accordance with their terms and will be entitled
to the benefits of the Indenture, except as (1) enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (2) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability,
(v) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company,
(vi) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company, and are valid and
binding agreements of the Company enforceable in accordance with their
respective terms, except as (1) enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (2) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability,
(vii) the execution, delivery and performance by the Company
of the Underwriting Agreement will not contravene any provision of
applicable law, except as rights to indemnity thereunder may be
limited by applicable law,
(viii) the execution, delivery and performance of the
Underwriting Agreement by the Company will not contravene any provision
of the restated certificate of incorporation or by-laws of the Company
or, to the best knowledge of such counsel, any agreement or other
instrument binding upon the Company, and (assuming compliance with
applicable state securities and Blue Sky laws) no consent, approval or
authorization of any governmental body is required for the performance
of
2
<PAGE> 21
the Underwriting Agreement, except such as are specified and have been
obtained,
(ix) the statements in the Prospectus under "Description of
the Securities", "Description of the [Offered Securities]", "Plan of
Distribution" and "Underwriters", insofar as such statements
constitute a summary of the Underwriting Agreement, the Indenture
and the Offered Securities, fairly present the information called for
by Form S-3 under the Securities Act of 1933 ("Form S-3") with respect
to such documents,
(x) the statements in the Prospectus incorporated by
reference under "Legal Proceedings", insofar as such statements
constitute a summary of the proceedings referred to therein, fairly
present the information called for by Form S-3 with respect to such
proceedings, and
(xi) such counsel (1) is of the opinion that each document
filed pursuant to the Securities Exchange Act of 1934 and incorporated
by reference in the Prospectus (except as to financial statements
contained therein, as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects
with such Act and the rules and regulations thereunder, (2) believes
that (except for the financial statements contained therein, as to
which such counsel need not express any belief) each part of the
registration statement (including the documents incorporated by
reference therein), filed with the Commission pursuant to the
Securities Act of 1933 relating to the Securities, when such part
became effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (3) is of the
opinion that the Registration Statement and Prospectus, as amended or
supplemented, if applicable, (except as to financial statements
contained therein, as to which such counsel need not express any
opinion) comply as to form in all material respects with the
Securities Act of 1933 and the rules and regulations thereunder and
(4) believes that (except for the financial statements contained
therein, as to which such counsel need not express any belief) the
Registration Statement and the Prospectus on the date of the
Underwriting Agreement
3
<PAGE> 22
did not, and the Prospectus, as amended or supplemented, if
applicable, on the Closing Date does not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
Terms capitalized herein and not otherwise defined shall have
the meanings assigned to them in the Textron Inc. Underwriting Agreement
Standard Provisions (Debt). In rendering such opinion, such counsel may rely
as to matters of fact, to the extent he deems proper, on certificates of
responsible officers of the Company and public officials.
4
<PAGE> 23
EXHIBIT B
FORM OF OPINION OF COUNSEL FOR THE UNDERWRITERS
The opinion of ______________, counsel for the Underwriters,
to be delivered pursuant to Article V, paragraph (c) of the document entitled
Textron Inc. Underwriting Agreement Standard Provisions (Debt) shall be to the
effect that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms, except as (1) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (2) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability, and has been duly qualified under the Trust Indenture
Act of 1939, as amended,
(ii) the Offered Securities, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters or by institutional investors, if any,
pursuant to Delayed Delivery Contracts, will be valid and binding
obligations of the Company enforceable in accordance with their terms
and will be entitled to the benefits of the Indenture, except as (1)
the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally
and (2) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability,
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company,
<PAGE> 24
(iv) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company enforceable in accordance with their
respective terms, except as (1) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (2) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability,
(v) the statements in the Prospectus under "Description of
the Securities", "Description of the [Offered Securities]", "Plan of
Distribution" and "Underwriters", insofar as such statements
constitute a summary of the Underwriting Agreement, the Indenture and
the Offered Securities, fairly present the information called for by
Form S-3 under the Securities Act of 1933 ("Form S-3") with respect to
such documents, and
(vi) such counsel (1) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable
(except as to financial statements contained therein, as to which such
counsel need not express any opinion), comply as to form in all
material respects with the Securities Act of 1933 and the applicable
rules and regulations thereunder and (2) believes that (except for the
financial statements contained therein, as to which such counsel need
not express any belief) the Registration Statement and the Prospectus
on the date of the Underwriting Agreement did not, and the Prospectus,
as amended or supplemented, if applicable, on the Closing Date does
not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;provided that such counsel may state that their opinion and
belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendments and
supplements thereto (other than the documents incorporated by
reference therein) and review and discussion of the contents thereof
(including the documents incorporated by reference therein), but is
without independent check or verification except as specified.
2
<PAGE> 25
Terms capitalized herein and not otherwise defined shall have
the meanings assigned to them in the Textron Inc. Underwriting Agreement
Standard Provisions (Debt).
3
<PAGE> 1
Exhibit 4.4
AMENDED AND RESTATED CERTIFICATE OF TRUST
OF
TEXTRON CAPITAL II
1. The name of the Trust is Textron Capital II (the "Trust").
2. The original Certificate of Trust for the Trust was filed on October 4,
1995.
3. Pursuant to this Amended and Restated Certificate of Trust, the name and
business address of the trustee of the Trust, which has its principal
place of business in the State of Delaware is as follows:
The Bank of New York
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
4. This Amended and Restated Certificate of Trust shall be effective as of
the date of filing.
<PAGE> 2
IN WITNESS WHEREOF, this Amended and Restated Certificate of Trust
has been duly executed this 5th day of August, 1999.
/s/ Edward C. Arditte
------------------------------------------
Edward C. Arditte,
as trustee and not individually
2
<PAGE> 1
Exhibit 4.5
AMENDED AND RESTATED CERTIFICATE OF TRUST
OF
TEXTRON CAPITAL III
1. The name of the Trust is Textron Capital III (the "Trust").
2. The original Certificate of Trust for the Trust was filed on October 4,
1995.
3. Pursuant to this Amended and Restated Certificate of Trust, the name and
business address of the trustee of the Trust which has its principal place
of business in the State of Delaware is as follows:
The Bank of New York
White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporate Trust Administration
4. This Amended and Restated Certificate of Trust shall be effective as of
the date of filing.
<PAGE> 2
IN WITNESS WHEREOF, this Amended and Restated Certificate of Trust
has been duly executed this 5th day of August, 1999.
/s/ Edward C. Arditte
-------------------------------------------
Edward C. Arditte,
as trustee and not individually
2
<PAGE> 1
Exhibit 4.6
================================================================================
TEXTRON INC.
TO
THE BANK OF NEW YORK
Trustee
---------------
INDENTURE
Dated as of August [ ], 1999
---------------
================================================================================
<PAGE> 2
TABLE OF CONTENTS
---------------
<TABLE>
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Page
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<S> <C>
PARTIES...................................................................... 7
RECITALS OF THE COMPANY...................................................... 7
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions:
Act............................................................. 2
Affiliate; Control.............................................. 2
Attributable Debt............................................... 2
Authenticating Agent............................................ 2
Authorized Newspaper ........................................... 2
Bearer Security................................................. 3
Board of Directors.............................................. 3
Board Resolution................................................ 3
Business Day.................................................... 3
Commission...................................................... 3
Company......................................................... 3
Company Request; Company Order.................................. 3
Corporate Trust Office.......................................... 3
Corporation..................................................... 3
Coupon.......................................................... 3
Covenant Defeasance............................................. 3
Declaration..................................................... 4
Defaulted Interest.............................................. 4
Defeasance...................................................... 4
Depositary...................................................... 4
ECU............................................................. 4
European Communities............................................ 4
Event of Default................................................ 4
Exchange Act.................................................... 4
Floating or Adjustable Rate Provision........................... 4
Floating or Adjustable Rate Security............................ 4
Global Security................................................. 4
Holder.......................................................... 4
Indebtedness.................................................... 4
Indenture....................................................... 5
Institutional Trustee........................................... 5
Interest........................................................ 5
</TABLE>
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<TABLE>
<S> <C>
Interest Payment Date........................................... 5
Junior Security................................................. 5
Maturity........................................................ 5
Mortgage........................................................ 5
Officers' Certificate........................................... 5
Opinion of Counsel.............................................. 5
Original Issue Discount Security................................ 6
Outstanding..................................................... 6
Paying Agent.................................................... 6
Person.......................................................... 7
Place of Payment................................................ 7
Predecessor Security............................................ 7
Principal Property.............................................. 7
Redemption Date................................................. 7
Redemption Price................................................ 7
Registered Security............................................. 7
Regular Record Date............................................. 7
Responsible Officer............................................. 7
Restricted Subsidiary........................................... 7
Securities...................................................... 8
Security Register and Security Registrar........................ 8
Senior Indebtedness............................................. 8
Special Record Date............................................. 8
Stated Maturity................................................. 8
Subordinated Security........................................... 8
Subsidiary...................................................... 8
Textron Trust................................................... 8
Trust Common Securities......................................... 8
Trustee......................................................... 9
Trust Preferred Securities...................................... 9
Trust Securities................................................ 9
Trust Indenture Act............................................. 9
U.S. Government Obligations..................................... 9
Vice President.................................................. 9
Yield to Maturity............................................... 9
SECTION 1.2 Compliance Certificates and Opinions.................... 9
SECTION 1.3 Form of Documents Delivered to Trustee................. 10
SECTION 1.4 Acts of Holders........................................ 10
SECTION 1.5 Notices, Etc., to Trustee and Company................... 12
SECTION 1.6 Notice to Holders; Waiver............................... 12
SECTION 1.7 Conflict with Trust Indenture Act....................... 13
SECTION 1.8 Effect of Headings and Table of Contents................ 13
SECTION 1.9 Successors and Assigns.................................. 13
</TABLE>
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<TABLE>
<S> <C>
SECTION 1.10 Separability Clause..................................... 14
SECTION 1.11 Benefits of Indenture................................... 14
SECTION 1.12 Governing Law........................................... 14
SECTION 1.13 Legal Holidays.......................................... 14
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally......................................... 14
SECTION 2.2 Form of Trustee's Certificate of Authentication......... 15
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.................... 15
SECTION 3.2 Denominations........................................... 18
SECTION 3.3 Execution, Authentication, Delivery and Dating.......... 18
SECTION 3.4 Temporary Securities, Global Securities................. 20
SECTION 3.5 Registration, Registration of Transfer and Exchange..... 21
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities........ 23
SECTION 3.7 Payment of Interest; Interest Rights Preserved.......... 23
SECTION 3.8 Persons Deemed Owners................................... 25
SECTION 3.9 Cancellation............................................ 25
SECTION 3.10 Computation of Interest................................. 26
SECTION 3.11 Medium-term Securities.................................. 26
SECTION 3.12 Global Securities....................................... 26
SECTION 3.13 CUSIP Numbers........................................... 28
ARTICLE IV
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 4.1 Satisfaction and Discharge of Indenture................. 29
SECTION 4.2 Defeasance and Discharge................................ 30
SECTION 4.3 Covenant Defeasance..................................... 31
SECTION 4.4 Conditions to Defeasance or Covenant Defeasance......... 31
SECTION 4.5 Application of Trust Money.............................. 32
SECTION 4.6 Indemnity for U.S. Government Obligations............... 33
</TABLE>
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<TABLE>
<S> <C>
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default....................................... 33
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment...... 35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................. 36
SECTION 5.4 Trustee May File Proofs of Claim........................ 36
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities or Coupons................................... 37
SECTION 5.6 Application of Money Collected.......................... 37
SECTION 5.7 Limitation on Suits..................................... 38
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 39
SECTION 5.9 Restoration of Rights and Remedies...................... 39
SECTION 5.10 Rights and Remedies Cumulative.......................... 39
SECTION 5.11 Delay or Omission Not Waiver............................ 39
SECTION 5.12 Control by Holders...................................... 39
SECTION 5.13 Waiver of Past Defaults................................. 40
SECTION 5.14 Undertaking for Costs................................... 40
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities..................... 41
SECTION 6.2 Notice of Defaults...................................... 42
SECTION 6.3 Certain Rights of Trustee............................... 42
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities or
Coupons................................................. 44
SECTION 6.5 May Hold Securities and Coupons......................... 44
SECTION 6.6 Money Held in Trust..................................... 44
SECTION 6.7 Compensation and Reimbursement.......................... 44
SECTION 6.8 Disqualification; Conflicting Interests................. 45
SECTION 6.9 Corporate Trustee Required; Eligibility................. 45
SECTION 6.10 Resignation and Removal; Appointment of Successor....... 45
SECTION 6.11 Acceptance of Appointment by Successor.................. 47
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business 48
SECTION 6.13 Preferential Collection of Claims Against Company....... 48
SECTION 6.14 Appointment of Authenticating Agent..................... 49
SECTION 6.15 Trustee's Application for Instructions from the Company. 50
</TABLE>
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<TABLE>
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of
Holders................................................... 51
SECTION 7.2 Preservation of Information; Communications to
Holders................................................... 51
SECTION 7.3 Reports by Trustee........................................ 52
SECTION 7.4 Reports by Company........................................ 54
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms..................................................... 55
SECTION 8.2 Successor Corporation Substituted......................... 56
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders........ 56
SECTION 9.2 Supplemental Indentures With Consent of Holders........... 57
SECTION 9.3 Execution of Supplemental Indentures...................... 58
SECTION 9.4 Effect of Supplemental Indentures......................... 58
SECTION 9.5 Conformity with Trust Indenture Act....................... 59
SECTION 9.6 Reference in Securities to Supplemental Indentures........ 59
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest............... 59
SECTION 10.2 Maintenance of Office or Agency.......................... 59
SECTION 10.3 Money for Securities Payments to Be Held in Trust........ 60
SECTION 10.4 Limitation upon Mortgages................................ 62
SECTION 10.5 Limitation upon Sale and Leaseback Transactions.......... 63
SECTION 10.6 Statement by Officers as to Default; Notice of Certain
Events................................................ 64
SECTION 10.7 Waiver of Certain Covenants.............................. 64
SECTION 10.8 Covenants as to Textron Trusts........................... 64
</TABLE>
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<TABLE>
<S> <C>
SECTION 10.9 Waiver of Certain Covenants............................. 65
SECTION 10.10 Calculation of Original Issue Discount.................. 65
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article................................ 65
SECTION 11.2 Election to Redeem; Notice to Trustee................... 65
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed....... 66
SECTION 11.4 Notice of Redemption.................................... 66
SECTION 11.5 Deposit of Redemption Price............................. 67
SECTION 11.6 Securities Payable on Redemption Date................... 67
SECTION 11.7 Securities Redeemed in Part............................. 68
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article................................ 69
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities... 69
SECTION 12.3 Redemption of Securities for Sinking Fund............... 69
ARTICLE XIII
SUBORDINATION OF SUBORDINATED SECURITIES
SECTION 13.1 Agreement to Subordinate................................ 70
SECTION 13.2 Payment on Dissolution, Liquidation or Reorganization;
Default on Senior Indebtedness.......................... 70
SECTION 13.3 Payment Prior to Dissolution or Default................. 72
SECTION 13.4 Rights of Holders of Senior Indebtedness not Impaired... 73
SECTION 13.5 Authorization of Trustee................................ 73
ARTICLE XIV
SUBORDINATION OF JUNIOR SECURITIES
SECTION 14.1 Agreement to Subordinate................................ 73
SECTION 14.2 Payment on Dissolution, Liquidation or Reorganization;
Default on Indebtedness................................ 74
SECTION 14.3 Payment Prior to Dissolution or Default................. 76
</TABLE>
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<TABLE>
<S> <C>
SECTION 14.4 Rights of Holders of Indebtedness not Impaired.......... 76
SECTION 14.5 Authorization of Trustee................................ 77
ARTICLE XV
MEETINGS OF HOLDERS OF NOTES
SECTION 15.1 Purposes for Which Meetings May Be Called............... 77
SECTION 15.2 Call, Notice and Place of Meetings...................... 77
SECTION 15.3 Persons Entitled To Vote at Meetings.................... 78
SECTION 15.4 Quorum: Action.......................................... 78
SECTION 15.5 Determination of Voting Rights; Conduct of Meetings..... 78
SECTION 15.6 Counting Votes and Recording Actions of Meetings........ 79
ARTICLE XVI
MISCELLANEOUS
SECTION 16.1 Securities in a Foreign Currency........................ 80
SECTION 16.2 Judgment Currency....................................... 80
SECTION 16.3 Acknowledgment of Rights................................ 81
</TABLE>
vii
<PAGE> 9
INDENTURE, dated as of August [ ], 1999, between TEXTRON INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 40 Westminster
Street, Providence, Rhode Island 02903 and THE BANK OF NEW YORK, a New York
banking corporation, as 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 provided in this Indenture.
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 and of the coupons, if any, appertaining to any Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular,
(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
1
<PAGE> 10
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", "hereunder" and "thereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article XI, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 1.4.
"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 the
Company or any Restricted Subsidiary is at the time liable and at any date as of
which the amount thereof is to be determined, the total net amount of rent
required to be paid under such lease during the remaining term thereof
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended), discounted from the respective due dates
thereof to such date at a rate equal to the weighted average Yield to Maturity
of the Outstanding Securities hereunder, such average being weighted by the
principal amount of each series Outstanding, or in the case of Original Issue
Discount Securities such amount to be determined under the definition of
Outstanding. 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, insurance, taxes, assessments, water rates
and similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, 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 published in an official language
of the country of publication, customarily published at least once a day for at
least five days in each calendar week and of general circulation in the place in
connection with which the term is used or in the financial community of such
place. Where successive publications are required to be made in Authorized
Newspapers, the successive publication may be made in the same or in
2
<PAGE> 11
different newspapers in the same place meeting the foregoing requirements and in
each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section 3.1
other than a Registered Security.
"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" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banks and trust companies in that Place of Payment
are authorized or obligated by law to close or a day on which transactions in
the currency in which the Securities or any coupon appertaining thereto are
payable are not conducted.
"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.
"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 or Vice Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office as of the date hereof is located at 101 Barclay
Street, Floor 21 West, New York, New York 10286, Attention: Corporate Trust
Administration.
"Corporation" includes corporations, associations, companies and business
trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 4.3.
3
<PAGE> 12
"Declaration" means, with respect to a Textron Trust, the Amended and
Restated Declaration of Trust or any other governing instrument of such Textron
Trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Defeasance" has the meaning specified in Section 4.2.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 3.1.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of European Communities.
"European Communities" means the European Economic Community, the European
Coal and Steel Community and Euratom.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor legislation.
"Floating or Adjustable Rate Provision" means a formula or provision,
specified in a Board Resolution or an indenture supplemental hereto, providing
for the determination, whether pursuant to objective factors or pursuant to the
sole discretion of any Person (including the Company), and periodic adjustment
of the interest rate per annum borne by a Floating or Adjustable Rate Security.
"Floating or Adjustable Rate Security" means any Security which provides
for interest to be payable thereon at a rate per annum that may vary from time
to time over the term thereof in accordance with a Floating or Adjustable Rate
Provision.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"Holder" means (a) in the case of any Registered Security, the Person in
whose name a Registered Security is registered in the Security Register and (b)
in the case of any Bearer Security, the bearer of such Security or any coupon
appertaining thereto, as the case may be.
"Indebtedness" means, with respect to the Company, (i) the principal,
premium, if any, and interest in respect of (A) indebtedness of the Company for
money borrowed and (B)
4
<PAGE> 13
indebtedness evidenced by securities, debentures, bonds or other similar
instruments issued by the Company; (ii) all capital lease obligations of the
Company; (iii) all obligations of the Company issued or assumed as the deferred
purchase price of property, all conditional sale obligations of the Company and
all obligations of the Company under any title retention agreement (but
excluding trade accounts payable arising in the ordinary course of business);
(iv) all obligations of the Company for the reimbursement on any letter of
credit, banker's acceptance, security purchase facility or similar credit
transaction of other Persons for the payment of which the Company is responsible
or liable as obligor, guarantor or otherwise; and (v) all obligations of the
type referred to in clauses (i) through (v) of other Persons secured by any lien
on any property or asset of the Company, whether or not such obligation is
assumed by the Company.
"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 and shall
include the form and terms of particular series of Securities established as
contemplated by Section 3.1.
"Institutional Trustee" has the meaning set forth in the Declaration of
the applicable Textron Trust.
"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.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Junior Security" means any security issued under this Indenture which is
designated as a Junior Subordinated Debt Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment 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.
"Mortgage" means and includes any mortgage, security interest, pledge,
lien or other encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman or Vice
Chairman of the Board, the President or a Vice President, and by the Treasurer,
and Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company
(or, if applicable, a successor to the Company), and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel who is an employee of the Company (or, if applicable, a successor to the
Company).
5
<PAGE> 14
"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 5.2.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6 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 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 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, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually 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. In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding for such
purposes shall be the portion of the principal amount thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"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.
6
<PAGE> 15
"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 any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 3.1.
"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 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any manufacturing plant or manufacturing
facility which is (i) owned by the Company or any Restricted Subsidiary, (ii)
located within the continental United States, and (iii) in the opinion of the
Board of Directors, materially important to the total business conducted by the
Company and the Restricted 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 established pursuant to Section
3.1 which is registered on the Security Register of the Company.
"Regular Record Date", for the interest payable on any Interest Payment
Date on the Registered Securities of any series, means the date specified for
that purpose as contemplated by Section 3.1.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, the treasurer, any assistant treasurer, 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.
"Restricted Subsidiary" means any Subsidiary (i) substantially all the
property of which is located within the continental United States of America and
(ii) which owns any Principal Property; provided that the term "Restricted
Subsidiary" shall not include any Subsidiary which is principally engaged in
leasing or in financing receivables, or which is principally engaged in
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financing the Company's operations outside the continental United States of
America.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5.
"Senior Indebtedness" means all indebtedness incurred, assumed or
guaranteed by the Company, whether or not represented by bonds, debentures notes
or other securities, for money borrowed, and any deferrals, renewals or
extensions or refunding of any such indebtedness, unless in the instrument
creating or evidencing any such indebtedness or pursuant to which the same is
outstanding it is specifically stated, at or prior to the time the Company
becomes liable in respect thereof, that any such indebtedness or such deferral,
renewal, extension or refunding thereof is not Senior Indebtedness.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security or a coupon representing such instalment of interest as the fixed
date on which the principal of such Security or such instalment of principal or
interest is due and payable.
"Subordinated Security" means any security issued under this Indenture
which is designated as a Subordinated Debt Security.
"Subsidiary" means a corporation of which more than 50%, of the
outstanding voting stock is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Textron Trust" means each of Textron Capital II and Textron Capital III,
each a Delaware statutory business trust, or any other similar trust created for
the purpose of issuing preferred securities in connection with the issuances of
Securities under this Indenture.
"Trust Common Securities" means undivided beneficial interests in the
assets of a Textron Trust which rank pari passu with Trust Preferred Securities
issued by such Textron Trust; provided, however, that upon the occurrence of an
Event of Default, the rights of holders of Trust Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of Trust Preferred
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Securities.
"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, and 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.
"Textron Preferred Securities" means undivided beneficial interests in the
assets of a Textron Trust which rank pari passu with Trust Common Securities
issued by such Textron Trust; provided, however, that upon the occurrence of an
Event of Default, the rights of holders of Trust Common Securities to payment in
respect of distributions and payments upon liquidation, redemption and otherwise
are subordinated to the rights of holders of Trust Preferred Securities.
"Trust Securities" means Trust Common Securities and Trust Preferred
Securities.
"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
9.5.
"U.S. Government Obligations" has the meaning specified in Section 4.4.
"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".
"Yield to Maturity" means the yield to maturity calculated at the time of
issuance of a series of Securities, or, if applicable, at the most recent
determination of interest on such series calculated in accordance with accepted
financial practice.
SECTION 1.2 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 certificate or opinion
pursuant to this Section 1.2 need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant
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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 or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.3 Forms 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 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in
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person or by an agent 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 may, alternatively, be embodied in and be evidenced by the
record of Holders of Securities voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities duly
called and held in accordance with the provisions of Article XVI, or a
combination of such instruments and such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. 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
and 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 6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 16.6.
(b) Subject to Section 6.1, the fact and date of the execution by any
Person of any such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is other than in an individual capacity, such
certificate or affidavit shall also constitute sufficient proof of the authority
of the executing individual.
(c) The ownership of Registered Securities shall be proved by the Security
Register.
(d) The ownership of Bearer Securities held by any Person 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 has on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or the 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 to the Trustee by some other Person, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer Security is
exchanged for a registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of any such execution of such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
reasonable manner which the Trustee deems
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sufficient; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(f) 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 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with;
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing, which may
be via facsimile to or with the Trustee at its Corporate Trust Office Attention:
Corporate Trust Administration; or
(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 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event (unless
otherwise herein expressly provided);
(a) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each Holder
of a Registered Security 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; and
(b) such notice shall be sufficiently given to Holders of Bearer
Securities if published in an Authorized Newspaper in London and, if the
Securities of such series are then listed on the Luxembourg Stock Exchange and
such stock exchange shall so require, in Luxembourg, and if such Securities are
then listed on any other stock exchange and such stock exchange shall so
require, in any other required city outside the United States or, if not
practicable, elsewhere in Europe 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.
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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 of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice by publication to Holders of Bearer
Securities given as provided in this Section.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
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 any notice mailed to
Holders of Registered Securities as provided above.
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 1.7 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 1.8 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 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 1.13 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 the
Securities) 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.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities of each series and related coupons, if any, shall be in
substantially such form 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, consistent herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of such Securities or
coupons. A copy of an appropriate record of each action
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taken pursuant to a Board Resolution establishing the form of Securities of any
series and related coupons, if any, 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 3.3 for the
authentication and delivery of such Securities and coupons.
The Trustee's certificate of authentication shall be in substantially the
form set forth in this Article and Section 6.14.
Unless otherwise provided as contemplated by Section 3.1 with respect to
any series of Securities, the Securities of each series will be issuable in
registered form without coupons. If so provided pursuant to Section 3.1, the
Securities of a series shall be issuable solely in bearer form, or in both
registered form and bearer form. Unless otherwise specified as contemplated by
Section 3.1, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
"This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
Dated:______________________________________
The Bank of New York as Trustee
By__________________________________________
Authorized Signatory"
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered (including CUSIP Numbers) under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or
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more indentures supplemental hereto, prior to the issuance of Securities of any
series:
(1) the title of the Securities (including CUSIP Numbers) of the series
(which shall distinguish the Securities of the series from all Securities of any
other series);
(2) the limit, if any, 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, in exchange for, or in lieu of other Securities of the series
pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the Floating or Adjustable Rate Provision pursuant to which
such rates shall be determined, the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date for the interest payable on any Registered Securities on
any Interest Payment Date;
(5) the rights, if any, to defer payments of interest on the Securities by
extending the interest payment periods and the duration of such extension;
(6) the place or places where the principal of (and premium, if any) and
interest on Securities of the series shall be payable and, in the case of any
series of Securities which may be issuable as Bearer Securities, if different,
the places where any registered Security of the series may be surrendered for
registration of transfer, where Securities of the series may be surrendered for
exchange and where notices and demands to or upon the Company in respect of the
Securities of the series and the Indenture may be served;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem 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 and the terms and conditions upon which Securities of
the series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) the subordination terms, if any, of the securities of the series;
(10) the denominations in which Registered Securities of the series, if
any, shall be issuable and the denominations in which Bearer Securities, if any,
of the series shall be issuable, if different from the denominations provided in
Section 3.2;
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(11) whether the Securities of the series will be issuable as Registered
Securities or Bearer Securities, or both; any restrictions applicable to the
offer, sale or delivery of Bearer Securities; and if other than as provided in
Section 3.5, the terms upon which Bearer Securities of any series may be
exchanged for Registered Securities and the terms upon which Registered
Securities may be exchanged for Bearer Securities of such series;
(12) whether some or all of the Securities of the series will be initially
represented by a temporary Global Security and, if so, whether the temporary
Global Security will be exchangeable for a permanent Global Security or
definitive Securities; whether some or all of the securities of the series will
be represented by a permanent Global Security; any rights to exchange a
permanent Global Security for definitive Securities or any other rights or
limitations related to a permanent Global Security; any restrictions or
limitations on the exchange of a temporary Global Security for a permanent
Global Security or definitive Securities (including any requirements for the
presentation of certificates relating to ownership of such Securities); any
restrictions or limitations on exchange of a permanent Global Security for
definitive securities; and the extent to which interest on any temporary Global
Security shall be paid.
(13) the Person to whom any interest on any Registered Securities 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 and the manner in which, or the Person
to whom, interest on any Bearer Securities of the series shall be payable if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature;
(14) whether and under what circumstances the Company will pay additional
amounts on the Securities of the series held by a Person who is not a United
States person in respect of any tax, assessment or governmental charge withheld
or deducted and, if so, whether the Company will have the option to redeem such
Securities rather than pay such additional amounts;
(15) the coin or currency or unit based on or relating to currencies
(including ECU) in which payment of the principal of and interest on the
Securities of the series will be payable;
(16) if the principal of or interest, if any, on the Securities of the
series is payable at the election of the Company or a Holder in a coin or
currency or unit based on or relating to currencies (including ECU) other than
that in which the Securities are stated to be payable, the period or periods
within which, and the terms and conditions upon which, such election may be
made;
(17) if the amount of payments of principal of or interest, if any on the
Securities of the series may be determined by reference to an index, formula or
other method based on a coin or currency or unit based on or relating to
currencies (including ECU) other than that in which
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the Securities are stated to be payable, the manner in which such amounts shall
be determined;
(18) the date as of which any Bearer Securities of the series and any
temporary Global Security or permanent Global Security representing outstanding
Securities of the series shall be dated if other than the date of the original
issuance of the first security of the series to be issued;
(19) any other event or events of default applicable with respect to the
Securities of the series in addition to those provided in Section 5.1 (1)
through (6);
(20) any other covenant or warranty included for the benefit of Securities
of the series in addition to (and not inconsistent with) those included in this
Indenture for the benefit of Securities of all series, or any other covenant or
warranty included for the benefit of Securities of the series in lieu of any
covenant or warranty included in this Indenture for the benefit of Securities of
all series, or any provision that any covenant or warranty included in this
Indenture for the benefit of Securities of all series shall not be for the
benefit of Securities of the series, or any combination of such covenants,
warranties or provisions;
(21) 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 5.2;
(22) terms, if any, on which a series of the Securities may be convertible
into or exchangeable for the Company's common stock, preferred stock or other
debt securities, including provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at the Company's option; and
(23) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to 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 and set forth in such Officers'
Certificate or in any such indenture supplemental hereto.
SECTION 3.2 Denominations.
Unless otherwise provided as contemplated by Section 3.1 with respect to
any series of Securities, the Registered Securities of each series shall be
issuable in denominations of U.S. $1,000 and any integral multiple thereof and
the Bearer Securities of each series, if any, shall be issuable in the
denomination of U.S. $5,000.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
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The Securities shall be executed on behalf of the Company by its Chairman
or Vice Chairman of the Board of Directors, its President or one of its Vice
Presidents under its corporate seal reproduced thereon (which may be via
facsimile) attested by its Secretary or one of its Assistant Secretaries.
Coupons shall bear the signature of the Chairman or Vice Chairman of the Board
or the President or one of the Vice Presidents of the Company. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities and coupons, if any, appertaining thereto 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 and coupons or did not hold such offices at the date
stated on such Securities and coupons.
Unless otherwise provided as contemplated by Section 3.1, 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 coupons
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. In authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities and coupons, if any, the Trustee shall be entitled to receive at
the time of the initial delivery by the Company of Securities of such series to
the Trustee for authentication, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(a) that the forms of such Securities and coupons, if any, have been
established by or pursuant to Board Resolution or by a supplemental indenture as
permitted by Section 2.1 in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and coupons, if any, have been
established by or pursuant to Board Resolution or by a supplemental indenture as
permitted by Section 3.1 in conformity with the provisions of this Indenture;
(c) that such Securities, together with any coupons appertaining thereto,
when authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equity principles;
(d) all laws and requirements in respect of the execution and delivery by
the Company of such Securities and coupons, if any, have been complied with; and
(e) such other matters as the Trustee may reasonably request.
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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
unless otherwise specified as contemplated by Section 3.1, each Bearer Security
and any temporary Global Security or permanent Global Security, representing
such Bearer Securities shall be dated as of the date of the original issuance of
the first Security of such series to be issued.
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 or in the case of such coupon, on the Security to which such coupon
appertains 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 that such
Security or coupon is entitled to the benefits of this Indenture.
SECTION 3.4 Temporary Securities, Global Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, a temporary Security in global form or 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 and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Security or Securities may determine, as evidenced by their execution of such
Security or Securities.
Except in the case of any temporary Global Security, which shall be
exchangeable in the manner determined as contemplated by Section 3.1, if
temporary 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, such temporary securities
of such series shall be exchangeable for definitive Securities of such series
upon surrender of such temporary securities of such series at the office or
agency of the Company in a Place of Payment for Securities of that series,
without charge to the Holder; provided that no Bearer Security shall be
delivered in exchange for a temporary Registered Security. Upon surrender for
cancellation of any one or more of such temporary Securities of any series the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like aggregate principal amount of definitive Securities of the same
series and of like tenor of authorized denominations. Until so exchanged such
temporary securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
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If Securities of a series are issuable in temporary or permanent global
form, any such security may provide that it shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon and may also
provide that the aggregate amount of Outstanding Securities represented thereby
may from time to time be reduced to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount or changes in the rights of Holders of Outstanding securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein. Any instructions by the Company with respect to a
Security in global form shall be in writing but need not comply with Section
1.2.
SECTION 3.5 Registration, Registration of Transfer and Exchange.
With respect to Registered Securities of any series, the Company shall
cause to be kept at an office or agency of the Company in a Place of Payment for
such series of Securities a register (the register maintained in such office or
agency 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 of that
series and of transfers of Registered Securities of that series. Said office or
agency is hereby appointed "Security Registrar" for the purpose of registering
Registered Securities of that series and transfers of Securities of that series
as herein provided.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency of the Company in a Place of Payment for
Registered Securities of that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of like tenor of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of like tenor of the same series, of
any authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are surrendered for exchange as provided above,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
At the option of the Holder, Bearer Securities of any series as to which
Registered Securities are also issuable 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 such office or agency, with all unmatured coupons and all
matured coupons in default appertaining thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, Such exchange may be effected if the Bearer
Securities are accompanied by payment in funds
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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 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
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 that, except as provided in Section 10.2, 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 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 date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or such
proposed date of payment, as the case may be, and the interest due on the
relevant Interest Payment Date or date for the payment of Defaulted Interest
shall be payable only to the Holder of such coupon.
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.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the 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 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Security of any series during a period beginning at the opening
of business 15 days before any selection of Securities of that series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of 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 any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Registered
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Security being redeemed in part, or (iii) to exchange any Bearer Security so
selected for redemption except that such Bearer Security may be exchanged for a
Registered Security of that series of like tenor; provided that such Registered
Security is simultaneously surrendered for redemption.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto 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.
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 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 to which a destroyed, lost or stolen coupon
appertains (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.
In case any such mutilated, 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 or coupon, 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 and its agents and counsel) 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,
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security or 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,
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lost or stolen Securities or coupons.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 3.1, 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
Registered Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any 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
of any Registered Security 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 equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Company 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, 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
names 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); or
(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 Registered
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
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proposed payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Unless otherwise provided as contemplated by Section 3.1, interest, if
any, will be payable in respect of definitive Bearer Securities upon
presentation and surrender of the appropriate coupons appertaining thereto.
Any Defaulted Interest payable in respect of any Bearer Security shall be
payable pursuant to such procedures as may be satisfactory to the Trustee in
such manner that there is no discrimination between the Holders of Registered
Securities and Bearer Securities of the same series and notice of the payment
date therefor shall be given by the Trustee in the name and at the expense of
the Company by publication in the manner set forth in Section 1.6.
Subject to the foregoing provisions of this Section and Section 3.5, 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 3.8 Persons Deemed Owners.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery.
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 3.5 and 3.7)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered 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.
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 coupon he overdue, and neither the Company, the Trustee nor
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 3.9 Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee and shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities, together with
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coupons, if any, appertaining thereto, previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section except as expressly permitted by this
Indenture. All cancelled Securities and coupons, if any, held by the Trustee
shall be destroyed by it, and the Trustee shall deliver a certificate of such
destruction to the Company unless by a Company Order the Company shall direct
that cancelled Securities and coupons, if any, be returned to it.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 3.11 Medium-term Securities.
Notwithstanding any contrary provision herein, if all Securities of a
series are not to be originally issued at one time, it shall not be necessary to
deliver the Company Order, Officers' Certificate, supplemental indenture or
Opinion of Counsel otherwise required pursuant to Sections 2.1, 3.1 and 3.3 at
or prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
An Officers' Certificate or supplemental indenture, delivered pursuant to
this Section 3.11 in the circumstances set forth in the preceding paragraph may
provide that Securities which are the subject thereof will be authenticated and
delivered by the Trustee on original issue from time to time upon the telephonic
or written order of persons designated in such Officers' Certificate or
supplemental indenture (telephonic instructions to be promptly confirmed in
writing by such persons) and that such persons are authorized to determine,
consistent with such Officers' Certificate or any applicable supplemental
indenture such terms and conditions of said Securities as are specified in such
Officers' Certificate or supplemental indenture, provided that the foregoing
procedure is acceptable to the Trustee.
SECTION 3.12 Global Securities.
If the Company shall establish pursuant to Section 3.1 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Company shall execute and the Trustee shall, in accordance with Section 3.3
and the Company Order with respect to such series, authenticate and deliver one
or more Global Securities that (i) shall represent and shall be denominated in
an amount equal to the aggregate principal amount of all of the Securities of
such series to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such
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Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
Global Securities shall bear a legend substantially to the following
effect:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Global Security is
exchangeable for Securities registered in the name of a Person other than
the Depositary or its nominee only in the limited circumstances described
in the Indenture, and no transfer of this Security (other than a transfer
of this Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in such limited
circumstances. Every Security delivered upon registration of transfer of,
or in exchange for, or in lieu of, this Global Security shall be a Global
Security subject to the foregoing, except in the limited circumstances
described above.
Unless this certificate is presented by an authorized representative
of [The Depositary Trust Company, a New York corporation ("DTC")], to the
Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of [Cede & Co.] or in
such other name as is requested by an authorized representative of [DTC]
(and any payment is to be made to [Cede & Co.] or to such other entity as
is requested by an authorized representative of [DTC]), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, [Cede & Co.], has an
interest herein.
Notwithstanding the provisions of Section 3.5, unless and until it is
exchanged in whole or in part for Securities in definitive registered form, a
Global Security representing all or a part of the Securities of a series may not
be transferred in the manner provided in Section 3.5 except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series represented
by one or more Global Securities notifies the Company that it is unwilling or
unable to continue as Depositary for such Securities or if at any time the
Depositary for such Securities shall no longer be eligible to continue as
Depositary, the Company shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election pursuant to Section 3.1 that
such Securities be represented by one or more Global Securities shall no longer
be effective with respect to the Securities of such series and the Company shall
execute, and the Trustee, upon receipt of a Company Order for the
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authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver Securities of such series in definitive registered form
in any authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities, in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section 3.1 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested by
such Person, in an aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities authenticated
and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Company or the Trustee. Securities
in definitive registered form issued in exchange for a Global Security pursuant
to this Section 3.12 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Company or the Trustee. The Trustee or
such agent shall deliver at its office such Securities to or as directed by the
Persons in whose names such Securities are so registered.
SECTION 3.13 CUSIP Numbers.
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The Company is issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either a sprinted on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other indemnification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(1) either
(A) all Securities 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 3.5, (ii) Securities and coupons which
have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 11.6 and (iv)
Securities and coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below, any
coupons appertaining thereto not theretofore delivered to the Trustee for
cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity
within one year, or
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(3) 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 sufficient to pay and discharge
the entire indebtedness on such Securities and coupons 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
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, 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 415 and the last
paragraph of Section 10.3 shall survive such satisfaction and discharge.
SECTION 4.2 Defeasance and Discharge.
The provisions of Sections 4.2 and 4.3 shall apply to the Securities of
each series that is issued on or after the date hereof unless specifically
otherwise provided in a Board Resolution, Officers' Certificate or indenture
supplemental hereto provided pursuant to Section 3.1 In addition to discharge of
this Indenture pursuant to Section 4.1, in the case of any series of Securities
with respect to which the exact amount described in subparagraph (a) of Section
4.4 can be determined at the time of making the deposit referred to in such
subparagraph (a), the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such a series as provided in this
Section on and after the date the conditions set forth in Section 4.4 are
satisfied, and the provisions of this Indenture with respect to the Securities
of such series shall no longer be in effect (except as to (i) rights of
registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive, solely
from the trust fund described in subparagraph (a) of Section 4.4, payments of
principal thereof and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and remaining rights of the Holders
of Securities of such series to receive mandatory sinking fund payments, if any,
(iv) the rights, obligations, duties and immunities of the Trustee hereunder,
(v) this Section
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4.2, Section 10.2 and Section 10.3 and (vi) the rights of the Holders of
Securities of such series as beneficiaries hereof with respect to the property
so deposited with the Trustee payable to all or any of them) (hereinafter called
"Defeasance"), and the Trustee at the cost and expense of the Company, shall
execute proper instruments acknowledging the same.
SECTION 4.3 Covenant Defeasance.
In the case of any series of Securities with respect to which the exact
amount described in subparagraph (a) of Section 4.4 can be determined at the
time of making the deposit referred to in such subparagraph (a), (i) the Company
shall be released from its obligations under any covenants specified in or
pursuant to this Indenture (except as to (a) rights of registration of transfer
and exchange of Securities of such series and rights under Sections 10.2 and
10.3, (b) substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such series, (c) rights of Holders of Securities of such series to
receive, from the Company pursuant to Section 10.1, payments of principal
thereof and interest, if any, thereon upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the Holders of
Securities of such series to receive mandatory sinking fund payments, if any,
(d) the rights, obligations, duties and immunities of the Trustee hereunder and
(e) the rights of the Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them), and (ii) the occurrence of any event specified in Sections
5.1(4) (with respect to any of the covenants specified in or pursuant to this
Indenture) and 5.1(7) shall be deemed not to be or result in an Event of
Default, in each case with respect to the Outstanding Securities of such series
as provided in this Section on and after the date the conditions set forth in
Section 4.4 are satisfied (hereinafter called "Covenant Defeasance"), and the
Trustee at the cost and expense of the Company, shall execute proper instruments
acknowledging the same. For this purpose, such Covenant Defeasance means that
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 covenant (to the extent
so specified in the case of Section 5.1(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document, but the remainder of this Indenture and the Securities of such series
shall be unaffected thereby.
SECTION 4.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 412
or 413 to the Outstanding Securities:
(a) with reference to Section 4.2 or 4.3, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of Securities of such series (i) cash in an amount, or
(ii) direct obligations of the United States of America, backed by its full
faith and credit ("U.S. Government Obligations"), maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (iii) a combination
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thereof, in each case 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 (A) the principal of (and
premium, if any,) and interest, if any, on all Securities of such series on each
date that such principal (or premium, if any,) or interest, if any, is due and
payable, and (B) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of this Indenture and
the Securities of such series;
(b) in the case of Defeasance under Section 4.2, the Company has delivered
to the Trustee an Opinion of Counsel based on the fact that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (y), since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and
such opinion shall confirm that, the Holders of the Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit, Defeasance and discharge and will be subject to federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit, Defeasance and discharge had not
occurred;
(c) in the case of Covenant Defeasance under Section 4.3, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that, and such
opinion shall confirm that, the Holders of the Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a result
of such deposit and Covenant Defeasance and will be subject to federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit and Covenant Defeasance had not occurred;
(d) such Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound;
(e) the Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with; and
(f) no Event of Default or event which, with notice or lapse of time or
both, would become an Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or, insofar as Sections
5.1(5) and (6) are concerned, at any time during the period ending on the 91st
day after the date of such deposit or, if longer, ending on the day following
the expiration of the longest preference period applicable to the Company in
respect of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
SECTION 4.5 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
and U.S.
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Government Obligations deposited with the Trustee pursuant to Sections 4.1 and
4.4 shall be held in trust, and such money and all money from such U.S.
Government Obligations shall be applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money and U.S. Government
Obligations has been deposited with the Trustee; provided that such money need
not be segregated from other funds except to the extent required by law.
SECTION 4.6 Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 4.4 or the principal or interest received in
respect of such obligations other than any such tax, fee or other charge that by
law is for the account of the Holders of Outstanding Securities.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Sections 4.1 or 4.4 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture and the Securities shall, upon
notice to the Company from the Trustee, be revived and reinstated as though no
deposit had occurred pursuant to Sections 4.1 and 4.4; provided that if the
Company has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment of money
held by the Trustee or any Paying Agent.
ARTICLE V
REMEDIES
SECTION 5.1 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 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
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that series at its Maturity; or
(3) default in the deposit of any sinking fund payment when and as due by
the terms of a Security of that series; or
(4) 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 Securities of any series other than that series), and continuance of
such default or breach for a period of 90 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 the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order 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 any applicable Federal or State law, or appointing a
custodian, 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 for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or 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 the taking of corporate action by the Company in furtherance
of any such action; or
(7) in the event Securities of a series are issued and sold to a Textron
Trust or a trustee of such trust in connection with the issuance of Trust
Securities by such Textron Trust, such Textron Trust shall have voluntarily or
involuntarily dissolved, wound-up its business or
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otherwise terminated its existence except in connection with (i) the
distribution of Securities to holders of Trust Securities in liquidation or
redemption of their interests in such Textron Trust upon a Special Event, (ii)
the redemption of all the outstanding Trust Securities of such Textron Trust or
(iii) certain mergers, consolidations or amalgamations, each as permitted by the
Declaration of such Textron Trust; or
(8) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default 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, such portion
of the principal amount as may be specified in the terms of the Securities 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
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay;
(A) all overdue interest on all Securities of that series;
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates prescribed therefor in
such Securities;
(C) all overdue sinking fund payments with respect to Securities of
that series and interest thereon at the rate or rates prescribed therefor in
such Securities;
(D) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities; and
(E) 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, other
than the non-
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payment of the principal of Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 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 when
such interest becomes due and payable and such default continues for a period of
30 days;
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof; or
(3) default is made in the deposit of any sinking fund payment, when and
as due by the terms of a Security of any series, the Company will upon demand of
the Trustee, pay to it, for the benefit of the Holder of such Security and
coupons, if any appertaining thereto, the whole amount then due and payable on
such Security and coupons, if any appertaining thereto for principal (and
premium, if any) and interest and for any sinking fund payment and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any), on any overdue interest and on any
overdue sinking fund payment, at the rate or rates prescribed therefor in such
Security, 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 it; own name and 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 Security 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 Security, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and
related coupons by such appropriate judicial proceedings as the Trustee shall
deem necessary 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 appropriate
remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
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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 any of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal or interest or any sinking
fund payment) 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 (or
with respect to Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such Securities) (and
premium, if any), interest and sinking fund payments 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 of Securities and coupons 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 of
Securities and coupons to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities and coupons, 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 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt, on behalf of any Holder of a
Security or any coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any coupon in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities
or Coupons.
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.
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SECTION 5.6 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), interest or sinking fund payments, upon presentation of the Securities
and coupons 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
6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any), interest on, and sinking fund payments
with respect to, 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 of such Securities and coupons for principal (and premium, if
any), interest and sinking fund payments, respectively.
THIRD: To the Company.
SECTION 5.7 Limitation on Suits.
No holder of any Security of any series or any related coupons shall have
any rights 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;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to it against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any
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manner whatever by virtue of, or by availing of, any provision of this Indenture
to affect, disturb or prejudice the rights of any other of such Holders, 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 such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 3.7) interest on such Security or payment of such coupon on the
respective 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 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon 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 of a Security or coupon,
then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders of such Securities and coupons shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders of such
Securities and coupons shall continue as though no such proceeding had been
instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.6, 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 5.11 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 of Securities or coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
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Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, expose the Trustee to personal liability or be unduly
prejudicial to rights of holders of Securities or coupons of such series not
joining in such direction; and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
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 and related coupons waive any past default hereunder
with respect to the Securities of such series and its consequences, except a
default:
(1) 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 the Securities of such series; or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected;
provided, however, that if the Securities of such series are held by a Textron
Trust or a trustee of such trust, such waiver or modification to such waiver
shall not be effective until the holders of a majority in liquidation preference
of Trust Securities of the applicable Textron Trust shall have consented to such
waiver or modification to such waiver; provided, further, that if the consent of
the Holder of each Outstanding Security is required, such waiver shall not be
effective until each holder of the Trust Securities of the applicable Textron
Trust shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture, but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
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SECTION 5.14 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 all or 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 any undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, 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
instituted by any Holder or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series, 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 respective Stated Maturity or
Maturity expressed in such Security or coupon (or, in the case of redemption, on
or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from
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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 the direction of the
Holders of a majority in principal amount of the Outstanding Securities of any
series, determined as provided in Section 5.12, relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers.
(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 6.2 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 by mail to all
Holders of Securities of such series entitled to receive reports pursuant to
Section 7.3(c), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided 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 instalment
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 provided, further,
that in the case of any default of the character specified in Section 5.1(4)
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 6.3 Certain Rights of Trustee.
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Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully 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
(whether in its original or facsimile form) 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 of its own selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Securities of any series or any related coupons pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it 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 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
at the expense of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(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;
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(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) the Trustee shall not bee deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities or Coupons.
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. 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 6.5 May Hold Securities and Coupons.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
to Section 6.8 and 6.13, 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 6.6 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 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time compensation as agreed upon
from time to time in writing for all services rendered by it hereunder (which
compensation shall not be limited
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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 expenses, disbursements and advances incurred
or made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to fully indemnify the Trustee and any predecessor Trustee for, and to
hold it harmless against, any and all loss, liability, claim, damage or expense
(including taxes other than taxes based upon the income of the Trustee) incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance of 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.
As security for the performance of the obligation of the Company under
this Section the Trustee shall have a lien prior to the Securities and coupons
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (and premium, if any) or
interest on particular Securities and coupons.
SECTION 6.8 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest, 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 prescribed in the Trust Indenture Act of 1939, as
amended.
SECTION 6.9 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 $50,000,000 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 6.10 Resignation and Removal, Appointment of Successor.
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(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 6.11.
(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 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition at the expense of the
Company any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any 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 6.8(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 6.9 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, 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 6.11, if, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a
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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
6.11, 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 6.11, 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 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 by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Registered Securities of such series, if any, as their names and
addresses appear in the Security Register, and, if Securities of such are
issuable as, Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
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 6.11 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 (and the charges of its agents and counsel), 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 the Securities of all
series for which it is the Trustee hereunder, shall contain such provisions as
shall be deemed
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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 trust, hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and 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 the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts, and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
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 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all 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.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Debt Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other
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obligor).
SECTION 6.14 Appointment of the Authenticating Agent.
At any time when any of the Securities remain Outstanding 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 issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 3.6, 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 $50,000,000 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 provide notice thereof
pursuant to Section 1.6. 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
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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 6.7.
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 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 BANK OF NEW YORK, As Trustee
By________________________________________
as Authenticating Agent
By________________________________________
Authorized Signatory"
SECTION 6.15 Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company
may, at the option of the Trustee, set forth in writing any action proposed to
be taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three Business
Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually not more than 15 days after each Regular Record Date for
the payment of interest on the Securities of each series a list, in such form as
the Trustee may reasonably require, containing all of the information in the
possession or control of the Company, or any of its Paying Agents other than the
Trustee, as to the names and addresses of the Holders of Securities of such
series as of such Regular Record Date, obtained since the date as of which the
next previous list, if any, was furnished; and
(b) 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;
provided that if and so long as the Trustee shall be the Security Registrar for
such series and all of the Securities of such series are Registered Securities,
such list shall not be required to be furnished.
SECTION 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders (i) contained in the most recent
list furnished to the Trustee as provided in Section 7.1, (ii) received by the
Trustee in its capacity as Security Registrar and (iii) filed with it within the
two preceding years pursuant to Section 7.3(c)(2). The Trustee may destroy any
list furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished and destroy, not earlier than two years after filing, any information
filed with it, pursuant to Section 7.3(c)(2).
(b) If three or more Holders of Securities of the same 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 of such
series for a period of at least six months preceding the date of such
application and such application states that the applicant's desire to
communicate with other Holders of such series with respect to their rights under
this Indenture or under the Securities of such series and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either
(i) afford such applicants access to the information with respect
to the
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Holders of such series preserved at the time by the Trustee in accordance with
Section 7.2(a), or
(ii) inform such applicants as to the approximate number of Holders
of such series whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 7.2(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 such series whose name and address appear in the
information preserved at the time by the Trustee in accordance with Section
7.2(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 mailing would be contrary to the best
interest of the Holders of such series or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such Holders
with reasonable promptness after the entry of such order and the renewal of such
tender, otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) 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 7.2(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
7.2(b).
SECTION 7.3 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the year
2000, the Trustee shall transmit by mail as provided in subsection (c) of this
Section to all Holders of Securities for which it is Trustee hereunder, a brief
report dated as of such May 15 with respect to:
(1) its eligibility under Section 6.9 and its qualifications under Section
6.8, 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.
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(2) 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) 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
such 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 such 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
6.13(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 for which it is Trustee hereunder
which the Trustee has not previously reported; and
(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 such 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 6.2.
(b) The Trustee shall transmit by mail as provided in subsection (c) of
this Section to all Holders of Securities for which it is Trustee hereunder, 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 (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
such 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 such Securities Outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the name and addresses of
such Holders appear in the Security Register;
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(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 7.2(a).
(d) A copy of each such report shall, at the time of such transmission to
such Holders, be filed by the Trustee with each stock exchange upon which any
such Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any such Securities are listed on any stock
exchange or delisted therefrom.
SECTION 7.4 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
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; delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates);
(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; delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates); and
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(3) transmit by mail to all Holders, in the manner and to the extent
provided in Section 7.3(c) with respect to reports pursuant to Section 7.3(a),
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 VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 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 due and punctual payment
of the principal of (and premium, if any) and interest 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;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would become
subject to a Mortgage which would not be permitted by this Indenture, the
Company or such successor corporation or Person, as the case may be, shall take
such steps as shall be necessary effectively to secure the Securities equally
and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee Officers' Certificates and
Opinions of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, 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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SECTION 8.2 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
8.1, 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 thereafter, except in the
case of a lease the predecessor corporation shall be relieved of all obligations
and covenants under this Indenture and the Securities and coupons, if any,
appertaining thereto.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 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, pursuant to Article VIII; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly 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; or
(4) 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 adversely affected by such provision; or
(5) to secure the Securities pursuant to the requirements of Section
10.4 or otherwise; or
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(6) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; or
(7) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(8) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture which shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series 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 of such series and any related coupons under this
Indenture; provided 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 instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon (including any change in the Floating or
Adjustable Rate Provision pursuant to which such rate is determined that would
reduce such rate for any period) or any premium payable upon the redemption
thereof, 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 5.2, or change any Place of Payment where,
or the coin or 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, on or after the Redemption Date),
(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
reduce the requirements of Section 13.4 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.7, except
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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 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
10.7, or the deletion of this provision, in accordance with the requirements of
Sections 6.11 (b) and 9.1 (8); provided, further, that if the Securities of such
series are held by a Textron Trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in liquidation
preference of Trust Securities of the applicable Textron Trust shall have
consented to such supplemental indenture; provided, further, that if the consent
of the Holder of each Outstanding Security is required, such supplemental
indenture shall not be effective until each holder of the Trust Securities of
the applicable Textron Trust shall have consented to each supplemental
indenture.
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 9.3 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 6.1) 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 9.4 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.
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SECTION 9.5 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 9.6 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.
ARTICLE X
COVENANTS
SECTION 10.1 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 on the Securities of that series and any coupons
appertaining thereto in accordance with the terms of the Securities of such
series and this Indenture.
SECTION 10.2 Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for such 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 services may be issuable as Bearer Securities, the Company will
maintain (a) in the Borough of Manhattan, 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 Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons maybe presented 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, all office or agency
where Securities of that series and related coupon may be
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presented for payment; provided 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 stock 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 in respect of any series of Securities 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 surrendered and presented for payment at the place
specified for the purpose as contemplated by Section 3.1 or, if no such place is
specified, at the office of the Trustee in London and the Company hereby
initially appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities or
related coupons 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 in the United States unless pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company and the Holders of such
Bearer Securities and related coupons. Notwithstanding the foregoing, payments
in United States dollars may be made at an office or agency of the Company
maintained in the Borough of Manhattan, The City of New York if such payment at
each agency of the Company outside the United States for the payment of
principal, premium or interest on such Bearer Securities and related coupons is
illegal or effectively precluded by exchange controls or 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
designation; provided 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.
SECTION 10.3 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, it will, on or before each due date of the
principal of (and premium, if any) or interest
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on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(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, it will, prior to each due date of the principal of (and premium,
if any) or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent 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 such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any 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 or
any coupon appertaining thereto 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
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thereof, shall thereupon cease, provided that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in each Place of
Payment, or if only Registered Securities are then affected, mail to the Holders
of such Registered Securities, 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 or mailing, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.4 Limitation upon Mortgages.
With respect to Securities, other than Subordinated Securities and Junior
Securities:
(a) The Company will not, nor will it permit any Restricted Subsidiary, to
issue, assume or guarantee any debt for money borrowed (hereinafter in this
Article referred to as "Debt"), secured by a Mortgage upon any Principal
Property of the Company or any Restricted Subsidiary or upon any shares of stock
or indebtedness of any Restricted Subsidiary (whether such Principal Property,
shares of stock or indebtedness are now owned or hereafter acquired) without in
any such case effectively providing concurrently with the issuance, assumption
or guaranty of any such debt that the Securities (other than Subordinated
Securities and Junior Securities) (together with, if the Company shall so
determine, any other indebtedness of or guarantee by the Company or such
Restricted Subsidiary ranking equally with the Securities (other than
Subordinated Securities and Junior Securities) and then existing or thereafter
created) shall be secured equally and ratably with such Debt; provided that the
foregoing restrictions shall not apply to Debt secured by:
(i) Mortgages on property, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) Mortgages on property existing at the time of acquisition of
such property by the Company or a Restricted Subsidiary, or Mortgages to secure
the payment of all or any part of the purchase price of such property upon the
acquisition of such property by the Company or a Restricted Subsidiary or to
secure any Debt incurred prior to, at the time of, or within 180 days after, the
acquisition of such property for the purpose of financing all or any part of the
purchase price thereof, or Mortgages to secure any Debt incurred for the purpose
of financing all or any part of the cost to the Company or a Restricted
Subsidiary of improvements to such acquired property;
(iii) Mortgages securing Debt of a Restricted Subsidiary owing to
the Company or to another Restricted Subsidiary;
(iv) Mortgages existing at the date of this Indenture;
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(v) mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation as an entirety or substantially as an entirety to
the Company or a Restricted Subsidiary;
(vi) Mortgages on or other conveyances of property owned by the
Company or a Restricted Subsidiary in favor of the United States of America or
any State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in favor of
any other county, or any political subdivision thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or to
secure any indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the property subject to such
Mortgages; or
(vii) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any Mortgage
referred to in the foregoing clauses (i) to (vi), inclusive, provided that such
extension, renewal or replacement shall be limited to all or a part of the
property which secured the Mortgage so extended, renewed or replaced (plus
improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section, the Company
and any one or more Restricted Subsidiaries may issue, assume or guarantee Debt
secured by a Mortgage which would otherwise be subject to the foregoing
restrictions in an aggregate amount which, together with all other outstanding
Debt of the Company and its Restricted Subsidiaries which (if originally issued,
assumed or guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses (i)
through (vii) above), does not at the time exceed 10%, of the shareholders'
equity of the Company and its consolidated Subsidiaries as shown on the most
recent consolidated financial statements of the Company and its consolidated
Subsidiaries.
SECTION 10.5 Limitation upon Sale and Leaseback Transactions.
With respect to Securities, other than Subordinated Securities and Junior
Securities, the Company will not, nor will it permit any Restricted Subsidiary
to, enter into any arrangement with any Person that provides for the leasing to
the Company or any Restricted Subsidiary of any Principal Property (except for
leases for a term of not more than three years and except for leases between the
Company and a Restricted Subsidiary or between Restricted Subsidiaries), which
Principal Property has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person, unless (a) the Company or such
Restricted Subsidiary would be entitled, pursuant to the provisions of Section
10.4, to issue, assume or guarantee Debt secured by a Mortgage upon such
property at least equal in amount to the Attributable Debt in respect of such
arrangement without equally and ratably securing the Securities, (other than
Subordinated Securities and Junior Securities) provided that from and after the
date on which such arrangement becomes effective the Attributable Debt in
respect of such arrangement shall be
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deemed for all purposes under Sections 10.4 and 10.5 to be secured Debt subject
to the restrictions of Section 10.4; or (b) the Company shall apply an amount in
cash equal to the greater of the net proceed of such sale or the Attributable
Debt in respect of such arrangement to (i) the retirement (other than any
mandatory retirement or by way of payment at maturity), within 180 days of the
effective date of any such arrangement of Debt (except as otherwise provided by
the terms of the Securities) of the Company or any Restricted Subsidiary ranking
equally with the Securities (other than Subordinated Securities and Junior
Securities) (other then Debt owed by the Company or any Restricted Subsidiary to
the Company or any Restricted Subsidiary) which by its terms matures at or is
extendible or renewable at the option of the obligor to a date more than twelve
months after the date of the creation of such Debt or (ii) the acquisition,
construction, development or improvement of properties, facilities or equipment
which are, or upon such acquisition, construction, development or improvement
will be, a Principal Property or a part thereof.
SECTION 10.6 Statement by Officers as to Default; Notice of Certain Events.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of Sections 10.1 and 10.5, inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 10.7 Waiver of Certain Covenants.
The Company shall deliver to the Trustee, as soon as possible and in any
event within five days after the Company becomes aware of the occurrence of any
Event of Default or an event which, with notice or the lapse of time or both,
would constitute an Event of Default, an Officers' Certificate setting forth the
details of such Event of Default or default and the action which the Company
proposes to take with respect thereto.
SECTION 10.8 Covenants as to Textron Trusts.
In the event Securities are issued and sold to a Textron Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Textron Trust, for so long as such Trust Securities remain outstanding, the
Company will (i) maintain 100% direct or indirect ownership of the Trust Common
Securities of such Textron Trust; provided, however, that any permitted
successor of the Company hereunder may succeed to the Company's ownership of the
Trust Common Securities, (ii) not voluntarily dissolve, wind-up or terminate
such Textron Trust, except in connection with a distribution of Securities upon
a Special Event, and in connection with certain mergers, consolidations or
amalgamations permitted by the Declaration of the applicable Textron Trust,
(iii) timely perform its duties as Sponsor of the applicable Textron Trust, and
(iv) use its reasonable efforts to cause such Textron Trust (a) to remain a
business
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trust, except in connection with a distribution of Securities as provided in the
Declaration of such Textron Trust, the redemption of all the Trust Securities
and in connection with certain mergers, consolidations or amalgamations
permitted by the Declaration of such Textron Trust, and (b) otherwise continue
to be classified as a grantor trust for United States federal income tax
purposes.
SECTION 10.9 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.4 and 10.5, with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance 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 of condition shall remain in full force and
effect.
SECTION 10.10 Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms, and (except as otherwise
specified as contemplated by, Section 3.1 for Securities of any series) in
accordance with this Article. For purpose, of Sections 11.2 and 11.3, the
redemption of all Securities having the same terms within a series shall not be
deemed to be the redemption of less than all of the Securities of any series.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Company Request. In case of any redemption at the election of the Company of
less than all the Securities
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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 11.3 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.
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 11.4 Notice of Redemption.
Notice of redemption shall be given not less than 30 nor more than 60 days
prior to the Redemption Date, to each Holder of Securities to be redeemed in the
manner specified in Section 1.6.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than 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 of such series to be redeemed;
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(4) that on the Redemption Date the Redemption Price together with
interest, if any, accrued and unpaid to, but not including, the Redemption Date,
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
together with interest, if any, accrued and unpaid to, but not including, the
Redemption Date;
(6) that the redemption is for a sinking fund, if such is the case; and
(7) applicable CUSIP Numbers
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 11.5 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 Argent,
segregate and hold in trust as provided in Section 10.3) an amount of money
sufficient to pay the Redemption Price, together (except if the Redemption Date
shall be an Interest Payment Date) with accrued and unpaid interest to, but not
including the Redemption Date on, all the Securities which are to be redeemed on
that date.
SECTION 11.6 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 together with interest, if any, accrued and
unpaid to, but not including, the Redemption Date, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest, if any,) such Securities shall cease to bear interest and the
coupons for such interest appertaining to ally Bearer Notes 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
interest accrued and unpaid to, but not including, the Redemption Date; provided
that unless otherwise specified as contemplated by Section 3.1, instalments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Registered Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms
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and the provisions of Section 3.7 and provided, further, that instalments 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 10.2) and unless
otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of coupons for such interest.
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 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 10.2) and, unless
otherwise specified as contemplated by Section 3.1 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 11.7 Securities Redeemed in Part.
Except as otherwise specified as contemplated by Section 3.1 with respect
to temporary global Securities and permanent global Securities, any Security
which is to be redeemed only in part shall be surrendered at a Place of Payment
for Securities of that series (with, in the case of Registered Securities, 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 like tenor and 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, together in
the ease of any Bearer Securities with coupons appertaining thereto, if any,
maturing after the Redemption Date.
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ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
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 12.2. 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 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series together in
the case of any Bearer Securities, with all unmatured coupons appertaining
thereto (other than any previously called for redemption), and (2) may apply as
a credit Securities of a series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of such series
required to by made pursuant to the terms of such Securities as provided for by
the terms of such Securities: provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 12.3 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 and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.2 and will also deliver to the Trustee any Securities to
be credited and not theretofore so delivered. Not less than 45 days before each
such sinking fund payment date the Trustee shall select the
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Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.3 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 11.4. The Company shall deposit the amount of cash, if any, required for
such sinking fund payment with the Trustee in the manner provided in Section
11.5. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
SUBORDINATION OF SUBORDINATED SECURITIES
SECTION 13.1 Agreement to Subordinate.
The Company covenants and agrees, and each Holder of any Subordinated
Security issued hereunder by his acceptance thereof, whether upon original issue
or upon transfer or assignment, likewise covenants and agrees, that the
principal of (and premium, if any) and interest on each and all of the
Subordinated Securities issued hereunder are hereby expressly subordinated, to
the extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Indebtedness.
SECTION 13.2 Payment on Dissolution, Liquidation or Reorganization;
Default on Senior Indebtedness.
Upon any payment or distribution of assets or securities of the Company of
any kind or character, whether in cash, property or securities, upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other similar proceedings, or upon any assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
the Company or otherwise, all principal of (and premium, if any) and interest
then due upon all Senior Indebtedness shall first be paid in full, or payment
thereof provided for in money or money's worth, before the Holders of the
Subordinated Securities or the Trustee on their behalf shall be entitled to
receive any assets or securities (other than shares of stock of the Company as
reorganized or readjusted or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, junior to, or the
payment of which is subordinated at least to the extent provided in this Article
to the payment of, all Senior Indebtedness which may at the time be outstanding
or any securities issued in respect thereof under any such plan of
reorganization or readjustment) in respect of the Subordinated Securities (for
principal, premium or interest). Upon any such dissolution or winding up or
liquidation or reorganization, any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities (other than as aforesaid), to which the Holders of the Subordinated
Securities or the Trustee on their behalf would be entitled, except for the
provisions of this Article, shall be made by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, direct to the holders of Senior
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Indebtedness or their representatives to the extent necessary to pay all Senior
Indebtedness in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
In the event that, notwithstanding the foregoing, the Trustee or the Holder of
any Subordinated Security shall, under the circumstances described in the two
preceding sentences, have received any payment or distribution of assets or
securities of the Company of any kind or character, whether in cash, property or
securities (other than as aforesaid) before all Senior Indebtedness is paid in
full or payment thereof provided for in money or money's worth, and if such fact
shall then have been made known to the Trustee or, as the case may be, such
Holder, then such payment or distribution of assets or securities of the Company
shall be paid over or delivered forthwith to the receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making payment or
distribution of assets or securities of the Company for application to the
payment of all Senior Indebtedness remaining unpaid, to the extent necessary to
pay all Senior Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Indebtedness.
Subject to the payment in full, in money or money's worth, of all Senior
Indebtedness, the Holders of the Subordinated Securities (together with the
holders of any indebtedness of the Company which is subordinate in right of
payment to the payment in full of all Senior Indebtedness and which is not
subordinate in right of payment to the Subordinated Securities) shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distribution of assets or securities of the Company applicable to
Senior Indebtedness until the principal of (and premium, if any) and interest on
the Senior Indebtedness shall be paid in full. No such payments or distributions
applicable to Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Subordinated Securities, be deemed to be a payment by the Company to or on
account of the Subordinated Securities, it being understood that the provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Subordinated Securities, on the one hand,
and the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Subordinated Securities is
intended to or shall impair, as between the Company and the Holders of
Subordinated Securities, the obligation of the Company, which is unconditional
and absolute, to pay to the Holders of the Subordinated Securities the principal
of (and premium, if any) and interest on the Subordinated Securities as and when
the same shall become due and payable in accordance with their terms, or to
affect (except to the extent specifically provided above in this paragraph) the
relative rights of the Holders of the Subordinated Securities and creditors of
the Company other than the holders of Senior Indebtedness. Nothing contained
herein shall prevent the Trustee or the Holder of any Subordinated Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article, of the
holders of Senior Indebtedness in respect of assets or securities of the Company
of any kind or character, whether cash, property or securities, received upon
the exercise of any such remedy.
Upon any payment or distribution of assets or securities of the Company
referred to in this Article, the Trustee and the Holders of the Subordinated
Securities shall be entitled to rely
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upon any order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
and upon a certificate of the receiver, trustee in bankruptcy, liquidating
trustee, agent or other person making any such payment or distribution,
delivered to the Trustee or to the Holders of the Subordinated Securities for
the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
If there shall have occurred a default in the payment on account of the
principal of (or premium, if any) or interest on or sinking fund for any Senior
Indebtedness then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no payment shall be made by the Company on
account of the principal (or premium, if any) or interest on the Subordinated
Securities.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
SECTION 13.3 Payment Prior to Dissolution or Default.
Nothing contained in this Article or elsewhere in this Indenture, or in
any of the Subordinated Securities, shall prevent (a) the Company, at any time
except under the conditions described in Section 13.2 or during the pendency of
any dissolution or winding up or total or partial liquidation or reorganization
proceedings therein referred to, from making payments at any time of principal
of (or premium, if any) or interest on Subordinated Securities or from
depositing with the Trustee or any Paying Agent moneys for such payments, or (b)
the application by the Trustee or any Paying Agent of any moneys deposited with
it under this Indenture to the payment of or on account of the principal of (or
premium, if any) or interest on Subordinated Securities to the Holders entitled
thereto if such payment would not have been prohibited by the provisions of
Section 13.2 on the day such moneys were so deposited.
Notwithstanding the provisions of Section 13.1 or any other provision of
this Indenture, the Trustee and any Paying Agent shall not be charged with
knowledge of the existence of any Senior Indebtedness, or of the occurrence of
any default with respect to Senior Indebtedness of the character described in
Section 13.2, or of any other facts which would prohibit the making of any
payment of moneys to or by the Trustee or such Paying Agent, unless and until
the Trustee shall have received written notice thereof from the Company or from
a holder of such Senior Indebtedness and the Trustee shall not be affected by
any such notice which may be received by it on or after the date on which the
Trustee may, by the terms of this Indenture, make any such payment to the extent
the Trustee has so made any such payment.
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SECTION 13.4 Rights of Holders of Senior Indebtedness not Impaired.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
The provisions of this Article are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Senior Indebtedness. Neither
the Trustee nor any Paying Agent shall be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness, and shall not be liable to any such holders
if either shall mistakenly pay over or distribute to or on behalf of Holders of
Subordinated Securities or the Company moneys or assets to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article.
The Trustee and any agent of the Company or the Trustee shall be entitled
to all the rights set forth in this Article with respect to any Senior
Indebtedness at the time held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in Section 6.13 or elsewhere in this Indenture
shall deprive the Trustee or any such agent of any of its rights as such holder.
SECTION 13.5 Authorization of Trustee.
Each Holder of a Subordinated Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
ARTICLE XIV
SUBORDINATION OF JUNIOR SECURITIES
SECTION 14.1 Agreement to Subordinate.
The Company covenants and agrees, and each Holder of any Junior Security
issued hereunder by his acceptance thereof, whether upon original issue or upon
transfer or assignment, likewise covenants and agrees, that the principal of
(and premium, if any) and interest on each and all of the Junior Securities
issued hereunder are hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment in full
of all Indebtedness, except for (1) any such Indebtedness that is by its terms
is subordinated to or pari passu with the Junior Securities, and (2) any
Indebtedness between or among the Company and its Affiliates, including all
other debt securities and guarantees in respect of those debt securities, issued
to (y) any Textron Trust or (z) any other trust, or a trustee of such trust or
other entity affiliated with the Company
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which is a financing vehicle of the Company (a "Financing Entity") in connection
with the issuance by such Financial Entity of preferred securities or other
securities which rank pari passu with, or junior to, the Trust Preferred
Securities and (3) the Junior Subordinated Debt Securities issued to Textron
Capital I.
SECTION 14.2 Payment on Dissolution, Liquidation or Reorganization;
Default on Indebtedness.
Upon any payment or distribution of assets or securities of the Company of
any kind or character, whether in cash, property or securities, upon any
dissolution or winding up or total or partial liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other similar proceedings, or upon any assignment for the
benefit of creditors or any other marshalling of the assets and liabilities of
the Company or otherwise, all principal of (and premium, if any) and interest
then due upon all Indebtedness shall first be paid in full, or payment thereof
provided for in money or money's worth, before the Holders of the Junior
Securities or the Trustee on their behalf shall be entitled to receive any
assets or securities (other than shares of stock of the Company as reorganized
or readjusted or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, junior to, or the payment of which
is subordinated at least to the extent provided in this Article to the payment
of, all Indebtedness which may at the time be outstanding or any securities
issued in respect thereof under any such plan of reorganization or readjustment)
in respect of the Junior Securities for principal, premium or interest. Upon any
such dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets or securities of the Company of any kind or character,
whether in cash, property or securities (other than as aforesaid), to which the
Holders of the Junior Securities or the Trustee on their behalf would be
entitled, except for the provisions of this Article, shall be made by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other person making such payment or distribution, directly to the holders of
Indebtedness or their representatives to the extent necessary to pay all
Indebtedness in full, in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of Indebtedness. In the
event that, notwithstanding the foregoing, the Trustee or the Holder of any
Junior Security shall, under the circumstances described in the preceding two
sentences, have received any payment or distribution of assets or securities of
the Company of any kind or character, whether in cash, property or securities
(other than as aforesaid) before all Indebtedness is paid in full or payment
thereof provided for in money or money's worth, and if such fact shall then have
been made actually known to a Responsible Officer of the Trustee or, as the case
may be, such Holder, then and in such event such payment or distribution of
assets or securities of the Company shall be paid over or delivered forthwith to
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making payment or distribution of assets or securities of the Company for
application to the payment of all Indebtedness remaining unpaid, to the extent
necessary to pay all Indebtedness in full, in money or money's worth, after
giving effect to any concurrent payment or distribution to or for the holders of
Indebtedness.
Subject to the payment in full, in money or money's worth, of all
Indebtedness, the Holders
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of the Junior Securities (together with the holders of any indebtedness of the
Company which is subordinate in right of payment to the payment in full of all
Indebtedness and which is not subordinate in right of payment to the Junior
Securities) shall be subrogated to the rights of the holders of Indebtedness to
receive payments or distribution of assets or securities of the Company
applicable to Indebtedness until the principal of (and premium, if any) and
interest on the Indebtedness shall be paid in full. No such payments or
distributions applicable to Indebtedness shall, as between the Company, its
creditors, other than the holders of Indebtedness, and the Holders of the Junior
Securities, be deemed to be a payment by the Company to or on account of the
Junior Securities, it being understood that the provisions of this Article are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Junior Securities, on the one hand, and the holders of
Indebtedness, on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Junior Securities is intended to or shall impair, as
between the Company and the Holders of Junior Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Junior Securities the principal of (and premium, if any) and interest on the
Junior Securities as and when the same shall become due and payable in
accordance with their terms, or to affect (except to the extent specifically
provided above in this paragraph) the relative rights of the Holders of the
Junior Securities and creditors of the Company other than the holders of
Indebtedness. Nothing contained herein shall prevent the Trustee or the Holder
of any Junior Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article, of the holders of Indebtedness in respect of assets or
securities of the Company of any kind or character, whether cash, property or
securities, received upon the exercise of any such remedy.
Upon any payment or distribution of assets or securities of the Company
referred to in this Article, the Trustee and the Holders of the Junior
Securities shall be entitled to conclusively rely upon any order or decree of a
court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, and upon a certificate of
the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making any such payment or distribution, delivered to the Trustee or to the
Holders of the Junior Securities for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
If there shall have occurred a default in the payment on account of the
principal of (or premium, if any) or interest on or sinking fund for any
Indebtedness then, unless and until such default shall have been cured or waived
or shall have ceased to exist, no payment shall be made by the Company on
account of the principal (or premium, if any) or interest on the Junior
Securities.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
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SECTION 14.3 Payment Prior to Dissolution or Default.
Nothing contained in this Article or elsewhere in this Indenture, or in
any of the Junior Securities, shall prevent (a) the Company, at any time except
under the conditions described in Section 14.2 or during the pendency of any
dissolution or winding up or total or partial liquidation or reorganization
proceedings therein referred to, from making payments at any time of principal
of (or premium, if any) or interest on Junior Securities or from depositing with
the Trustee or any Paying Agent moneys for such payments, or (b) the application
by the Trustee or any Paying Agent of any moneys deposited with it under this
Indenture to the payment of or on account of the principal of (or premium, if
any) or interest on Junior Securities to the Holders entitled thereto if such
payment would not have been prohibited by the provisions of Section 14.2 on the
day such moneys were so deposited.
Notwithstanding the provisions of Section 14.1 or any other provision of
this Indenture, the Trustee and any Paying Agent shall not be charged with
knowledge of the existence of any Indebtedness, or of the occurrence of any
default with respect to Indebtedness of the character described in Section 14.2,
or of any other facts which would prohibit the making of any payment of moneys
to or by the Trustee or such Paying Agent, unless and until the Trustee shall
have received written notice thereof from the Company or from a holder of such
Indebtedness and the Trustee shall not be affected by any such notice which may
be received by it on or after the date on which the Trustee may, by the terms of
this Indenture, make any such payment to the extent the Trustee has so made any
such payment.
SECTION 14.4 Rights of Holders of Indebtedness not Impaired.
No right of any present or future holder of any Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
The provisions of this Article are intended to be for the benefit of, and
shall be enforceable directly by, the holders of Indebtedness. Neither the
Trustee nor any Paying Agent shall be deemed to owe any fiduciary duty to the
holders of Indebtedness, and shall not be liable to any such holders if either
shall mistakenly pay over or distribute to or on behalf of Holders of Junior
Securities or the Company moneys or assets to which any holders of Indebtedness
shall be entitled by virtue of this Article.
The Trustee and any agent of the Company or the Trustee shall be entitled
to all the rights set forth in this Article with respect to any Indebtedness at
the time held by it, to the same extent as any other holder of Indebtedness, and
nothing in Section 6.13 or elsewhere in this Indenture shall deprive the Trustee
or any such agent of any of its rights as such holder.
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SECTION 14.5 Authorization of Trustee.
Each Holder of a Junior Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
ARTICLE XV
MEETINGS OF HOLDERS OF NOTES
SECTION 15.1 Purposes for Which Meetings May Be Called.
A meeting of Holders of any Outstanding Securities 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 such
Securities; provided that a meeting of Holders of less than all Outstanding
Securities (the "Outstanding Securities Affected") may be called to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture affecting only such Securities.
SECTION 15.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Outstanding
Securities or Outstanding Securities Affected for any purpose specified in
Section 13.1, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Outstanding Securities or of Outstanding
Securities Affected, setting forth the time and 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 1.6, not less than 20 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 or
Outstanding Securities Affected, shall have requested the Trustee to call a
meeting of the Holders of such Securities for any purpose specified in Section
13.1, 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 such Securities in the
amount above specified, as the case may be, may determine the time and place in
the Borough of Manhattan, 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.
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SECTION 15.3 Persons Entitled To Vote at Meetings.
To be entitled to vote at any meeting of Holders of Outstanding Securities
or Outstanding Securities Affected, a Person shall be (1) a Holder of one or
more Outstanding Securities or Outstanding Securities Affected, as the case may
be, or (2) a Person appointed by all instrument in writing as proxy for a Holder
or Holders of one or more of such Outstanding Securities or Outstanding
Securities Affected, as the case may be, by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Outstanding Securities or Outstanding Securities Affected, as the
case may be, shall be the Persons 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 15.4 Quorum: Action.
The Persons entitled to vote an aggregate principal amount of Outstanding
Securities or Outstanding Securities Affected sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum for a meeting of Holders of Outstanding Securities or Outstanding
Securities Affected, respectively, but, if less than a quorum is present, the
Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities or Outstanding Securities Affected, as the case may be,
represented at the meeting may adjourn such meeting with the same effect, for
all intents and purposes as though a quorum had been present. Any meeting of
Holders of Outstanding Securities or Outstanding Securities Affected duly called
pursuant to the provisions of Section 13.2 may be adjourned from time to time by
a majority of such Holders of Outstanding Securities or Outstanding Securities
Affected, respectively, present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
SECTION 15.5 Determination of Voting Rights; Conduct of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Outstanding Securities or Outstanding Securities Affected in regard
to proof of the holding of Outstanding Securities or Outstanding Securities
Affected 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
Outstanding Securities or Outstanding Securities Affected shall be proved in the
manner specified in Section 1.4 and the appointment of any proxy shall be proved
in the manner specified in Section 1.4 or by having the signature of the person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 1.4 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 1.4 or other proof.
78
<PAGE> 87
(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 Outstanding Securities or Outstanding Securities
Affected as provided in Section 13.2 (b), in which case the Company or the
Holders of Outstanding Securities or Outstanding Securities Affected 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 or Outstanding Securities Affected represented at the
meeting.
(c) At any meeting each Holder of an Outstanding Security or Outstanding
Security Affected, as the case may be, or proxy shall be entitled to one vote or
each U.S. $1,000 principal amount of Outstanding Securities or Outstanding
Securities Affected, as the case may be, held or represented by him; provided
that no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding or as not being an Outstanding Security Affected
and ruled by the chairman of the meeting to be not Outstanding or to be not an
Outstanding Security Affected. The chairman of the meeting shall have no right
to vote, except as a Holder of all Outstanding Security or Outstanding Security
Affected, as the case may be, or proxy.
SECTION 15.6 Counting Votes and Recording Actions of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Outstanding Securities or Outstanding Securities Affected shall be by written
ballots on which shall be subscribed the signatures of the Holders of
Outstanding Securities or Outstanding Securities Affected, as the case may be,
or of their representatives by proxy and the principal amounts and serial
numbers of the Outstanding Securities or Outstanding Securities Affected 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 triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of Holders of
Outstanding Securities or Outstanding Securities Affected 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 13.2. 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.
79
<PAGE> 88
ARTICLE XVI
MISCELLANEOUS
SECTION 16.1 Securities in a Foreign Currency.
Unless otherwise specified in an Officers' Certificate delivered pursuant
to Section 3.1 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the holders of a specified percentage in aggregate principal amount of
Securities of each series at the time Outstanding which is affected thereby and,
at such time, there are Outstanding Securities of such a series which are
denominated in a coin or currency other than United States dollars, then the
principal amount of Securities of such series which shall be deemed to be
Outstanding, for the purpose of taking such action shall be that amount of
United States dollars that could be obtained for such amount at the Market
Exchange Rate on the Business Day next preceding the day on which the action is
to be determined. For purposes of this Section 14.1, Market Exchange Rate shall
mean the noon United States dollar buying rate for that currency for cable
transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York; provided that in the case of ECU's Market
Exchange Rate shall mean the rate of exchange determined by the European
Communities (or any successor thereto) as published in the Official Journal of
the European Communities (such publication or any successor publication, the
"Journal"). If such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York or, in the case of ECUs, the rate of exchange as published in the Journal,
as of the most recent available data, or quotations or, in the case of ECUs,
rates of exchange from one or more major banks in New York City or in the
country of issue of the currency in question, which for purposes of the ECU
shall be Brussels, Belgium, or such other quotations or, in the case of ECUs,
rates of exchange as the Trustee shall deem appropriate.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate 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 and all Holders.
SECTION 16.2 Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert any sum due in respect of the principal of,
premium, if any, or interest on the Securities of any series (the "Required
Currency") into United States dollars, the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency on the Business Day
preceding that on which final judgment is given and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not
80
<PAGE> 89
entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be
enforceable as an alternative or additional cause of action for the purpose of
recovering in the Required Currency the amount, if any, by which such actual
receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture.
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.
SECTION 16.3 Acknowledgment of Rights.
The Company acknowledges that, with respect to any Securities held by a
Textron Trust or a trustee of such trust, if the Institutional Trustee of such
Trust fails to enforce its rights under this Indenture as the holder of the
series of Securities held as the assets of such Textron Trust, any holder of
Trust Preferred Securities may institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under this Indenture without
first instituting any legal proceedings against such Property Trustee, or any
other person or entity.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the applicable series of Securities on the date such
interest or principal is otherwise payable (or in the case of redemption, on the
redemption date), the Company acknowledges that a holder of Trust Securities may
directly institute a proceeding for enforcement of payment to such holder of the
principal of or interest on the applicable series of Securities having a
principal amount equal to the aggregate liquidation amount of the Trust
Securities of such holder (a "Direct Action") on or after the due date specified
in the applicable series of Securities. Notwithstanding any payments made to
such holder of Trust Securities by Textron in connection with a Direct Action,
Textron shall remain obligated to pay the principal of or interest on the series
of Securities held by a Textron Trust or the Property Trustee of a Textron
Trust, and Textron shall be subrogated to the rights of the holder of such Trust
Securities to the extent of any payments made by the Company to such holder in
any Direct Action.
81
<PAGE> 90
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.
Attest: TEXTRON INC.
/s/___________________________ By: /s/_______________________________
Vice President and Treasurer
THE BANK OF NEW YORK
By: /s/_______________________________
Authorized Signatory
On the [ ] day of August 1999, before me personally came [ ], who, being
by me duly sworn, did depose and say that he is Vice President and Treasurer of
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.
By: /s/_______________________________
Notary Public
My Commission Expires:
82
<PAGE> 1
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Textron Inc. for
the registration of Common Stock, Preferred Stock, Senior Debt Securities,
Subordinated Debt Securities and Junior Subordinated Debt Securities of Textron
Inc. and Preferred Securities of Textron Capital II and III and to the
incorporation by reference therein of our report dated January 26, 1999, with
respect to the consolidated financial statements of Textron Inc. incorporated
by reference in its Annual Report (Form 10-K) for the year ended January 2,
1999 and our report dated March 8, 1999 on the related financial statement
schedules included therein, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
-----------------------------------
ERNST & YOUNG LLP
Boston, Massachusetts
August 5, 1999
<PAGE> 1
EXHIBIT 24.1
POWER OF ATTORNEY
The undersigned, Textron Inc. ("Textron"), a Delaware corporation, and the
undersigned directors and officers of Textron, do hereby constitute and appoint
Wayne W. Juchatz, Arnold M. Friedman and Michael D. Cahn, and each of them, with
full powers of substitution, their true and lawful attorneys and agents to do
or cause to be done any and all acts and things and to execute and deliver any
and all instruments and documents which said attorneys and agents, or any of
them, may deem necessary or advisable in order to enable Textron to comply with
the Securities Act of 1933, as amended, and any requirements of the Securities
and Exchange Commission in respect thereof, in connection with the registration
under the Securities Act of 1933, as amended, of the offering of up to (i) $2
billion aggregate public offering price of additional equity and/or debt
securities of Textron or a special purpose entity controlled by Textron, which
equity securities may be shares of common stock, $.125 par value of Textron
("Common Stock"), shares of preferred stock, without par value, of Textron
("Preferred Stock"), and/or shares of beneficial interest in any special purpose
entity controlled by Textron, and which debt securities may be senior,
subordinated and/or junior subordinated debt securities consisting of
debentures, notes and/or other debt obligations ("Debt Securities") and/or
convertible Debt Securities which are or may become convertible into shares of
Common Stock or Preferred Stock and (ii) preferred securities of Textron Capital
I, Textron Capital II and Textron Capital III, and the guaranty thereof by
Textron, including specifically, but without limitation, power and authority to
sign the names of the undersigned directors and officers in the capacities
indicated below and to sign the names of such officers on behalf of Textron to
the Registration Statement filed with the Securities and Exchange Commission in
respect of such offering of common stock, to any and all amendments to such
Registration Statement (including post-effective amendments), and to any
instruments or documents or other writings of which the original or copies
thereof are to be filed as a part of or in connection with such Registration
Statement or amendments thereto, and to file or cause to be filed the same with
the Securities and Exchange Commission; and each of the undersigned hereby
ratifies and confirms all that such attorneys and agents, and each of them,
shall do or cause to be done hereunder, and such attorneys and agents, and each
of them, shall have, and may exercise, all of the powers hereby conferred.
IN WITNESS WHEREOF, Textron has caused this Power of Attorney to be executed
and delivered in its name and on its behalf by the undersigned duly authorized
officer and its corporate seal affixed, and each of the undersigned has signed
his or her name hereto, on this 28th day of July, 1999.
ATTEST: TEXTRON INC.
/s/ Frederick K. Butler /s/ Lewis B. Campbell
- --------------------------- ---------------------------
Frederick K. Butler Lewis B. Campbell
Vice President - Business Chairman and
Ethics and Corporate Secretary Chief Executive Officer
<PAGE> 2
/s/ Lewis B. Campbell /s/ Brian H. Rowe
_____________________________ _____________________________
Lewis B. Campbell Brian H. Rowe
Chairman and Chief Director
Executive Officer, Director
(principal executive officer)
/s/ John A. Janitz /s/ Sam F. Segnar
_____________________________ _____________________________
John A. Janitz Sam F. Segnar
President and Chief Operating Director
Officer, Director
/s/ H. Jesse Arnelle /s/ Jean Head Sisco
_____________________________ _____________________________
H. Jesse Arnelle Jean Head Sisco
Director Director
/s/ Teresa Beck /s/ Martin D. Walker
_____________________________ _____________________________
Teresa Beck Martin D. Walker
Director Director
/s/ R. Stuart Dickson /s/ Thomas B. Wheeler
_____________________________ _____________________________
R. Stuart Dickson Thomas B. Wheeler
Director Director
/s/ Lawrence K. Fish /s/ Stephen L. Key
_____________________________ _____________________________
Lawrence K. Fish Stephen L. Key
Director Executive Vice President
and Chief Financial Officer
(principal financial officer)
/s/ Joe T. Ford
_____________________________
Joe T. Ford
Director /s/ Richard L. Yates
_____________________________
Vice President and Controller
/s/ Paul E. Gagne (principal accounting officer)
_____________________________
Paul E. Gagne
Director
/s/ John D. Macomber
_____________________________
John D. Macomber
Director
/s/ Dana G. Mead
_____________________________
Dana G. Mead
Director
<PAGE> 1
Exhibit 24.2
TEXTRON INC.
Assistant Secretary's Certificate
I, ANN T. WILLAMAN, a duly elected Assistant Secretary of TEXTRON INC., a
Delaware corporation (the "Corporation"), do hereby certify to the following:
1. That set forth below is a true and correct copy of a resolution passed at a
meeting of the Corporation's Board of Directors held on May 26, 1999 at which a
quorum was present and voted throughout, which resolution relates to a
registration statement on Form S-5 ("Registration Statement") for the
registration under the Securities Act of 1933 of up to $2,000,000,000 of
securities of the Corporation:
RESOLVED, that the Designated Officers be, and each of them hereby is,
authorized, in the name and on behalf of the Corporation, to execute and
deliver a power of attorney appointing Wayne W. Juchatz, Arnold M. Friedman
and Michael D. Cahn, or any of them, to act as attorneys-in-fact for the
Corporation for the purpose of executing and filing with the Commission, in
its name and on its behalf, any such Registration Statement and Exchange
Act Registration Statement and any and all amendments (including, without
limitation, post-effective amendments) or supplements thereto, with any
exhibits thereto and other documents in connection therewith.
2. That the foregoing resolution has been neither modified nor amended, and
remains in full force and effect as of the date hereof; and
3. That the Board of Directors has designated the Chairman, President and any
Vice President as "Designated Officers" for the purposes of the foregoing
resolution.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Corporate
seal this 4th day of August 1999.
CORPORATE SEAL
/s/ Ann T. Willaman
-----------------------------------
Assistant Secretary
<PAGE> 1
Exhibit 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
Textron Inc.
(Exact name of obligor as specified in its charter)
Delaware 05-0315468
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Westminster Street
Providence, Rhode Island 02903
(Address of principal executive offices) (Zip code)
-------------
Senior Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 3rd day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
-----------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 39,349,679
LESS: Allowance for loan and lease losses........... 603,025
LESS: Allocated transfer risk reserve............... 15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing ................................ 10,252,589
Interest-bearing ................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing ................................ 111,386
Interest-bearing ................................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S. Treasury............... 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... (34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
<PAGE> 1
Exhibit 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
Textron Inc.
(Exact name of obligor as specified in its charter)
Delaware 05-0315468
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Westminster Street
Providence, Rhode Island 02903
(Address of principal executive offices) (Zip code)
-------------
Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 3rd day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
-------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 39,349,679
LESS: Allowance for loan and lease losses........... 603,025
LESS: Allocated transfer risk reserve............... 15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing ................................ 10,252,589
Interest-bearing ................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing ................................ 111,386
Interest-bearing ................................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S. Treasury............... 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... (34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
<PAGE> 1
Exhibit 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
Textron Inc.
(Exact name of obligor as specified in its charter)
Delaware 05-0315468
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Westminster Street
Providence, Rhode Island 02903
(Address of principal executive offices) (Zip code)
-------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 3rd day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
--------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 39,349,679
LESS: Allowance for loan and lease losses........... 603,025
LESS: Allocated transfer risk reserve............... 15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing ................................ 10,252,589
Interest-bearing ................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing ................................ 111,386
Interest-bearing ................................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S. Treasury............... 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... (34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
<PAGE> 1
Exhibit 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
Textron Capital II
(Exact name of obligor as specified in its charter)
Delaware 05-6110106
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Westminster Street
Providence, Rhode Island 02903
(Address of principal executive offices) (Zip code)
-------------
Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R.229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to
Form T-1 filed with Registration Statement No. 33-6215, Exhibits
1a and 1b to Form T-1 filed with Registration Statement No.
33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 3rd day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
--------------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 39,349,679
LESS: Allowance for loan and lease losses........... 603,025
LESS: Allocated transfer risk reserve............... 15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing ................................ 10,252,589
Interest-bearing ................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing ................................ 111,386
Interest-bearing ................................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S. Treasury............... 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... (34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
<PAGE> 1
Exhibit 25.5
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S.employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
Textron Capital III
(Exact name of obligor as specified in its charter)
Delaware 05-6110107
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Westminster Street
Providence, Rhode Island 02903
(Address of principal executive offices) (Zip code)
-------------
Preferred Securities
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 3rd day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
------------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 39,349,679
LESS: Allowance for loan and lease losses........... 603,025
LESS: Allocated transfer risk reserve............... 15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing ................................ 10,252,589
Interest-bearing ................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing ................................ 111,386
Interest-bearing ................................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S. Treasury............... 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... (34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
<PAGE> 1
Exhibit 25.6
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
Textron Inc.
(Exact name of obligor as specified in its charter)
Delaware 05-0315468
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Westminster Street
Providence, Rhode Island 02903
(Address of principal executive offices) (Zip code)
-------------
Guarantee of Preferred Securities of
Textron Capital II
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 3rd day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
------------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 39,349,679
LESS: Allowance for loan and lease losses........... 603,025
LESS: Allocated transfer risk reserve............... 15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing ................................ 10,252,589
Interest-bearing ................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing ................................ 111,386
Interest-bearing ................................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S. Treasury............... 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... (34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
<PAGE> 1
Exhibit 25.7
===============================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
-------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-------------
Textron Inc.
(Exact name of obligor as specified in its charter)
Delaware 05-0315468
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
40 Westminster Street
Providence, Rhode Island 02903
(Address of principal executive offices) (Zip code)
-------------
Guarantee of Preferred Securities of
Textron Capital III
(Title of the indenture securities)
===============================================================================
<PAGE> 2
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
<S> <C>
Superintendent of Banks of the State of 2 Rector Street,New York,
New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-2-
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 3rd day of August, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
------------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
<PAGE> 4
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
In Thousands
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $ 4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned income............ 39,349,679
LESS: Allowance for loan and lease losses........... 603,025
LESS: Allocated transfer risk reserve............... 15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
-----------
Total assets........................................... $61,688,578
===========
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing ................................ 10,252,589
Interest-bearing ................................... 15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing ................................ 111,386
Interest-bearing ................................... 18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S. Treasury............... 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
-----------
Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments.... (34,817)
-----------
Total equity capital................................... 5,716,713
-----------
Total liabilities and equity capital................... $61,688,578
===========
</TABLE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
