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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM 8-K
CURRENT REPORT
filed pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): August 4, 1994
HONEYWELL INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-971 41-0415010
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(State or other jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
Honeywell Plaza, Minneapolis, Minnesota 55408
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (612) 951-1000
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N/A
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(Former name or former address, if changed since last report.)
Page 1 of 4 Pages
Exhibit Index on Page 4
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Item 5. OTHER EVENTS.
Honeywell Inc. (the "Company") has entered into a Distribution
Agreement with Goldman, Sachs & Co., Chase Securities, Inc., Dillon, Read & Co.
Inc. and J.P. Morgan Securities Inc. for the public offering of up to
$500,000,000 aggregate initial public offering price of its Medium-Term Notes,
Series A (the "Notes") to be issued pursuant to the Indenture dated as of August
1, 1994 (the "Indenture") between the Company and The Chase Manhattan Bank
(National Association), as Trustee, and the Officers' Certificate and Company
Order dated August 4, 1994, pursuant to Sections 201, 301 and 303 of the
Indenture. The Notes have be registered under the Securities Act of 1933, as
amended, by registration statement on Form S-3, File No. 33-62300.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
1.1 Form of Distribution Agreement among the Company and Goldman, Sachs &
Co., Chase Securities, Inc., Dillon, Read & Co. Inc. and J.P. Morgan
Securities Inc., as Agents.
4.1 Indenture dated as of August 1, 1994 between the Company and The Chase
Manhattan Bank (National Association), as Trustee.
4.2 Officers' Certificate and Company Order dated August 4, 1994, pursuant
to Sections 201, 301 and 303 of the Indenture (excluding exhibits
thereto).
4.3 Specimens of Notes:
(a) Global Fixed Rate Note;
(b) Global Floating Rate Note;
(c) Global Original Issue Discount Zero Coupon Note; and
(d) Global Original Issue Discount Fixed Rate Note.
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: August 4, 1994
HONEYWELL INC.
By /s/ Paul N. Saleh
--------------------------------
Paul N. Saleh
Vice President & Treasurer
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INDEX TO EXHIBITS
(c) EXHIBITS PAGE NO.
1.1 Distribution Agreement dated August 4, 1994 among the
Company and Goldman, Sachs & Co., Chase Securities, Inc.,
Dillon, Read & Co. Inc. and J.P. Morgan Securities Inc.,
as Agents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.1 Indenture dated as of August 1, 1994 between the Company
and The Chase Manhattan Bank (National Association),
as Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2 Officers' Certificate and Company Order dated
August 4, 1994 pursuant to Sections 201, 301 and
303 of the Indenture (excluding exhibits). . . . . . . . . . . . . .
4.3 Specimens of Notes:
(a) Global Fixed Rate Note. . . . . . . . . . . . . . . . . . . . .
(b) Global Floating Rate Note . . . . . . . . . . . . . . . . . . .
(c) Global Original Issue Discount Zero Coupon Note . . . . . . . .
(d) Global Original Issue Discount Fixed Rate Note. . . . . . . . .
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EXHIBIT 1.1
HONEYWELL INC.
$500,000,000
MEDIUM-TERM NOTES, SERIES A
U.S. DISTRIBUTION AGREEMENT
August 4, 1994
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Chase Securities, Inc.
One Chase Manhattan Plaza - 35
New York, NY 10005
Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
Honeywell Inc., a Delaware corporation (the "Company"), proposes to
issue and sell from time to time its Medium-Term Notes, Series A (the
"Securities"), in an aggregate initial offering price of up to $500,000,000
and agrees with each of you (individually, an "Agent", and collectively, the
"Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto,
relating to such sale in accordance with Section 2(b) hereof. This
Distribution Agreement shall not be construed to create either
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an obligation on the part of the Company to sell any Securities or an obligation
of any of the Agents to purchase Securities as principal.
The Company may accept offers to purchase Securities through an agent
other than an Agent, PROVIDED that (i) the Company and such agent shall have
executed an agreement with respect to such purchases having terms and
conditions (including, without limitation, commission rates) with respect to
such purchases that are the same as the terms and conditions that would apply
to such purchases under this Agreement if such agent were an Agent (which may
be accomplished by incorporating by reference in such agreement the terms and
conditions of this Agreement), and (ii) the Company shall notify the Agents
prior to the execution of any such agreement and shall provide the Agents with
a copy of such agreement promptly following the execution thereof.
The Securities will be issued under an indenture, dated as of August 1,
1994 (the "Indenture"), between the Company and The Chase Manhattan Bank
(National Association), as Trustee (the "Trustee"). The Securities shall have
the maturity ranges, interest rates, if any, redemption provisions and other
terms set forth in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and the terms
and rights thereof established, from time to time by the Company in accordance
with the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form S-3 (File No. 33-62300) in
respect of the Securities has been filed with the Securities and
Exchange Commission (the "Commission"); such registration statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to such Agent, excluding exhibits to such
registration statement, but including all documents incorporated by
reference in the prospectus included therein, have been declared
effective by the Commission in such form; no other document with respect
to such registration statement or document incorporated by reference
therein has heretofore been filed or transmitted for filing with the
Commission (other than the prospectuses filed pursuant to Rule 424(b) of
the rules and regulations of the Commission under the Securities Act of
1933, as amended (the "Act"), each in the form heretofore delivered to
the Agents); and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations
of the Commission under the Act are hereinafter called a "Preliminary
Prospectus"; the various parts of such registration statement, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the registration statement at the time such part
of the registration statement became effective but excluding Form T-1,
each as amended at the time such part of the registration statement
became effective, is hereinafter collectively called the "Registration
Statement"; the prospectus (including, if applicable, any prospectus
supplement) relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, is hereinafter called the
"Prospectus"; any reference herein to any
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Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus,
including any supplement to the Prospectus that sets forth only the terms
of a particular issue of the Securities (a "Pricing Supplement"), shall be
deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Registration Statement that
is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to and include the Prospectus as amended or supplemented (including
any applicable Pricing Supplement filed in accordance with Section 4(a)
hereof) in relation to Securities to be sold pursuant to this Agreement,
in the form filed or transmitted for filing with the Commission pursuant
to Rule 424(b) under the Act and in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein as of the date
of such filing).
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, (ii) each part of the Registration Statement, when such part
became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will 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,
(iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act and the applicable rules and regulations of the
Commission thereunder and (iv) the Prospectus does 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
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, except that (1) the
representations and warranties set forth in this Section 1(b) do not
apply to statements or omissions in the Registration Statement or the
Prospectus based upon information relating to an Agent furnished to the
Company in writing by such Agent expressly for use therein.
(c) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware and has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus.
(d) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 1-02(v) of Regulation S-X under the Act
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of
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its incorporation and has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus.
(e) Each of this Agreement and any applicable Terms Agreement
has been duly authorized, executed and delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and 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 (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(g) The Securities have been duly authorized and, when executed,
authenticated and issued in accordance with the provisions of the
Indenture and delivered to and paid for by the purchasers thereof, will
be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with their
respective terms except as (i) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Securities, the Indenture and any applicable Terms Agreement will not
contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Securities, the
Indenture and any applicable Terms Agreement, except such as may be
required by the Act, the Trust Indenture Act or the rules and
regulations of the Commission thereunder, all of which have been
obtained, or such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the
Securities.
(i) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material adverse
change in the capital stock or long-term debt of the Company or any of
its subsidiaries or any material adverse change, or any development
which the Company has reasonable cause to believe will involve a
prospective material
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adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus; and there has not occurred any material adverse 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.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject that are required to be described in the Registration
Statement or the Prospectus and are not so described or any material
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated
by reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(k) Immediately after any sale of Securities by the Company
hereunder or under any Terms Agreement, the aggregate amount of
Securities which shall have been issued and sold by the Company
hereunder or under any Terms Agreement and of any debt securities of the
Company (other than such Securities) that shall have been issued and
sold pursuant to the Registration Statement will not exceed the amount
of debt securities registered under the Registration Statement.
(l) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants within the meaning of the Act and the regulations
thereunder.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth,
each of the Agents hereby severally and not jointly agrees, as agent of
the Company, to use its reasonable efforts to solicit and receive offers
to purchase the Securities from the Company upon the terms and
conditions set forth in the Prospectus as amended or supplemented from
time to time. So long as this Agreement shall remain in effect with
respect to any Agent, the Company shall not, without the consent of such
Agent, solicit or accept offers to purchase, or sell, any debt
securities with a maturity at the time of original issuance of 9 months
to 30 years except pursuant to or as contemplated by this Agreement,
including, but not limited to, the third paragraph of this Agreement,
any Terms Agreement or except pursuant to an offering of commercial
paper under Section 3(a)(3) of the Act or a private placement not
constituting a public offering under the Act or except in connection
with a firm commitment underwriting pursuant to an underwriting
agreement that does not provide for a continuous offering of medium-term
debt securities. However, the Company reserves the right to sell, and
may solicit and accept offers to purchase, Securities directly on its
own behalf in transactions with persons other than broker-dealers, and,
in the case of any such sale not resulting from a solicitation made by
any Agent, no commission will be payable with respect to such sale.
These provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
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Procedural details relating to the issue and delivery of
Securities, the solicitation of offers to purchase Securities and the
payment in each case therefor shall be as set forth in the
Administrative Procedure attached hereto as Annex II as it may be
amended from time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The provisions of the
Administrative Procedure shall apply to Book-Entry Securities Procedure
only. The procedures for the issuance of Certificated Securities will
be agreed among the Company, the Agents and the Trustee prior to the
issuance of any such Certificated Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative
Procedure. The Company will furnish to the Trustee a copy of the
Administrative Procedure as from time to time in effect.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one business day in
New York City, after receipt of notice from the Company, the Agents will
suspend solicitation of offers to purchase Securities from the Company
until such time as the Company has advised the Agents that such
solicitation may be resumed. During such period, the Company shall not
be required to comply with the provisions of Sections 4(h), 4(i), 4(j)
and 4(k). Upon advising the Agents that such solicitation may be
resumed, however, the Company shall simultaneously provide the documents
required to be delivered by Sections 4(h), 4(i), 4(j) and 4(k), and the
Agents shall have no obligation to solicit offers to purchase the
Securities until such documents have been received by the Agents. In
addition, any failure by the Company to comply with its obligations
hereunder, including without limitation its obligations to deliver the
documents required by Sections 4(h), 4(i), 4(j) and 4(k), shall
automatically terminate the Agents' obligations hereunder, including
without limitation their obligations to solicit offers to purchase the
Securities hereunder as agent or to purchase Securities hereunder as
principal.
The Company agrees to pay each Agent a commission, at the time
of settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold)
------------------- -------------------
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
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From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
(b) Each sale of Securities to any Agent as principal shall be
made in accordance with the terms of this Agreement and (unless the
Company and such Agent shall otherwise agree) a Terms Agreement which
will provide for the sale of such Securities to, and the purchase
thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such Agent;
the commitment of any Agent to purchase Securities as principal, whether
pursuant to any Terms Agreement or otherwise, shall be deemed to have
been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and
conditions herein set forth; each Terms Agreement shall specify the
principal amount of Securities to be purchased by any Agent pursuant
thereto, the price to be paid to the Company for such Securities, any
provisions relating to rights of, and default by, underwriters acting
together with such Agent in the reoffering of the Securities and the
time and date and place of delivery of and payment for such Securities;
and such Terms Agreement shall also specify any requirements for
opinions of counsel, accountants' letters and officers' certificates
pursuant to Section 4 hereof. Each Agent proposes to offer Securities
purchased by it as principal for sale at prevailing market prices or
prices related thereto at the time of sale, which may be equal to,
greater than or less than the price at which such Securities are
purchased by such Agent from the Company.
For each sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the procedural details relating to
the issue and delivery of such Securities and payment therefor shall be
as set forth in the Administrative Procedure. For each such sale of
Securities to an Agent as principal that is not made pursuant to a Terms
Agreement, the Company agrees to pay such Agent a commission (or grant
an equivalent discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms
Agreement or in accordance with the Administrative Procedure, is
referred to herein as a "Time of Delivery".
3. The documents required to be delivered pursuant to Section 6 hereof
on the Commencement Date (as defined below) shall be delivered to the Agents
at the offices of Davis Polk & Wardwell, New York, New York, at 11:00 a.m.,
New York City time, on the date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents and the Company but
in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any
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Terms Agreement is executed (such time and date being referred to herein as
the "Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which
shall be disapproved by any Agent promptly after reasonable notice
thereof or (B) after the date of any Terms Agreement or other agreement
by an Agent to purchase Securities as principal and prior to the related
Time of Delivery which shall be disapproved by any Agent party to such
Terms Agreement or so purchasing as principal promptly after reasonable
notice thereof; (ii) to prepare, with respect to any Securities to be
sold through or to such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form previously approved
by such Agent and to file such Pricing Supplement pursuant to Rule
424(b)(3) under the Act not later than the close of business of the
Commission on the fifth business day after the date on which such
Pricing Supplement is first used; (iii) to make no amendment or
supplement to the Registration Statement or Prospectus, other than any
Pricing Supplement, at any time prior to having afforded each Agent a
reasonable opportunity to review and comment thereon; (iv) to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period to advise such
Agent, promptly after the Company receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or has
become effective or any supplement to the Prospectus or any amended
Prospectus (other than any Pricing Supplement that relates to Securities
not purchased through or by such Agent) has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amendment or supplement of the Registration
Statement or Prospectus or for additional information; and (v) in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as such Agent may
request and to comply with such laws so as to permit the continuance of
sales and dealings therein for as long as may be necessary to complete
the distribution or sale of the Securities; PROVIDED, HOWEVER, that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
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(c) To furnish such Agent with copies of the Registration
Statement and each amendment thereto, with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement
(except as provided in the Administrative Procedure), in the form in
which it is filed with the Commission pursuant to Rule 424 under the
Act, and with copies of the documents incorporated by reference therein,
all in such quantities as such Agent may reasonably request from time to
time; and, if the delivery of a prospectus is required at any time in
connection with the offering or sale of the Securities (including
Securities purchased from the Company by such Agent as principal) and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus
or to file under the Exchange Act any document incorporated by reference
in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify such Agent and request such Agent, in
its capacity as agent of the Company, to suspend solicitation of offers
to purchase Securities from the Company (and, if so notified, such Agent
shall cease such solicitations as soon as practicable, but in any event
not later than one business day later); and if the Company shall decide
to amend or supplement the Registration Statement or the Prospectus as
then amended or supplemented, to so advise such Agent promptly by
telephone (with confirmation in writing) and to prepare and cause to be
filed promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus as then amended or supplemented
that will correct such statement or omission or effect such compliance;
PROVIDED, HOWEVER, that if during such same period such Agent continues
to own Securities purchased from the Company by such Agent as principal
or such Agent is otherwise required to deliver a prospectus in respect
of transactions in the Securities, the Company shall promptly prepare
and file with the Commission such an amendment or supplement;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial or
other) furnished to stockholders, and deliver to such Agent (i) as soon
as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and
(ii) such additional information concerning the business and financial
condition of the Company as such Agent may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its stockholders generally or to the
Commission);
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(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the
trading restrictions for the Securities purchased thereunder, as
notified to the Company by such Agent and (ii) the related Time of
Delivery, not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company which both mature more than 9 months
after such Time of Delivery and are substantially similar to the
Securities that are the subject of such Terms Agreement, without the
prior written consent of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal
not pursuant to a Terms Agreement), and each execution and delivery by
the Company of a Terms Agreement with such Agent, shall be deemed to be
an affirmation to such Agent that the representations and warranties of
the Company contained in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such Terms Agreement, as
the case may be, as though made at and as of such date, and an
undertaking that such representations and warranties will be true and
correct as of the settlement date for the Securities relating to such
acceptance or as of the Time of Delivery relating to such sale, as the
case may be, as though made at and as of such date (except that such
representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That reasonably in advance of each time the Registration
Statement or the Prospectus shall be amended or supplemented (other than
by a Pricing Supplement), each time a document filed under the Act or
the Exchange Act is incorporated by reference into the Prospectus, and
each time the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion or opinions by Davis Polk & Wardwell, counsel to
the Agents, as a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish to such counsel such
papers and information as they may reasonably request to enable them to
furnish to such Agent the opinion or opinions referred to in Section
6(b) hereof;
(i) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time the Company
sells Securities to such Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of an opinion
under this Section 4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to
be furnished forthwith to such Agent a written opinion of Herbert
Henryson II, Esq., Vice President and Associate General Counsel of the
Company or other counsel for the Company satisfactory to such Agent,
dated the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form satisfactory
to such Agent, to the effect that such Agent may rely on the opinion of
such counsel referred to in Section 6(d) hereof which was last furnished
to such Agent to the same extent as though it were dated the date of
such letter authorizing reliance
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(except that the statements in such last opinion shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such opinion, an opinion of the
same tenor as the opinion of such counsel referred to in Section 6(d) but
modified to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date;
(j) That each time the Registration Statement or the Prospectus
shall be amended or supplemented and each time that a document filed
under the Act or the Exchange Act is incorporated by reference into the
Prospectus, in either case to set forth financial information included
in or derived from the Company's consolidated financial statements or
accounting records, and each time the Company sells Securities to such
Agent as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of a letter under this Section 4(j) as
a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall cause the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement forthwith to furnish such Agent a letter, dated
the date of such amendment, supplement, incorporation or Time of
Delivery relating to such sale, as the case may be, in form satisfactory
to such Agent, of the same tenor as the letter referred to in Section
6(e) hereof but modified to relate to the Registration Statement and the
Prospectus as amended or supplemented to the date of such letter, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of
the Company, to the extent such financial statements and other
information are available as of a date not more than five business days
prior to the date of such letter; PROVIDED, HOWEVER, that, with respect
to any financial information or other matter, such letter may reconfirm
as true and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Section
6(e) hereof which was last furnished to such Agent;
(k) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing Supplement),
each time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus and each time the Company
sells Securities to such Agent as principal and the applicable Terms
Agreement specifies the delivery of a certificate under this Section
4(k) as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished forthwith
to such Agent a certificate, dated the date of such supplement,
amendment, incorporation or Time of Delivery relating to such sale, as
the case may be, in such form and executed by such officers of the
Company as shall be satisfactory to such Agent, to the effect that the
statements contained in the certificates referred to in Section 6(j)
hereof which was last furnished to such Agent are true and correct at
such date as though made at and as of such date (except that such
statements shall be deemed to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date) or, in lieu of
such certificate, certificates of the same tenor as the certificates
referred to in said Section 6(j) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and
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(l) To offer to any person who has agreed to purchase Securities
from the Company as the result of an offer to purchase solicited by such
Agent the right to refuse to purchase and pay for such Securities if, on
the related settlement date fixed pursuant to the Administrative
Procedure, any condition set forth in Section 6(a), 6(f), 6(g) or 6(h)
hereof shall not have been satisfied (it being understood that the
judgment of such person with respect to the impracticability or
inadvisability of such purchase of Securities shall be substituted, for
purposes of this Section 4(l), for the respective judgments of an Agent
with respect to certain matters referred to in such Sections 6(f) and
6(h), and that such Agent shall have no duty or obligation whatsoever to
exercise the judgment permitted under such Sections 6(f) and 6(h) on
behalf of any such person).
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements thereto and the mailing
and delivering of copies thereof to such Agent; (ii) the reasonable fees,
disbursements and expenses of counsel for the Agents in connection with the
establishment of the program contemplated hereby, any opinions to be rendered
by such counsel hereunder and under any Terms Agreement and the transactions
contemplated hereunder and under any Terms Agreement; (iii) the cost of
printing, producing or reproducing this Agreement, any Terms Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iv) all
expenses in connection with the qualification of the Securities for offering
and sale under state securities laws as provided in Section 4(b) hereof,
including the fees and disbursements of counsel for the Company in connection
with such qualification and in connection with the Blue Sky and legal
investment surveys; (v) any fees charged by securities rating services for
rating the Securities; (vi) any filing fees incident to, and the fees and
disbursements of counsel for the Agents in connection with, any required
review by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vii) the cost of preparing the Securities; (viii)
the fees and expenses of any Trustee and any agent of any Trustee and any
transfer or paying agent of the Company and the fees and disbursements of
counsel for any Trustee or such agent in connection with any Indenture and the
Securities; (ix) any advertising expenses connected with the solicitation of
offers to purchase and the sale of Securities so long as such advertising
expenses have been approved by the Company; and (x) all other costs and
expenses incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. Except as provided
in Sections 7 and 8 hereof, each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities and the
obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an
Agent under a Terms Agreement, in or incorporated by reference in such Terms
Agreement) are true
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and correct at and as of the Commencement Date and any applicable date referred
to in Section 4(k) hereof that is prior to such Solicitation Time or Time of
Delivery, as the case may be, and at and as of such Solicitation Time or Time of
Delivery, as the case may be, the condition that prior to such Solicitation Time
or Time of Delivery, as the case may be, the Company shall have performed all of
its obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the
Prospectus as amended or supplemented (including the Pricing Supplement)
with respect to such Securities shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof; (ii) no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of such Agent;
(b) Davis Polk & Wardwell, counsel to the Agents, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the matters covered in paragraphs
(iii), (iv), (v), (vii) (but only as to the statements in the
Prospectus, as then amended or supplemented, under the captions
"Description of Debt Securities", "Description of Notes", "Plan of
Distribution" and "Supplemental Plan of Distribution"), (ix)(2) and
(x)(1) (but only as of the date of this Agreement) and (2) of subsection
(d) below, as well as such other related matters as such Agent may
reasonably request, and (ii) if and to the extent requested by such
Agent, with respect to each applicable date referred to in Section 4(h)
hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, an opinion or opinions, dated such
applicable date, to the effect that such Agent may rely on the opinion
or opinions which were last furnished to such Agent pursuant to this
Section 6(b) to the same extent as though it or they were dated the date
of such letter authorizing reliance (except that the statements in such
last opinion or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date)
or, in any case, in lieu of such an opinion or opinions, an opinion or
opinions of the same tenor as the opinion or opinions referred to in
clause (i) but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; and in each case
such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(c) Dorsey & Whitney, counsel to the Company, shall have
furnished to such Agent (i) such opinion or opinions, dated the
Commencement Date, with respect to the matters covered in paragraphs
(iii), (iv), (v) and (vii) (but only as to the statements on the
Prospectus, as then amended or supplemented, under the captions
"Description of Debt Securities", "Description of Notes", "Plan of
Distribution" and "Supplemental Plan of Distribution") of subsection (d)
below, as well as such other related matters as such Agent may
reasonably request;
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(d) Herbert Henryson II, Esq., Vice President and Associate
General Counsel of the Company, shall have furnished to such Agent his
written opinion, dated the Commencement Date and each applicable date
referred to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware and has the corporate power and corporate
authority to own its property and conduct its business as
described in the Prospectus as amended or supplemented;
(ii) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 1-02(v) of Regulation S-X under the
Act has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation and has the corporate power and corporate
authority to own its property and to conduct its business as
described in the Prospectus, as amended or supplemented;
(iii) Each of this Agreement and any applicable Terms
Agreement has been duly authorized, executed and delivered by the
Company;
(iv) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered
by the Company and (assuming the Indenture has been duly
authorized, executed and delivered by the Trustee) is a valid and
binding agreement of the Company, enforceable in accordance with
its terms except to the extent that enforcement thereof may be
limited by (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting creditors' rights generally and
(b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity);
(v) The Securities have been duly authorized and, if duly
executed, authenticated, issued and delivered by the Company and
paid for by the purchasers thereof on the date of delivery of such
opinion, would be entitled to the benefits of the Indenture and
would be valid and binding obligations of the Company, in each
case enforceable in accordance with their respective terms except
to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (b)
general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity);
(vi) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement, any applicable Terms Agreement, the Indenture and the
Securities will not contravene any provision of any applicable
laws of the United States or the States of New York or Minnesota
or the certificate of incorporation or by-laws of the Company or,
to
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the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a
whole, or, to the best of such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, any applicable
Terms Agreement, the Indenture or the Securities, except such as
may be required by the Act, the Trust Indenture Act or the rules
and regulations of the Commission thereunder, all of which have
been obtained or such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and
sale of the Securities;
(vii) The statements (1) in the Prospectus, as then amended
or supplemented, under the captions "Description of Debt
Securities", "Description of Notes", "Plan of Distribution",
"Supplemental Plan of Distribution" and "United States Taxation",
(2) in "Item 3 - Legal Proceedings" of the Company's most recent
annual report on Form 10-K incorporated by reference in the
Prospectus and (3) in "Item 1 - Legal Proceedings" of Part II of
the Company's quarterly reports on Form 10-Q, if any, filed since
such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(viii) After due inquiry, such counsel does not know of any
legal or governmental proceedings pending or threatened to which
the Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement or the Prospectus, as amended or supplemented, and are
not so described or of any material contracts or other documents
that are required to be described in the Registration Statement or
the Prospectus, as amended or supplemented, or to be filed as
exhibits to the Registration Statement and are not described or
filed as required;
(ix) (1) each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus, as
amended or supplemented (except for financial statements, related
schedules and other financial data included therein, as to which
such counsel need not express any opinion), complied when so filed
as to form in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, and
(2) the Registration Statement, as of its effective date, and the
Prospectus, as amended or supplemented, as of its date, (except
for financial statements, related schedules and other financial
data included therein, as to which such counsel need not express
any opinion), complied as to form in all material respects with
the Act and the applicable rules and regulations of the Commission
thereunder;
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(x) Nothing has come to such counsel's attention that causes
such counsel to believe that (other than the financial statements,
related schedules and other financial data included therein, as to
which such counsel need make no statement) (1) the Registration
Statement and Prospectus, at the time the Registration Statement
became effective, or if an amendment to the Registration Statement
or to any document incorporated by reference therein has been
filed by the Company with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time of
the most recent such filing, and at the date of this Agreement,
contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or (2) that the Prospectus, as amended or supplemented
at the date of delivery of such opinion, contains an untrue
statement of a material fact or omits 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;
(e) Not later than 11:00 a.m., New York City time, on the
Commencement Date and on each applicable date referred to in Section
4(j) hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified public
accountants who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as the case may be,
in form and substance satisfactory to such Agent, to the effect set
forth in Annex III hereto;
(f) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented prior
to the date of the Pricing Supplement relating to the Securities to be
delivered at the relevant Time of Delivery and (ii) since the respective
dates as of which information is given in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery there shall
not have been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any change, or any development
reasonably expected to involve a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery, the effect
of which, in any such case described in Clause (i) or (ii), is in the
judgment of such Agent so material and adverse as to make it
impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the purchase
by such
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Agent of Securities from the Company as principal, as the case may be, on
the terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery;
(g) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act,
and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's securities
on the New York Stock Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, if the effect of any such event specified in
the Clause (iv) in the judgment of such Agent makes it impracticable or
inadvisable to proceed with the solicitation of offers to purchase
Securities or the purchase of the Securities from the Company as
principal pursuant to the applicable Terms Agreement or otherwise, as
the case may be, on the terms and in the manner contemplated in the
Prospectus;
(i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or
any Security the principal or interest of which is indexed to such
currency, currencies or composite currency, there shall not have
occurred a suspension or material limitation in foreign exchange trading
in such currency, currencies or composite currency by a major
international bank, a general moratorium on commercial banking
activities in the country or countries issuing such currency, currencies
or composite currency, the outbreak or escalation of hostilities
involving, the occurrence of any material adverse change in the existing
financial, political or economic conditions of, or the declaration of
war or a national emergency by, the country or countries issuing such
currency, currencies or composite currency or the imposition or proposal
of exchange controls by any governmental authority in the country or
countries issuing such currency, currencies or composite currency; and
(j) The Company shall have furnished or caused to be furnished
to such Agent certificates of officers of the Company dated the
Commencement Date and each applicable date referred to in Section 4(k)
hereof that is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed by such officers
of the Company as shall be satisfactory to such Agent, as to the
accuracy of the representations and warranties of the Company herein at
and as of the Commencement Date or such applicable date, as the case may
be, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to
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the matters set forth in subsections (a) and (f) of this Section 6, and as
to such other matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold harmless each Agent
against any losses, claims, damages or liabilities, joint or several, to
which such Agent may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse such Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus, the Prospectus
as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such
Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of
a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or supplemented or
any other prospectus relating to the Securities, or any such amendment
or supplement, in reliance upon and in conformity with written
information furnished to the Company by such Agent expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In
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case any such action shall be brought against any indemnified party and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such subsection for
any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of
any judgment with respect to, any pending or threatened action or claim in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and each Agent on the other from the offering of the
Securities to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if
the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company on the one hand and each Agent on the
other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent
on the other shall be deemed to be in the same proportion as the total
net proceeds from the sale of Securities (before deducting expenses)
received by the Company bear to the total commissions or discounts
received by such Agent in respect thereof. The relative fault 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 required to be stated therein or
necessary in order to make the statements therein not misleading relates
to information supplied by the Company on the one hand or by any Agent
on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and each Agent agree that it would not be just
and equitable if contribution pursuant to this subsection (d) were
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determined by PER CAPITA allocation (even if all Agents were treated as
one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above
in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this subsection (d), an Agent shall not be required to contribute any
amount in excess of the amount by which the total public offering price
at which the Securities purchased by or through it were sold exceeds the
amount of any damages which such Agent has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of each of the Agents under this
subsection (d) to contribute are several in proportion to the respective
purchases made by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are not joint.
(e) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be in addition to
any liability which such Agent may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company within the
meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer to purchase Securities
from the Company was solicited by such Agent and has been accepted by the
Company, but such Agent shall not have any liability to the Company in the
event such purchase is not consummated for any reason. If the Company shall
default on its obligation to deliver Securities to a purchaser whose offer it
has accepted, the Company shall (i) hold each Agent harmless against any loss,
claim or damage arising from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
9. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Agent or any controlling person of any Agent, or
the Company, or any officer or director or any controlling person of the
Company, and shall survive each delivery of and payment for any of the
Securities.
20
<PAGE>
10. The provisions of this Agreement relating to the solicitation of
offers to purchase Securities from the Company may be suspended or terminated
at any time by the Company as to any Agent or by any Agent as to such Agent
upon the giving of written notice of such suspension or termination to such
Agent or the Company, as the case may be. In the event of such suspension or
termination with respect to any Agent, (x) this Agreement shall remain in full
force and effect with respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall remain in full force
and effect with respect to the rights and obligations of any party which have
previously accrued or which relate to Securities which are already issued,
agreed to be issued or the subject of a pending offer at the time of such
suspension or termination and (z) in any event, this Agreement shall remain in
full force and effect insofar as the fourth paragraph of Section 2(a), and
Sections 4(d), 4(e), 5, 7, 8 and 9 hereof are concerned.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all hereunder shall be in writing, or by telephone
if promptly confirmed in writing, if to Goldman, Sachs & Co. shall be
sufficient in all respects when delivered or sent by facsimile transmission or
registered mail to 85 Broad Street, New York, New York 10004, Facsimile
Transmission No. (212) 363-7609, Attention: Credit Department; if to Chase
Securities, Inc. shall be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to One Chase Manhattan Plaza - 35,
New York, New York 10005, Facsimile Transmission No. (212) 552-1594,
Attention: Peter Todd; if to Dillon, Read & Co. Inc. shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered
mail to 535 Madison Avenue, New York, New York 10022, Facsimile Transmission
No. (212) 750-3343, Attention: Corporate Finance Department; and if to J.P.
Morgan Securities Inc. shall be sufficient in all respects when delivered or
sent by facsimile transmission or registered mail to 60 Wall Street, 3rd
Floor, New York, New York 10260, Facsimile Transmission No. (212) 648-5907,
Attention: Medium Term Note Desk; and if to the Company shall be sufficient in
all respects when delivered or sent by facsimile transmission or registered
mail to Honeywell Inc., Honeywell Plaza, Minneapolis, Minnesota 55408,
Facsimile Transmission No. (612) 951-2096, Attention: Treasurer.
12. This Agreement and any Terms Agreement shall be binding upon, and
inure solely to the benefit of, each Agent and the Company, and to the extent
provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement or
any Terms Agreement. No purchaser of any of the Securities through or from
any Agent hereunder shall be deemed a successor or assign by reason merely of
such purchase.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when
the Commission's office in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each
of which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
21
<PAGE>
If the foregoing is in accordance with your understanding, please sign
and return to us seven counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a binding agreement between
the Company and each of you in accordance with its terms.
Very truly yours,
HONEYWELL INC.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
. . . . . . . . . . . . . . . . . .
(Goldman, Sachs & Co.)
Chase Securities, Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
Dillon, Read & Co. Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
J.P. Morgan Securities Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
22
<PAGE>
ANNEX I
HONEYWELL INC.
MEDIUM-TERM SECURITIES,
SERIES A
TERMS AGREEMENT
. . . . . . . . . ., 1994
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Chase Securities, Inc.
One Chase Manhattan Plaza - 35
New York, NY 10005
Dillon, Reed & Co. Inc.
535 Madison Avenue
New York, New York 10022
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
Ladies and Gentlemen:
Honeywell Inc. (the "Company") proposes, subject to the terms and
conditions stated herein and in the U.S. Distribution Agreement, dated
......................., 1994 (the "Distribution Agreement"), between the
Company on the one hand and Goldman, Sachs & Co., Chase Securities, Inc.,
Dillon, Read & Co. Inc. and J.P. Morgan Securities Inc. (the "Agents") on the
other, to issue and sell to [INSERT NAME(S) OF RELEVANT AGENT(S)] the
securities specified in the Schedule hereto (the "Purchased Securities").
Each of the provisions of the Distribution Agreement not specifically related
to the solicitation by the Agents, as agents of the Company, of offers to
purchase Securities is incorporated herein by reference in its entirety, and
shall be deemed to be part of this Terms Agreement to the same extent as if
1
<PAGE>
such provisions had been set forth in full herein. Nothing contained herein
or in the Distribution Agreement shall make any party hereto an agent of the
Company or make such party subject to the provisions therein relating to the
solicitation of offers to purchase Securities from the Company, solely by
virtue of its execution of this Terms Agreement. Each of the representations
and warranties set forth therein shall be deemed to have been made at and as
of the date of this Terms Agreement, except that each representation and
warranty in Section 1 of the Distribution Agreement which makes reference to
the Prospectus shall be deemed to be a representation and warranty as of the
date of the Distribution Agreement in relation to the Prospectus (as therein
defined), and also a representation and warranty as of the date of this Terms
Agreement in relation to the Prospectus as amended and supplemented to relate
to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to [INSERT NAME(S) OF RELEVANT AGENT(S)] and [INSERT NAME(S) OF
RELEVANT AGENT(S)] to purchase from the Company the Purchased Securities, at
the time and place, in the principal amount and at the purchase price set
forth in the Schedule hereto.
2
<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return to us seven counterparts hereof, and upon acceptance hereof by
you, this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
Honeywell Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
Accepted:
. . . . . . . . . . . . . . . . . .
(Goldman, Sachs & Co.)
Chase Securities, Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
Dillon, Read & Co. Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
J.P. Morgan Securities Inc.
By:. . . . . . . . . . . . . . . . .
Name:
Title:
3
<PAGE>
SCHEDULE TO ANNEX I
TITLE OF PURCHASED SECURITIES:
Medium-Term Securities, Series A
AGGREGATE PRINCIPAL AMOUNT:
$500,000,000 or units of other Specified Currency
PRICE TO PUBLIC:
PURCHASE PRICE BY [INSERT NAME(S) OF RELEVANT AGENT(S)]
% of the principal amount of the Purchased Securities[, PLUS ACCRUED
INTEREST FROM ............... TO ...............] [AND ACCRUED AMORTIZATION,
IF ANY, FROM ................. TO ................]
METHOD OF AND SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
[BY CERTIFIED OR OFFICIAL BANK CHECK OR CHECKS, PAYABLE TO THE ORDER OF
THE COMPANY, IN [[NEW YORK] CLEARING HOUSE] [IMMEDIATELY AVAILABLE] FUNDS]
[BY WIRE TRANSFER TO A BANK ACCOUNT SPECIFIED BY THE COMPANY IN [NEXT
DAY] [IMMEDIATELY AVAILABLE] FUNDS]
INDENTURE:
Indenture, dated as of ....................., 1994, between the Company
and The Chase Manhattan Bank (National Association), as Trustee
TIME OF DELIVERY:
CLOSING LOCATION FOR DELIVERY OF SECURITIES:
MATURITY:
INTEREST RATE:
[ %]
INTEREST PAYMENT DATES:
[MONTHS AND DATES]
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<PAGE>
DOCUMENTS TO BE DELIVERED:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
[(1) THE OPINION OR OPINIONS OF COUNSEL TO THE AGENTS REFERRED TO IN
SECTION 4(H).]
[(2) THE OPINION OF COUNSEL TO THE COMPANY REFERRED TO IN
SECTION 4(I).]
[(3) THE ACCOUNTANTS' LETTER REFERRED TO IN SECTION 4(J).]
[(4) THE OFFICERS' CERTIFICATE REFERRED TO IN SECTION 4(K).]
OTHER PROVISIONS (INCLUDING SYNDICATE PROVISIONS, IF APPLICABLE):
I-2
<PAGE>
ANNEX II
HONEYWELL INC.
U.S. ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in
the U.S. Distribution Agreement, dated August 4, 1994 (the "Distribution
Agreement"), between Honeywell Inc. (the "Company") and Goldman, Sachs &
Co.,Chase Securities, Inc., Dillon, Read & Co. Inc. and J.P. Morgan Securities
Inc. (together, the "Agents"), to which this Administrative Procedure is
attached as Annex II. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement, the
Prospectus as amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of
sales of Securities directly by the Company to purchasers solicited by an
Agent, as agent, are set forth below. The terms and settlement details
related to a purchase of Securities by an Agent, as principal, from the
Company will be set forth in a Terms Agreement pursuant to the Distribution
Agreement, unless the Company and such Agent otherwise agree as provided in
Section 2(b) of the Distribution Agreement, in which case the procedures to be
followed in respect of the settlement of such sale will be as set forth below.
An Agent, in relation to a purchase of a Security by a purchaser solicited by
such Agent, is referred to herein as the "Selling Agent" and, in relation to a
purchase of a Security by such Agent as principal other than pursuant to a
Terms Agreement, as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons
with whom such Agent is to communicate regarding offers to purchase Securities
and the related settlement details.
Each Security will be issued only in fully registered form and
will be represented by either a global security (a "Global Security")
delivered to the Trustee, as agent for The Depository Trust Company (the
"Depositary") and recorded in the book-entry system maintained by the
Depositary (a "Book-Entry Security") or a certificate issued in definitive
form (a "Certificated Security") delivered to a person designated by an Agent,
as set forth in the applicable Pricing Supplement. An owner of a Book-Entry
Security will not be entitled to receive a certificate representing such a
Security, except as provided in the Indenture.
Book-Entry Securities Procedure are set forth below. The
procedures for the issuance of Certificated Securities will be agreed among
the Company, the Agents and the Trustee prior to the issuance of any such
Certificated Notes.
ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities
for eligibility in the book-entry system maintained by the Depositary, the
Trustee will perform the custodial, document control and administrative
functions described below, in accordance with its respective obligations under
a Letter of Representation from the Company and the Trustee to the Depositary,
dated the date hereof, and a Medium-Term Note Certificate Agreement between
the Trustee and the Depositary, dated as of March 10, 1989, (the "Certificate
Agreement"), and its obligations as a participant in the Depositary, including
the Depositary's Same-Day Funds Settlement System ("SDFS").
II-1
<PAGE>
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the
rates of interest per annum to be borne by and the maturity of Book-Entry
Securities that may be sold as a result of the solicitation of offers by an
Agent. The Company may establish a fixed set of interest rates and maturities
for an offering period ("posting"). If the Company decides to change already
posted rates, it will promptly advise the Agents to suspend solicitation of
offers until the new posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part.
Each Agent also may make offers to the Company to purchase Book-Entry
Securities as a Purchasing Agent. The Company will have the sole right to
accept offers to purchase Book-Entry Securities and may reject any such offer
in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing
Agent, as the case may be, of its acceptance or rejection of an offer to
purchase Book-Entry Securities. If the Company accepts an offer to purchase
Book-Entry Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Interest:
Interest on Book-Entry Securities will accrue and will be paid at
the times and in the manner consistent with the descriptions thereof in the
Company's Prospectus Supplement dated August 4, 1994 to the Prospectus dated
August 4, 1994 (the "Prospectus") and the applicable Pricing Supplement
thereto.
Exchanges:
The Trustee, at the Company's request, may deliver to DTC and the
CUSIP Service Bureau at any time a written notice of consolidation specifying
(a) the CUSIP numbers of two or more Global Securities outstanding on such
date that represent (i) Fixed-Rate Book-Entry Notes having the same terms
(other than Settlement Dates) or (ii) Floating Rate Book-Entry Securities
having the same terms (other than Settlement Dates); (b) a date, at least 30
days after such written notice is delivered and at least 30 days before the
next Interest Payment Date for the related Book-Entry Notes, on which such
Global Security shall be exchanged for a single replacement Global Security;
and (c) a new CUSIP number to be assigned to such replacement Global Security.
Upon receipt of such a notice, DTC will send to its participants (including
the Trustee) a written reorganization notice to the effect that such exchange
will occur on such date. Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau written notice setting forth such
exchange date and the new CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the Global Securities to be exchanged will no
longer be valid. On the specified exchange date, the Trustee will exchange
such Global Securities and the old CUSIP numbers for a single Global Security
bearing the new CUSIP number. The CUSIP numbers of the exchanged Global
Securities will, in accordance with CUSIP Service Bureau procedures be
canceled and not immediately reassigned. Notwithstanding the foregoing, if
the Global Securities to be exchanged exceed $150,000,000 in aggregate
principal amount, one replacement Security will be authenticated and issued to
represent each $150,000,000 of principal amount of the exchanged Global
Securities and an additional Global Note will be authenticated and issued to
represent any remaining principal amount of such Global Securities.
II-2
<PAGE>
Manner of Payment:
The total amount of principal, premium, if any, and interest due
on a Global Security on any Interest Payment Date or at maturity or upon
redemption or repayment shall be paid by the Company to the Trustee in funds
available for use by the Trustee on such date. The Company will make payment
on such Global Security by depositing funds sufficient to make such payment
with the Trustee. The Company will confirm such instructions in writing to
the Trustee. For payments of principal and any premium at maturity or upon
redemption or repayment prior to 10 a.m. (New York City time) on such date or
as soon as possible thereafter, the Trustee will pay the Depositary by
separate wire transfer (using Fedwire message entry instructions in a form
previously specified by the Depositary) to an account at the Federal Reserve
Bank of New York previously specified by the Depositary, in funds available
for immediate use by the Depositary, each payment of interest, premium, if
any, or principal (together with interest thereon) due on a Global Security on
such date. For payments of interest, the Trustee will pay the Depositary such
payments in same-day funds on each Interest Payment Date in accordance with
existing arrangements between the Trustee and the Depository. Thereafter for
all payments on such date, the Depositary will pay, in accordance with SDFS
operating procedures then in effect, such amounts in funds available for
immediate use to the respective participants with payments in amounts
proportionate to their respective holdings in principal amount of beneficial
interest in such Global Security as are recorded in the book-entry system
maintained by the Depositary. Neither the Company nor the Trustee shall have
any direct responsibility or liability for the payment by the Depositary of
any principal, premium or interest on Book-Entry Securities to such
participants.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling
Agent or Purchasing Agent, as the case may be, will communicate promptly, but
in no event later than the time set forth under "Settlement Procedure
Timetable" below, the following details of the terms of such offer (the "Sale
Information") to the Company by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date (Original Issue Date);
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency (it being understood that currently the
Depositary accepts deposits of Global Securities denominated
in U.S. dollars only);
(7) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount,
as the case may be;
II-3
<PAGE>
(10) Net Proceeds to the Company;
(11) If a redeemable Book-Entry Security, such of the following
as are applicable:
(i) Redemption Commencement Date or Repayment Date;
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of the
Redemption Commencement Date;
(12) If a Floating Rate Book-Entry Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent; and
(13) Name, address and taxpayer identification number of the
registered owner(s);
(14) Denomination of certificates to be delivered at settlement;
(15) Book-Entry Security or Certificated Security; and
(16) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent
or Purchasing Agent, as the case may be, the Company will communicate such
Sale Information to the Trustee by facsimile transmission or other acceptable
written means. The Trustee will assign a CUSIP number to the Global Security
from a list of CUSIP numbers previously delivered to the Trustee by the
Company representing such Book-Entry Security and then advise the Company and
the Selling Agent or Purchasing Agent, as the case may be, of such CUSIP
number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such
information to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such time);
(4) Number of the participant account maintained by the
Depositary on behalf of the Selling Agent or Purchasing
Agent, as the case may be;
(5) The interest payment period; and
II-4
<PAGE>
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the related
record date for the Depositary's purposes (which in the case
of Floating Rate Securities which reset daily or weekly
shall be the date five calendar days immediately preceding
the applicable Interest Payment Date and in the case of all
other Book-Entry Securities shall be the Regular Record
Date, as defined in the Security) and, if calculable at that
time, the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global
Security previously delivered by the Company representing such Book-Entry
Security.
E. The Depositary will credit such Book-Entry Security to the
Trustee's participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i)
debit such Book-Entry Security to the Trustee's participant account and credit
such Book-Entry Security to such Agent's participant account and (ii) debit
such Agent's settlement account and credit the Trustee's settlement account
for an amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to the Depositary that (a) the
Global Security representing such Book-Entry Security has been issued and
authenticated and (b) the Trustee is holding such Global Security pursuant to
the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary (i) to
debit such Book-Entry Security to such Agent's participant account and credit
such Book-Entry Security to the participant accounts of the Participants with
respect to such Book-Entry Security and (ii) to debit the settlement accounts
of such Participants and credit the settlement account of such Agent for an
amount equal to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders
described in Settlement Procedures "F" and "G" will be settled in accordance
with SDFS operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will
transfer to the account of the Company maintained at the Chase Manhattan Bank
(National Association), New York, New York, or such other account as the
Company may have previously specified to the Trustee, in funds available for
immediate use in the amount transferred to the Trustee in accordance with
Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a
statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry
Security to the purchaser either by transmitting to the participants with
respect to such Book-Entry Security a confirmation order or orders through the
Depositary's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. The Depositary will, at any time, upon request of the
Company or the Trustee, promptly furnish to the Company or the Trustee a list
of the names and addresses of the participants for whom the Depositary has
credited Book-Entry Securities.
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Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security,
it will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing
Agent, as the case may be, at least ten copies of such Pricing Supplement, not
later than 5:00 p.m., New York City time, on the Business Day following the
Trade Date (as defined below), or if the Company and the purchaser agree to
settlement on the Business Day following the date of acceptance of such offer,
not later than noon, New York City time, on such date. The Company will
arrange to have ten Pricing Supplements filed with the Commission not later
than the close of business of the Commission on the fifth Business Day
following the date on which such Pricing Supplement is first used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser
or its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in
payment for a Book-Entry Security and the authentication and issuance of the
Global Security representing such Book-Entry Security shall constitute
"settlement" with respect to such Book-Entry Security. All orders of
Book-Entry Securities solicited by a Selling Agent or made by a Purchasing
Agent and accepted by the Company on a particular date (the "Trade Date") will
be settled on a date (the "Settlement Date") which is the fifth Business Day
after the Trade Date pursuant to the "Settlement Procedure Timetable" set
forth below, unless the Company and the purchaser agree to settlement on
another Business Day which shall be no earlier than the next Business Day
after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent
and accepted by the Company for settlement on the fifth Business Day after the
Trade Date, Settlement Procedures "A" through "I" set forth above shall be
completed as soon as possible but not later than the respective times (New
York City time) set forth below:
Settlement
Procedure Time
- - ---------- ----
A 5:00 p.m. on the Business Day following the Trade
Date or 10:00 a.m. on the Business Day prior to
the Settlement Date, whichever is earlier
B 12:00 noon on the second Business Day immediately
preceding the Settlement Date
C 2:00 p.m. on the second Business Day immediately
preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
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E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
If the initial interest rate for a Floating Rate Book-Entry
Security has not been determined at the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C" shall be completed as soon as
such rate has been determined but no later than 2:00 p.m. on the second
Business Day immediately preceding the Settlement Date. Settlement Procedure
"H" is subject to extension in accordance with any extension of Fedwire
closing deadlines and in the other events specified in the SDFS operating
procedures in effect on the Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled,
the Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect
to a Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal
System, as soon as practicable a withdrawal message instructing the Depositary
to debit such Book-Entry Security to the Trustee's participant account,
provided that the Trustee's participant account contains a principal amount of
the Global Security representing such Book-Entry Security that is at least
equal to the principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Securities represented by a
Global Security, the Trustee will mark such Global Security "canceled", make
appropriate entries in the Trustee's records and send such canceled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is processed with respect to
one or more, but not all, of the Book-Entry Securities represented by a Global
Security, the Trustee will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry Security or
Securities and shall be canceled immediately after issuance and the other of
which shall represent the remaining Book-Entry Securities previously
represented by the surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely
paid to the participants with respect to such Book-Entry Security by the
beneficial purchaser thereof (or a person, including an indirect participant
in the Depositary, acting on behalf of such purchaser), such participants and,
in turn, the Agent for such Book-Entry Security may enter deliver orders
through the Depositary's Participant Terminal System debiting such Book-Entry
Security to such participant's account and crediting such Book-Entry Security
to such Agent's account and then debiting such Book-Entry Security to such
Agent's participant account and crediting such Book-Entry Security to the
Trustee's participant account and shall notify the Company and the Trustee
thereof. Thereafter, the Trustee will (i) immediately notify the Company of
such order and the Company shall transfer to such Agent funds available for
immediate use in an amount equal to the price of such Book-Entry Security
which was credited to the account of the Company maintained at the Trustee in
accordance with Settlement Procedure I, and (ii) deliver the withdrawal
message and take the related actions described in the preceding paragraph. If
such failure shall have occurred for any reason other than default by the
applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent on an equitable
basis for the loss of its use of funds during the period when the funds were
credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Security, the Depositary may take any actions in
accordance with its SDFS operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but not all, of the
Book-Entry Securities to have been represented by a Global Security, the
Trustee will provide, in accordance with Settlement Procedure "D", for the
authentication and issuance of a Global Security representing the other
Book-Entry Securities to have been represented by such Global Security and
will make appropriate entries in its records. The Company will, from time to
time, furnish the Trustee with a sufficient quantity of Securities.
II-7
<PAGE>
ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and
the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the Act
or the Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been [separately] furnished to the Agents [AND ARE ATTACHED HERETO];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included in the
Prospectus and/or included in the Company's quarterly report on Form 10-
Q incorporated by reference into the Prospectus as indicated in their
reports thereon copies of which [HAVE BEEN SEPARATELY FURNISHED TO THE
AGENTS] [ARE ATTACHED HERETO]; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility
for financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and regulations;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the date of
the latest audited financial statements included or incorporated by
reference in the
III-1
<PAGE>
Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus and/or included or
incorporated by reference in the Company's Quarterly Reports on
Form 10-Q incorporated by reference in the Prospectus do not comply
as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the related published rules
and regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash
flows included in the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by reference in the
Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus do not agree with the
corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any
such unaudited data and items were not determined on a basis
substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included
or incorporated by reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited
condensed financial statements referred to in clause (A) and any
unaudited income statement data and balance sheet items included in
the Prospectus and referred to in Clause (B) were not determined on
a basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included or incorporated by reference in the
Prospectus) or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in consolidated
net current assets or stockholders' equity or other items specified
by the Agents, or any increases in any items specified by the
III-2
<PAGE>
Agents, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the
Prospectus, except in each case for changes, increases or decreases
which the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus
to the specified date referred to in Clause (E) there were any
decreases in consolidated net revenues or operating profit or the
total or per share amounts of consolidated net income or other
items specified by the Agents, or any increases in any items
specified by the Agents, in each case as compared with the
comparable period of the preceding year and with any other period
of corresponding length specified by the Agents, except in each
case for increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(v) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Agents
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the Agents or in
documents incorporated by reference in the Prospectus specified by the
Agents, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be deemed
to refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Distribution Agreement as of the Commencement Date
referred to in Section 6(e) thereof and to the Prospectus as amended or
supplemented (including the documents incorporated by reference therein) as of
the date of the amendment, supplement, incorporation or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
III-3
<PAGE>
- - -------------------------------------------------------------------------------
HONEYWELL INC.
TO
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
TRUSTEE
---------------------
INDENTURE
DATED AS OF AUGUST 1, 1994
---------------------
- - -------------------------------------------------------------------------------
<PAGE>
HONEYWELL INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of August 1, 1994
Trust Indenture
Act Section Indenture Section
- - --------------- -----------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . 608, 610
Section 311 . . . . . . . . . . . . . . . . . . 613
Section 312(a) . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . 702(c)
Section 313 . . . . . . . . . . . . . . . . . 703
Section 314(a) . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . 102
Section 315(a) . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . 514
Section 316(a) . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1) . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . 1003
Section 318(a) . . . . . . . . . . . . . . . . . . 107
- - -------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Attributable Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets. . . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Funded Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . 5
Lien or Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security. . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
i
<PAGE>
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . . . . 7
Principal Property. . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 8
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . 8
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 8
Sale and Leaseback Transaction. . . . . . . . . . . . . . . . . . . . 8
Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Security Register and Security Registrar. . . . . . . . . . . . . . . 8
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . 8
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act or TIA. . . . . . . . . . . . . . . . . . . . . . 9
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . 9
Vice President. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Voting Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . 10
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . . . . . . . 12
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . 12
SECTION 107. Compliance with Trust Indenture Act. . . . . . . . . . . . . 13
SECTION 108. Effect of Headings and Table of Contents . . . . . . . . . . 13
SECTION 109. Successors and Assigns . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Face of Security . . . . . . . . . . . . . . . . . . 15
SECTION 203. Form of Reverse of Security. . . . . . . . . . . . . . . . . 18
SECTION 204. Form of Trustee's Certificate of Authentication. . . . . . . 22
SECTION 205. Form of Legend for Global Securities . . . . . . . . . . . . 22
ii
<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . 23
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . 26
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . 29
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . 31
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . 32
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . 33
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . 34
SECTION 311. Payment to be in Proper Currency . . . . . . . . . . . . . . 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . 35
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . 36
SECTION 403. Defeasance and Discharge of Indenture. . . . . . . . . . . . 36
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . 40
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . 41
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . 42
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . . . . . . . . . . 43
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . 44
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . 44
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest. . . . . . . . . . 45
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . 45
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . 45
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 46
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . 46
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . 46
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . 47
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . 47
iii
<PAGE>
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities. . . . . . . . . . . . . 48
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 48
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . 49
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . 50
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . . 50
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . 51
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . 51
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . . . . 52
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . 52
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . 52
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . 54
SECTION 612. Merger, Conversion, Consolidation or Succession to Business. 55
SECTION 613. Preferential Collection of Claims Against Company. . . . . . 56
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . . . . 56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . . 58
SECTION 702. Preservation of Information; Communications to Holders . . . 58
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . 59
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . 60
SECTION 802. Successor Substituted. . . . . . . . . . . . . . . . . . . . 61
iv
<PAGE>
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . 61
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . 63
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . 64
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . 64
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . 65
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . 65
SECTION 907. Notice of Supplemental Indentures. . . . . . . . . . . . . . 65
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . . . 65
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . 66
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . 66
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . 68
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . 68
SECTION 1007. Restriction on Secured Debt . . . . . . . . . . . . . . . . 68
SECTION 1008. Restriction on Sale and Leaseback Transactions. . . . . . . 71
SECTION 1009. Defeasance of Certain Obligations . . . . . . . . . . . . . 72
SECTION 1010. Waiver of Certain Covenants . . . . . . . . . . . . . . . . 73
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . 74
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . 74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . 75
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . 75
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . 76
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . 76
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . 77
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . 77
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . 78
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . 78
v
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INDENTURE, dated as of August 1, 1994 between Honeywell Inc., a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Company"), having its principal office at Honeywell Plaza,
Minneapolis, Minnesota 55408, and The Chase Manhattan Bank (National
Association), 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 in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except 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) any gender used in this Indenture shall be deemed and
construed to include correlative words of the masculine, feminine or neuter
gender;
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(4) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" in respect of any Sale and Leaseback Transaction means,
at the date of determination, the present value (discounted at the rate of
interest implicit in the terms of the lease) of the obligation of the lessee for
net rental payments during the remaining term of the lease (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended). "Net rental payments" under any lease for any period means the sum of
the rental and other payments required to be paid in such period by the lessee
thereunder, excluding any amounts required to be paid by such lessee (whether or
not designated as rental or additional rental) on account of maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges required
to be paid by such lessee thereunder or any amounts required to be paid by such
lessee thereunder contingent upon the amount of sales, main tenance and repairs,
insurance, taxes, assessments, water rates or similar charges.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee appointed by that board.
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"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. Where any provision of this Indenture refers to action to be
taken pursuant to a Board Resolution (including establishment of any series of
the Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company authorized to take such action by
a Board Resolution.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions generally in that Place of Payment are authorized or
obligated by law or executive order to close, unless otherwise specified in a
form of Security.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
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 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.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities (excluding any indebtedness for money
borrowed having a maturity of less than 12 months from the date of the most
recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower) and (b) all goodwill, trade names, patents, unamortized debt discount
and expense and any other like intangibles, all as set forth on the most recent
consolidated balance sheet of the Company and computed in accordance with
generally accepted accounting principles.
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"Corporate Trust Office" means the office of the Trustee in The City of New
York, New York at which at any particular time its corporate trust business
shall be principally administered.
"Corporation" includes corporations, associations, companies, joint stock
companies and business trusts.
"Debt" has the meaning specified in Section 1007.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
clearing agency registered under the Exchange Act, specified for that purpose as
contemplated by Section 301 or any successor clearing agency registered under
the Exchange Act as contemplated by Section 305, and if at any time there is
more than one such Person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of such
series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means Debt which by its terms matures at or is extendible or
renewable at the option of the obligor to a date more than 12 months after the
date of the creation of such Debt.
"Global Security" means a Security bearing the legend specified in Section
205 evidencing all or part of a series of Securities, issued to the Depositary
for such series or its nominee, and registered in the name of such Depositary or
nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument due to the appointment of one or more
separate Trustees for any one or more separate series of Securities pursuant to
Section 610(e), "Indenture" shall mean, with respect to such series of
Securities for which any such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto
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entered into pursuant to the applicable provisions hereof and shall include the
terms of particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"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 installment of interest on such Security.
"Lien" or "Liens" has the meaning specified in Section 1007.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, a Vice President or an Assistant Vice President of the
Company, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
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(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 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units that shall be
deemed to be Outstanding shall be the U.S. dollar equivalent, determined in the
manner provided as contemplated by Section 301 as of the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent, determined as of
the date of original issuance of such Security, of the amount determined as
provided in (i) above) of such Security as determined by the Company pursuant to
Section 301, and (iii) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) and/or interest on any Securities on behalf
of the Company.
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"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including without limitation the
rate or rates of interest (or formula for determining the rate or rates of
interest), if any, thereon, the Stated Maturity or Maturities thereof and the
redemption provisions, if any, with respect thereto, are to be determined by the
Company or its agents upon the issuance of such Securities.
"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/or
interest on the Securities of that series are payable, 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.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in 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 located within the
United States of America (other than its territories or possessions) and owned
by the Company or any Subsidiary, the gross book value (without deduction of any
depreciation reserves) of which on the date as of which the determination is
being made exceeds 1% of Consolidated Net Tangible Assets of the Company, except
any such plant (i) which is financed by obligations issued by a State or local
governmental unit pursuant to Section 142(a)(5), 142(a)(6), 142(a)(8) or 144(a)
of the Internal Revenue Code of 1986, or any successor provision thereof, or
(ii) which is not of material importance to the business conducted by the
Company and its Subsidiaries, taken as a whole (as determined by any two of the
following: the Chairman or a Vice Chairman of the Board of the Company, its
President, its Chief Financial Officer, its Vice President of Finance, its
Treasurer or its Controller).
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption 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.
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"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Restricted Subsidiary" means any Subsidiary which owns or leases a
Principal Property.
"Sale and Leaseback Transaction" has the meaning specified in Section 1008.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; provided, however, that if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any Corporation of which securities (excluding
securities entitled to vote for directors only by reason of the happening of a
contingency) entitled to elect at least a majority of the corporation's
directors shall at the time be owned, directly or indirectly, by the Company, or
one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"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
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include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"U.S. Government Obligations" means direct obligations of the United States
of America, backed by its full faith and credit.
"Vice President", when used with respect to the Company, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Voting Stock", when used with respect to a Corporation, means stock of the
class or classes having general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of
such Corporation (irrespective of whether at the time stock or securities of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency).
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion whether such covenant or condition has been
complied with; and
(4) a statement whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of any 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 such officer's 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.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing,
and, 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 the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
The Company may fix any day as the record date for the purpose of determining
the Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or
to vote on any action, authorized or permitted to be given or taken by Holders
of Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
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(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with a Responsible Officer of the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department, 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 (Attention: Treasurer) or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. 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.
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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 by or with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Compliance with Trust Indenture Act.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act that are required to be part of this Indenture. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company or the
Trustee shall bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Securities Registrar, and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
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SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
Except as may be otherwise specified with respect to any particular
Securities, 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 TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution and set forth in an Officers' Certificate or established by
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
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The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture.
The definitive Securities may be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
SECTION 202. Form of Face of Security.
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE REGULATIONS
THEREUNDER.]
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<PAGE>
HONEYWELL INC.
--------------------------
No._________ [$]_________________
Honeywell Inc., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to___________________, or registered assigns, the principal sum
of _________________ [Dollars] on _______________[IF THE SECURITY IS TO BEAR
INTEREST PRIOR TO MATURITY, INSERT ---, and to pay interest thereon from
___________or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, [semi-annually in arrears on________________ and
________________in each year] [annually in arrears on ______________],
commencing __________________, at the rate of_____ % per annum, until the
principal hereof is paid or made available for payment [IF APPLICABLE INSERT --,
and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of ____% per annum on any overdue principal and premium
and on any overdue installment of interest]. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the _______________
or __________________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture]. [IF THE SECURITY IS NOT TO BEAR INTEREST
PRIOR TO MATURITY, INSERT --. The principal of this Security shall not bear
interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity and in such case the overdue
principal of this Security shall bear interest at the rate of____% per annum (to
the extent that the payment of such interest shall be legally enforceable),
which shall accrue from the date of such default in payment to the date payment
of such principal has been made or duly provided for. Interest on any overdue
principal shall be payable on demand. Any such interest on any overdue principal
that is not so paid on demand shall bear interest at the rate of _____% per
annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue
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from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [If applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ________, in such coin
or currency [of the United States of America] as at the time of payment is legal
tender for payment of public and private debts [IF APPLICABLE, INSERT --;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
[IF APPLICABLE, INSERT -- [The Securities of this series are/This Security
is] subject to redemption prior to the Stated Maturity as described on the
reverse hereof.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
HONEYWELL INC.
By
-------------------------------
Attest:
- - -----------------------------
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<PAGE>
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [DATE], 1993 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank (National
Association), as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to [$]______________ ]. By the terms of the Indenture, additional
Securities [IF APPLICABLE, INSERT -- of this series and] of other separate
series, which may vary as to date, amount, Stated Maturity, interest rate or
method of calculating the interest rate and in other respects as therein
provided, may be issued in an unlimited principal amount.
[IF APPLICABLE, INSERT -- [The Securities of this series are/This Security
is] subject to redemption prior to the Stated Maturity hereof upon not less than
30 days' notice by mail to the Person[s] in whose name[s] [the Securities to be
redeemed are/this Security is] registered at the address specified in the
Security Register, [IF APPLICABLE, INSERT -- (1) on ______ in any year
commencing with the year ______ and ending with the year ______ through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [on or after _________ ], as
a whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): if redeemed [on or
before ________, ______%, and if redeemed] during the 12-month period beginning
_______ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal amount,
[If APPLICABLE, INSERT -- together in the case of any such redemption [IF
APPLICABLE, INSERT -- (whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date, provided, however,
that installments of interest whose Stated Maturity is on or prior to such
Redemption Date will be payable to the [Holders of such Securities/Holder of
this Security] (or one or more Predecessor Securities) of record at the close of
business on the relevant Record
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Dates referred to on the face hereof, all as provided in the Indenture]. [IF
THERE IS NO SINKING FUND, INSERT -- [The Securities of this series are/This
Security is] not subject to any sinking fund.]
[IF APPLICABLE, INSERT -- [The Securities of this series are/This Security
is] subject to redemption prior to the Stated Maturity hereof upon not less than
30 days' notice by mail to the Person[s] in whose name[s] [the Securities to be
redeemed are/this Security is] registered at the address specified in the
Security Register, (1) on ________ in any year commencing with the year ______
and ending with the year _____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _____________ ], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning ______________ of the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to ____% of the principal amount [IF
APPLICABLE, INSERT ---, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to the
Redemption Date, provided, however, that installments of interest whose Stated
Maturity is on or prior to such Redemption Date will be payable to the [Holders
of such Securities/Holder of this Security] (or one or more Predecessor
Securities) of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture].]
[Notwithstanding the foregoing, the Company may not, prior to ____, redeem
any Securities of this series as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than ___% per annum.]
[The sinking fund for this series provides for the redemption on __________
in each year beginning with the year _____ and ending with the year ____ of
[not less than]
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[$]__________ [("mandatory sinking fund") and not more than [$]______ ]
aggregate principal amount of Securities of this series. [Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made -- in the inverse order in which
they become due.]]
[In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor or an authorized denomination for
the unredeemed portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof, and, in the event of transfer or exchange, a new
Security or Securities of this series and of like tenor and for a like aggregate
principal amount will be issued to the Holder, in the case of exchange, or the
designated transferee or transferees, in the case of transfer.]
[If the Security is not an Original Issue Discount Security, -- If an Event
of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may (subject to the
conditions set forth in the Indenture) be declared due and payable in the manner
and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, -- If an Event of
Default with respect to Securities of this series shall occur and be continuing,
a lesser amount than the principal amount due at the Stated Maturity of the
Securities of this series may (subject to the conditions set forth in the
Indenture) be declared due and payable in the manner and with the effect
provided in the Indenture. The amount due and payable on this Security in the
event that this Security is declared due and payable prior to the Stated
Maturity hereof shall be -- INSERT FORMULA FOR DETERMINING THE AMOUNT -- or in
the event that this Security is redeemed shall be the specified percentage --
INSERT FORMULA FOR DETERMINING THE AMOUNT. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on the
Securities of this series shall terminate.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for defeasance
at any time of the Company's obligations in respect of (i) the entire
indebtedness of this Note or (ii) certain restrictive covenants with respect to
this Note, in each case upon compliance with certain conditions set forth
therein.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent
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<PAGE>
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected and, for
certain purposes, without the consent of the Holders of any Securities at the
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
hereof or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, -- 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 under the Indenture or whether a quorum is present at a
meeting of Holders of Securities, the principal amount of any Original Issue
Discount Security that shall be deemed to be Outstanding shall be the amount of
the principal thereof that would be due and payable as of the date of such
determination upon the acceleration of the Maturity thereof.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or such Holder's attorney
duly authorized in writing, and thereupon one or more new Securities of this
series and of like tenor of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of [$1,000] and any amount in excess thereof which is
an integral multiple of [$1,000]. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination, as requested by the
Holder surrendering the same.
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<PAGE>
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered in the Security Register as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Securities shall be governed by and construed in accordance with the
laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein and issued
pursuant to the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By
--------------------------------
Authorized Officer
SECTION 205. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder shall, in
addition to the provisions contained in Sections 202 and 203, bear a legend in
substantially the following form or such similar form as may be required by the
Depositary:
"Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water
Street, New York, New York) to the issuer or to its agent
for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of
Cede & Co. or such other name as requested by an
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<PAGE>
authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution and, subject to Section 303,
set forth or determined in the manner provided in an Officers' Certificate or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(4) the date or dates on which the principal or installments of
principal of the Securities of the series is or are payable and any rights
to extend such date or dates;
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<PAGE>
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the formula pursuant to which such rate or 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 Interest
Payment Date;
(6) the place or places where the principal of (and premium, if any)
and interest on Securities of the series shall be payable, any Securities
of the series may be surrendered for registration of transfer or exchange
and notices and demands to or upon the Company with respect to the
Securities of the series and this 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) if other than denominations of $1,000 or any amount in excess
thereof which is an integral multiple of $1,000, the denominations in which
Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America, the manner of determining the U.S. dollar equivalent of the
principal amount thereof for purposes of the definition of "Outstanding"
in Section 101, and, if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units other than
that or those in which the Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal
of and any premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(11) any other event or events of default applicable with respect to
Securities of the series in addition to or in lieu of those provided in
Section 501(1)-(7);
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(12) if less than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(13) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Global Securities and, if so, (a) the
Depositary with respect to such Global Security or Securities and (b) the
circumstances under which any such Global Security may be exchanged for
Securities registered in the name of, and any transfer of such Global
Security may be registered to, a Person other than such Depositary or its
nominee, if other than as set forth in Section 305;
(14) if principal of or any premium or interest on the Securities of
a series is denominated or payable in a currency or currencies other than
the currency of the United States of America, whether and under what terms
and conditions the Company may be discharged from obligations pursuant to
Sections 403 and 1107 with respect to Securities of such series; and
(15) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series (other than Securities offered in a
Periodic Offering) shall be substantially identical except as to denomination
and except as may otherwise be provided by or pursuant to the Board Resolution
referred to above and, subject to Section 303, set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
With respect to Securities of a series offered in a Periodic Offering,
such Board Resolution and Officers' Certificate or supplemental indenture may
provide general terms or parameters for Securities of such series and provide
either that the specific terms of particular Securities of such series shall be
specified in a Company Order or that such terms shall be determined by the
Company or its agents in accordance with other procedures specified in a Company
Order as contemplated by the third paragraph of Section 303.
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SECTION 302. Denominations.
Unless otherwise provided in the applicable Officers' Certificate or
supplemental indenture, the Securities of each series shall be issued in
registered form without coupons in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series shall be issuable
in denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or one of its Vice Presidents, under its corporate
seal affixed thereto or reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, or, in the case of Securities
offered in a Periodic Offering, from time to time in accordance with such other
procedures (including, without limitation, the receipt by the Trustee of
electronic instructions from the Company or its duly authorized agents, promptly
confirmed in writing by the Company) acceptable to the Trustee as may be
specified from time to time by a Company Order for establishing the specific
terms of particular Securities being so offered, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or forms or terms of the Securities of the series have been established by
or pursuant to one or more Board Resolutions as permitted by Sections 201 and
301, in authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
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<PAGE>
(a) that the form or forms of such Securities have been established
in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(c) that such Securities, 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) that authentication and delivery of such Securities and the
execution and delivery of the supplemental indenture, if any, by the
Trustee will not violate the terms of the Indenture;
(e) that the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with respect
to such issuance; and
(f) that the issuance of such Securities will not contravene the
certificate of incorporation or bylaws of the Company or result in any
violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which
the Company is bound;
provided, however, that, with respect to Securities of a series offered in a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel in connection only with the first authentication of each form of
Securities of such series and that the opinions described in Clauses (b) and (c)
above may state, respectively, that
(b) if the terms of such Securities are to be established pursuant
to a Company Order or pursuant to such procedures as may be specified from
time to time by a Company Order, all as contemplated by a Board Resolution
or action taken pursuant thereto, such terms will have been duly authorized
by the Company and established in conformity with the provisions of this
Indenture; and
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<PAGE>
(c) that such Securities, when executed by the Company, completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and issued and delivered by the Company and paid for, all in
accordance with any agreement of the Company relating to the offering,
issuance and sale of such Securities, will be duly issued under this
Indenture and will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting generally the enforcement of creditors' rights and to general
principles of equity.
With respect to Securities of a series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any of such
Securities, the form or forms and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel, Company
Order and other documents delivered pursuant to Sections 201 and 301 and this
Section, as applicable, in connection with the first authentication of a form of
Securities of such series and it shall not be necessary for the Company to
deliver such Opinion of Counsel and other documents (except as may be required
by the specified other procedures, if any, referred to above) at or prior to the
time of authentication of each Security of such series unless and until the
Trustee receives notice that such Opinion of Counsel or other documents have
been superseded or revoked, and may assume compliance with any conditions
specified in such Opinion of Counsel (other than any conditions to be performed
by the Trustee). If such form or forms or terms have been so established, 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 Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any Series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten 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 Securities may determine, as evidenced by their execution of such
Securities.
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, the temporary
Securities of such series shall be exchangeable for definitive Securities of
like tenor of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series and of like tenor and of any
authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company in any Place of Payment for such series,
the Company shall execute and the Trustee shall authenticate and deliver (in the
name of the designated transferee or transferees) one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
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At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at the office or agency of the Company in any Place of Payment for
such series. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued 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 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
such Holder's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company may but shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
1103 and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
Notwithstanding the foregoing, except as otherwise specified a contemplated
by Section 301, any Global Security shall be exchangeable pursuant to this
Section 305 for Securities registered in the name of Persons other than the
Depositary for such Security or its nominee only if (i) such Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act, (ii) the Company executes and delivers to the
Trustee a Company Order that such Global Security shall be so exchangeable or
(iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities of such series. Upon the occurrence in respect of any
Global Security of any series of any one or more of the conditions specified in
Clauses (i), (ii) or (iii) of the preceding sentence or such
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other conditions as may be specified as contemplated by Section 301 for such
series, such Global Security may be exchanged for Securities not bearing the
legend specified in Section 205 and registered in the names of such Persons as
may be specified by the Depositary (including Persons other than the
Depositary).
Notwithstanding any other provision of this Indenture, a Global Security
may not be transferred except as a whole by the Depositary for such Global
Security to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security 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.
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 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 written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered in the Security Register at the close of business on
the Regular Record Date for such Interest Payment Date.
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 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 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 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 Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at such Holder's 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
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the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of, or in exchange
for, or in lieu of, any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a 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 Security is registered in the Security Register as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on its
behalf by a Depositary (or its nominee) shall have any rights under this
Indenture with respect to such Global Security or any Security represented
thereby, and such Depositary may be treated by the Company, the Trustee, and any
agent of the Company or the Trustee as the owner of such Global Security or any
Security represented thereby for all purposes whatsoever. Notwithstanding the
foregoing, with respect to any Global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
Depositary or impair, as between a Depositary and such holders of beneficial
interest, the operation of customary practices governing the exercise of the
rights of the Depositary (or its nominees) as Holder of any Security.
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SECTION 309. Cancellation.
All Securities 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 canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be destroyed unless otherwise directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
SECTION 311. Payment to be in Proper Currency.
In the case of any Securities denominated in any currency (the "Required
Currency") other than United States of America dollars, except as otherwise
provided therein, the obligation of the Company to make any payment of
principal, premium or interest thereon shall not be discharged or satisfied by
any tender by the Company, or recovery by the Trustee, in any currency other
than the Required Currency, except to the extent that such tender or recovery
shall result in the Trustee timely holding the full amount of the Required
Currency then due and payable. If any such tender or recovery is in a currency
other than the Required Currency, the Trustee may take such actions as it
considers appropriate to exchange such currency for the Required Currency. The
costs and risks of any such exchange, including without limitation the risks of
delay and exchange rate fluctuation, shall be borne by the Company, the Company
shall remain fully liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor except in the case of its negligence or willful
misconduct.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. 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
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities 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 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount, in the currency in which such
Securities are payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the respective Stated
Maturity or Redemption Date, as the case may be;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company, and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and, if money shall
have been deposited with the Trustee pursuant to Subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee but such money need not be segregated from other funds except to the
extent required by law.
SECTION 403. Defeasance and Discharge of Indenture.
If principal of and any premium and interest on Securities of any series
are denominated and payable in United States of America dollars, the Company
shall be deemed to have paid and discharged the entire indebtedness on all the
Outstanding Securities of such series on the 91st day after the date of the
deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall at Company
Request, execute proper instruments acknowledging the same), except as to:
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(a) the rights of Holders of Securities to receive, from the trust
funds described in subparagraph (d) hereof, (i) payment of the principal
of (and premium, if any) or interest on the Outstanding Securities on the
Stated Maturity of such principal or installment of principal or interest
and (ii) the benefit of any mandatory sinking fund payments applicable to
the Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and the Securities;
(b) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) The Company has deposited or caused to be irrevocably deposited
with the Trustee (or another trustee satisfying the requirements of
Section 609) as trust funds in the trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities,
(i) money in an amount, or (ii) U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance
with their terms will provide not later than one day before the due date
of any payment referred to in clause (A) or (B) of this subparagraph (d)
money in an amount or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent certified 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 each installment of principal of (and premium, if any) and interest on
the Outstanding Securities on the Stated Maturity of such principal or
installment of principal and interest and (B) any mandatory sinking fund
payments applicable to the Securities on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of
the Securities;
(e) such deposit shall not cause the Trustee with respect to the
Securities to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to the Securities;
(f) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
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(g) such provision would not cause any Outstanding Securities then
listed on the New York Stock Exchange or other securities exchange to be
delisted as a result thereof;
(h) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;
(i) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel to the effect that there has been a change in
applicable Federal law such that, or the Company has received from, or
there has been published by, the Internal Revenue Service a ruling to the
effect that, Holders of the Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposits,
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;
and
(j) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
relating to the defeasance contemplated by this Section have been complied
with.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, and unless otherwise provided with respect to Securities of any series
pursuant to Section 301(12), 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
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(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the 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 a series of one or more
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate 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) an event of default, as defined in any indenture or instrument
under which the Company or any Restricted Subsidiary shall have outstanding
at least $10,000,000 aggregate principal amount of indebtedness for money
borrowed, shall happen and be continuing and such indebtedness shall, as a
result thereof, have been accelerated so that the same shall be or become
due and payable prior to the date on which the same would otherwise have
become due and payable, and such acceleration shall not be rescinded or
annulled within 10 days after notice thereof shall have 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 aggregate
principal amount of the Securities at the time Outstanding; provided,
however, that if such event of default under such indenture or instrument
shall be remedied or cured by the Company or waived by the Holders of such
indebtedness, then, unless the Securities of any series shall have been
accelerated as provided herein, the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured or
waived without further action upon the part of either the Trustee
or any Holders of the Securities of any series; or
(6) 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
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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 60 consecutive days; or
(7) 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 other
similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities
of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Outstanding Securities of any series
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if any of the Securities of
that series are Original Issue Discount Securities, such lesser portion of the
principal amount of such Securities as may be specified in the terms thereof) of
all of the Securities of that series to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by Holders), and
upon any such declaration such principal amount (or specified portion thereof)
shall become immediately due and payable.
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At any time after such a declaration of acceleration with respect to
Outstanding 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 aggregate
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) 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
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607; and
(2) all Events of Default with respect to Securities of that series,
other than the non-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 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
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(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Security, the whole amount then due and payable on such Security
for principal (and premium, if any) and interest and, to the extent that payment
of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest at the rate or rates
prescribed therefor in such 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 its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, 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 by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
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(i) to file and prove a claim for the whole amount of principal (and
premium, if any) or such portion of the principal amount of any series of
Original Issue Discount Securities as may be specified in the terms of such
series and interest owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 607) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
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, and for any
other amounts due the Trustee under Section 607, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(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 reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee, for 60 days after its receipt of such notice,
request and offer of indemnity, has failed to institute any such
proceeding; and
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(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 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 of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or
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otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate 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, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities of any series may, on behalf of the Holders of all
the Securities of such series, waive any past default hereunder with respect to
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
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any past default hereunder.
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders after such record
date; provided, that unless such majority in principal amount shall have waived
such default prior to the date which is 90 days after such record date, any such
waiver of such default previously given shall automatically and without further
action by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
such Holder's acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
provided, however, that 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 for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Security on or after
the Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will
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not hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The provisions of TIA Section 315 shall apply to the Trustee.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in
the Security Register, notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided however, that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/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 501(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.
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SECTION 603. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided herein and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such fact 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;
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(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;
(h) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture; and
(i) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and its agents for, and to hold it
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company under this Section 607 to compensate and
indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities 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 the Securities are hereby subordinated to each
senior claim.
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SECTION 608. Disqualification; Conflicting Interests.
The provisions of TIA Section 310(b) shall apply to the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to
act under TIA Section 310(a)(1) and shall have a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal,
State or District of Columbia 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. Neither
the Company, nor any Person directly or indirectly controlling, controlled by or
under common control with the Company, shall act as Trustee hereunder.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any 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.
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(d) If at any time:
(1) the Trustee shall fail to comply with TIA Section 310(b) after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any 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 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all
of such series and that at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated,
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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 Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of
the
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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. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities; in case
any of the Securities shall not have been authenticated by the Trustee then in
office, any successor by merger, conversion or consolidation to such Trustee
may authenticate such Securities either in the name of such predecessor
hereunder or in the name of the successor Trustee; and in all
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such cases such certificates shall have the full force which it is anywhere in
the Securities or in this Indenture provided that the certificate of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a). A Trustee which has
resigned or been removed is subject to TIA Section 311(a) to the extent
indicated therein.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee,
with the concurrence of the Company, may appoint an Authenticating Agent or
Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal, State or District of Columbia
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.
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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 mail written notice of
such appointment by first class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
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This is one of the Securities of the series designated herein and issued
pursuant to the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
If the Trustee is not acting as Security Registrar for the Securities of
any series, the Company will furnish or cause to be furnished to the Trustee.
(a) at intervals of no more than six months commencing after the
first issue of such series, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of a date
not more than 15 days prior to the time such information is 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.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee
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may destroy any list furnished to it as provided in Section 701 upon receipt of
a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by TIA
Section 312(b).
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
SECTION 703. Reports by Trustee.
Within 60 days after May 1 of each year commencing with the later of May 1,
1993 or the first May 1 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit by mail to all Holders of Securities as
provided in TIA Section 313(c) a brief report dated as of such May 1 if required
by TIA Section 313(a). A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15 (d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
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respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations;
(3) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission; and
(4) furnish to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, a brief
certificate of the Company's principal executive officer, principal
financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this paragraph, such compliance shall
be determined without regard to any period of grace or requirement of
notice provided under this Indenture.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person unless:
(1) the Person 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, partnership or trust, shall be
organized and validly 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
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principal of (and premium, if any) and interest on all the Securities and
the performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing;
and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, 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.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger by the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person 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 Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by or
pursuant to 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:
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(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and 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 one or
more specified series) or to surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under
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this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
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 under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any such Security, or reduce
the principal amount thereof or the rate of interest thereon 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
502, or change any Place of Payment where, or the coin or currency in
which, any such Security or any premium or the interest thereon is payable,
or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or any repayment
date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section 902, Section 513
or Section 1010, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided however, that this Clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section 902 and Section 1010, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(8).
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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.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed for such purpose, the Holders on
such record date or their duly designated proxies, and only such Persons, shall
be entitled to consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be canceled and of no further effect.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby to the extent provided therein.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities 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 a 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.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security so
affected, pursuant to Section 106, setting forth in general terms the substance
of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. In the absence of contrary
provisions with respect to the Securities of any series, interest on the
Securities of any series may, at the option of the Company, be paid by check
mailed to the address of the Person entitled thereto as it appears on the
Security Register.
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SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location and any change in the location of such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment 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 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency in which such series of Securities is payable
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 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 failure so
to act.
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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
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company on Company
Request.
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SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business material to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business and not disadvantageous
in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon it or upon its income, profits or property, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon its property; PROVIDED, HOWEVER, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith.
SECTION 1007. Restriction on Secured Debt.
(a) The Company will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume or guarantee any notes, bonds, debentures or
other similar
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evidences of indebtedness for money borrowed (notes, bonds, debentures or other
similar evidences of indebtedness for money borrowed being hereinafter in this
Article called "Debt"), secured by pledge of, or mortgage or other lien on, any
Principal Property, now owned or hereafter owned by the Company or any
Restricted Subsidiary, or any shares of stock or Debt of any Restricted
Subsidiary (pledges, mortgages and other liens being hereinafter in this Article
called "Lien" or "Liens"), without effectively providing that the Securities of
each series then Outstanding (together with, if the Company shall so determine,
any other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities of each series
then Outstanding) shall be secured equally and ratably with (or prior to) such
secured Debt, so long as such secured Debt shall be so secured; PROVIDED,
HOWEVER, that this Section shall not apply to, and there shall be excluded from
secured Debt in any computation under this Section, Debt secured by:
(1) Liens on any Principal Property acquired, constructed or improved
by the Company or any Restricted Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with such
acquisition, construction or improvement, or within 120 days before or
after the completion thereof, to secure or provide for the payment of all
or any part of the cost of such acquisition, construction or improvement
(including related expenditures capitalized for Federal income tax purposes
in connection therewith) incurred after the date of this Indenture;
(2) Liens of or upon any property, shares of capital stock or Debt
existing at the time of acquisition thereof, whether by merger,
consolidation, purchase, lease or otherwise (including Liens of or upon
property, shares of capital stock or indebtedness of a corporation existing
at the time such corporation becomes a Restricted Subsidiary);
(3) Liens in favor of the Company or any Restricted Subsidiary;
(4) Liens 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
political entity affiliated therewith, or in favor of any other country, or
any political subdivision thereof, to secure partial, progress, advance or
other payments, or other obligations, pursuant to any contract or statute
or to secure any Debt incurred for the purpose of financing all or any part
of the cost of acquiring, constructing or improving the property subject to
such Liens (including Liens incurred in connection with pollution control,
industrial revenue or similar financings);
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(5) Liens imposed by law, such as mechanics', workmen's, repairmen's,
materialmen's, carriers', warehousemen's, vendors' or other similar liens
arising in the ordinary course of business, or governmental (federal, state
or municipal) liens arising out of contracts for the sale of products or
services by the Company or any Restricted Subsidiary, or deposits or
pledges to obtain the release of any of the foregoing;
(6) pledges or deposits under workmen's compensation laws or similar
legislation and Liens of judgments thereunder which are not currently
dischargeable, or good faith deposits in connection with bids, tenders,
contracts (other than for the payment of money) or leases to which the
Company or any Restricted Subsidiary is a party, or deposits to secure
public or statutory obligations of the Company or any Restricted
Subsidiary, or deposits in connection with obtaining or maintaining
self-insurance or to obtain the benefits of any law, regulation or
arrangement pertaining to unemployment insurance, old age pensions, social
security or similar matters, or deposits of cash or obligations of the
United States of America to secure surety, appeal or customs bonds to which
the Company or any Restricted Subsidiary is a party, or deposits in
litigation or other proceedings such as, but not limited to, interpleader
proceedings;
(7) Liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including Liens arising out of judgments or awards against the
Company or any Restricted Subsidiary with respect to which the Company or
such Restricted Subsidiary is in good faith prosecuting an appeal or
proceedings for review; or Liens incurred by the Company or any Restricted
Subsidiary for the purpose of obtaining a stay or discharge in the course
of any litigation or other proceeding to which the Company or such
Restricted Subsidiary is a party;
(8) Liens for taxes or assessments or governmental charges or levies
not yet due or delinquent, or which can thereafter be paid without penalty,
or which are being contested in good faith by appropriate proceedings;
(9) Liens consisting of easements, rights-of-way, zoning
restrictions, restrictions on the use of real property, and defects and
irregularities in the title thereto, landlords' liens and other similar
liens and encumbrances none of which interfere materially with the use of
the property covered thereby in the ordinary course of the business of the
Company or such Restricted Subsidiary and which do not, in the opinion of
the Company, materially detract from the value of such properties; or
(10) any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Lien referred to
in the
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foregoing clauses (1) to (9), inclusive; provided, that (i) such extension,
renewal or replacement Lien shall be limited to all or a part of the same
property, shares of stock or Debt that secured the Lien extended, renewed
or replaced (plus improvements on such property) and (ii) the Debt secured
by such Lien at such time is not increased.
(b) Notwithstanding the restrictions contained in subdivision (a) of this
Section, the Company and its Restricted Subsidiaries, or any of them, may incur,
issue, assume or guarantee Debt secured by Liens without equally and ratably
securing the Securities of each series then Outstanding, provided, that at the
time of such incurrence, issuance, assumption or guarantee, after giving effect
thereto and to the retirement of any Debt which is concurrently being retired,
the aggregate amount of all outstanding Debt secured by Liens which could not
have been incurred, issued, assumed or guaranteed by the Company or a
Restricted Subsidiary without equally and ratably securing the Securities of
each series then Outstanding except for the provisions of this subdivision (b)
does not at such time exceed 10% of Consolidated Net Tangible Assets of the
Company.
SECTION 1008. Restriction on Sale and Leaseback Transactions.
(a) The Company will not itself, and it will not permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company or
other lender or investor (not including the Company or any Restricted
Subsidiary) or to which any such lender or investor is a party, providing for
the leasing by the Company or a Restricted Subsidiary for a period, including
renewals, in excess of three years of any Principal Property which has been or
is to be sold or transferred by the Company or any Restricted Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal Property
(herein referred to as a "Sale and Leaseback Transaction") unless either:
(1) The Company or such Restricted Subsidiary would, at the time of
entering into such arrangement, be entitled, without equally and ratably
securing the Securities of each series then Outstanding, to incur Debt
secured by a Lien on such property, pursuant to paragraphs (1) to (10),
inclusive, of Section 1007; or
(2) the Company within 120 days after the sale or transfer shall
have been made by the Company or by a Restricted Subsidiary, applies an
amount equal to the greater of (i) the net proceeds of the sale of the
Principal Property sold and leased back pursuant to such arrangement or
(ii) the fair market value of the Principal Property so sold and leased
back at the time of entering into such arrangement (as determined by any
two of the following: the
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Chairman or a Vice Chairman of the Board of the Company, its President, its
Chief Financial Officer, its Vice President of Finance, its Treasurer or
its Controller) to the retirement of Funded Debt of the Company; provided,
that the amount to be applied to the retirement of Funded Debt of the
Company shall be reduced by (A) the principal amount of any Securities
delivered within 120 days after such sale to the Trustee for retirement and
cancellation, and (B) the principal amount of Funded Debt, other than
Securities, voluntarily retired by the Company within 120 days after such
sale. Notwithstanding the foregoing, no retirement referred to in this
clause (a)(2) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or mandatory prepayment provision.
(b) Notwithstanding the restrictions contained in subdivision (a) of this
Section, the Company and its Restricted Subsidiaries, or any of them, may enter
into a Sale and Leaseback Transaction, provided, that at the time of such
transaction, after giving effect thereto, the aggregate amount of all
Attributable Debt in respect of Sale and Leaseback Transactions existing at such
time which could not have been entered into except for the provisions of this
subdivision (b) does not at such time exceed 10% of Consolidated Net Tangible
Assets of the Company.
(c) A Sale and Leaseback Transaction shall not be deemed to result in the
creation of a Lien.
SECTION 1009. Defeasance of Certain Obligations.
The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 301.
The Company may omit to comply with any term, provision or condition set forth
in Sections 1005, 1006, 1007 and 1008 and any such omission with respect to
Sections 1005, 1006, 1007 and 1008 shall not be an Event of Default, in each
case with respect to the Securities of that series, provided that the following
conditions have been satisfied:
(1) with reference to this Section 1009, the Company has deposited
or caused to be irrevocably deposited with the Trustee (or another trustee
satisfying the requirements of Section 609) as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit
of the Holders of the Securities of that series, (i) money in an amount, or
(ii) U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
not later than one day before the due date of any payment referred to in
clause (A) or (B) of this subparagraph (1) money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent
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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 each instalment of principal (and premium, if any) and interest on
the Outstanding Securities on the Stated Maturity of such principal or
installments of principal and interest and (B) any mandatory sinking fund
payments or analogous payments applicable to the Securities of such series
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with respect to the
Securities of any series;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to the Securities of
that series shall have occurred and be continuing on the date of such
deposit;
(5) the Company has delivered to the Trustee an Opinion of Counsel
to the effect that 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 defeasance of certain obligations 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 defeasance had
not occurred; and
(6) 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 defeasance contemplated in this
Section have been complied with.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of not less than a majority in aggregate 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
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no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to waive any such term, provision or
condition. If a record date is fixed for such purpose, the Holders on such
record date or their duly designated proxies, and only such Persons, shall be
entitled to waive any such term, provision or condition hereunder, whether or
not such Holders remain Holders after such record date; provided that unless the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall have waived such term, provision or condition
prior to the date which is 90 days after such record date, any such waiver
previously given shall automatically and without further action by any Holder be
canceled and of no further effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
an Officers' Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of
(1) such Redemption Date,
(2) if the Securities of such series have different terms and less
than all of the Securities of such series are to be redeemed, the terms of
the Securities to be redeemed, and
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(3) if less than all the Securities of such series with identical
terms are to be redeemed, the principal amount of such Securities to be
redeemed.
In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of like tenor 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 like tenor 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 like tenor 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 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at each such Holder's address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Securities of like tenor of any
series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price 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 are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in immediately available funds sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
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If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed in part shall be surrendered at a
Place of Payment for such series (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or such Holder's 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
and of like tenor, 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; provided, however, that
if a Global Security is so surrendered, such new Security so issued shall be a
new Global Security in a denomination equal to the unredeemed portion of the
principal of the Global Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. 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 301 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 sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of like tenor of a
series (other than any previously called for redemption) and (2) may apply as a
credit Securities of like tenor of a series which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of like tenor of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of like tenor of a series, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for such Securities pursuant to the terms of such Securities, 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 like tenor of that series pursuant to Section 1202 and, at the
time of delivery of such Officers' Certificate, will also deliver to the Trustee
any Securities to be so delivered. Not less than 45 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given. the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and the respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HONEYWELL INC.
By /s/ Paul N. Saleh
-------------------------------
Paul N. Saleh
Vice President and Treasurer
Attest:
/s/ Sigurd Ueland, Jr.
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Sigurd Ueland, Jr.
Vice President and Secretary
[SEAL] THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
as Trustee
By /s/ Ronald A. DeSorbo
--------------------------------
Ronald A. DeSorbo
Vice President
Attest:
/s/ Mary Lewicki
- - ---------------------------------
Mary Lewicki
Assistant Secretary
[SEAL]
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STATE OF MINNESOTA )
) SS.
COUNTY OF HENNEPIN )
On the day of August, ___ 1994 before me personally came Paul N. Saleh to
me known, who, being by me duly sworn, did depose and say that he is Vice
President and Treasurer of Honeywell Inc., 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.
[SEAL]
----------------------------------
Notary Public
STATE OF NEW YORK )
) SS.
COUNTY OF KINGS )
On the day of August,____ 1994 before me personally came Ronald A. DeSorbo
to me known, who, being by me duly sworn, did depose and say that he is Vice
President of The Chase Manhattan Bank (National Association), 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.
[SEAL]
----------------------------------
Notary Public
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EXHIBIT 4.2
HONEYWELL INC.
Medium-Term Notes, Series A
Officers' Certificate and Company Order
Pursuant to the Indenture dated as of August 1, 1994 (the
"Indenture"), between Honeywell Inc. (the "Company") and The Chase Manhattan
Bank (National Association), as Trustee (the "Trustee"), and resolutions adopted
by the Company's Board of Directors on April 20, 1993, this Officers'
Certificate and Company Order is being delivered to the Trustee to establish the
terms of a series of Securities in accordance with Section 301 of the Indenture,
to establish the forms of the Securities of such series in accordance with
Section 201 of the Indenture, and to establish the procedures for the
authentication and delivery of specific Securities from time to time pursuant to
Section 303 of the Indenture.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to them in the Indenture.
All conditions precedent provided for in the Indenture relating to the
establishment of (i) a series of Securities, (ii) the forms of such series of
Securities and (iii) the procedures for the authentication and delivery of such
series of Securities have been complied with.
A. ESTABLISHMENT OF SERIES PURSUANT TO SECTION 301 OF INDENTURE.
There is hereby established pursuant to Section 301 of the Indenture a
series of Securities which shall have the following terms:
(1) The Securities of such series shall bear the title "Medium-Term
Notes, Series A" (referred to herein as the "Notes").
(2) There shall be no limitation on the aggregate principal amount of
the Notes of such series, however, unless otherwise specified in an
Authentication Certificate (as defined in Section C below), the aggregate
initial offering price of the Notes of such series to be issued pursuant to this
Officers' Certificate is limited to $500,000,000 or the equivalent thereof in
foreign currencies or composite currencies (except for Notes authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of,
other Notes of such series pursuant to Section 304, 305, 306, 906 or 1107 of the
Indenture and except for any Notes which, pursuant to Section 303 of the
Indenture, are deemed never to have been authenticated and delivered thereunder)
as such amount may be reduced by the issuance of other series of the Securities.
(3) Interest will be payable to the person in whose name a Note (or
any predecessor Note) is registered at the close of business on the Regular
Record
<PAGE>
Date (as defined below) next preceding each Interest Payment Date (as defined
below); provided, however, that interest payable on the stated maturity thereof
or upon redemption or repayment (other than interest payable on a Maturity Date
or any applicable redemption date or repayment date that is also an Interest
Payment Date) will be payable to the person to whom principal shall be payable.
The first payment of any interest on any Note originally issued after a Regular
Record Date and on or before an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Regular Record Date to the
registered holder on such next succeeding Regular Record Date. Any interest
which is payable, but not punctually paid or duly provided for, on any Interest
Payment Date will be payable to the person and in the manner specified in
Section 307 of the Indenture.
(4) Unless previously redeemed or repaid, each Note will mature on
the date from 9 months to 30 years from its date of issue, as specified in such
Note and in the applicable Authentication Certificate or, if such Note is a
Floating Rate Note (as defined below) and such specified date is not a Business
Day (as defined below) with respect to such Note, the next succeeding Business
Day (or, in the case of a LIBOR Note (as defined below), if such next succeeding
Business Day falls in the next calendar month, the next preceding Business Day).
If the maturity date specified in such Note and in the applicable Authentication
Certificate for any Fixed Rate Note is a day that is not a Business Day,
principal will be paid on the next succeeding Business Day with the same force
and effect as if made on such specified maturity date. "Business Day" means
(a) with respect to any Note, any day that is not a Saturday or Sunday and that
in The City of New York, is not a day on which banking institutions generally
are authorized or obligated by law or executive order to close (and with respect
to LIBOR Notes is a day on which dealings in deposits in the relevant Specified
Currency (as defined below) are transacted in the London interbank market) and
(b) with respect to Foreign Currency Notes (as defined below) only, any day
that, in the capital city of the country of the currency in which such Notes are
denominated, is not a day on which banking institutions generally are authorized
or obligated by law to close (which in the case of Foreign Currency Notes
denominated in European Currency Units ("ECUs") shall be Luxembourg, in which
case "Business Day" shall not include any day that is a non-ECU clearing day as
determined by the ECU Banking Association in Paris).
(5) Each Note within such series that bears interest will bear
interest at either (a) a fixed rate (the "Fixed Rate Notes"), (b) an indexed
rate (the "Indexed Notes") or (c) a floating rate determined by reference to one
or more interest rate formulas, which may be adjusted by a Spread and/or Spread
Multiplier (each as defined below), and, if so specified in the applicable
Authentication Certificate with respect to one or more Interest Periods (as
defined below), one or more fixed rates (the "Floating Rate Notes"). Notes
within such series may also be issued as "Zero Coupon Notes" which do not
provide for any periodic payments of interest. Notes may be issued as "Original
Issue Discount Notes" at a discount from the principal amount thereof due at the
stated maturity as specified in the applicable Authentication Certificate. Any
Floating Rate Note may also have either or both of
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the following as set forth in the applicable Authentication Certificate: (i) a
maximum interest rate limitation, or ceiling, on the rate of interest which may
accrue during any Interest Period; and (ii) a minimum interest rate limitation,
or floor, on the rate of interest which may accrue during any Interest Period.
The applicable Authentication Certificate may designate any of the following
interest rate formulas as applicable to one or more Interest Periods on each
Floating Rate Note: (a) the Commercial Paper Rate, in which case such Note will
be a "Commercial Paper Rate Note" with respect to such Interest Period or
Interest Periods; (b) the Federal Funds Rate, in which case such Note will be a
"Federal Funds Rate Note" with respect to such Interest Period or Interest
Periods; (c) LIBOR, in which case such Note will be a "LIBOR Note" with respect
to such Interest Period or Interest Periods; (d) the Prime Rate, in which case
such Note will be a "Prime Rate Note" with respect to such Interest Period or
Interest Periods; (e) the CD Rate, in which case such Note will be a "CD Rate
Note" with respect to such Interest Period or Interest Periods; (f) the Treasury
Rate, in which case such Note will be a "Treasury Rate Note" with respect to
such Interest Period or Interest Periods; (g) the CMT Rate, in which case such
Note will be a "CMT Rate Note" with respect to such Interest Period or Interest
Periods; or (h) such other interest rate formula as is set forth in the
applicable Authentication Certificate.
The interest rate on each Floating Rate Note for each Interest Period
will be determined by reference to (i) the applicable interest rate formula
specified in the applicable Authentication Certificate for such Interest Period,
plus or minus the Spread, if any, and/or multiplied by the Spread Multiplier, if
any, or (ii) the applicable fixed rate per annum specified in the applicable
Authentication Certificate for such Interest Period. The "Spread" is the number
of basis points specified in the applicable Authentication Certificate as being
applicable to such Floating Rate Note for such Interest Period, and the "Spread
Multiplier" is the percentage specified in the applicable Authentication
Certificate as being applicable to such Floating Rate Note for such Interest
Period.
Each Note that bears interest will bear interest from and including
its date of issue or from and including the most recent Interest Payment Date
(as defined below) to which interest on such Note (or any predecessor Note) has
been paid or duly provided for (i) at the fixed rate per annum applicable to the
related Interest Period or Interest Periods, (ii) at the rate determined
pursuant to the applicable index or (iii) at the rate per annum determined
pursuant to the interest rate formula applicable to the related Interest Period
or Interest Periods, in each case as specified therein and in the applicable
Authentication Certificate, until the principal thereof is paid or made
available for payment. Interest will be payable on each Interest Payment Date
and at the stated maturity thereof or upon repayment or redemption. The first
payment of interest on any Note originally issued after a Regular Record Date
and on or before an Interest Payment Date will be made on the Interest Payment
Date following the next succeeding Regular Record Date to the registered holder
on such next succeeding Regular Record Date. Interest rates and interest rate
formulas are subject to change by the Company from time to time but
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no such change will affect any Note theretofore issued or which the Company has
agreed to issue. Unless otherwise specified in the applicable Authentication
Certificate, the "Interest Payment Dates" and the "Regular Record Dates" for
Fixed Rate Notes shall be as described below under "Fixed Rate Notes" and the
"Interest Payment Dates" and the "Regular Record Dates" for Floating Rate Notes
shall be as described below under "Floating Rate Notes".
The interest rate on a Note for any Interest Period will in no event
be higher than the maximum rate permitted by New York law as the same may be
modified by United States law of general application.
The applicable Authentication Certificate will specify: (i) the issue
price, Interest Payment Dates and Regular Record Dates; (ii) with respect to any
Fixed Rate Note, the interest rate; (iii) with respect to any Indexed Note, the
index; (iv) with respect to any Floating Rate Note, the Initial Interest Rate
(as defined below), the method (which may vary from Interest Period to Interest
Period) of calculating the interest rate applicable to each Interest Period
(including, if applicable, the fixed rate per annum applicable to one or more
Interest Periods, the period to maturity of any instrument on which the interest
rate formula for any Interest Period is based (the "Index Maturity"), the Spread
and/or Spread Multiplier, the Interest Determination Dates (as defined below),
the Interest Reset Dates (as defined below) and any minimum or maximum interest
rate limitations); (v) whether such Note is an Original Issue Discount Note; and
(vi) any other terms consistent with the Indenture.
FIXED RATE NOTES
Each Fixed Rate Note, whether or not issued as an Original Issue
Discount Note, will bear interest at the annual rate specified therein and in
the applicable Authentication Certificate. Unless otherwise specified in the
applicable Authentication Certificate, the Interest Payment Dates for the Fixed
Rate Notes will be on June 15 and December 15 of each year and the Regular
Record Dates for the Fixed Rate Notes will be on the first day (whether or not a
Business Day) of the month in which such Interest Payment Date occurs. Unless
otherwise specified in the applicable Authentication Certificate, interest
payments for Fixed Rate Notes shall be the amount of interest accrued from, and
including, the next preceding Interest Payment Date to which interest has been
paid or duly provided for (or from, and including, the date of issue if no
interest has been paid or duly provided for with respect to such Fixed Rate
Note) to, but excluding, the relevant Interest Payment Date. Interest on Fixed
Rate Notes will be computed and paid on the basis of a 360-day year of twelve
30-day months. In the event that any Interest Payment Date or any applicable
Redemption Date or Repayment Date (as defined below) on a Fixed Rate Note is not
a Business Day, interest, and in the case of any redemption or repayment,
principal, will be paid on the next succeeding Business Day with the same force
and effect as if made on such Interest Payment Date.
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FLOATING RATE NOTES
The Interest Payment Dates for the Floating Rate Notes shall be as
specified in such Notes and in the applicable Authentication Certificate, and,
unless otherwise specified in the applicable Authentication Certificate, the
Regular Record Dates for the Floating Rate Notes will be the day (whether or not
a Business Day) fifteen calendar days preceding each Interest Payment Date.
Unless otherwise specified in the applicable Authentication Certificate and
except as provided below, interest on Floating Rate Notes will be payable on the
following Interest Payment Dates: in the case of Floating Rate Notes with a
daily, weekly or monthly Interest Reset Date, on the third Wednesday of each
month or on the third Wednesday of March, June, September and December of each
year; in the case of Floating Rate Notes with a quarterly Interest Reset Date,
on the third Wednesday of March, June, September and December of each year; in
the case of Floating Rate Notes with a semi-annual Interest Reset Date, on the
third Wednesday of the two months of each year specified in the applicable
Authentication Certificate; and in the case of Floating Rate Notes with an
annual Interest Reset Date, on the third Wednesday of the month of each year
specified in the applicable Authentication Certificate, and in each case at
maturity or upon repayment or redemption. If any Interest Payment Date or any
applicable Redemption Date or Repayment Date for any Floating Rate Note would
otherwise be a day that is not a Business Day, the Interest Payment Date,
Redemption Date or Repayment Date for such Floating Rate Note shall be postponed
to the next day that is a Business Day, except that in the case of a LIBOR Note,
if such Business Day is in the next succeeding calendar month, such Interest
Payment Date shall be the immediately preceding Business Day.
The rate of interest on each Floating Rate Note will be reset daily,
weekly, monthly, quarterly, semiannually or annually (the date on which each
such reset occurs, an "Interest Reset Date"), as specified in the applicable
Authentication Certificate. Unless otherwise specified in the applicable
Authentication Certificate, the Interest Reset Date will be as follows: in the
case of Floating Rate Notes which are reset daily, each Business Day; in the
case of Floating Rate Notes (other than Treasury Rate Notes) which are reset
weekly, the Wednesday of each week; in the case of Treasury Rate Notes which are
reset weekly, the Tuesday of each week (except if the auction date falls on a
Tuesday, then the next Business Day, as provided below); in the case of Floating
Rate Notes which are reset monthly, the third Wednesday of each month; in the
case of Floating Rate Notes which are reset quarterly, the third Wednesday of
March, June, September and December of each year; in the case of Floating Rate
Notes which are reset semiannually, the third Wednesday of the two months of
each year specified in the applicable Authentication Certificate; and in the
case of Floating Rate Notes which are reset annually, the third Wednesday of the
month of each year specified in the applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, the interest rate determined with respect to any Interest
Determination Date will
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become effective on and as of the next succeeding Interest Reset Date; provided,
however, that (i) the interest rate in effect from the date of issue to the
first Interest Reset Date with respect to a Floating Rate Note (the "Initial
Interest Rate") will be as specified in the applicable Authentication
Certificate and (ii) the interest rate in effect for the 10 days immediately
prior to maturity will be that in effect on the tenth day preceding such
maturity. If any Interest Reset Date for any Floating Rate Note would otherwise
be a day that is not a Business Day, such Interest Reset Date shall be postponed
to the next day that is a Business Day, except that in the case of a LIBOR Note,
if such Business Day is in the next succeeding calendar month, such Interest
Reset Date shall be the immediately preceding Business Day.
As used herein, "Interest Determination Date" means the date as of
which the interest rate for a Floating Rate Note is to be calculated, to be
effective as of the following Interest Reset Date and calculated on the related
Calculation Date (as defined below). Unless otherwise specified in the
applicable Authentication Certificate, the Interest Determination Date
pertaining to any Interest Reset Date for a Commercial Paper Rate Note, a
Federal Funds Rate Note, a LIBOR Note, a Prime Rate Note, a CD Rate Note or a
CMT Rate Note (the "Commercial Paper Interest Determination Date", the "Federal
Funds Interest Determination Date", the "LIBOR Interest Determination Date", the
"Prime Interest Determination Date", the "CD Interest Determination Date" and
the "CMT Interest Determination Date", respectively) will be the second Business
Day prior to such Interest Reset Date. Unless otherwise specified in the
applicable Authentication Certificate, the Interest Determination Date
pertaining to an Interest Reset Date for a Treasury Rate Note (the "Treasury
Interest Determination Date") will be the day of the week on which Treasury
bills would normally be auctioned in the week in which such Interest Reset Date
falls. If, as the result of a legal holiday, an auction is so held on the
preceding Friday, such Friday will be the Treasury Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week. If
an auction date shall fall on any Interest Reset Date for a Treasury Rate Note,
then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date.
Unless otherwise specified in the applicable Authentication
Certificate, interest payments on an Interest Payment Date for a Floating Rate
Note will include interest accrued from, and including, the next preceding
Interest Payment Date to which interest has been paid or duly provided for (or
from, and including, the date of issue if no interest has been paid or duly
provided for with respect to such Floating Rate Note) to, but excluding, such
Interest Payment Date (each such interest accrual period, an "Interest Period").
Accrued interest from the date of issue or from the last date to which interest
has been paid or duly provided for to the date for which interest is being
calculated shall be calculated by multiplying the face amount of a Floating Rate
Note by the applicable accrued interest factor (the "Accrued Interest Factor").
The Accrued Interest Factor shall be computed by adding together the interest
factors calculated for each day from the date of issue, or from the last date to
which interest has been paid or duly provided for, to, but excluding, the date
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for which accrued interest is being calculated. The interest factor for each
such day shall be computed by dividing the per annum interest rate applicable to
such day by 360 in the case of Commercial Paper Rate Notes, Federal Funds Rate
Notes, LIBOR Notes, Prime Rate Notes and CD Rate Notes, or by the actual number
of days in the year in the case of Treasury Rate Notes and CMT Rate Notes. The
interest rate in effect on each day will be (i) if such day is an Interest Reset
Date, the interest rate with respect to the Interest Determination Date
pertaining to such Interest Reset Date or (ii) if such day is not an Interest
Reset Date, the interest rate with respect to the Interest Determination Date
pertaining to the next preceding Interest Reset Date, subject in either case to
any maximum or minimum interest rate limitation referred to above or in the
applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, The Chase Manhattan Bank (National Association) will be the
"Calculation Agent". On or before each Calculation Date, the Calculation Agent
will determine the interest rate as described below and notify the Paying Agent.
The Paying Agent will determine the Accrued Interest Factor applicable to any
such Floating Rate Note. The Paying Agent will, upon the request of the holder
of any Floating Rate Note, provide the interest rate then in effect and the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to such
Floating Rate Note. The determinations of interest rates made by the
Calculation Agent shall be conclusive and binding, and neither the Trustee nor
the Paying Agent shall have the duty to verify determinations of interest rates
made by the Calculation Agent. The determinations of Accrued Interest Factors
made by the Paying Agent shall be conclusive and binding. Unless otherwise
specified in the applicable Authentication Certificate, the "Calculation Date",
if applicable, pertaining to any Interest Determination Date on a Floating Rate
Note will be the earlier of (i) the tenth calendar day after such Interest
Determination Date, or, if any such day is not a Business Day, the next
succeeding Business Day, and (ii) the Business Day preceding the applicable
Interest Payment Date or the stated maturity date or repayment or redemption
date, as the case may be.
Unless otherwise specified in the applicable Authentication
Certificate, all percentages resulting from any calculation referred to in this
Prospectus Supplement will be rounded, if necessary, to the nearest one hundred-
thousandth of one percentage point, with five one-millionths of one percentage
point rounded upward (e.g., 9.876545% (or .09876545) being rounded to 9.87655%
(or .0987655) and 9.876544% (or .09876544) being rounded to 9.87654% (or
.0987654); all calculations of the interest factor for any day on Floating Rate
Notes will be rounded, if necessary, to the nearest one hundred-millionth, with
five one-billionths rounded upward (e.g., .098765455 being rounded to .09876546
and .098765454 being rounded to .09876545); and all currency or composite
currency amounts used in or resulting from such calculations on the Notes will
be rounded to the nearest one-hundredth of a unit (with .005 of a unit being
rounded upward).
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COMMERCIAL PAPER RATE NOTES. Commercial Paper Rate Notes will bear
interest at the interest rates (calculated with reference to the Commercial
Paper Rate and the Spread and/or Spread Multiplier, if any) specified in the
Commercial Paper Rate Note and in the applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on that date for commercial paper having the Index Maturity
specified in the applicable Authentication Certificate as such rate is published
by the Board of Governors of the Federal Reserve System in "Statistical Release
H.15(519), Selected Interest Rates" or any successor publication ("H.15(519)")
under the heading "Commercial Paper". If by 3:00 p.m., New York City time, on
the Calculation Date pertaining to such Commercial Paper Interest Determination
Date such rate is not so published, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Commercial Paper Interest Determination
Date for commercial paper having the Index Maturity designated in the applicable
Authentication Certificate as published by the Federal Reserve Bank of New York
in its daily statistical release, "Composite 3:30 p.m. Quotations for U.S.
Government Securities" ("Composite Quotations") under the heading "Commercial
Paper". If by 3:00 p.m., New York City time, on such Calculation Date such rate
is not yet published in either H.15(519) or Composite Quotations, the Commercial
Paper Rate for that Commercial Paper Interest Determination Date shall be
calculated by the Calculation Agent and shall be the Money Market Yield of the
arithmetic mean of the offered rates of three leading dealers of commercial
paper in The City of New York selected by the Calculation Agent as of 11:00
a.m., New York City time, on that Commercial Paper Interest Determination Date,
for commercial paper having the Index Maturity specified in the applicable
Authentication Certificate placed for an industrial issuer whose bond rating is
"AA", or the equivalent, from a nationally recognized securities rating agency;
provided, however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as specified in this sentence, the Commercial
Paper Rate with respect to such Commercial Paper Interest Determination Date
will remain the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date.
"Money Market Yield" shall be a yield calculated in accordance with
the following formula:
Money Market Yield = D x 360 x 100
-----------------
360-(D x M)
where "D" refers to the per annum rate for the commercial paper, quoted on a
bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
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FEDERAL FUNDS RATE NOTES. Federal Funds Rate Notes will bear interest
at the interest rates (calculated with reference to the Federal Funds Rate and
the Spread and/or Spread Multiplier, if any) specified in the Federal Funds Rate
Notes and in the applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Federal Funds Rate" means, with respect to any Federal Funds
Interest Determination Date, the rate on that day for Federal Funds as published
in H.15(519) under the heading "Federal Funds Effective" or, if not so published
in H.15(519) by 3:00 p.m., New York City time, on the Calculation Date
pertaining to such Federal Funds Interest Determination Date, the Federal Funds
Rate will be the rate on such Federal Funds Interest Determination Date as
published in Composite Quotations under the heading "Federal Funds/Effective
Rate". If such rate is not so published in either H.15(519) or Composite
Quotations by 3:00 p.m., New York City time, on the Calculation Date pertaining
to such Federal Funds Interest Determination Date, the Federal Funds Rate for
such Federal Funds Interest Determination Date will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates for the last
transaction in overnight Federal Funds arranged by three leading dealers of
Federal Funds transactions in The City of New York selected by the Calculation
Agent as of 11:00 a.m., New York City time, on such Federal Funds Interest
Determination Date; provided, however, that if fewer than three dealers selected
as aforesaid by the Calculation Agent are quoting as specified in this sentence,
the Federal Funds Rate will remain the Federal Funds Rate in effect on such
Federal Funds Interest Determination Date.
LIBOR NOTES. LIBOR Notes will bear interest at the interest rates
(calculated with reference to LIBOR and the Spread and/or Spread Multiplier, if
any) specified in the LIBOR Notes and in the applicable Authentication
Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, LIBOR will be determined by the Calculation Agent in accordance
with the following provisions:
(i) With respect to a LIBOR Interest Determination Date, LIBOR will
be determined on the basis of the offered rates for deposits in the Index
Currency (as defined below) having the Index Maturity designated in the
applicable Authentication Certificate, commencing on the second Business
Day immediately following that LIBOR Interest Determination Date, that
appears as of 11:00 a.m. London time on such LIBOR Interest Determination
Date on the display screen designated "Page 3750" by Telerate Data Service,
or such other page as may replace such page on that service or such other
service or services as may be nominated by the British Bankers' Association
for the purpose of displaying London interbank offered rates for deposits
in the relevant Index Currency. If no rate appears on Telerate Page 3750,
then LIBOR in respect of that LIBOR Interest Determination Date will be the
arithmetic mean of the offered rates (unless the display referred to below
by its terms
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provides only for a single rate, in which case such single rate shall be
used) for deposits in the London interbank market in the Index Currency
having the Index Maturity designated in the applicable Authentication
Certificate and commencing on the second Business Day immediately following
such LIBOR Interest Determination Date that appear on the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the
London interbank offered rates of major banks for the applicable Index
Currency as of 11:00 a.m., London time, on such LIBOR Interest
Determination Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required). If fewer than two such rates
appear (or, if such display by its terms provides for only a single rate,
in which case if no such rate appears), then LIBOR in respect of such LIBOR
Interest Determination Date will be determined as if the parties had
specified the rate described in clause (ii) below.
(ii) If LIBOR with respect to a LIBOR Interest Determination Date is
to be determined pursuant to this clause (ii), the Calculation Agent will
request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to
provide the Calculation Agent with its offered quotation for deposits in
the Index Currency for the period of the Index Maturity designated in the
applicable Authentication Certificate, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date,
to prime banks in the London interbank market at approximately 11:00 a.m.,
London time, on such LIBOR Interest Determination Date and in a principal
amount that is representative for a single transaction in such Index
Currency in such market at such time. If at least two such quotations are
provided, LIBOR determined on such LIBOR Interest Determination Date will
be the arithmetic mean of such quotations. If fewer than two quotations
are provided, LIBOR determined on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00
a.m., (or such other time specified in the applicable Authentication
Certificate), in the applicable Principal Financial Center (as defined
below), on such LIBOR Interest Determination Date by three major banks in
such Principal Financial Center selected by the Calculation Agent for loans
in the Index Currency to leading European banks, having the Index Maturity
designated in the applicable Authentication Certificate and in a principal
amount that is representative for a single transaction in such Index
Currency in such market at such time; provided, however, that if the banks
so selected by the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR determined on such LIBOR Interest Determination Date will
be LIBOR in effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified in the applicable Authentication Certificate as the currency for which
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LIBOR shall be calculated. If no such currency is specified in the applicable
Authentication Certificate, the Index Currency shall be United States dollars.
"Principal Financial Center" will generally be the capital city of the
country of the specified Index Currency, except that with respect to United
States dollars, Deutsche marks, Italian lira, Swiss francs, Dutch guilders and
ECUs, the Principal Financial Center shall be The City of New York, Frankfurt,
Milan, Zurich, Amsterdam and Luxembourg, respectively.
PRIME RATE NOTES. Prime Rate Notes will bear interest at the interest
rates (calculated with reference to the Prime Rate and the Spread and/or Spread
Multiplier, if any) specified in the Prime Rate Notes and in the applicable
Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Prime Rate" means, with respect to any Prime Interest
Determination Date, the rate set forth for the relevant Prime Interest
Determination Date in H.15(519) under the heading "Bank Prime Loan." In the
event that such rate is not published by 3:00 p.m., New York City time, on the
relevant Calculation Date, then the Prime Rate with respect to such Prime
Interest Determination Date will be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the display designated as page
"NYMF" on the Reuters Monitor Money Rates Service (or such other page as may
replace the NYMF page on that service for the purpose of displaying prime rates
or base lending rates of major United States banks) ("Reuters Screen NYMF Page")
as such banks prime rate or base lending rate as in effect for such Prime
Interest Determination Date. If fewer than four such rates appear on the
Reuters Screen NYMF Page on such Interest Determination Date, the Prime Rate
shall be calculated by the Calculation Agent and shall be determined as the
arithmetic mean on the basis of the prime rates or base rates for commercial
loans quoted in The City of New York on such date by three substitute banks or
trust companies organized and doing business under the laws of the United
States, or any State thereof, having total equity capital of at least
$500,000,000 and being subject to supervision or examination by a federal or
state authority, selected by the Calculation Agent (after consultation with the
Company); provided, however, that if fewer than three banks or trust companies
selected as aforesaid by the Calculation Agent are quoting as specified in this
sentence, the Prime Rate will remain the Prime Rate in effect on such Prime
Interest Determination Date.
CD RATE NOTES. CD Rate Notes will bear interest at the interest rates
(calculated with reference to the CD Rate and the Spread and/or Spread
Multiplier, if any) specified in the CD Rate Notes and in the applicable
Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "CD Rate" means, with respect to any CD Interest Determination
Date, the rate on such date for negotiable certificates of deposit having the
Index Maturity specified in
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the applicable Authentication Certificate as such rate is published in H.15(519)
under the heading "CDs (Secondary Market)". If by 3:00 p.m., New York City
time, on the Calculation Date pertaining to such CD Interest Determination Date
such rate is not so published, then the CD Rate shall be the rate on such CD
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity designated in the applicable Authentication Certificate as published in
Composite Quotations under the heading "Certificates of Deposit". If by 3:00
p.m., New York City time, on such Calculation Date such rate is not so published
in either H.15(519) or Composite Quotations, the CD Rate for that CD Interest
Determination Date shall be calculated by the Calculation Agent and shall be the
arithmetic mean of the secondary market offered rates as of 3:00 p.m., New York
City time, on such CD Interest Determination Date, of three leading nonbank
dealers in negotiable United States dollar certificates of deposit in The City
of New York selected by the Calculation Agent for negotiable certificates of
deposit of major United States money market banks which are then rated A-1+ by
Standard & Poor's Corporation and P-1 by Moody's Investors Service with a
remaining maturity closest to the Index Maturity specified in the applicable
Authentication Certificate in denominations of $5,000,000; provided, however,
that if fewer than three dealers selected as aforesaid by the Calculation Agent
are quoting as specified in this sentence, the CD Rate will remain the CD Rate
in effect on such CD Interest Determination Date.
TREASURY RATE NOTES. Treasury Rate Notes will bear interest at the
interest rates (calculated with reference to the Treasury Rate and the Spread
and/or Spread Multiplier, if any) specified in the Treasury Rate Notes and in
the applicable Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified in
the applicable Authentication Certificate as such rate is published in H.15(519)
under the heading "U.S. Government Securities--Treasury Bills--auction average
(investment)" or, if not so published in H.15 (519) by 3:00 p.m., New York City
time, on the Calculation Date pertaining to such Treasury Interest Determination
Date, the auction average rate (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury bills having the Index
Maturity designated in the applicable Authentication Certificate are not
otherwise reported as provided above by 3:00 p.m., New York City time, on such
Calculation Date or no such auction is held in a particular week, then the
Treasury Rate shall be the rate published in H.15(519) under the heading "U.S.
Government Securities--Treasury Bills--Secondary Market" (expressed as a bond
equivalent yield on the basis of a 365 or 366 day year, as applicable, on a
daily basis), or if not published by 3:00 p.m., New York City time on the
related Calculation Date, the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable,
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and applied on a daily basis) calculated using the arithmetic mean
of the secondary market bid rates, as of 3:30 p.m., New York City time, on such
Treasury Interest Determination Date, of three leading primary United States
government securities dealers selected by the Calculation Agent for the issue of
Treasury bills with a remaining maturity closest to the Index Maturity
designated in the applicable Authentication Certificate; provided, however, that
if fewer than three dealers selected as aforesaid by the Calculation Agent are
quoting as specified in this sentence, the Treasury Rate with respect to such
Treasury Interest Determination Date will remain the Treasury Rate in effect on
such Treasury Interest Determination Date.
CMT RATE NOTES. CMT Rate Notes will bear interest at the interest
rates (calculated with reference to the CMT Rate and the Spread and/or Spread
Multiplier, if any) specified in the CMT Rate Note and in the applicable
Authentication Certificate.
Unless otherwise specified in the applicable Authentication
Certificate, "CMT Rate" means, with respect to any CMT Interest Determination
Date, the rate displayed on the Designated CMT Telerate Page (as defined below)
under the caption ". . . Treasury Constant Maturities . . . Federal Reserve
Board Release H.15 . . . Mondays Approximately 3:45 p.m.", under the column for
the Designated CMT Maturity Index (as defined below) for (i) if the Designated
CMT Telerate Page is 7055, the rate on such CMT Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week or the month, as
applicable, ended immediately preceding the week in which the related CMT
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page, or if not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Interest Determination
Date will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index as published in the relevant H.15(519). If such rate is no
longer published, or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Interest Determination
Date will be such Treasury Constant Maturity rate for the Designated CMT
Maturity Index (or other United States Treasury rate for the Designated CMT
Maturity Index) for the CMT Interest Determination Date with respect to such
Interest Reset Date as may then be published by either the Board of Governors of
the Federal Reserve System or the United States Department of the Treasury that
the Calculation Agent determines to be comparable to the rate formerly displayed
on the Designated CMT Telerate Page and published in the relevant H.15(519). If
such information is not provided by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate for the CMT Interest Determination
Date will be calculated by the Calculation Agent and will be a yield to
maturity, based on the arithmetic mean of the secondary market closing offer
side prices as of approximately 3:30 p.m., New York City time on the CMT
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by
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the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States ("Treasury notes") with an original
maturity of approximately the Designated CMT Maturity Index and a remaining term
to maturity of not less than such Designated CMT Maturity Index minus one year.
If the Calculation Agent cannot obtain three such Treasury notes quotations, the
CMT Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 p.m., New
York City time, on the CMT Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100,000,000. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described herein, the CMT Rate will be the CMT Rate in
effect on such CMT Interest Determination Date. If two Treasury notes with an
original maturity as described in the third preceding sentence, have remaining
terms to maturity equally close to the Designated CMT Maturity Index, the quotes
for the CMT Rate Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated in the applicable Authentication Certificate (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519). If
no such page is specified in the applicable Authentication Certificate, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified in the applicable Authentication Certificate with respect to which the
CMT Rate will be calculated. If no such maturity is specified in the applicable
Authentication Certificate, the Designated CMT Maturity Index shall be 2 years.
ZERO COUPON NOTES
The specific terms of any Zero Coupon Notes will be set forth in the
applicable Authentication Certificate.
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(6) Unless otherwise specified in the applicable Authentication
Certificate, principal of (and premium, if any) and interest (if any) on the
Notes will be payable, and, except as provided in Section 305 of the Indenture
with respect to any Global Security (as defined below) representing Book-Entry
Notes (as defined below), the transfer of the Notes will be registrable and
Notes will be exchangeable for Notes bearing identical terms and provisions at
the corporate trust office of The Chase Manhattan Bank (National Association)
(the "Paying Agent"), in the Borough of Manhattan, The City of New York,
provided that payments of interest with respect to any Certificated Note (as
defined below), other than interest at maturity or upon redemption, may be made
at the option of the Company by check mailed to the address of the person
entitled thereto as it appears on the registry books of the Company at the close
of business on the Regular Record Date corresponding to the relevant Interest
Payment Date. Unless otherwise specified in the applicable Authentication
Certificate, holders of $10,000,000 or more in aggregate principal amount of
Certificated Notes shall be entitled to receive payments of interest, other than
interest at maturity or upon redemption, by wire transfer of immediately
available funds, if appropriate wire transfer instructions have been given to
the Paying Agent in writing not later than the Regular Record Date prior to the
applicable Interest Payment Date.
(7) Unless an initial date on which a Note may be redeemed by the
Company (a "Redemption Commencement Date") is set forth in the applicable
Authentication Certificate, the Notes shall not be redeemable prior to their
stated maturity. If a Redemption Commencement Date is so specified with respect
to any Note, the applicable Authentication Certificate shall also specify one or
more redemption prices ("Redemption Prices") (unless otherwise specified in such
Authentication Certificate, expressed as a percentage of the principal amount of
such Note or, in the case of Zero Coupon Notes or certain interest bearing Notes
issued as Original Issue Discount Notes (as specified in the applicable
Authentication Certificate), as a percentage of the Amortized Face Amount (as
defined below) of such Note as described in Paragraph (13) below), together with
accrued interest, if any, to the date of redemption (or, in the case of any
interest bearing Note issued as an Original Issue Discount Note, any accrued but
unpaid "qualified stated interest" payments (as specified in Paragraph (13)
below)) and the redemption period or periods ("Redemption Periods") during which
such Redemption Prices shall apply. Unless otherwise specified in the
applicable Authentication Certificate, the Company may redeem any of the Notes
which are redeemable and remain outstanding either in whole or from time to time
in part upon the terms and conditions set forth in Article XI of the Indenture.
(8) The Notes will not be subject to any sinking fund and, unless a
date or dates on which a Note may be repayable at the option of the Holder
thereof (each a "Repayment Date") is specified in the applicable Authentication
Certificate, will not be repayable at the option of a holder prior to their
stated maturity. If a Repayment Date is so specified with respect to any Note,
the applicable
-15-
<PAGE>
Authentication Certificate will also specify one or more repayment prices
("Repayment Prices") (unless otherwise specified in such Authentication
Certificate, expressed as a percentage of the principal amount of such Note or,
in the case of Zero Coupon Notes or certain interest bearing Notes issued as
Original Issue Discount Notes (as specified in the applicable Authentication
Certificate), as a percentage of the Amortized Face Amount of such Note as
described in Paragraph (13) below), together with accrued interest, if any, to
the date of repayment (or, in the case of any interest bearing Note issued as an
Original Issue Discount Note, any accrued but unpaid "qualified stated interest"
payments (as specified in Paragraph (13) below)), the repayment period or
periods ("Repayment Periods") during which such Repayment Prices shall apply and
any other terms of such repayment.
(9) Unless otherwise specified in the applicable Authentication
Certificate, Notes of such series, other than Foreign Currency Notes, may be
issued only in fully registered form and the authorized denomination of the
Notes of such series shall be $100,000 and any integral multiple of $1,000 in
excess thereof. Foreign Currency Notes will be issued in the denominations
specified in the applicable Authentication Certificate.
(10) The Notes may be denominated, and payments of principal of and
interest on the Notes will be made, in United States dollars or in such foreign
currencies or composite currencies (a "Specified Currency") as may be specified
in the applicable Authentication Certificate (each such Note denominated in a
Specified Currency other than United States Dollars, a "Foreign Currency
Notes").
(11) The Notes may be issued with the principal amount thereof payable
at maturity or upon redemption or repayment or the interest payable on any
Interest Payment Date, or both, to be determined with reference to an index or
indices (E.G., currencies, composite currencies, commodities, financial or
nonfinancial indices) or other factors set forth in the applicable
Authentication Certificate. Holders of such Notes may receive a principal amount
at maturity or upon redemption or repayment that is greater than or less than
the face amount of the Note depending upon such index or other factor.
Information as to the method for determining the principal amount payable at
maturity or upon redemption or repayment or the amount of interest payable on
any Interest Payment Date, as the case may be, and the applicable index or other
factor will be set forth in the applicable Authentication Certificate.
(12) Unless otherwise specified in the applicable Authentication
Certificate, the Notes shall be subject to the events of default specified in
Section 501, paragraphs (1) through (7), of the Indenture.
(13) The portion of the principal amount of the Notes, other than
Original Issue Discount Notes, (including any Zero Coupon Notes) which shall be
payable upon declaration of acceleration of maturity thereof shall not be other
than the principal amount thereof. Unless otherwise specified in the applicable
-16-
<PAGE>
Authentication Certificate, the portion of the principal amount of Zero Coupon
Notes and certain interest bearing Notes issued as Original Issue Discount Notes
(as specified in the applicable Authentication Certificate) upon any
acceleration of the maturity thereof will be the Amortized Face Amount (as
defined below) thereof, and the amount payable to the holder of such Original
Issue Discount Note upon any redemption or repayment thereof will be the
applicable percentage of the Amortized Face Amount thereof specified in the
applicable Authentication Certificate, in each case as determined by the Company
plus, in the case of any interest bearing Note issued as an Original Issue
Discount Note, any accrued but unpaid "qualified stated interest" payments (as
defined in the Treasury Regulations regarding original issue discount issued by
the Treasury Department in January 1994 (the "Regulations")). The "Amortized
Face Amount" of an Original Issue Discount Note is equal to the sum of (i) the
Issue Price (as defined below) of such Original Issue Discount Note and (ii)
that portion of the difference between the Issue Price and the principal amount
of such Original Issue Discount Note that has been amortized at the Stated Yield
(as defined below) of such Original Issue Discount Note (computed in accordance
with Section 1272(a)(4) of the Internal Revenue Code of 1986, as amended, and
Section 1.1275-1(b) of the Regulations, in each case as in effect on the issue
date of such Original Issue Discount Note) at the date as of which the Amortized
Face Amount is calculated, but in no event can the Amortized Face Amount exceed
the principal amount of such Note due at the stated maturity thereof. As used
in the preceding sentence, the term "Issue Price" means the principal amount of
such Original Issue Discount Note due at the stated maturity thereof less the
"Original Issue Discount" of such Original Issue Discount Note specified on the
face thereof and in the applicable Authentication Certificate. The term "Stated
Yield" of such Original Issue Discount Note means the "Yield to Maturity"
specified on the face of such Original Issue Discount Note and in the applicable
Authentication Certificate for the period from the Original Issue Date of such
Original Issue Discount Note, as specified on the face of such Original Issue
Discount Note and in the applicable Authentication Certificate, to the stated
maturity thereof based on its Issue Price and principal amount payable at the
stated maturity thereof.
(14) Each Note will be represented by either a global security (a
"Global Security") registered in the name of a nominee of the Depository (each
such Note represented by a Global Security being herein referred to as a "Book-
Entry Note") or a certificate issued in definitive registered form, without
coupons (a "Certificated Note"), as set forth in the applicable Authentication
Certificate. Unless otherwise specified in the applicable Authentication
Certificate, The Depository Trust Company will act as Depositary. Except as
provided in Section 305 of the Indenture, Book-Entry Notes will not be issuable
in certificated form and will not be exchangeable or transferable. So long as
the Depositary or its nominee is the registered holder of any Global Security,
the Depositary or its nominee, as the case may be, will be considered the sole
Holder of the Book-Entry Note or Notes represented by such Global Security for
all purposes under the Indenture and the Notes.
-17-
<PAGE>
(15) Subject to the terms of the Indenture and the resolutions and
authorizations referred to in the first paragraph hereof, the Notes shall have
such other terms (which may be in addition to or different from the terms set
forth herein) as are specified in the applicable Authentication Certificate.
B. ESTABLISHMENT OF NOTE FORMS PURSUANT TO SECTION 201 OF INDENTURE.
It is hereby established pursuant to Section 201 of the Indenture that
the Global Securities representing Book-Entry Notes shall be substantially in
the forms attached as Exhibits A, B, C and D hereto, unless a different form is
provided in the applicable Authentication Certificate (which Authentication
Certificate shall be an "Officers' Certificate" satisfying the requirements of
Section 201 of the Indenture). The Notes shall have such additional terms as
shall be set forth in the applicable Authentication Certificate and delivered to
the Trustee or its authenticating agent. Upon receipt (including by facsimile)
of such an Authentication Certificate, the Trustee or its authenticating agent
is hereby instructed to insert such terms on the face of the Notes relating
thereto.
C. ESTABLISHMENT OR PROCEDURES FOR AUTHENTICATION OF NOTES PURSUANT
TO SECTION 303 OF INDENTURE.
It is hereby ordered pursuant to Section 303 of the Indenture that
Notes may be authenticated by the Trustee and issued in accordance with the
Administrative Procedures attached hereto as Exhibit E and upon receipt by the
Trustee (including by facsimile) of an Authentication Certificate Supplemental
to this Officers' Certificate and Company Order, in substantially the form
attached as Exhibit F hereto (an "Authentication Certificate"), setting forth
the information specified or contemplated therein for the particular Notes to be
authenticated and issued. At least one officer signing each Authentication
Certificate shall be an Authorized Officer as defined in the resolutions
referred to in the first paragraph hereof.
D. OTHER MATTERS.
The applicable Authentication Certificate shall specify any agent of
the Company designated for the purpose of delivering, for cancellation by the
Trustee pursuant to Section 309 of the Indenture, Notes which have not been
issued and sold by the Company.
-18-
<PAGE>
The undersigned have read the pertinent sections of the Indenture
including the related definitions contained therein. The undersigned have
examined the resolutions adopted by the Board of Directors of the Company and
the authorizations adopted by the Committee of the Board of Directors. In the
opinion of the undersigned, the undersigned have made such examination or
investigation as is necessary to enable the undersigned to express an informed
opinion as to whether or not the conditions precedent to the establishment of
(i) a series of Securities, (ii) the forms of such Securities and (iii) the
procedures for authentication of such series of Securities, contained in the
Indenture have been complied with. In the opinion of the undersigned, such
conditions have been complied with.
Dated: August 4, 1994
HONEYWELL INC.
By: /s/ Paul N. Saleh
---------------------------------
Paul N. Saleh
Vice President and Treasurer
And: /s/ Sigurd Ueland, Jr.
---------------------------------
Sigurd Ueland, Jr.
Vice President and Secretary
<PAGE>
This Note is a Global Security within the meaning of the Indenture referred to
herein and is registered in the name of a Depositary or a nominee of a
Depositary. Unless this certificate is presented by an authorized
representative of The Depositary Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depositary
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
Principal Amount:
No. AA-- HONEYWELL INC. $
MEDIUM-TERM NOTE, SERIES A CUSIP
(GLOBAL FIXED RATE NOTE) No.
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: REDEMPTION TERMS:
OTHER TERMS: REPAYMENT TERMS:
HONEYWELL INC., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of DOLLARS
on the Maturity Date shown above or, together with any premium thereon, upon any
applicable Redemption Date or Repayment Date, and to pay interest thereon from
the
<PAGE>
Original Issue Date shown above or from and including the most recent Interest
Payment Date to which interest has been paid or duly provided for, on each June
15 and December 15 or such other dates, if any, as are specified under "Other
Terms" above (the "Interest Payment Dates"), commencing with the Interest
Payment Date immediately following the Original Issue Date, at the rate per
annum equal to the Interest Rate shown above, until the principal hereof is paid
or made available for payment; provided, however, that if the Original Issue
Date is after a Regular Record Date and on or before the immediately following
Interest Payment Date interest payments will commence on the Interest Payment
Date following the next succeeding Regular Record Date. The interest so payable
and punctually paid or duly provided for on any Interest Payment Date will as
provided in the Indenture be paid to the Person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall, unless otherwise specified under
"Other Terms" above, be the first calendar day (whether or not a Business
Day) of the month in which such Interest Payment Date occurs; provided, however,
that interest payable on the Maturity Date of this Note or any applicable
Redemption Date or Repayment Date that is not an Interest Payment Date shall be
payable to the Person to whom principal shall be payable. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder hereof on such Regular Record Date and may be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than 10 days prior to such Special Record Date. In the
event that any Interest Payment Date or the Maturity Date or any applicable
Redemption Date or Repayment Date is not a Business Day, the interest and, with
respect to the Maturity Date or any applicable Redemption Date or Repayment
Date, principal otherwise payable on such date will be paid on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date, Maturity Date, Redemption Date or Repayment Date.
Payment of the principal of (and premium, if any) and interest on this Note
will be made in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
Payment of the principal of (and premium, if any) and interest on this Note due
on the Maturity Date or any applicable Redemption Date or Repayment Date will be
made in immediately available funds upon presentation of this Note. Interest on
this Note shall be computed on the basis of a 360-day year of twelve 30-day
months.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption, in whole or in part, at the option of the
Company prior to the Maturity Date upon not less than 30 nor more than 60 days'
notice.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
-2-
<PAGE>
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee identified below, by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] HONEYWELL INC.
By /s/ Paul N. Saleh
-------------------------------------
Paul N. Saleh
Vice President and Treasurer
Attest /s/ Sigurd Ueland
---------------------------------
Sigurd Ueland
Vice President and Secretary
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as Trustee
By______________________________________
Authorized Officer
-3-
<PAGE>
HONEYWELL INC.
Medium-Term Note, Series A
(Global Fixed Rate Note)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture, dated as of August 1, 1994 (herein called the "Indenture"),
between the Company and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated herein.
By the terms of the Indenture, additional Notes of this series and of other
separate series, which may vary as to date, amount, Maturity Date, interest rate
or method of calculating the interest rate and in other respects as therein
provided, may be issued in an unlimited principal amount.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption prior to the Maturity Date upon not less than
30 nor more than 60 days' notice by mail to the Person in whose name this Note
is registered at such address as shall appear in the registry books of the
Company, on any Redemption Date so specified or occurring within any period so
specified, as a whole or in part, at the election of the Company, at the
applicable Redemption Price so specified, together in the case of any such
redemption with accrued interest to the Redemption Date, provided, however, that
installments of interest whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this Note (or one or more predecessor
Notes) at the close of business on the relevant Regular Record Dates referred to
above, all as provided in the Indenture. In the event of redemption of this
Note in part only, a new Note of this series and of like tenor of an authorized
denomination for the unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof. This Note is not subject to any
sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (expressed as percentages of the principal amount
of this Note) are set forth above under "Repayment Terms", this Note is subject
to repayment at the option of the Holder hereof prior to the Maturity Date upon
such terms as are set forth above under "Repayment Terms". In the event of
repayment of this Note in part only, a new Note of this series and of like tenor
of an authorized denomination for the portion hereof not repaid will be issued
in the name of the Holder hereof upon the cancellation hereof.
-4-
<PAGE>
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of all the Notes may (subject to the conditions set
forth in the Indenture) be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of the Holders of any Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the registry books of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of (and premium, if
any) and interest on this Note are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
Unless otherwise set forth above, under "Other Terms", the Notes of this
series are issuable only in fully registered form without coupons in
denominations of $100,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like
-5-
<PAGE>
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms". Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
------------------------------
ABBREVIATIONS
The following abbreviations, when used in this instrument, shall be
construed as though they were written out in full according to applicable laws
or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-- _______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
___________________________________
(State)
Additional abbreviations may be used though not in the above list.
----------------------------------------------------------
-6-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
/ / ___________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
_______________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
-7-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the undersigned elects to have
repaid:_______________________________________________________________;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the undersigned
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid):_____________________________.
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-8-
<PAGE>
This Note is a Global Security within the meaning of the Indenture referred
to herein and is registered in the name of a Depositary or a nominee of a
Depositary. Unless this certificate is presented by an authorized representative
of The Depositary Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depositary Trust
Company and any payment is made to Cede & Co., ANY TRANSFER PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
Principal Amount:
HONEYWELL INC $
No. AB-- MEDIUM-TERM NOTE, SERIES A CUSIP
(GLOBAL FLOATING RATE NOTE) No.
ORIGINAL ISSUE DATE: MATURITY DATE:
INITIAL INTEREST RATE: SPREAD:
INTEREST RATE BASIS (and, if SPREAD MULTIPLIER:
applicable, related Interest
Periods):
REDEMPTION TERMS:
[ ] Commercial Paper Rate
[ ] Federal Funds Rate
[ ] LIBOR
[ ] Prime Rate
[ ] CD Rate
[ ] Treasury Rate
[ ] Fixed Rate
[ ] CMT Rate REPAYMENT TERMS:
Designated CMT Telerate
Page:
Designated CMT Maturity
Index: CALCULATION AGENT:
[ ] Other (see "Other Terms")
INDEX MATURITY:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE: OTHER TERMS:
INTEREST RESET DATES:
INTEREST PAYMENT DATES:
<PAGE>
HONEYWELL INC., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of
DOLLARS
on the Maturity Date shown above or, if such Maturity Date is not a Business
Day, the next succeeding Business Day, except that, in the case of a LIBOR Note,
if such Business Day is in the next succeeding calendar month, the immediately
preceding Business Day, or, together with any premium thereon, upon any
applicable Redemption Date or Repayment Date, and to pay interest thereon from
the Original Issue Date shown above or, except as otherwise specified below,
from and including the most recent Interest Payment Date to which interest has
been paid or duly provided for, on each Interest Payment Date shown above,
commencing with the Interest Payment Date immediately following the Original
Issue Date, at the rate per annum determined in accordance with the provisions
below relating to the applicable Interest Rate Basis specified above, until the
principal hereof is paid or made available for payment; provided, however, that
if the Original Issue Date is after a Regular Record Date and on or before the
immediately following Interest Payment Date, interest payments will commence on
the Interest Payment Date following the next succeeding Regular Record Date.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will as provided in such Indenture be paid to the Person in whose
name this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest, which, unless otherwise
specified under "Other Terms" above, shall be the fifteenth calendar day
(whether or not a Business Day) next preceding such Interest Payment Date;
provided, however, that interest payable on the Maturity Date of this Note or
any applicable Redemption Date or Repayment Date that is not an Interest Payment
Date shall be payable to the Person to whom principal shall be payable. Any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder hereof on such Regular Record Date and may be paid
to the Person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date. In the event that any Interest Payment Date or any applicable
Redemption Date or Repayment Date is not a Business Day, such Interest Payment
Date, Redemption Date or Repayment Date shall be postponed to the next day that
is a Business Day, except that, in the case of a LIBOR Note, if such Business
Day is in the next succeeding calendar month, such Interest Payment Date,
Redemption Date or Repayment Date shall be the immediately preceding Business
Day. Payment of the principal of (and premium, if any) and interest on this
Note will be made in such coin or currency of the United States of America as
at the time of payment is legal tender for payment of public and private debts.
Payment of the principal of (and premium, if any)
-2-
<PAGE>
and interest on this Note due on the Maturity Date or any applicable Redemption
Date will be made in immediately available funds upon presentation of this Note.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption, in whole or in part, at the option of the
Company prior to the Maturity Date upon not less than 30 nor more than 60 days'
notice.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to below by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] HONEYWELL INC.
By /s/ Paul N. Saleh
-----------------------------------------
Paul N. Saleh
Vice President and Treasurer
Attest /s/ Sigurd Ueland
-------------------------------------
Sigurd Ueland
Vice President and Secretary
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as Trustee
By
---------------------------------------
Authorized Officer
-4-
<PAGE>
HONEYWELL INC.
MEDIUM-TERM NOTE, SERIES A
(GLOBAL FLOATING RATE NOTE)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture dated as of August 1, 1994 (herein called the "Indenture"), between
the Company and The Chase Manhattan Bank (National Association), as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all Indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated herein.
By the terms of the Indenture, additional Notes of this series and of other
separate series, which may vary as to date, amount, Maturity Date, interest rate
or method of calculating the interest rate and in other respects as therein
provided, may be issued in an unlimited principal amount.
REDEMPTION AND REPAYMENT
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (expressed as percentages of the
principal amount of this Note) are set forth above under "Redemption Terms",
this Note is subject to redemption prior to the Maturity Date upon not less than
30 nor more than 60 days' notice by mail to the Person in whose name this Note
is registered at such address as shall appear in the registry books of the
Company, on any Redemption Date so specified or occurring within any period so
specified, as a whole or in part, at the election of the Company, at the
applicable Redemption Price so specified, together in the case of any such
redemption with accrued interest to the Redemption Date, provided, however, that
installments of interest whose Stated Maturity is on or prior to such Redemption
Date will be payable in the case of any such redemption to the Holder of this
Note (or one or more predecessor Notes) at the close of business on the relevant
Regular Record Dates referred to above, all as provided in the Indenture. In
the event of redemption of this Note in part only, a new Note of this series and
of like tenor of an authorized denomination for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
This Note is not subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (expressed as percentages of the principal amount
of this Note) are set forth above under "Repayment Terms", this Note is subject
to repayment at the option of the Holder hereof prior to the Maturity Date upon
such terms as are set forth above under "Repayment Terms". In the event of
repayment of this Note in part only, a new Note of this series and of like tenor
of an authorized denomination for the portion
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hereof not repaid will be issued in the name of the Holder hereof upon the
cancellation hereof.
INTEREST PROVISIONS
Commencing with the Interest Reset Date specified above, first following
the Original Issue Date specified above, the rate at which this Note bears
interest will be reset daily, weekly, monthly, quarterly, semi-annually or
annually (the date on which each such reset occurs, an "Interest Reset Date").
Unless otherwise specified above under "Other Terms", the Interest Reset Date
will be as follows: in the case of Notes which are reset daily, each Business
Day; in the case of Notes (other than Treasury Rate Notes) which are reset
weekly, Wednesday of each week; in the case of Treasury Rate Notes which are
reset weekly, Tuesday of each week (except if the auction date falls on a
Tuesday, then the next Business Day, as provided below); in the case of Notes
which are reset monthly, the third Wednesday of each month; in the case of Notes
which are reset quarterly, the third Wednesday of March, June, September and
December of each year; in the case of Notes which are reset semi-annually, the
third Wednesday of the two months of each year as indicated above, by the
Interest Reset Dates; and in the case of Notes which are reset annually, the
third Wednesday of the month of each year as indicated above, by the Interest
Reset Dates. Unless otherwise specified above, the interest rate determined
with respect to any Interest Determination Date (as defined below) will become
effective on and as of the next succeeding Interest Reset Date; provided,
however, that (i) the interest rate in effect from the date of issue to the
first Interest Reset Date with respect to this Note (the "Initial Interest
Rate") will be as set forth above and (ii) the interest rate in effect for the
10 days immediately prior to maturity will be that in effect on the tenth day
preceding such maturity. If any Interest Reset Date for any Note would
otherwise be a day that is not Business Day, such Interest Reset Date shall be
postponed to the next day that is a Business Day, except that in the case of a
LIBOR Note, if such Business Day is in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day. Subject to
applicable provisions of law and except as specified herein, on each Interest
Reset Date the rate of interest on this Note shall be the rate determined in
accordance with the provisions of the applicable heading below.
DETERMINATION OF COMMERCIAL PAPER RATE
If the Interest Rate Basis specified above with respect to any Interest
Period (as defined below) is the Commercial Paper Rate, this Note is a
"Commercial Paper Rate Note" with respect to such Interest Period and the
interest rate with respect to this Note for any Interest Reset Date relating to
such Interest Period shall be the Commercial Paper Rate plus or minus the
Spread, if any, or multiplied by the Spread Multiplier, if any, as specified
above, as determined on the applicable Commercial Paper Interest Determination
Date (as defined below).
Unless otherwise specified above under "Other Terms", "Commercial Paper
Rate" means, with respect to any Commercial Paper Interest Determination Date,
the Money
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Market Yield (calculated as described below) of the rate on that date for
commercial paper having the Index Maturity specified above as such rate is
published by the Board of Governors of the Federal Reserve System in Statistical
Release H.15(519), Selected Interest Rates" or any successor publication
("H.15(519)") under the heading "Commercial Paper". If by 3:00 p.m., New York
City time, on the Calculation Date (as defined below) pertaining to such
Commercial Paper Interest Determination Date such rate is not so published, then
the Commercial Paper Rate shall be the Money Market Yield of the rate on that
Commercial Paper Interest Determination Date for commercial paper having such
Index Maturity as published by the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 p.m. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Commercial Paper". If
by 3:00 p.m. New York City time, on such Calculation Date such rate is not yet
published in either H.15(519) or Composite Quotations, the Commercial Paper Rate
for that Commercial Paper Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered rates of three leading dealers of commercial paper in The City of
New York selected by the Calculation Agent as of 11:00 a.m., New York City time,
on that Commercial Paper Interest Determination Date, for commercial paper
having such Index Maturity placed for an industrial issuer whose bond rating is
"AA", or the equivalent, from a nationally recognized securities rating agency;
provided, however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as specified in this sentence, the Commercial
Paper Rate with respect to such Commercial Paper Interest Determination Date
will remain the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date.
"Money Market Yield" shall be a yield calculated in accordance with the
following formula:
Money Market Yield = D x 360 x 100
-------------
360 - (D x M)
where "D" refers to the per annum rate for the commercial paper, quoted on a
bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
DETERMINATION OF FEDERAL FUNDS RATE
If the Interest Rate Basis specified above with respect to any Interest
Period is the Federal Funds Rate, this Note is a "Federal Funds Rate Note" with
respect to such Interest Period and the interest rate with respect to this Note
for any Interest Reset Date relating to such Interest Period shall be the
Federal Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, as specified above, as determined on the applicable Federal
Funds Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "Federal Funds Rate"
means, with respect to any Federal Funds Interest Determination Date (as defined
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below), the rate on that day for Federal Funds as published in H.15(519) under
the heading "Federal Funds Effective" or, if not so published in H.15(519) by
3:00 p.m., New York City time, on the Calculation Date pertaining to such
Federal Funds Interest Determination Date, then the Federal Funds Rate will be
the rate on such Federal Funds Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate". If such
rate is not so published in either H.15(519) or Composite Quotations by 3:00
p.m., New York City time, on the Calculation Date pertaining to such Federal
Funds Interest Determination Date, the Federal Funds Rate for such Federal Funds
Interest Determination Date will be calculated by the Calculation Agent and will
be the arithmetic mean of the rates for the last transaction in overnight
Federal Funds arranged by three leading dealers of Federal Funds transactions in
the City of New York selected by the Calculation Agent as of 11:00 a.m., New
York City time, on such Federal Funds Interest Determination Date; provided,
however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as specified in this sentence, the Federal Funds
Rate will remain the Federal Funds Rate in effect on such Federal Funds Interest
Determination Date.
DETERMINATION OF LIBOR
If the Interest Rate Basis specified above with respect to any Interest
Period is LIBOR, this Note is a "LIBOR Note" with respect to such Interest
Period and the interest rate with respect to this Note for any Interest Reset
Date relating to such Interest Period shall be LIBOR plus or minus the Spread,
if any, or multiplied by the Spread Multiplier, if any, as specified above, as
determined on the applicable LIBOR Interest Determination Date (as defined
below).
Unless otherwise specified above under "Other Terms", "LIBOR" will be
determined by the Calculation Agent in accordance with the following provisions:
(i) With respect to a LIBOR Interest Determination Date, LIBOR will be
determined on the basis of the offered rates for deposits in the Index Currency
(as defined below) having the Index Maturity specified above, commencing on the
second Business Day immediately following that LIBOR Interest Determination
Date, that appear as of 11:00 a.m., London time, on that LIBOR Interest
Determination Date on the display screen designated "Page 3750" by Telerate Data
Service, or such other page as may replace such page on that service or such
other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
deposits in the relevant Index Currency. If no rate appears on Telerate Page
3750, then LIBOR in respect of that LIBOR Interest Determination Date will be
the arithmetic mean of the offered rates (unless the display referred to below
by its terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the London interbank market in the Index Currency
having the Index Maturity specified above and commencing on the second Business
Day immediately following such LIBOR Interest Determination Date that appear on
the display on the Reuters Monitor Money Rates Service for the purpose of
displaying the London interbank offered rates of major banks for the applicable
Index Currency as of 11:00 a.m., London
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time, on such LIBOR Interest Determination Date, if at least two such offered
rates appear (unless, as aforesaid, only a single rate is required). If fewer
than two such rates appear (or, if such display by its terms provides for only a
single rate, in which case if no such rate appears), then LIBOR in respect of
such LIBOR Interest Determination Date will be determined as if the parties had
specified the rate described in clause (ii) below.
(ii) If LIBOR with respect to a LIBOR Interest Determination Date is to be
determined pursuant to this clause (ii), the Calculation Agent will request the
principal London offices of each of four major reference banks in the London
interbank market, as selected by the Calculation Agent, to provide the
Calculation Agent with its offered quotation for deposits in the Index Currency
for the period of the Index Maturity specified above, commencing on the second
London Business Day immediately following such LIBOR Interest Determination
Date, to prime banks in the London interbank market at approximately 11:00 a.m.,
London time, on such LIBOR Interest Determination Date and in a principal amount
that is representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are provided, LIBOR
determined on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two quotations are provided, LIBOR determined
on such LIBOR Interest Determination Date will be the arithmetic mean of the
rates quoted at approximately 11:00 a.m., (or such other time specified above),
in the applicable Principal Financial Center (as defined below), on such LIBOR
Interest Determination Date by three major banks in such Principal Financial
Center selected by the Calculation Agent for loans in the Index Currency to
leading European banks, having the Index Maturity specified above and in a
principal amount that is representative for a single transaction in such Index
Currency in such market at such time; provided, however, that if the banks so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
LIBOR determined on such LIBOR Interest Determination Date will be LIBOR in
effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no such
currency is specified above, the Index Currency shall be United States dollars.
"Principal Financial Center" will generally be the capital city of the
country of the specified Index Currency, except that with respect to United
States dollars, Deutsche marks, Italian lira, Swiss francs, Dutch guilders and
ECUs, the Principal Financial Center shall be The City of New York, Frankfurt,
Milan, Zurich, Amsterdam and Luxembourg, respectively.
DETERMINATION OF PRIME RATE
If the Interest Rate Basis specified above with respect to any Interest
Period is the Prime Rate, this Note is a "Prime Rate Note" with respect to such
Interest Period and the interest rate with respect to this Note for any Interest
Reset Date relating to such Interest Period shall be the Prime Rate plus or
minus the Spread, if any, or multiplied by the
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Spread Multiplier, if any, as specified above, as determined on the applicable
Prime Interest Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "Prime Rate" means,
with respect to any Prime Interest Determination Date, the rate set forth for
the relevant Prime Interest Determination Date in H.15(519) under the heading
"Bank Prime Loan". In the event that such rate is not published by 3:00 p.m.,
New York City time, on the relevant Calculation Date, then the Prime Rate with
respect to such Prime Interest Determination Date will be the arithmetic mean of
the rates of interest publicly announced by each bank that appears on the
display designated as page "NYMF" on the Reuters Monitor Money Rates Service (or
such other page as may replace the NYMF page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks)
("Reuters Screen NYMF Page") as such banks prime rate or base lending rate as in
effect for such Prime Interest Determination Date. If fewer than four such
rates appear on the Reuters Screen NYMF Page on such Interest Determination
Date, the Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates or base rates
for commercial loans quoted in The City of New York on such date by three
substitute banks or trust companies organized and doing business under the laws
of the United States, or any State thereof, having total equity capital of at
least $500,000,000 and being subject to supervision or examination by a federal
or state authority, selected by the Calculation Agent (after consultation with
the Company); provided, however, that if fewer than three banks or trust
companies selected as aforesaid by the Calculation Agent are quoting as
specified in this sentence, the Prime Rate will remain the Prime Rate in effect
on such Prime Interest Determination Date.
DETERMINATION OF THE CD RATE
If the Interest Rate Basis specified above with respect to any Interest
Period is the CD Rate, this Note is a "CD Rate Note" with respect to such
Interest Period and the interest rate with respect to this Note for any Interest
Reset Date relating to such Interest Period shall be the CD Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified
above, as determined on the applicable CD Interest Determination Date (as
defined below).
Unless otherwise specified above under "Other Terms", "CD Rate" means, with
respect to any CD Interest Determination Date, the rate on such date for
negotiable certificates of deposit having the Index Maturity specified above as
such rate is published in H.15(519) under the heading "CDs (Secondary Market)".
If by 3:00 p.m., New York City time, on the Calculation Date pertaining to such
CD Interest Determination Date such rate is not so published, then the CD Rate
shall be the rate on such CD Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified above as published in
Composite Quotations under the heading "Certificates of Deposit". If by 3:00
p.m., New York City time, on such Calculation Date such rate is not so published
in either H.15(519) or Composite Quotations, the CD Rate for that CD Interest
Determination Date shall be calculated by the Calculation Agent and shall be the
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arithmetic mean of the secondary market offered rates as of 3:00 p.m., New York
City time, on such CD Interest Determination Date, of three leading nonbank
dealers in negotiable U.S. dollar certificates of deposit in The City of New
York selected by the Calculation Agent for negotiable certificates of deposit of
major U.S. money market banks which are then rated A-1+ by Standard & Poor's
Corporation and P-1 by Moody's Investors Service with a remaining maturity
closest to the Index Maturity specified above in denominations of $5,000,000;
provided, however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as specified in this sentence, the CD Rate will
remain the CD Rate in effect on such CD Interest Determination Date.
DETERMINATION OF TREASURY RATE
If the Interest Rate Basis specified above with respect to any Interest
Period is the Treasury Rate, this Note is a "Treasury Rate Note" with respect to
such Interest Period and the interest rate with respect to this Note for any
Interest Reset Date relating to such Interest Period shall be the Treasury Rate
plus or minus the Spread, if any, or multiplied by the Spread Multiplier, if
any, as specified above, as determined on the applicable Treasury Interest
Determination Date (as defined below).
Unless otherwise specified above under "Other Terms", "Treasury Rate"
means, with respect to any Treasury Interest Determination Date (as defined
below), the rate for the most recent auction of direct obligations of the United
States ("Treasury bills") having the Index Maturity specified above as such rate
is published in H.15(519) under the heading "U.S. Government
Securities--Treasury Bills--auction average (investment)" or, if not so
published in H.15(519) by 3:00 p.m., New York City time, on the Calculation Date
pertaining to such Treasury Interest Determination Date, then the auction
average rate (expressed as a bond equivalent on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) as otherwise announced by
the United States Department of the Treasury. In the event that the results of
the auction of Treasury bills having an Index Maturity specified above are not
otherwise reported as provided above by 3:00 p.m., New York City time, on such
Calculation Date or no such auction is held in a particular week, then the
Treasury Rate shall be the rate published in H.15(519) under the heading "U.S.
Government Securities--Treasury Bills--Secondary Market" (expressed as a bond
equivalent yield on the basis of a 365 or 366 day year, as applicable, on a
daily basis), or if not published by 3:00 p.m., New York City time on the
related Calculation Date, the Treasury Rate shall be calculated by the
Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) calculated using the arithmetic mean of the secondary market
bid rates, as of 3:30 p.m., New York City time, on such Treasury Interest
Determination Date, of three leading primary United States government securities
dealers selected by the Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the Index Maturity specified above; provided,
however, that if fewer than three dealers selected as aforesaid by the
Calculation Agent are quoting as specified in this sentence, the Treasury Rate
with respect to such Treasury
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Interest Determination Date will remain the Treasury Rate in effect on such
Treasury Interest Determination Date.
DETERMINATION OF CMT RATE
If the Interest Rate Basis specified above with respect to any Interest
Period is the CMT Rate, this Note is a "CMT Rate Note" with respect to such
Interest Period and the interest rate with respect to this Note for any Interest
Reset Date relating to such Interest Period shall be the CMT Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, as specified
above, as determined on the applicable CMT Interest Determination Date (as
defined below).
Unless otherwise specified above, "CMT Rate" means, with respect to any CMT
Interest Determination Date, the rate displayed on the Designated CMT Telerate
Page (as defined below) under the caption ". . . Treasury Constant Maturities .
. . Federal Reserve Board Release H.15 . . . Mondays Approximately 3:45 p.m.",
under the column for the Designated CMT Maturity Index (as defined below) for
(i) if the Designated CMT Telerate Page is 7055, the rate on such CMT Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week or the month, as applicable, ended immediately preceding the week in which
the related CMT Interest Determination Date occurs. If such rate is no longer
displayed on the relevant page, or if not displayed by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published, or, if not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate for such CMT Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
relevant H.15(519). If such information is not provided by 3:00 p.m., New York
City time, on the related Calculation Date, then the CMT Rate for the CMT
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
closing offer side prices as of approximately 3:30 p.m., New York City time on
the CMT Interest Determination Date reported, according to their written
records, by three leading primary United States government securities dealers
(each, a "Reference Dealer") in The City of New York selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain
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three such Treasury notes quotations, the CMT Rate for such CMT Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity based on the arithmetic mean of the secondary market offer
side prices as of approximately 3:30 p.m., New York City time, on the CMT
Interest Determination Date of three Reference Dealers in The City of New York
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury notes with an original maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an amount
of at least $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate will be the CMT Rate in effect on such CMT
Interest Determination Date. If two Treasury notes with an original maturity as
described in the third preceding sentence, have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the CMT Rate
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page designated above (or any other page as may replace such page
on that service for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519)), for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519). If no such page is specified above, the
Designated CMT Telerate Page shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be 2
years.
GENERAL
Notwithstanding the determination of the interest rate as provided above,
the interest rate on this Note for any Interest Period shall not be greater than
the Maximum Interest Rate, if any, or less than the Minimum Interest Rate, if
any, specified above. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law as the same may be modified by
United States law of general application.
On or before the Calculation Date (as defined below), The Chase Manhattan
Bank (National Association) or any other Calculation Agent specified above, as
Calculation Agent (the "Calculation Agent"), will determine the interest rate in
accordance with the foregoing with respect to the applicable Interest Rate Basis
and will notify the Paying Agent. The Paying Agent will determine the Accrued
Interest Factor (as defined below)
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applicable to this Note. The Paying Agent will, upon the request of the Holder
of this Note, provide the interest rate then in effect and the interest rate
which will become effective as a result of a determination made with respect to
the most recent Interest Determination Date with respect to this Note. The
determinations of interest rates made by the Calculation Agent shall be
conclusive and binding, and neither the Trustee nor the Paying Agent shall have
the duty to verify determinations of interest rates made by the Calculation
Agent. The determinations of Accrued Interest Factors made by the Paying Agent
shall be conclusive and binding. Unless otherwise specified above under "Other
Terms", the "Calculation Date", if applicable, pertaining to any Interest
Determination Date on a Note will be the earlier of (i) the tenth calendar day
after such Interest Determination Date, or, if any such day is not a Business
Day, the next succeeding Business Day and (ii) the Business Day preceding the
applicable Interest Payment Date or the maturity date or repayment or redemption
date, as the case may be.
As used herein, "Interest Determination Date" means the date as of which
the interest rate for this Note is to be calculated, to be effective as of the
following Interest Reset Date and calculated on the related Calculation Date.
Unless otherwise specified above under "Other Terms", the Interest Determination
Date pertaining to an Interest Reset Date for a Commercial Paper Rate Note,
Federal Funds Rate Note, LIBOR Note, Prime Rate Note, a CD Rate Note, or a CMT
Rate Note (the "Commercial Paper Interest Determination Date", the "Federal
Funds Interest Determination Date", the "LIBOR Interest Determination Date", the
"Prime Interest Determination Date" the "CD Interest Determination Date", and
the "CMT Interest Determination Date", respectively) will be the second
Business Day prior to the Interest Reset Date. Unless otherwise specified above
under "Other Terms", the Interest Determination Date pertaining to an Interest
Reset Date for a Treasury Rate Note (the "Treasury Interest Determination Date")
will be the day of the week on which Treasury bills would normally be auctioned
in the week in which such Interest Reset Date falls. Treasury bills are usually
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is usually held on the following Tuesday, except that
such auction may be held on the preceding Friday. If, as the result of a legal
holiday, an auction is so held on the preceding Friday, such Friday will be the
Treasury Interest Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction date shall fall on any
Interest Reset Date for a Treasury Rate Note, then such Interest Reset Date
shall instead be the first Business Day immediately following such auction date.
Unless otherwise specified above under "Other Terms", interest payments on
this Note on an Interest Payment Date will include interest accrued from, and
including, the next preceding Interest Payment Date to which interest has been
paid or duly provided for (or from, and including, the date of issue if no
interest has been paid or duly provided for) to, but excluding, such Interest
Payment Date (each such interest accrual period being herein called an "Interest
Period"). At the Maturity Date hereof or on any applicable Redemption Date or
Repayment Date, the interest payable shall include interest accrued to, but
excluding, the Maturity Date or such Redemption Date or Repayment Date. Accrued
interest from the date of issue or from the last day to which
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interest has been paid or duly provided for to the date for which interest is
being calculated is calculated by multiplying the face amount of this Note by
the applicable accrued interest factor (the "Accrued Interest Factor"). This
Accrued Interest Factor is computed by adding together the interest factors
calculated for each day from the date of issue or from the last date to which
interest has been paid or duly provided for to the date for which accrued
interest is being calculated. The interest factor for each such day will be
computed by dividing the per annum interest rate applicable to such day by 360
in the case of Commercial Paper Rate Notes, Federal Funds Rate Notes, LIBOR
Notes, Prime Rate Notes and CD Rate Notes, or by the actual number of days in
the year in the case of Treasury Rate Notes and CMT Rate Notes. The interest
rate in effect on each day will be (i) if such day is an Interest Reset Date,
the interest rate with respect to the Interest Determination Date pertaining to
such Interest Reset Date or (ii) if such day is not an Interest Reset Date, the
interest rate with respect to the Interest Determination Date pertaining to the
next preceding Interest Reset Date, subject in either case to any maximum or
minimum interest rate limitation referred to above.
Unless otherwise specified above under "Other Terms", all percentages
resulting from any calculation on this Note, will be rounded, if necessary, to
the nearest one hundred-thousandth of one percentage point, with five
one-millionths of one percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)
being rounded to 9.87654% (or .0987654)); all calculations of the interest
factor for any day on Floating Rate Notes will be rounded, if necessary, to the
nearest one hundred-millionth, with five one-billionths rounded upward (e.g.,
.098765455 being rounded to .09876546 and .098765454 being rounded to
.09876545); and all dollar amounts used in or resulting from such calculation on
this Note will be rounded to the nearest cent (with one-half cent being rounded
upward).
MISCELLANEOUS PROVISIONS
If an Event of Default with respect to Notes of this series shall occur and
be continuing, the principal of all the Notes may (subject to the conditions set
forth in the Indenture) be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of
-15-
<PAGE>
the Holders of any Notes at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Notes of each series at the time Outstanding, on behalf
of the Holders of all Notes of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the registry books of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of (and premium, if
any) and interest on this Note are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
Unless otherwise set forth above under "Other Terms", the Notes of this
series are issuable only in fully registered form without coupons in
denominations of $100,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Note may have such additional or different terms as are set forth
above under "Other Terms". Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
-16-
<PAGE>
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned to them in the Indenture.
-------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNF GIFT MIN ACT-- _______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
___________________________________
(State)
Additional abbreviations may be used though not in the above list.
-------------------------------------------------------
-17-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
/ /_____________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
-18-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the undersigned elects to have
repaid:_______________________________________________________________;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the undersigned
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid):_____________________________.
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-19-
<PAGE>
This Note is a Global Security within the meaning of the Indenture, referred to
herein and is registered in the name of a Depositary or a nominee of a
Depositary. Unless this certificate is presented by an authorized
representative of The Depositary Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depositary
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
HONEYWELL INC. Principal Amount:
No. AC-- Medium-Term Note, Series A $
(Global Original Issue CUSIP
Discount Zero Coupon Note) No.
ORIGINAL ISSUE DATE: MATURITY DATE:
OTHER TERMS: REDEMPTION TERMS:
ORIGINAL ISSUE DISCOUNT:
YIELD TO MATURITY: REPAYMENT TERMS:
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS NOTE IS THE PERCENTAGE OF ITS
PRINCIPAL AMOUNT SET FORTH ABOVE AND THE YIELD TO MATURITY IS THE PERCENTAGE SET
FORTH ABOVE.
HONEYWELL INC., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of DOLLARS
on the Maturity Date shown above.
<PAGE>
The principal of this Note shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or repayment
or at the Maturity Date, and in such case the overdue principal of this Note
shall bear interest at a rate which is equivalent to the yield to maturity
stated above (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the Maturity Date or the date payment is
due upon acceleration or redemption or repayment, as the case may be, to the
date payment of such principal has been made or duly provided for. Interest on
any overdue principal shall be payable upon demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the same
rate as the interest on the overdue principal (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand. In the
event that the Maturity Date or any applicable Redemption Date or Repayment Date
is not a Business Day, principal otherwise payable on such Maturity Date or any
applicable Redemption Date or Repayment Date will be paid on the next succeeding
Business Day with the same force and effect as if paid on such Maturity Date,
Redemption Date or Repayment Date. Payment of principal and any interest or
premium on this Note will be made in immediately available funds in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (unless otherwise specified above
under "Other Terms", expressed as percentages of the Amortized Face Amount (as
defined below) of this Note) are set forth above under "Redemption Terms", this
Note is subject to redemption, in whole or in part, at the option of the Company
prior to the Maturity Date upon not less than 30 nor more than 60 days' notice.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to below by manual signature, this Note shall not
be entitled to any benefit under the Indenture hereinafter referred to or be
valid or obligatory for any purpose.
-2-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] HONEYWELL INC.
By
-------------------------------
Paul N. Saleh
Vice President and Treasurer
Attest
---------------------------
Sigurd Ueland
Vice President and Secretary
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as Trustee
By
---------------------------------
Authorized Officer
-3-
<PAGE>
HONEYWELL INC.
MEDIUM-TERM NOTE, SERIES A
(GLOBAL ORIGINAL ISSUE DISCOUNT ZERO COUPON NOTE)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture, dated as of August 1, 1994 (herein called the "Indenture"),
between the Company and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated herein.
By the terms of the Indenture, additional Notes of this series and of other
separate series, which may vary as to date, amount, Maturity Date, interest rate
or method of calculating the interest rate and in other respects as therein
provided may be issued in an unlimited principal amount.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (unless otherwise specified above
under "Other Terms", expressed as percentages of the Amortized Face Amount (as
defined below) of this Note) are set forth above under "Redemption Terms", this
Note is subject to redemption prior to the Maturity Date upon not less than 30
nor more than 60 days' notice by mail to the Person in whose name this Note is
registered at such address as shall appear in the registry books of the Company,
on any Redemption Date so specified or occurring within any period so specified,
as a whole or in part, at the election of the Company. In the event of
redemption of this Note in part only, a new Note of this series and of like
tenor of an authorized denomination for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof. This Note
is not subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (unless otherwise specified above under "Other
Terms", expressed as percentages of the Amortized Face Amount of this Note) are
set forth above under "Repayment Terms", this Note is subject to repayment at
the option of the Holder hereof prior to the Maturity Date upon such terms as
are set forth above under "Repayment Terms". In the event of repayment of this
Note in part only, a new Note of this series and of like tenor of an authorized
denomination for the portion hereof not repaid will be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default with respect to this Note shall occur and be
continuing, a lesser amount than the principal amount due at the Stated Maturity
of this Note may (subject to the conditions set forth in the Indenture) be
declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount
-4-
<PAGE>
of principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the extent that the payment of
such interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and interest, if any, on this Note
shall terminate.
The amount due and payable on this Note in the event that the principal
amount hereof is declared due and payable prior to the Stated Maturity or in the
event that this Note is redeemed or repaid shall, unless otherwise indicated
above under "Other Terms", be the Amortized Face Amount (as defined below) of
this Note or, in the case of redemption or repayment, the specified percentage
of the Amortized Face Amount of this Note on the day such payment is due and
payable, as determined by the Company, plus any accrued but unpaid "qualified
stated interest" payments (as defined in the Treasury Regulations regarding
original issue discount issued by the Treasury Department in January 1994 (the
"Regulations")).
The "Amortized Face Amount" of this Note shall be the amount equal to the
sum of (i) the issue price (as defined below) of this Note and (ii) that portion
of the difference between the issue price and the principal amount of this Note
that has been amortized at the Stated Yield (as defined below) of this Note
(computed in accordance with Section 1272(a)(4) of the Internal Revenue Code of
1986, as amended, and Section 1.1275-1(b) of the Regulations, in each case as in
effect on the issue date of this Note) at the date as of which the Amortized
Face Amount is calculated, but in no event can the Amortized Face Amount exceed
the principal amount of this Note due at the Stated Maturity hereof. As used in
the preceding sentence, the term "issue price" means the principal amount of
this Note due at the Stated Maturity hereof less the Original Issue Discount of
this Note specified above. The term "Stated Yield" of this Note means the Yield
to Maturity specified above for the period from the Original Issue Date of this
Note specified above, to the Stated Maturity hereof based on the issue price and
principal amount payable at the Stated Maturity hereof.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of the Holders of any Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any
-5-
<PAGE>
such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
In determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver under the Indenture or whether a quorum is present at
a meeting of Holders of Notes, the principal amount of any Original Issue
Discount Note that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal (and premium, if any) of this
Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the registry books of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal (and premium, if any)
of this Note is payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Notes of this series of like tenor of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
Unless otherwise set forth above under "Other Terms", the Notes of this
series are issuable only in fully registered form without coupons in
denominations of $100,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
-6-
<PAGE>
This Note may have such additional or different terms as are set forth
above, under "Other Terms". Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned to them in the Indenture.
--------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-- _______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
_______________________________________
(State)
Additional abbreviations may be used though not in the above list.
------------------------------------------------------
-7-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
/ /_____________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
________________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
_______________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
-8-
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the undersigned elects to have
repaid:_______________________________________________________________;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the undersigned
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid):_____________________________.
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
-9-
<PAGE>
This Note is a Global Security within the meaning of the indenture referred to
herein and is registered in the name of a Depositary or a nominee of a
Depositary. Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depositary
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
REGISTERED REGISTERED
Principal Amount:
HONEYWELL INC. $
No. AD-- MEDIUM-TERM NOTE, SERIES A CUSIP
(GLOBAL ORIGINAL ISSUE DISCOUNT FIXED RATE NOTE) No.
ORIGINAL ISSUE DATE: MATURITY DATE:
INTEREST RATE: REDEMPTION TERMS:
OTHER TERMS: REPAYMENT TERMS:
ORIGINAL ISSUE DISCOUNT: YIELD TO MATURITY:
[ ] ORIGINAL ISSUE DISCOUNT [ ] ORIGINAL ISSUE DISCOUNT
NOTE SUBJECT TO NOTE FOR FEDERAL INCOME
"SPECIAL PROVISIONS" TAX PURPOSES ONLY
BELOW
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS NOTE IS THE PERCENTAGE OF ITS
PRINCIPAL AMOUNT SET FORTH ABOVE AND THE YIELD TO MATURITY IS THE PERCENTAGE SET
FORTH ABOVE.
HONEYWELL INC., a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to
or registered assigns, the principal sum of DOLLARS
<PAGE>
on the Maturity Date shown above or, together with any premium thereon, upon any
applicable Redemption Date or Repayment Date (subject to the "Special
Provisions" below, if applicable), and to pay interest on such principal sum
from the Original Issue Date shown above or from and including the most recent
Interest Payment Date to which interest has been paid or duly provided for, on
each June 15 and December 15 or such other dates, if any, as are specified under
"Other Terms" above (the "Interest Payment Dates"), commencing with the Interest
Payment Date immediately following the Original Issue Date, at the rate per
annum equal to the Interest Rate shown above, until the principal hereof is paid
or made available for payment; provided, however, that if the Original Issue
Date is after a Regular Record Date and on or before the immediately following
Interest Payment Date, interest payments will commence on the Interest Payment
Date following the next succeeding Regular Record Date. The interest so payable
and punctually paid or duly provided for any Interest Payment Date will as
provided in the Indenture be paid to the Person in whose name this Note (or one
or more predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall, unless otherwise specified above
under "Other Terms", be the first calendar day (whether or not a Business
Day) of the month in which such Interest Payment Date occurs; provided, however,
that interest payable on the Maturity Date of this Note or any applicable
Redemption Date or Repayment Date that is not an Interest Payment Date shall be
payable to the Person to whom principal shall be payable. Any such interest not
so punctually paid or duly provided for will forthwith cease to be payable to
the Holder hereof on such Regular Record Date and may be paid to the Person in
whose name this Note (or one or more predecessor Notes) is registered at the
close of business on a Special Record Date for the payment of such defaulted
interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this Note not less than 10 days prior to such Special Record Date. In the
event that any Interest Payment Date or the Maturity Date or any applicable
Redemption Date or Repayment Date is not a Business Day, the interest and, with
respect to the Maturity Date or any applicable Redemption Date or Repayment
Date, principal otherwise payable on such date will be paid on the next
succeeding Business Day with the same force and effect as if made on such
Interest Payment Date or Maturity Date or Redemption Date. Payment of the
principal of (and premium, if any) and interest on this Note will be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts. Payment of the
principal of (and premium, if any) and interest on this Note due on the Maturity
Date or any applicable Redemption Date or Repayment Date will be made in
immediately available funds upon presentation of this Note. Interest on this
Note shall be computed on the basis of a 360-day year of twelve 30-day months.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (unless otherwise specified above
under "Other Terms", expressed as percentages of the principal amount of this
Note if this Note is an Original Issue Discount Note for federal income tax
purposes only as shown above and as percentages of the Amortized Face Amount (as
defined below) of this Note if this Note is an Original Issue Discount Note
subject to the "Special Provisions" below as shown above) are set forth above
under "Redemption Terms", this
-2-
<PAGE>
Note is subject to redemption, in whole or in part, at the option of the Company
prior to the Maturity Date upon not less than 30 nor more than 60 days' notice.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee referred to below by manual signature, this Note shall not
be entitled to any benefit under the Indenture hereinafter referred to or be
valid or obligatory for any purpose.
-3-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
[SEAL] HONEYWELL INC.
By /s/ Paul N. Saleh
-------------------------------------------
Paul N. Saleh
Vice President and Treasurer
Attest /s/ Sigurd Ueland
---------------------------------------
Sigurd Ueland
Vice President and Secretary
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the
series designated herein and issued
pursuant to the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION), as Trustee
By
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Authorized Officer
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HONEYWELL INC.
MEDIUM-TERM NOTE, SERIES A
(GLOBAL ORIGINAL ISSUE DISCOUNT FIXED RATE NOTE)
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued or to be issued in one or more series under
an Indenture, dated as of August 1, 1994 (herein called the "Indenture"),
between the Company and The Chase Manhattan Bank (National Association), as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all Indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated herein.
By the terms of the Indenture, additional Notes of this series and of other
separate series, which may vary as to date, amount, Maturity Date, interest rate
or method of calculating the interest rate and in other respects as therein
provided, may be issued in an unlimited principal amount.
If a Redemption Commencement Date or periods within which Redemption Dates
may occur and the related Redemption Prices (unless otherwise specified above
under "Other Terms", expressed as percentages of the principal amount of this
Note if this Note is an Original Issue Discount Note for federal income tax
purposes only as shown above and as percentages of the Amortized Face Amount (as
defined below) of this Note if this Note is an Original Issue Discount Note
subject to the "Special Provisions" below as shown above) are set forth above
under "Redemption Terms", this Note is subject to redemption prior to the
Maturity Date upon not less than 30 nor more than 60 days' notice by mail to the
Person in whose name this Note is registered at such address as shall appear in
the registry books of the Company, on any Redemption Date so specified or
occurring within any period so specified, as a whole or in part, at the election
of the Company, at the applicable Redemption Price so specified, together in the
case of any such redemption with accrued interest to the Redemption Date,
provided, however, that installments of interest whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Note (or one
or more predecessor Notes) at the close of business on the relevant Regular
Record Dates, referred to above, all as provided in the Indenture, in the event
of redemption of this Note in part only, a new Note of this series and of like
tenor of an authorized denomination for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof. This Note
is not subject to any sinking fund.
If a Repayment Date or periods within which Repayment Dates may occur and
the related Repayment Prices (unless otherwise specified above under "Other
Terms", expressed as percentages of the principal amount of this Note if this
Note is an Original Issue Discount Note for federal income tax purposes only as
shown above and as percentages of the Amortized Face Amount of this Note if this
Note is an Original Issue Discount Note subject to the "Special Provisions"
below as shown above) are set forth above under "Repayment Terms", this Note is
subject to repayment at the option of the
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Holder hereof prior to the Maturity Date upon such terms as are set forth above
under "Repayment Terms". In the event of repayment of this Note in part only, a
new Note of this series and of like tenor of an authorized denomination for the
portion hereof not repaid will be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default with respect to Notes of this series shall occur and
be continuing, a lesser amount than the principal amount due at the Stated
Maturity of the Notes of this series may (subject to the conditions set forth in
the Indenture) be declared due and payable in the manner and with the effect
provided in the Indenture. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on the Notes of this
series shall terminate.
The Indenture contains provisions for defeasance at any time of the
Company's obligations in respect of (i) the entire indebtedness of this Note or
(ii) certain restrictive covenants with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time Outstanding of each series to be affected and, for certain
purposes, without the consent of the Holders of any Notes at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Notes of each series
at the time Outstanding, on behalf of the Holders of all Notes of such series,
to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Note issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
In determining whether the Holders of the requisite principal amount of the
Outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver under the Indenture or whether a quorum is present at
a meeting of Holders of Notes, the principal amount of any Original Issue
Discount Note that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and
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unconditional, to pay the principal (and premium, if any) of and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the registry books of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any place where the principal of (and premium, if
any) and interest on this Note are payable, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of this series and of like tenor of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
Unless otherwise set forth above under "Other Terms", the Notes of this
series are issuable only in fully registered form without coupons in
denominations of $100,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes of this series are exchangeable for a like
aggregate principal amount of Notes of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge will be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered in the Security Register as the
owner hereof for all purposes, whether or not this Note be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Note may have such additional or different terms as are set forth
above, under "Other Terms". Any terms so set forth shall be deemed to modify
and/or supersede, as necessary, any other terms set forth in this Note.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned to them in the Indenture.
SPECIAL PROVISIONS
Unless otherwise indicated above under "Other Terms", if this Note is an
Original Issue Discount Fixed Rate Note subject to these Special Provisions, as
indicated above, the amount due and payable on this Note in the event that the
principal amount hereof
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is declared due and payable prior to the Stated Maturity hereof or in the event
that this Note is redeemed or repaid shall be the Amortized Face Amount (as
defined below) of this Note or, in the case of redemption or repayment, the
specified percentage of the Amortized Face Amount of this Note on the date such
payment is due and payable as determined by the Company, plus any accrued but
unpaid "qualified stated interest" payments (as defined in the Treasury
Regulations regarding original issue discount issued by the Treasury Department
in January 1994 (the "Regulations")).
The "Amortized Face Amount" of this Note shall be the amount equal to the
sum of (i) the issue price (as defined below) of this Note and (ii) that
portion of the difference between the issue price and the principal amount of
this Note that has been amortized at the Stated Yield (as defined below) of this
Note (computed in accordance with Section 1272(a)(4) of the Internal Revenue
Code of 1986, as amended, and Section 1.1275-1(b) of the Regulations, in each
case as in effect on the issue date of this Note) at the date as of which the
Amortized Face Amount is calculated, but in no event can the Amortized Face
Amount exceed the principal amount of this Note due at the Stated Maturity
hereof. As used in the preceding sentence, the term "issue price" means the
principal amount of this Note due at the Stated Maturity hereof less the
Original Issue Discount of this Note specified above. The term "Stated Yield"
of this Note means the Yield to Maturity specified above for the period from the
Original Issue Date of this Note specified above, to the Stated Maturity hereof
based on the issue price and principal amount payable at the Stated Maturity
hereof.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-- _______________Custodian_______________
(Cust) (Minor)
under Uniform Gift to Minors Act
____________________________________
(State)
Additional abbreviations may be used though not in the above list.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
/ /____________________________________________________________________________
(Name and address of assignee, including zip code, must be printed or
typewritten)
_______________________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably constituting and
appointing
________________________________________________________________________Attorney
to transfer said Note on the books of the within Company, with full power of
substitution in the premises
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever and must be guaranteed by a commercial bank
or trust company having its principal office or a correspondent in the City of
New York or by a member of the New York Stock Exchange.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to
repay the within Note (or portion thereof specified below) pursuant to its terms
at the applicable Repayment Price, together with interest to the Repayment Date,
to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the undersigned elects to have
repaid:_______________________________________________________________;
and specify the denomination or denominations (which shall not be less than the
minimum authorized denomination) of the Notes to be issued to the undersigned
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being
repaid):_____________________________.
Dated _______________ ___________________________________________
___________________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the within Note in every particular, without alteration or
enlargement or any change whatever.
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