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REGISTRATION NO.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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TEXTRON FINANCIAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 05-6008768
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
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40 WESTMINSTER STREET
P.O. BOX 6687
PROVIDENCE, RHODE ISLAND 02940-6687
(401) 621-4200
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ELIZABETH C. PERKINS, ESQ.
40 WESTMINSTER STREET
P.O. BOX 6687
PROVIDENCE, RHODE ISLAND 02940-6687
(401) 621-4200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
MAUREEN S. BRUNDAGE, ESQ.
WHITE & CASE LLP
1155 AVENUE OF THE AMERICAS
NEW YORK, NEW YORK 10036
(212) 819-8200
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ___________
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ___________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE TO BE AGGREGATE PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED(1) UNIT(2) PRICE(1)(2) FEE
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Debt securities.................. $3,000,000,000 100% $3,000,000,000 $834,000
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(1) Or the equivalent in foreign denominated currency or units based on or
relating to currencies, or if debt securities are issued at original issue
discount, such higher principal amount as shall result in an aggregate
initial public offering price of $ at the time of initial offering.
(2) Estimated solely for the purpose of determining the registration fee.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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SUBJECT TO COMPLETION, DATED OCTOBER 5, 1999
PROSPECTUS
[TFC TEXTRON LOGO]
TEXTRON FINANCIAL CORPORATION
40 WESTMINSTER STREET
P.O. BOX 6687
PROVIDENCE, RHODE ISLAND 02940-6687
(401) 621-4200
$3,000,000,000
DEBT SECURITIES
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WE WILL PROVIDE SPECIFIED TERMS OF THESE SECURITIES IN SUPPLEMENTS TO THIS
PROSPECTUS.
YOU SHOULD READ THIS PROSPECTUS AND ANY SUPPLEMENT CAREFULLY BEFORE YOU INVEST.
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The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus is dated , 1999
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TABLE OF CONTENTS
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PAGE
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About this Prospectus............... 1
Textron Financial Corporation....... 1
Use of Proceeds..................... 1
Ratio of Earnings to Fixed
Charges............................. 2
Description of Debt Securities...... 2
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PAGE
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Plan of Distribution................ 13
Where You Can Find More
Information......................... 14
Legal Opinions...................... 15
Experts............................. 15
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC using a "shelf" registration process. Under this shelf process, we may sell
the debt securities described in this prospectus in one or more offerings up to
a total dollar amount of $3,000,000,000.
This prospectus provides you with a general description of the securities
we may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of the
securities offered. Each prospectus supplement may also add to or update or
change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with additional information
described under the heading WHERE YOU CAN FIND MORE INFORMATION.
TEXTRON FINANCIAL CORPORATION
We were incorporated in the State of Delaware in 1962. Our executive office
is at 40 Westminster Street, Providence, Rhode Island. Our telephone number is
401-621-4200. We are a diversified commercial finance company offering term
loans and leases for equipment, revolving credit arrangements and, other
specialty financial products. Our finance transactions involve numerous
industries, including aircraft, golf, timeshare resorts, transportation, machine
tool, and automotive service and repair. Our other financial services and
products include transaction syndications, equipment appraisal and management,
portfolio servicing and insurance brokerage. We are a wholly-owned subsidiary of
Textron Inc., a multi-industry company with market-leading operations in
aircraft, automotive, industrial and finance.
We entered into a Support Agreement dated as of May 25, 1994 with Textron
Inc. Under the Support Agreement, Textron Inc. is required to pay us, quarterly,
an amount sufficient to provide that pre-tax earnings, before extraordinary
items and fixed charges will not be less than 125% of our fixed charges. Fixed
charges for purposes of the Support Agreement include interest on indebtedness
and amortization of debt discount. No payments under the then existing support
agreement were required for 1998, 1997, 1996 and 1995, when our fixed charge
coverage ratios were 173%, 171%, 165% and 160%, respectively. In addition,
Textron Inc. has agreed to maintain our consolidated shareholders' equity at an
amount not less than $200 million. Under the terms of the Support Agreement, we
agree with Textron Inc. that one hundred percent (100%) of our issued and
outstanding common stock will be owned by Textron Inc. or a corporation
controlled by, controlling, or under common control with, Textron Inc. The
Support Agreement is not intended to be and is not a guarantee by Textron Inc.
of the payment of interest or principal of any obligation, indebtedness or
liability by us, including the debt securities offered hereby, to any person.
However, the Support Agreement does contain a third party beneficiary provision
entitling our creditors to enforce its provisions against Textron Inc.
USE OF PROCEEDS
Unless we state otherwise in a prospectus supplement, the net proceeds from
the sale of the debt securities that are offered for sale by this prospectus
will be used for general corporate purposes.
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RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods indicated is
as follows:
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SIX MONTHS ENDED YEARS ENDED
JUNE 30, 1999 1998 1997 1996 1995 1994
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1.65 1.72 1.70 1.65 1.60 1.72
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For these ratios, earnings are calculated by adding the following:
- pre-tax income from continuing operations before adjustment for minority
interests in consolidated subsidiaries or income or loss from investments
that we account for using the equity method of accounting;
- fixed charges;
- amortization of previously capitalized interest;
- distributed income of investments that we account for using the equity
method of accounting; and
- our share of pre-tax losses of investments that we account for using the
equity method of accounting and then subtracting:
-- capitalized interest and
-- minority interests in pre-tax income of subsidiaries that have not
incurred fixed charges.
For this purpose, fixed charges are calculated by adding the following:
- interest expensed and capitalized;
- amortized premiums, discounts and capitalized expenses relating to
indebtedness;
- an estimate of interest included in rental expense; and
- preferred stock dividend requirements, if any, of consolidated
subsidiaries.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be issued under an indenture between us and
SunTrust Bank, Atlanta, as trustee, to be dated on or about the date of the
issuance of the first series of debt securities under the indenture.
We have summarized below selected provisions of the indenture and the Trust
Indenture Act of 1939. The summary is not complete. The following summary is
subject to the detailed provisions of the indenture and the Trust Indenture Act
of 1939.
GENERAL
The indenture does not limit the amount of debt securities that we may
issue. Unless we state otherwise in a prospectus supplement, the indenture does
not limit the amount of other debt that we can issue.
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The indenture allows us to issue debt securities in one or more series. The
prospectus supplement for a series of debt securities being offered will include
specific terms of the debt securities. These terms will include some or all of
the following:
- the title of the debt securities;
- the total principal amount and the permitted denominations of the debt
securities;
- the percentage of principal amount of the debt securities at which the
debt securities will be issued;
- the currency or currencies in which the principal of and interest, if
any, on the debt securities will be payable;
- the date on which the debt securities will be payable;
- the interest rate, if any, for the debt securities or the method that
will be used to determine the interest rate;
- the dates on which and places at which interest, if any, will be payable;
- any mandatory or optional repayment or redemption provisions; and
- any other terms of the debt securities.
The indenture allows us to issue debt securities of a single series at various
times, with different maturity dates and redemption and repayment provisions, if
any, and different interest rates. The prospectus supplement will specify the
persons to whom and the manner in which interest, if any, will be payable.
The debt securities will be unsecured, unsubordinated indebtedness of our
company. The debt securities will rank equally with all of our other unsecured
and unsubordinated indebtedness.
The debt securities will be issued in fully registered form and in the
denominations set forth in the applicable prospectus supplement. We will
maintain an office or agency where the debt securities may be presented for
payment and may be transferred or exchanged. There will be no service charge for
any transfer or exchange of the debt securities, but we may require a payment
sufficient to cover any tax or other governmental charge payable on the debt
securities.
Some of the debt securities may be sold at a substantial discount below
their stated principal amount and may provide for the payment of no interest or
interest at a rate which at the time of issuance is below market rates. We will
describe the U.S. federal income tax consequences and other special
considerations applicable to any discounted debt securities in the prospectus
supplement relating to the discounted debt securities.
BOOK-ENTRY PROCEDURES
The debt securities may be issued in the form of one or more global
certificates registered in the name of a depositary or a nominee of a
depositary. Unless otherwise stated in the applicable prospectus supplement, the
depositary will be The Depository Trust Company, or "DTC." DTC has informed us
that its nominee will be Cede & Co., who will therefore be the initial
registered holder of any series of debt securities that are issued in global
form.
If we use the book-entry only form, we will not issue certificates to
individual holders of the debt securities, except as set forth in the applicable
prospectus supplement.
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Beneficial interests in global securities will be shown on, and transfers of
global securities will be made only through, records maintained by DTC and its
participating organizations. In addition, all actions by holders of debt
securities issued in global form shall be actions taken by DTC upon instructions
from its participating organizations, and all payments and notices to holders
shall be to DTC or Cede, as the registered holder of the debt securities.
DTC has provided us with the following information: DTC is a limited
purpose trust company organized under the New York Banking Law, a "banking
organization" within the meaning of the New York Banking Law, a member of the
United States Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered under Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participating organizations, or direct participants, deposit
with DTC. DTC also facilitates the clearance and settlement of securities
transactions among direct participants through electronic book-entry. This
eliminates the need for physical exchange of certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. Other organizations such as banks,
brokers, dealers and trust companies that work with a direct participant also
use DTC's book-entry system. The rules that apply to DTC and its participants
are on file with the SEC.
DTC management is aware that some computer applications and systems for
processing data that are dependent upon calendar dates, including dates before,
on or after January 1, 2000, may encounter "Year 2000" problems. DTC has
informed its participants and other members of the financial community that it
has developed and is implementing a program so that its computer applications
and systems, as the same relate to the timely payment of principal, interest and
other distributions to security holders, book-entry deliveries and settlement of
trades within DTC, continue to function appropriately. This program includes a
technical assessment and remediation plan, both of which are complete.
Additionally, DTC's plan includes a testing phase, which is expected to be
completed within appropriate time frames.
However, DTC's ability to perform its services properly is also dependent
upon other parties, including but not limited to: (1) issuers and their agents,
(2) third-party vendors from whom DTC licenses software and hardware, and (3)
third-party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electric utility service providers.
DTC has informed its participants and other members of the financial community
that it is contacting third-party vendors from whom DTC acquires services to:
(1) impress upon them the importance of such services being Year 2000 compliant,
and (2) determine the extent of their efforts for Year 2000 remediation and, as
appropriate, testing of their services. In addition, DTC is in the process of
developing contingency plans that it deems appropriate.
Purchases, sales or other transfers of debt securities must be done through
a direct or indirect participant. Under a book-entry format, holders of debt
securities may experience some delay in their receipt of payments. Holders will
not be recognized as registered holders of the debt securities and, thus, will
be permitted to exercise their rights only indirectly through and subject to the
procedures of participants and, if applicable, indirect participants.
The ability of a holder to pledge debt securities to persons or entities
that do not participate in the DTC system, or to otherwise act with respect to
the debt securities, may be limited due to the absence of physical certificates.
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DTC has advised us that it will only take any action permitted to be taken
by a registered holder of any debt securities at the direction of a participant.
Debt securities represented by a global security will be exchangeable for
debt securities in definitive form with the same terms only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
or DTC ceases to be a clearing agency registered under applicable law;
- we determine that the global security is now exchangeable for debt
securities in definitive form; or
- an event of default has occurred and is continuing with respect to the
debt securities.
If any of these events occur, DTC will generally notify all direct participants
of the availability of definitive debt securities.
Except as described in this section, a global security may not be
transferred except as a whole by DTC to its nominee or by its nominee to DTC or
another of its nominees or to a successor depositary appointed by us.
We have obtained the information regarding DTC and DTC's book-entry system
from sources that we believe to be reliable, but we take no responsibility for
the accuracy of that information.
CERTAIN COVENANTS
The debt securities impose on us the covenants as described below. However,
the covenants would not necessarily provide holders of debt securities of any
series protection in the event of a highly leveraged or similar transaction
involving our company. These types of transactions would include a leveraged
buyout or a change of control of our company. Also, the covenants will not limit
the amount of debt we may incur or the amount of dividends we may pay to our
shareholders.
MINIMUM CONSOLIDATED NET WORTH
Consolidated Net Worth will at no time be less than $100,000,000.
"Consolidated Net Worth" means at any date the consolidated stockholders' equity
of our company and our Consolidated Subsidiaries, determined according to
generally accepted accounting principles in effect on January 1, 1999.
LIMITATIONS ON LIENS
We will not directly or indirectly, and will not allow any Subsidiary to,
create, assume or incur any Lien on any of the properties and assets of our
company or any Subsidiary unless any series of outstanding debt securities is
secured equally with any other debt so secured. However, our company or any
Subsidiary, without securing the debt securities of any series, may:
- lease property to others in the ordinary course of business or sublease
any property if the property is not needed by our company or any
Subsidiary in the operation of its business;
- create, assume or incur any Lien if the Lien secures debt for borrowed
money which is borrowed to finance the acquisition of the property
subject to the Lien,
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provided that the Lien is created at the same time as the acquisition of
the property or within 90 days after the acquisition;
- assume:
-- any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary that is not created in contemplation
of such event;
-- any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into our company or a
Subsidiary that is not created in contemplation of such event; and
-- any Lien existing on any asset prior to its acquisition by our
company or a Subsidiary that is not created in contemplation of the
acquisition;
- make any deposit with or give any form of security to any governmental
agency or similar body in order to enable our company or any Subsidiary
to:
-- maintain self-insurance;
-- participate in any fund in connection with workmen's compensation,
unemployment insurance, old-age pensions, or other social security;
-- share in any privileges or other benefits available to corporations
participating in any such arrangement; or
-- for any other purpose at any time required by law in order to
transact business or exercise any privilege or license;
- deposit assets of our company or any Subsidiary with any surety company
or clerk of any court, or in escrow, as collateral in connection with any
bond on appeal by our company or any Subsidiary from any judgment or
decree against it, or in connection with any other judicial proceedings
by or against our company or any Subsidiary;
- incur upon any of its property or assets:
-- Liens for taxes or other governmental charges or levies which are not
yet due or are payable without penalty or which are being contested
in good faith by our company or any Subsidiary and adequate reserves
have been set aside on its books to the extent required by generally
accepted accounting principles, provided that foreclosure or similar
proceedings have not been started;
-- the Liens of any judgment, if such judgment has not remained
undischarged, or unstayed on appeal or otherwise, for more than six
months;
-- undetermined Liens or charges incident to construction;
-- materialmen's, mechanics', workmen's, repairmen's or other similar
Liens arising in the ordinary course of business in respect of
obligations which are not yet due or which are being contested by our
company or such Subsidiary in good faith, or deposits to obtain the
release of such Liens; or
-- any encumbrances consisting of zoning restrictions, licenses,
easements and restrictions on the use of real property and minor
defects and irregularities in the title, which do not materially
impair the use of the property by our company or decrease the value
of the property for the purpose of such business;
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- create other Liens arising in the ordinary course of its business which:
-- do not secure Debt;
-- do not secure any obligation in an amount exceeding $5,000,000 and
-- do not in the aggregate materially detract from the value of its
property or assets or materially impair the use in the operation of
its business;
- create Liens not otherwise permitted securing Debt in an aggregate
principal amount at any time outstanding not to exceed $10,000,000;
- create in favor of any lender in the ordinary course of business a
banker's lien or right of offset amounts deposited with the lender;
- create or assume Liens securing debt owed to our company or any
Subsidiary by another Subsidiary;
- create, assume or incur any Lien upon any of its properties or assets in
connection with the sale, transfer or other disposition of such assets:
-- in connection with the securitization or other asset-based financing;
-- to a real estate investment trust or similar entity; or
-- in connection with any transaction similar to the transactions
referred to in the immediately preceding clauses;
provided, however, that any disposition will be for valid consideration and will
not prefer directly or indirectly any creditor of our company; and
- cause or allow any extension, renewal or replacement of any Lien referred
to above. However, the principal amount of all debt secured by such
actions may not be increased except that:
-- the amount of debt secured by extensions, renewals or replacements of
Liens on property acquired as a result of defaults on receivables may
exceed the principal amount prior to the extension, renewal or
replacement; and
-- the amount of debt secured by extensions, renewals or replacements of
Liens on property may exceed the amount of the debt prior to the
extension, renewal or replacement if the value of the property has
increased and the loan to value ratio of the refinanced debt does not
exceed the loan to value ratio of the debt relating to the original
Lien.
Also any such extension, renewal or replacement must be limited to that portion
of the property which secured the Lien that is extended, renewed or replaced
plus improvements on such property.
CERTAIN DEFINITIONS
"CONSOLIDATED SUBSIDIARY" means at any date any entity which would be
required under generally accepted accounting principles to be consolidated with
our company in our consolidated financial statements. However, for purposes of
calculating Consolidated Net Worth, the generally accepted accounting principles
utilized to determine consolidation are the principles in effect on January 1,
1999.
"DEBT" of any Person means at any date, without duplication:
- all obligations of such Person for borrowed money;
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- all obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
- all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the
ordinary course of business;
- all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles;
- all Debt of others secured by a Lien on any asset of such Person, whether
or not such Debt is assumed by such Person; and
- all Debt of others guaranteed by such Person. However, "Debt" of our
company or a Subsidiary shall not include Non-recourse Debt.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest, hypothecation or encumbrance of any kind in respect
of such asset. However, "Lien" shall not mean security interests under Article 9
of the Uniform Commercial Code in respect of sales of accounts or chattel paper.
For the purposes of the debt securities, our company or any Subsidiary shall be
deemed to own subject to a Lien any asset which it has acquired or holds subject
to the interest of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to the asset.
"NON-RECOURSE DEBT" of our company or a Subsidiary means any obligations
for borrowed money of our company or a Subsidiary secured by specific assets
which obligations are not reflected in the balance sheet of our company or a
Subsidiary. These obligations are issued under or evidenced by an instrument
which limits the recourse against the obligor to the specific assets. In the
case of all Non-recourse Debt borrowed after the date of this prospectus, if
under applicable law, a holder of such obligation could ever become entitled to
recourse against our company or any Subsidiary under applicable bankruptcy law,
the instrument must also contain a provision that a lender's recourse claim in
respect of such obligation will be subordinate and junior to all Debt evidenced
by the debt securities of any series.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"SUBSIDIARY" means at any date:
- any corporation in which we directly or indirectly own securities having
ordinary voting power to elect a majority of the board of directors; or
- any other entity which constitutes a Consolidated Subsidiary.
MERGER AND CONSOLIDATION
We may consolidate or merge with or into any other corporation and may
transfer or lease our property to any corporation only if:
- the corporation formed by or resulting from any such consolidation or
merger or which will receive the property, is a corporation organized and
existing under the laws of the United States of America, any state
thereof or the District of Columbia. In addition, the corporation must
expressly assume by supplemental agreement the due and punctual payment
of the principal of, and premium, if any, and interest, if any, on, the
debt securities. Also, the corporation must agree to perform and
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observe each agreement or covenant under the debt securities and the
indenture; and
- immediately after giving effect to the consolidation, merger, transfer or
lease of property discussed above, no Event of Default and no event
which, after notice or lapse of time or both, would become an Event of
Default will have occurred and be continuing.
In addition, we may assign or otherwise transfer any or all of our rights and
obligations under the debt securities if:
- the assignee is a corporation organized and existing under the laws of
the United States of America, any state thereof or the District of
Columbia;
- the assignee is 100% directly or indirectly owned by us;
- the assignee is in the finance business;
- no Event of Default and no event which, after notice or lapse of time or
both, would become an Event of Default will have occurred and be
continuing;
- the assignee expressly assumes by supplemental agreement the due and
punctual payment of the principal of, any premium, if any, and interest,
if any, on, the debt securities and agrees to perform and observe each
agreement or covenant under the debt securities and the indenture;
- the assignee shall have provided the Trustee such documents as may be
necessary to make the obligation of payment under the debt securities a
legal, valid and binding obligation of the assignee;
- the assignee agrees to indemnify each holder of debt securities against
any costs or expenses, inclusive of taxes, fees, duties, assessments or
governmental charges of whatever nature and without any limitation or
exception, of the act of assignment; and
- we shall have amended the Support Agreement to apply to the assignee or
the assignee shall have entered into a new support agreement with Textron
Inc. on terms substantially similar to our Support Agreement. The
assignee's support agreement must not cause an Event of Default under the
indenture or any event which, after notice or lapse of time or both,
would become an Event of Default. If our Support Agreement is no longer
in effect, we shall receive confirmation from Moody's Investor Service,
Inc. and Standard & Poor's Corporation and any other nationally
recognized statistical rating organization which has a current credit
rating for any of our outstanding debt securities that the credit rating
will not be downgraded, or placed on what is commonly referred to as a
"watch list" for possible downgrading.
Concurrently with any such conveyance, transfer, lease or assignment, we will be
released from further obligations with respect to the debt securities and the
indenture.
EVENTS OF DEFAULT, WAIVER AND NOTICE
The following will be "Events of Default" with respect to any series of
debt securities:
- default in the payment of any interest on any series of debt securities
when due and payable, and continuance of such default for a period of 30
days;
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- default in the payment of the principal of, or any premium on, any series
of debt securities when due and payable;
- default in the performance, or breach, of any covenant or warranty of our
company contained in any series of debt securities or the indenture and
continuance of such default or breach for a period of 90 days after
written notice from the holders of at least 25% in aggregate principal
amount of any series of debt securities then outstanding;
- if any event of default under any mortgage, indenture or instrument
occurs and results in debt in excess of $25,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not be annulled, or
such debt is not discharged, within 30 days after written notice from the
holders of at least 25% in aggregate principal amount of any series of
debt securities then outstanding;
- the Support Agreement shall have ceased to be in full force and effect
for any reason or is amended or modified in any manner unless, prior to
its termination or amendment, Standard & Poors Corporation, Moody's
Investor Service and any other nationally recognized statistical rating
organization then rating securities of our company, have confirmed they
will not downgrade any of our securities as a result of the termination
or amendment of our Support Agreement;
provided, that, if the cessation or amendment of our Support Agreement relates
to the assumption of the debt securities by any other corporation under the
provisions described in "Merger and Consolidation" above or in connection with
the transfer by Textron Inc. of the capital stock of our company to any other
100% direct or indirect subsidiary of Textron Inc., it shall not constitute an
Event of Default if the senior debt securities of the corporation assuming the
debt securities are rated by Standard & Poor's Corporation or Moody's Investor
Service immediately following the transfer or assumption at a rating equal to or
greater than the rating assigned to securities of our company by each rating
agency;
- Textron Inc., our company or any "significant subsidiary," as such term
is defined in Section 1.02(w) of Regulation S-X of the Securities Act, or
our company shall:
-- commence or consent to a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy or similar law or seeking the
appointment of a trustee or other similar official of it or any
substantial part of its property;
-- make a general assignment for the benefit of creditors;
-- fail generally or admit its inability to pay its debts as they become
due; or
-- take any corporate action to authorize any of the foregoing; or
- an involuntary case or other proceeding shall be commenced against
Textron Inc., our company or any significant subsidiary of our company
seeking liquidation or other relief with respect to its or our debts
under any bankruptcy or other similar law or seeking the appointment of a
trustee or other similar official of it or us or any substantial part of
its or our property, and the involuntary case or other proceeding shall
remain undismissed and unstayed for a period of 60 days; or an order for
relief shall be entered against our company or any significant subsidiary
of our company under the Federal bankruptcy laws.
10
<PAGE> 14
In case an Event of Default other than one described in the last two
bullet-points above shall have occurred and be continuing with respect to a
particular series of debt securities, in which case the principal of all
outstanding debt securities of that particular series shall become immediately
due and payable, then the holders of at least 25% in aggregate principal amount
of that particular series of debt securities then outstanding may declare the
principal of all outstanding debt securities of that particular series to be
immediately due and payable. If an Event of Default described in the last two
bullet-points occurs and is continuing with respect to a particular series of
debt securities, the principal of all outstanding debt securities of that
particular series shall automatically become due and payable. Upon any
acceleration, any premium and interest on the debt securities so accelerated
will also become immediately due and payable. At any time after an acceleration
but before a judgment or decree for payment of money due has been obtained by
the holders of debt securities, the holders of a majority in aggregate principal
amount of outstanding debt securities may rescind and annul such acceleration
and its consequences, provided all required payments, other than as a result of
the acceleration, shall have been made and all Events of Default are cured or
waived.
The holders of a majority in aggregate principal amount of any series of
outstanding debt securities may waive, on behalf of all of the holders of that
series, any Event of Default and its consequences or past defaults, except a
default in the payment of the principal of, or premium, if any, or interest, if
any, on, debt securities of that particular series or a default under a covenant
or agreement that cannot be modified without the consent of the holder of each
debt security that is affected.
Within 90 days after a default occurs, the Trustee will give all holders of
debt securities of the relevant series notice of all uncured defaults known to
it. Default is defined to include the events specified above without any grace
periods. Except in the case of a default in the payment of principal, any
premium, any interest or any sinking fund payment, the Trustee may withhold
notice to the holders of the debt securities of any default if it in good faith
determines that the withholding of notice is in the interest of all of the
holders of the debt securities of the series.
If a default or an Event of Default occurs and continues for any series of
debt securities, the holders of at least a majority in aggregate principal
amount then outstanding for any series of debt securities may direct the time,
method and place of conducting any proceeding or remedy available to the
Trustee, or exercising any power given to the Trustee under the indenture for
that series of debt securities.
The Trustee does not have to exercise any of its rights or powers under the
indenture at the direction of any holders of debt securities unless the holders
offer the Trustee reasonable security or indemnity against expenses and
liabilities.
We must file with the Trustee annually a written statement regarding the
presence or absence of certain defaults.
DEFEASANCE
DEFEASANCE AND DISCHARGE
The indenture provides that we will be discharged from all
non-administrative obligations in respect of the debt securities of any series
if we deposit with the Trustee in trust money and/or U.S. government obligations
which will provide enough money to pay the principal and interest on the debt
securities of the series on the stated due dates of
11
<PAGE> 15
these payments in accordance with the terms of the indenture and the debt
securities of that series.
This trust may only be established if, among other things, we deliver to
the Trustee an opinion of counsel stating that, due to an Internal Revenue
Service ruling or a change in Federal income tax law, holders of the debt
securities of the series will not recognize income, gain or loss for federal
income tax purposes as a result of this defeasance and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if this defeasance had not occurred.
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT
The indenture provides that we may be released from our obligation to
comply with the restrictive covenants regarding limitations on liens and the
maintenance of a certain amount of Consolidated Net Worth. In addition, we would
no longer trigger Events of Default under the indenture and the debt securities
of a series, if we deposit with the Trustee in trust money and/or U.S.
government obligations which through the payment of interest and principal
thereon will provide enough money to pay the principal and interest on the debt
securities of that series on the stated due dates of these payments in
accordance with the terms of the indenture and the debt securities of that
series. Our other obligations under the indenture and the debt securities of
that series and other Events of Default shall remain in full force and effect.
This trust may only be established if, among other things, we deliver to
the Trustee an opinion of counsel stating that the holders of the debt
securities of the series will not recognize income, gain or loss for federal
income tax purposes as a result of defeasance of certain covenants and Events of
Default and will be subject to federal income tax on the same amounts and in the
same manner and at the same times, as would have been the case if the defeasance
had not occurred.
If we exercise the option described in this section and the debt securities
of the series are declared due and payable because of the occurrence of any
Event of Default, other than the Event of Default described above in the fourth
bullet point under "Events of Default", the amount of money and U.S. government
obligations on deposit with the Trustee will be sufficient to pay amounts due on
the debt securities of that series at the time of their stated maturity but may
not be sufficient to pay amounts due on the debt securities of that series at
the time of the acceleration resulting from the Event of Default.
CHANGES TO THE INDENTURE
Under the indenture, our rights and obligations and the rights of the
holders of debt securities may be modified with the consent of the holders of at
least a majority of the principal amount of the outstanding debt securities of
all series issued under the indenture affected by the modification. However, we
are required to get the consent of the holder of each debt security affected to
make the following modifications of the debt securities:
- an extension of the fixed maturity of any debt security;
- a reduction of the principal amount payable on any debt security;
- a reduction in the rate of interest payable on any debt security;
- a change in currency in which payments are made;
- an extension of the time of payment of interest;
12
<PAGE> 16
- a modification that affects adversely any right of a holder of a debt
security to repayment;
- a reduction in the principal amount of an original issue discount debt
security due and payable upon acceleration of the maturity;
- a reduction in the portion of the principal amount of a debt security
provable in bankruptcy;
- a reduction in amounts payable upon redemption;
- a reduction in the rate of interest payable on overdue amounts; and
- a reduction in the percentage of holders of the outstanding debt
securities of each series required to consent to any modification
discussed above.
Under the indenture, we can make certain modifications to the applicable
indenture with the consent of the Trustee but without the consent of any holders
of debt securities to evidence our merger or replacement of the Trustee and for
certain other purposes.
CONCERNING THE TRUSTEE
We enter into a variety of banking transactions with the trustee in the
ordinary course of our business.
GOVERNING LAW
The debt securities and the indenture pursuant to which we issued the debt
securities will be governed by, and construed in accordance with, the laws of
the State of New York, without regard to conflict of law principles.
PLAN OF DISTRIBUTION
We may sell the debt securities described in this prospectus:
- to or through underwriters or dealers;
- directly to one or more purchasers; or
- through agents.
BY UNDERWRITERS
If underwriters are used in the sale, the debt securities will be acquired
by the underwriters for their own account. The underwriters may resell the debt
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to certain conditions. Any initial public offering price and any discounts or
concessions allowed or re-allowed or paid to dealers may be changed from time to
time.
DIRECT SALES
Debt securities of any series may also be sold directly by us. In this
case, no underwriters or agents would be involved.
13
<PAGE> 17
BY AGENTS
Debt securities of any series may be sold through agents designated by us.
The agents will agree to use their reasonable best efforts to solicit purchases
for the period of their appointment.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution of
the debt securities may be underwriters, as defined in the Securities Act of
1933, and any discounts, concessions or commissions that we pay them and any
profit on their resale of the debt securities offered by this prospectus may be
treated as underwriting discounts, concessions and commissions under the
Securities Act. We will identify any underwriters or agents and describe their
compensation in a prospectus supplement.
We may have agreements with the underwriters, dealers and agents who
participate in the sale of offered securities to indemnify them against certain
civil liabilities, including liabilities under the Securities Act, or to
contribute with respect to payments which the underwriters, dealers or agents
may be required to make.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us or our subsidiaries in the ordinary course of their
businesses.
The debt securities of a series, when first issued, will have no
established trading market. Any underwriters or agents to or through whom debt
securities of a series are sold by us for public offering and sale may make a
market in the debt securities, but will not be obligated to do so and could stop
doing so at any time without notice. We cannot assure you that there will be a
market for any series of debt securities we issue.
If we so indicate in a prospectus supplement, we will authorize
underwriters or our agents to solicit offers by certain institutional investors
to purchase debt securities from us which will be paid for and delivered on a
future date specified in the prospectus supplement. The obligations of any
purchasers under these delayed delivery and payment arrangements will not be
subject to any conditions except that the purchase at delivery must not be
prohibited under the laws of any jurisdiction in the United States to which the
institution is subject.
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement on Form S-3 with the SEC under the
Securities Act of 1933, covering the debt securities to be offered from time to
time by this prospectus. This prospectus does not contain all of the information
included in the registration statement. Any statement made in this prospectus
concerning the contents of any contract, agreement or other document is not
necessarily complete. If we have filed any such contract, agreement or other
document as an exhibit to the registration statement, you should read the
exhibit for a more complete understanding of the document or matter involved.
Each statement regarding a contract, agreement or other document is qualified in
its entirety by reference to the actual document.
We also have filed a registration statement on Form 10 with the SEC under
the Securities Exchange Act of 1934. We will file annual, quarterly and special
reports, and other information with the SEC. Our SEC filings are available to
the public over the Internet from the SEC's web site at http://www.sec.gov. You
may also read and copy any document we file at the SEC's public reference rooms
in Washington, D.C., New York,
14
<PAGE> 18
New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference rooms and their copy charges.
The SEC allows us to "incorporate by reference" in this prospectus the
information in documents we file with it. This means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is considered to be a part of this
prospectus, and information in documents that we file later with the SEC will
automatically update and supersede information contained in documents filed
earlier with the SEC or contained in this prospectus. We incorporate by
reference in this prospectus the Form 10 and any future filings that we may make
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we, or our agents, sell all of the securities that
may be offered by this prospectus.
You may request a copy of these documents at no cost to you by writing or
telephoning us at the following address:
Textron Financial Corporation
40 Westminster Street
P.O. Box 6687
Providence, Rhode Island 02940-6657
(401) 621-4200
Attention: Brian F. Lynn
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of the securities described in this prospectus in any state where the
offer is not permitted. You should not assume that the information in this
prospectus or any prospectus supplement is accurate as of any date other than
the date on the front of those documents.
LEGAL OPINIONS
White & Case LLP will issue for us an opinion about the legality of the
offered securities.
Any underwriters will be advised about the validity of the offered debt
securities by their own legal counsel.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements for the year ended January 2, 1999 as set forth in their
report included in our registration statement on Form 10, and which is
incorporated by reference in this prospectus. Our consolidated financial
statements are incorporated by reference in reliance on their reports, given on
their authority as experts in accounting and auditing.
15
<PAGE> 19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee......... $ 834,000
Printing and engraving expenses............................. $ []
Rating agency fees.......................................... $ []
Trustee's fees.............................................. $ []
Legal fees.................................................. $ 150,000
Accounting expenses......................................... $ []
Blue Sky fees and expenses.................................. $ []
Other....................................................... $ []
---------
Total.................................................. $
=========
</TABLE>
- -------------------------
* All amounts other than the registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law authorizes and empowers
each Delaware corporation to indemnify its directors, officers, employees and
agents against liabilities incurred in connection with, and related expenses
resulting from, any claim, action or suit brought against any such person as a
result of his or her relationship with the corporation, provided that such
persons acted in good faith and in a manner such person reasonably believed to
be in, and not opposed to, the best interests of the corporation in connection
with the acts or events on which such claim, action or suit is based. The
finding of either civil or criminal liability on the part of such person in
connection with such acts or events is not necessarily determinative of the
question of whether such person has met the required standard of conduct and is,
accordingly, entitled to be indemnified. The foregoing statements are subject to
the detailed provisions of Section 145 of the General Corporation Law of the
State of Delaware.
The By-Laws of Textron Financial Corporation provide that each person who
at any time is or shall have been a director or elected or appointed officer of
Textron Financial Corporation, or is or shall have been serving another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise in any capacity at the request of Textron Financial Corporation, and
his or her heirs, executors and administrators, shall be indemnified by Textron
Financial Corporation in accordance with and to the full extent permitted by the
General Corporation Law of the State of Delaware. Paragraph (f) of Article XII
of the By-Laws of Textron Financial Corporation facilitates enforcement of the
right of directors and owners to be indemnified by establishing such right as a
contract right pursuant to which the person entitled thereto may bring suit as
if the indemnification provisions of the By-Laws were set forth in a separate
written contract between Textron Financial Corporation and the director or
officer.
The By-Laws of Textron Financial Corporation provide that Textron Financial
Corporation shall indemnify, in all respects and to the full extent authorized
or permitted by law, any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal,
II-1
<PAGE> 20
administrative or investigative, by reason of his or her being or having been a
director, elected or appointed officer or employee of Textron Financial
Corporation or, at the request of Textron Financial Corporation as a director,
officer, employee or agent, of any other corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding. Such indemnification of any person shall inure to the
benefit of his or her heirs, executors and administrators.
The By-Laws of Textron also provide similar indemnification for officers of
Textron who serve as officers of Textron Financial Corporation.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
1.2* Form of Distribution Agreement.
4.1 Indenture to be dated on or about the date of the issuance
of the first series of debt securities thereunder between
the Textron Financial Corporation and SunTrust Bank, Atlanta
(including form of debt securities).
5.1* Opinion re legality of debt securities of White & Case LLP
(including consent).
10.1 Support Agreement dated as of May 25, 1994 between Textron
Inc. and Textron Financial Corporation (Incorporated by
reference to Exhibit 10.1 to Textron Financial Corporation's
Form 10 filed on October 5, 1999 (the "Textron Financial
Form 10")).
12.1 Computation of Ratio of Earnings to Fixed Charges
(Incorporated by reference to Exhibit 12.1 to the Textron
Financial Form 10).
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2* Consent of White & Case LLP (contained in Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of
Textron Financial Corporation (See page II-4).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of SunTrust Bank, Atlanta, as
Trustee under the indenture.
</TABLE>
- ---------------
* To be filed by amendment.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a posteffective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and
II-2
<PAGE> 21
any deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of an action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-3
<PAGE> 22
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PROVIDENCE, STATE OF RHODE ISLAND, ON THE 5TH DAY OF
OCTOBER, 1999.
TEXTRON FINANCIAL CORPORATION
By /s/ STEPHEN A. GILIOTTI
------------------------------------
Stephen A. Giliotti
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS AND
HEREBY AUTHORIZES ELIZABETH C. PERKINS AND WILLIAM J. CLEGG, AND EACH OF THEM,
AS ATTORNEY-IN-FACT, TO SIGN ON SUCH PERSON'S BEHALF, INDIVIDUALLY AND IN EACH
CAPACITY STATED BELOW, AND TO FILE ANY AMENDMENTS, INCLUDING POST-EFFECTIVE
AMENDMENTS TO THE REGISTRATION STATEMENT.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS,
WHICH INCLUDE A MAJORITY OF THE BOARD OF DIRECTORS, IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOHN A. JANITZ Director October 5, 1999
------------------------------------------
John A. Janitz
/s/ EDWARD C. ARDITTE Director October 5, 1999
------------------------------------------
Edward C. Arditte
/s/ STEPHEN A. GILIOTTI Chairman, President, Chief October 5, 1999
------------------------------------------ Executive Officer and Director
Stephen A. Giliotti (Principal Executive Officer)
/s/ THOMAS J. CULLEN Senior Vice President and October 5, 1999
------------------------------------------ Chief Financial Officer
Thomas J. Cullen (Principal Financial Officer)
/s/ ERIC SALANDER Vice President -- Finance October 5, 1999
------------------------------------------ (Principal Accounting Officer)
Eric Salander
</TABLE>
II-4
<PAGE> 23
EXHIBIT INDEX
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
1.2* Form of Distribution Agreement.
4.1 Indenture to be dated on or about the date of the issuance
of the first series of debt securities thereunder between
the Textron Financial Corporation and SunTrust Bank, Atlanta
(including form of debt securities).
5.1* Opinion re legality of debt securities of White & Case LLP
(including consent).
10.1 Support Agreement dated as of May 25, 1994 between Textron
Inc. and Textron Financial Corporation (Incorporated by
reference to Exhibit 10.1 to the Textron Financial Form 10).
12.1 Computation of Ratio of Earnings to Fixed Charges
(Incorporated by reference to Exhibit 12.1 to the Textron
Financial Form 10).
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2* Consent of White & Case LLP (contained in Exhibit 5.1).
24.1 Powers of Attorney of certain officers and directors of
Textron Financial Corporation. (See page II-4).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of SunTrust Bank, Atlanta, as
Trustee under the indenture.
</TABLE>
- ---------------
* To be filed by amendment.
<PAGE> 1
Exhibit 4.1
TEXTRON FINANCIAL CORPORATION
AND
[ ],
TRUSTEE
INDENTURE
Dated as of [____ __], 1999
<PAGE> 2
TEXTRON FINANCIAL CORPORATION
AND
[ ],
TRUSTEE
INDENTURE
Dated as of [_______ __], 1999
Reference is made to the following provisions of the Trust
Indenture Act of 1939, as amended, which establish certain duties and
responsibilities of the Company and the Trustee which are not set forth in this
Indenture:
SECTION SUBJECT SECTION SUBJECT
310(b) Disqualification of 315(b) Notice of default from
Trustee for conflicting Trustee to Security-
interest holders
311 Preferential collection 315(c) Duties of Trustee in
of claims of Trustee as case of default
creditor of Company
312(a) Periodic filing of 315(d) Provisions relating to
information by responsibility of
Company with Trustee Trustee
312(b) Access of Security- 315(e) Assessment of costs
holders to information against litigating
Securityholders in certain
circumstances
313(a) Annual report of Trustee 316(a) Directions and waivers
to Securityholders by Securityholders in certain
circumstances
313(b) Additional reports of 316(b) Prohibition of impairment of
Trustee to Securityholders right of Securityholders to
payment
314(a) Reports by Company, 316(c) Right of Company to
including annual set record date for
compliance certificate certain purposes
<PAGE> 3
314(c) Evidence of compliance 317(a) Special powers of
with conditions precedent Trustee
315(a) Duties of Trustee prior 318(a) Provisions of Act to
to default control in case of conflict
<PAGE> 4
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE ONE DEFINITIONS..................................................1
SECTION 1.1 Certain Terms Defined........................................1
ARTICLE TWO SECURITIES...................................................7
SECTION 2.1 Forms Generally..............................................7
SECTION 2.2 Form of Face of Security.....................................7
SECTION 2.3 Form of Reverse of Security..................................9
SECTION 2.4 Form of Trustee's Certificate of Authentication.............13
SECTION 2.5 Amount Unlimited; Issuable in Series........................13
SECTION 2.6 Authentication and Delivery of Securities...................15
SECTION 2.7 Execution of Securities.....................................16
SECTION 2.8 Certificate of Authentication...............................16
SECTION 2.9 Denomination and Date of Securities; Payments of Interest...16
SECTION 2.10 Registration, Transfer and Exchange........................17
SECTION 2.11 Mutilated, Defaced, Destroyed, Lost and Stolen Securities..18
SECTION 2.12 Cancellation of Securities Paid, etc.......................19
SECTION 2.13 Temporary Securities.......................................20
ARTICLE THREE COVENANTS OF THE ISSUER.....................................20
SECTION 3.1 Payment of Principal and Interest...........................20
SECTION 3.2 Offices for Payments, etc...................................20
SECTION 3.3 Paying Agents...............................................21
SECTION 3.4 Limitation on Liens.........................................22
SECTION 3.5 Minimum Consolidated Net Worth..............................24
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.......................................24
SECTION 4.1 Events of Default...........................................24
SECTION 4.2 Payment of Securities on Default; Suit Therefor.............26
SECTION 4.3 Application of Moneys Collected by Trustee..................28
SECTION 4.4 Proceedings by Trustee......................................29
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.........29
SECTION 4.6 Proceedings by Securityholders..............................29
SECTION 4.7 Remedies Cumulative and Continuing..........................30
SECTION 4.8 Control by Securityholders..................................30
SECTION 4.9 Waiver of Past Defaults.....................................31
ARTICLE FIVE CONCERNING THE TRUSTEE......................................31
(i)
<PAGE> 5
PAGE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement for
Expenditure of Own Funds..................................31
SECTION 5.2 No Responsibility for Recitals, etc.........................32
SECTION 5.3 Trustee and Agents May Hold Securities......................32
SECTION 5.4 Moneys to Be Held in Trust..................................33
SECTION 5.5 Compensation and Expenses of Trustee........................33
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc......33
SECTION 5.7 Eligibility of Trustee......................................33
SECTION 5.8 Resignation or Removal of Trustee; Appointment of Successor
Trustee...................................................34
SECTION 5.9 Acceptance of Appointment by Successor Trustee..............35
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee......................................36
ARTICLE SIX CONCERNING THE SECURITYHOLDERS..............................36
SECTION 6.1 Action by Securityholders...................................36
SECTION 6.2 Proof of Execution by Securityholders.......................38
SECTION 6.3 Holders to Be Treated as Owners.............................38
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding ..........38
SECTION 6.5 Right of Revocation of Action Taken.........................39
SECTION 6.6 Securityholders' Meetings; Purposes.........................39
SECTION 6.7 Call of Meetings by Trustee.................................39
SECTION 6.8 Call of Meetings by Issuer or Securityholders...............40
SECTION 6.9 Qualifications for Voting...................................40
SECTION 6.10 Quorum; Adjourned Meetings.................................40
SECTION 6.11 Regulations................................................40
SECTION 6.12 Voting.....................................................41
SECTION 6.13 No Delay of Rights by Meeting..............................42
ARTICLE SEVEN SUPPLEMENTAL INDENTURES.....................................42
SECTION 7.1 Supplemental Indentures Without Consent of Securityholders..42
SECTION 7.2 Supplemental Indentures With Consent of Securityholders.....43
SECTION 7.3 Effect of Supplemental Indenture............................44
SECTION 7.4 Certain Documents to Be Given to Trustee....................44
SECTION 7.5 Notation on Securities......................................45
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE...........45
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms..............45
SECTION 8.2 Successor Corporation to Be Substituted.....................46
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be Given
to Trustee................................................46
ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS..........................................47
SECTION 9.1 Satisfaction and Discharge of Indenture.....................47
(ii)
<PAGE> 6
PAGE
SECTION 9.2 Application by Trustee of Funds Deposited for Payment of
Securities.................................................47
SECTION 9.3 Repayment of Moneys Held by Paying Agent.....................48
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years..............................................48
ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS...................48
SECTION 10.1 Applicability of Article....................................48
SECTION 10.2 Notice of Redemption; Selection of Securities...............48
SECTION 10.3 Payment of Securities Called for Redemption.................49
SECTION 10.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption..................................50
SECTION 10.5 Mandatory and Optional Sinking Funds........................50
ARTICLE ELEVEN MISCELLANEOUS PROVISIONS.....................................53
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability...................53
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders.......................................53
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.........53
SECTION 11.4 Notices and Demands on Issuer, Trustee and Securityholders..53
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein...................................54
SECTION 11.6 Official Acts by Successor Entity...........................55
SECTION 11.7 Payments Due on Saturdays, Sundays and Legal Holidays.......55
SECTION 11.8 New York Law to Govern......................................55
SECTION 11.9 Counterparts................................................55
SECTION 11.10 Effect of Headings.........................................55
SECTION 11.11 Conflict with Trust Indenture Act..........................55
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE...........................56
SECTION 12.1 Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance.........................56
SECTION 12.2 Defeasance and Discharge....................................56
SECTION 12.3 Covenant Defeasance.........................................56
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance.............57
SECTION 12.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.............58
TESTIMONIUM...............................................................60
SIGNATURES................................................................60
ACKNOWLEDGMENTS...........................................................60
(iii)
<PAGE> 7
THIS INDENTURE, dated as of [_______ __], 1999 between Textron
Financial Corporation, a Delaware corporation (the "Issuer"), and [___________],
a state banking corporation existing under the laws of the State of [_______]
(the "Trustee").
W I T N E S S E T H :
---------------------
WHEREAS, the Issuer has duly authorized the issuance from time
to time of its unsecured bonds, debentures, notes and other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts and denominated in United States dollars or foreign
currency or units or composites of two or more thereof as may from time to time
be authorized in accordance with the terms of this Indenture and to provide,
among other things, for the authentication, delivery and administration thereof,
the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture, when
executed and delivered by the parties hereto, a valid indenture and agreement
according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
-----------
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939, as amended to the date of this Indenture as originally executed, or the
definitions of which in the Securities Act of 1933, as amended to the date of
this Indenture as originally executed, are referred to in the Trust Indenture
Act of 1939 (except as herein otherwise expressly provided or unless the context
otherwise clearly requires), shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date of
this Indenture. 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. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well as
the singular.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Issuer or any committee of such Board of Directors duly authorized to act
hereunder.
"BUSINESS DAY" means, except as otherwise provided pursuant to
Section 2.5 for Securities of any series, any day that is not a Saturday or
Sunday and that is not a day on which
<PAGE> 8
banking institutions are generally authorized or obligated by law to close in
The City of New York.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"CONSOLIDATED NET WORTH" means at any date the consolidated
stockholders' equity of the Issuer and its Consolidated Subsidiaries, determined
as of such date pursuant to generally accepted accounting principles in effect
on January 1, 1999.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at [______________________].
The terms "covenant defeasance" and "defeasance" bear the
meanings assigned to such terms, respectively, by Sections 12.3 and 12.2.
"DEBT" of any Person means at any date, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in the ordinary
course of business, (iv) all obligations of such Person as lessee which are
capitalized in accordance with generally accepted accounting principles, (v) all
Debt of others secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person, and (vi) all Debt of others guaranteed by
such Person; provided that "Debt" of the Issuer or a Subsidiary shall not be
deemed to include Non-recourse Debt.
"EVENT OF DEFAULT" means any event or condition specified as
such in Section 4.1.
"HOLDER" "HOLDER OF SECURITIES", "SECURITYHOLDER" or other
similar terms mean the registered holder of any Security.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
and/or supplemented from time to time, and shall include (i) for all purposes of
this instrument and any supplemental indenture, the provisions of the Trust
Indenture Act of 1939 that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively and (ii) the forms and terms
of particular series of Securities established as contemplated hereunder.
"INTEREST" means, when used with respect to a non-interest
bearing Security, interest payable after the principal thereof has become due
and payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
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<PAGE> 9
"ISSUER" means Textron Financial Corporation, a Delaware
corporation, until any successor corporation shall have become such pursuant to
Article Eight and thereafter "Issuer" shall mean such successor except as
otherwise provided in Section 8.2.
"LIEN" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest, hypothecation or encumbrance of any kind in
respect of such asset, provided that, "Lien" shall not mean security interests
under Article 9 of the Uniform Commercial Code in respect of sales of accounts
or chattel paper. For the purposes of the Securities, the Issuer or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
"MOODY'S" shall mean Moody's Investor Service, Inc. or any
successor thereto.
"NEW YORK LOCATION" means the location in the Borough of
Manhattan, the City of New York, State of New York, at which at any particular
time the Trustee receives and redelivers securities, which location at the date
of execution of this Indenture is [__________________].
"NON-RECOURSE DEBT" of the Issuer or a Subsidiary means any
obligations for borrowed money of the Issuer or a Subsidiary secured by specific
assets which obligations, in accordance with generally accepted accounting
principles, are not reflected in the balance sheet of the Issuer or a Subsidiary
and are issued pursuant to or evidenced by an instrument which limits the
recourse against the obligor thereunder to such specific assets, and (in the
case of all Non-recourse Debt incurred after the date of this Indenture), if
under applicable law in respect of such obligations, such assets or such
obligor, at the time any such obligation is created, a holder of such obligation
could ever become entitled to recourse against the obligor pursuant to
ss.1111(b) of the Bankruptcy Reform Act of 1978 (11 U.S.C. ss.1111(b), or any
successor section thereto) or any other provisions of any bankruptcy, insolvency
or other law of any jurisdiction, such instrument also contains a provision to
the effect that such holder's recourse claim in respect of such obligation shall
be and remain in all respects subordinate and junior to all Debt evidenced by
the Securities of any series and such holder shall not be entitled to receive
any payment, under any condition, in respect of any obligation, other than the
proceeds of such specific assets, until all Securities of any series shall have
been paid in full or funds for their payment shall have been duly and
sufficiently provided.
"OFFICERS' CERTIFICATE" when used with respect to the Issuer,
means a certificate signed by the [chairman of the Board of Directors, the
president or any vice president and by the treasurer, controller, the secretary
or any assistant secretary] of the Issuer and delivered to the Trustee. Each
such certificate shall include the statements required by the Trust Indenture
Act of 1939 or as provided for in Section 11.5, if and to the extent required
hereby.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be satisfactory to the Trustee. Each such opinion shall include the statements
required by the Trust Indenture Act of 1939 or as provided for in Section 11.5,
if and to the extent required hereby.
-3-
<PAGE> 10
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon redemption or a declaration of acceleration of the maturity thereof
pursuant to Section 4.1.
"OUTSTANDING" (except as otherwise required by the Trust
Indenture Act of 1939), when used with reference to Securities, shall, subject
to the provisions of Section 6.4, mean, as of any particular time, all
Securities theretofore authenticated and delivered by the Trustee under this
Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, which have become due and
for the payment or redemption of which moneys in the necessary amount
shall have been theretofore deposited in trust with the Trustee or with
any paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the holders of such
Securities (if the Issuer shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.11, or which shall have been paid.
In determining whether the holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"OVERDUE RATE" means, unless otherwise specified in the
Securities of any series, the same rate as the rate of interest specified in the
Securities of such series or, in the case of a series of Original Issue Discount
Securities, the Yield to Maturity of such series of 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.
"REGULATION S-X" shall mean Regulation S-X of the Securities
Act as enacted by the Commission.
"RESOLUTION" means a resolution of the Board of Directors,
including without limitation any such resolution by which or pursuant to which
any series of Securities is authorized and established pursuant to Section 2.5
hereof.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means the [chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president, the cashier, the secretary, the treasurer, any senior
-4-
<PAGE> 11
trust officer, trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer] of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"S&P" shall mean Standard & Poor's Corporation or any
successor thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY" or "SECURITIES" (except as otherwise required by
the Trust Indenture Act of 1939) has the meaning stated in the first recital of
this Indenture or means any Securities that have been issued, authenticated and
delivered under this Indenture, as the context may require.
"SUBSIDIARY" means any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power for the election of directors of such corporation (irrespective of whether
or not at the time stock of any other class or classes of such corporation shall
have or might have voting power by reason of the happening of any contingency)
is at the time directly or indirectly owned by the Issuer, or by one or more
other Subsidiaries, or by the Issuer and one or more other Subsidiaries.
"SUPPORT AGREEMENT" means the Support Agreement dated as of
May 25, 1994 between the Issuer and Textron.
"TEXTRON" shall mean Textron Inc., a ______ corporation or any
successor thereto.
"TRUSTEE" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee. If pursuant to the provisions of this
Indenture there shall be at any time more than one Trustee hereunder, the term
"Trustee" as used with respect to Securities of any series shall mean the
Trustee or Trustees with respect to the Securities of that series.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided in
sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act of 1939" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"UNIFORM COMMERCIAL CODE" means the New York Uniform
Commercial Code as in effect from time to time.
"U.S. GOVERNMENT OBLIGATIONS" has the meaning set forth in
Section 12.4.
"VICE PRESIDENT", when used with respect to the Issuer or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president".
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<PAGE> 12
ARTICLE TWO
SECURITIES
----------
SECTION 2.1 FORMS GENERALLY. The Securities of each series
shall be substantially in the form set forth in this Article, or in such other
form as shall be established by or pursuant to a Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification and such legends or
endorsements as may be required to comply with any applicable law, rule or
regulation or with the rules of any securities exchange or as may, consistent
with the provisions of this Indenture, be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 FORM OF FACE OF SECURITY. [If the Security is an
Original Issue Discount Security, insert any legend required by the Internal
Revenue Code of 1986, as amended and the regulations thereunder.]
No.
TEXTRON FINANCIAL CORPORATION
[Insert Designation of Series]
Textron Financial Corporation, a corporation duly organized
and existing under the laws of the State of Delaware (herein called the
"Company"), for value received., hereby promises to pay to
________________________, or registered assigns, the principal sum of
___________________ on ___________________ [IF THE SECURITY IS TO BEAR INTEREST
PRIOR TO MATURITY, INSERT--, and to pay interest thereon [[INSERT AS
APPLICABLE--annually OR semi-annually OR quarterly]] on [[INSERT APPROPRIATE
INTEREST PAYMENT DATES]] (the "Interest Payment Dates") in each year, commencing
_________, [INSERT--AT THE RATE OF ___% PER ANNUM OR, IF APPLICABLE, INSERT THE
METHOD FOR DETERMINING THE ADJUSTABLE, FLOATING OR OTHER FORM OF VARIABLE
INTEREST RATE BORNE BY THE SECURITIES] 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, if any, and on any overdue
installment of interest]. This Security shall bear interest from the most recent
Interest Payment Date to which interest in respect hereof has been paid or duly
provided for, unless no interest has been paid on this Security, in which case
from __________. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, subject to certain exceptions provided
in the Indenture referred to on the reverse hereof, be paid to the Person in
whose name this Security is registered at the close of business on the
__________ or __________ (whether or not a Business Day) (the "Record Date")
next preceding such Interest
-6-
<PAGE> 13
Payment Date; provided, however, that the first payment of interest on any
Security originally issued between a Record Date and the related Interest
Payment Date shall be made on the second Interest Payment Date following the
date of original issuance of the Security to the Person in whose name this
Security is registered on the Record Date relating to such second Interest
Payment Date.
[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 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 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 (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 [INSERT--THE PLACES OF payment], [INSERT
- -- THE CURRENCY OR CURRENCIES OF PAYMENT]; 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 THE SECURITY IS AN EXTENDIBLE SECURITY, INSERT--The
Securities of this series are subject to repayment on [INSERT PROVISIONS WITH
RESPECT TO REPAYMENT DATE OR DATES] at the option of the holders thereof
exercisable on or before the __________, but not prior to the _________
preceding such ______________, at a repayment price equal to the principal
amount thereof to be repaid, together with interest payable thereon to the
repayment date, as described on the reverse side 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 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:
TEXTRON FINANCIAL CORPORATION
By___________________________
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<PAGE> 14
-----------------------------
SECTION 2.3 FORM OF REVERSE OF SECURITY.
TEXTRON FINANCIAL CORPORATION
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 [______ __], 1999 (herein called
the "Indenture"), between the Company and [___________], as Trustee (herein
called the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, obligations, 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 [IF APPLICABLE,
INSERT--limited in aggregate principal amount to __________]. The separate
series of Securities may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking or purchase funds (if any), may be subject to different repayment
provisions (if any) , may be subject to different covenants and Events of
Default and may otherwise vary as provided in the Indenture. The Indenture
further provides that the Securities of a single series may be issued at various
times, with different maturity dates, may bear interest, if any, at different
rates, may be subject to different redemption provisions (if any), may be
subject to different sinking or purchase funds (if any) and may be subject to
different repayment provisions (if any).
[IF APPLICABLE, INSERT--The Securities of this series may not
be redeemed prior to maturity.]
[IF APPLICABLE, INSERT--The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, [[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 (as more fully described in the next succeeding paragraph)
at [[INSERT EITHER--a redemption price equal to 100% of the principal amount of
the Securities to be redeemed OR 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 [[IF APPLICABLE,
INSERT--on or after __________]], as a whole or in part, at the election of the
Company, at the [[INSERT EITHER--following redemption prices OR redemption
prices for redemption otherwise than through operation of the sinking fund]]
(expressed as percentages of the principal amount): if redeemed [[IF APPLICABLE,
INSERT--on or before ________, __%, and if redeemed]] during the 12-month period
beginning _________ of the years indicated,
[[IF APPLICABLE,
Redemption Price INSERT - -
For Redemption Redemption Price
[[IF APPLICABLE, For Redemption
INSERT - - Otherwise Than
-8-
<PAGE> 15
Through Operation of the Through Operation of the
YEAR SINKING FUND]] SINKING FUND]]
and thereafter at a redemption price equal to ___% of the principal amount
thereof, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the date fixed for
redemption, but interest installments maturing on or prior to such redemption
date will be payable to the holders of such 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.]
[(IF APPLICABLE, insert--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]] $_____ [[("mandatory sinking
fund payments") and not more than $____]] aggregate principal amount of
Securities of this series.] [(IF APPLICABLE, INSERT -- 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.]
[(IF APPLICABLE, INSERT--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.]
[(IF APPLICABLE, INSERT--Partial redemptions must be in an
amount not less than $__________ principal amount of Securities.]
[(IF APPLICABLE, INSERT--In the event of redemption of this
Security in part only, a new Security or Securities of this series for the
unredeemed portion hereof having the same interest rate and maturity as this
Security will be issued in the name of the holder hereof upon the cancellation
hereof.)]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT--If an Event of Default with respect to Securities of this series shall
occur and be continuing, then the Trustee or the holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [IF THE
SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT--If an Event of Default
with respect to Securities of this series shall occur and be continuing, then
the Trustee or the holders of not less than 25% in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of this series then
Outstanding may declare an amount of principal of the Securities of this series
due and payable in the manner and with the effect provided in the Indenture.
Such amount shall be equal to [[INSERT FORMULA FOR DETERMINING THE AMOUNT]].]
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<PAGE> 16
[(IF THE SECURITY IS AN EXTENDIBLE SECURITY, INSERT--The
Securities of this series are subject to repayment in whole, or in part, on
[INSERT MONTH, DAY AND YEARS], in increments of __________ or multiples of
__________ in excess of __________, provided that the portion of the principal
amount of any Security of this series not being repaid shall be at least
__________, at the option of the holder thereof at a repayment price equal to
the principal amount thereof to be repaid, together with interest payable
thereon to the repayment date. For this Security to be repaid at the option of
the holder, the Trustee must receive at the Corporate Trust Office or the New
York Location, on or before the [INSERT MONTH AND DAY] or, if such [INSERT MONTH
AND DAY] is not a day other than a day on which banking institutions in the
Borough of Manhattan, The City and State of New York are authorized or required
by law or regulation to close (a "Business Day"), the next succeeding Business
Day, but not earlier than the (INSERT MONTH AND DAY) prior to the (INSERT MONTH
AND DAY) on which the repayment price will be paid (i) this Security, with the
form entitled "Option to Elect Repayment" below duly completed, or (ii) a
telegram, telex, facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States of America setting forth
the name of the holder of the Security, the principal amount of the Security,
the amount of such Security to be repaid, a statement that the option to elect
repayment is being made thereby and a guarantee that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the reverse thereof duly
completed will be received by the Company no later than five Business Days after
the date of such telegram, telex, facsimile transmission or letter, and such
Security and form duly completed are received by the Company by such fifth
Business Day. Either form of notice duly received on or before the [INSERT MONTH
AND DAY] preceding any such [INSERT MONTH AND DAY] shall be irrevocable. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Securities of this series for repayment will be determined by
the Company, whose determination shall be final and binding.]
The Indenture permits, with certain exceptions as therein
provided, the amendment or supplementing 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 of the holders of not less than a
majority in aggregate principal amount (calculated as provided in the Indenture)
of the Securities at the time Outstanding of all series to be affected (all such
series voting as a single class). The Indenture also contains provisions
permitting the holders of not less than a majority in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of each series at
the time Outstanding, on behalf of the holders of all Securities of such series,
to waive certain past defaults or Events of Default under the Indenture and the
consequences of any such defaults or Events of Default. Any such consent or
waiver by the holder of this Security (unless revoked as provided in the
Indenture) 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 herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
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
interest, if any, on this Security at the times, place and rate, if any, and in
the coin or currency, herein prescribed.
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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 due presentment of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and interest, if any, 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 his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, having the same interest rate and maturity and bearing interest
from the same date as this Security, of any 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 ________ and any integral multiple
thereof. 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 of a different authorized
denomination having the same interest rate and maturity and bearing interest
from the same date as such Securities, as requested by the holder surrendering
the same.
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 as the owner
hereof for all purposes, whether or not this Security be overdue and
notwithstanding any notation of ownership or other writing thereon, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary. All payments made to or upon the order of such registered holder,
shall, to the extent of the sum or sums paid, effectually satisfy and discharge
liability for monies payable on this Security.
No recourse for the payment of the principal of or interest,
if any, on this Security, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, official or director, as
such, past, present or future, of the Company or of any successor entity, either
directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issue hereof, expressly waived
and released.
All terms used in this Security and not otherwise defined
herein which are defined in the Indenture shall have the meanings assigned to
them in the Indenture.
This Security shall be governed by and construed in accordance
with the laws of the State of New York.
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<PAGE> 18
SECTION 2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
[__________________________],
as Trustee
By_________________________________
Authorized Officer
SECTION 2.5 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Resolution, a copy of which, certified
by the [secretary or an assistant secretary or attesting secretary] of the
Issuer, shall be delivered to the Trustee or established in one or more
Indentures supplemental hereto, prior to the issuance of securities of a
particular series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.10, 2.11, 2.13 or 10.3);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
(including the Overdue Rate) shall be determined, the date or dates from which
such interest shall accrue or the method by which such date or dates may be
determined, the interest payment dates on which such interest shall be payable
and the record dates for the determination of holders to whom interest is
payable;
(5) the place or places where the principal and any interest
on Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within
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 Issuer, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a holder thereof and the price or prices at
which, the period or periods within which and the terms and
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<PAGE> 19
conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series may be
repaid, in whole or in part, at the option of the holder thereof;
(9) if other than such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency (including composite currencies) in which
the Securities of the series shall be denominated and, if different, the coin or
currency (including composite currencies) in which payment of the principal of
and/or interest on the Securities of the series shall be payable;
(10) if the principal of and/or interest on the Securities of
the series are to be payable, at the election of the Issuer or a holder thereof,
in a coin or currency (including composite currencies) other than that in which
the Securities are stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made;
(11) if the amount of payments of principal of and/or interest
on the Securities of the series may be determined with reference to an index
based on a coin or currency (including composite currencies) other than that in
which the Securities are stated to be payable, the manner in which such amounts
shall be determined;
(12) if other than denominations of $1,000 (or if the
Securities are denominated in a currency other than U.S. dollars or in a
composite currency, 1,000 units of such other currency or composite currency)
and any multiple thereof, the denominations in which Securities of the series
shall be issuable;
(13) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 4.1 or
provable in bankruptcy pursuant to Section 4.2;
(14) if the Securities of the series are Original Issue
Discount Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance of
such series;
(15) any other terms of the series which are not inconsistent
with this Indenture.
All Securities of any one series shall be substantially
identical except as to denomination, interest rate and maturity and except as
may otherwise be provided in or pursuant to such Resolution or in any such
indenture supplemental hereto. The applicable Resolution or the applicable
supplemental indenture may provide that Securities of any particular series may
be issued at various times, with different maturities and redemption and
repayment provisions (if any) and bearing interest at different rates, but shall
for all purposes under this Indenture, including, but not limited to, voting and
Events of Default, be treated as Securities of a single series.
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<PAGE> 20
Except as otherwise specified pursuant to this Section 2.5 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 2.6 AUTHENTICATION AND DELIVERY OF SECURITIES. At any
time and from time to time after the execution and delivery of this Indenture,
the Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Issuer, signed by
both (a) [the chairman of its Board of Directors, its president or any vice
president and (b) its treasurer, controller, secretary or any assistant
secretary], without any further action by the Issuer. 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 the requirements of the Trust Indenture Act of 1939) shall be fully
protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such
series, certified by the secretary or an assistant secretary or
attesting secretary of the Issuer;
(2) an executed supplemental indenture, if any, relating
thereto;
(3) an Officers' Certificate setting forth the form and terms
of the Securities as required pursuant to Sections 2.1 and 2.5,
respectively, and prepared in accordance with the requirements of the
Trust Indenture Act of 1939 and Section 11.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 11.5, which
shall state that, if the form of such Securities has been established
by or pursuant to a Resolution as permitted by Section 2.1, that such
form or forms, as the case may be, have been established in conformity
with the provisions of this Indenture, and that the terms of such
Securities have been established by or pursuant to a Resolution as
permitted by Section 2.5 in conformity with the provisions of this
Indenture and that the authentication and delivery of such Securities
by the Trustee is authorized under the provisions of this Indenture.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee, or a trust committee of directors or trustees and/or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing holders or would adversely affect the Trustees
own rights, duties or immunities under this Indenture or otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose duties
or obligations on the Trustee which the Trustee is not able or reasonably
willing to accept; PROVIDED that the Trustee, upon the request of the Issuer,
will resign as Trustee with respect to Securities of any series as to which such
a determination is made, prior to the issuance of such Securities, and will
comply with the request of the Issuer to execute and deliver a supplemental
indenture appointing a successor Trustee pursuant to Section 7.1 hereof.
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SECTION 2.7 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Issuer by both (a) [the chairman of its Board of
Directors, its president or any vice president and (b) its treasurer, controller
or secretary]. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. Typographical and other minor errors or
defects in any such signature shall not affect the validity or enforceability of
any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such Security,
shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.8 CERTIFICATE OF AUTHENTICATION. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
SECTION 2.9 DENOMINATION AND DATE OF SECURITIES; PAYMENTS OF
INTEREST. The Securities of each series shall be issuable as registered
securities without coupons and in denominations as shall be specified as
contemplated by Section 2.5. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall be
issuable in denominations of U.S. $1,000 (or, if such Securities are denominated
in a currency other than U.S. dollars or in a composite currency, 1,000 units of
such other currency or composite currency) and any multiple thereof. The
Securities of each series shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication,
shall bear interest, if any, from the date, and shall be payable on the dates,
in each case, which shall be specified as contemplated by Section 2.5.
Except as otherwise specified for a particular series pursuant
to Section 2.5, the Person in whose name any Security of any series is
registered at the close of business on any record date (as hereinafter defined)
applicable to a particular series with respect to any interest payment date for
such series shall be entitled to receive the interest, if any, payable on such
interest payment date notwithstanding the cancellation of such Security upon any
registration of any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
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<PAGE> 22
paid to the persons in whose names Outstanding Securities of such series are
registered at the close of business on a subsequent record date (which shall be
not less than five days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the holders
of Securities not less than 15 days preceding such subsequent record date. The
term "record date" as used with respect to any interest payment date (except a
date for payment of defaulted interest) shall mean the date specified as such in
the terms of the Securities of any particular series, or, if no such date is so
specified, if such interest payment date is the first day of a calendar month,
the fifteenth day of the next preceding calendar month or, if such interest
payment date is the fifteenth day of a calendar month, the first day of such
calendar month, whether or not such record date is a Business Day.
SECTION 2.10 REGISTRATION, TRANSFER AND EXCHANGE. The Issuer
will keep, either at the office or agency designated and maintained by the
Issuer for such purpose in the Borough of Manhattan, The City of New York, in
accordance with the provisions of Section 3.2, or at any of such other offices
or agencies as may be designated and maintained in accordance with the
provisions of Section 3.2, a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities of a series as in this Article provided. Such
register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open for inspection by the
Trustee and any Security registrar (as defined below) other than the Trustee.
Upon due presentation for registration of transfer of any
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of the same series in authorized denominations for a
like aggregate principal amount and having the same interest rate, maturity,
repayment and redemption provisions.
Any Security or Securities of any series may be exchanged for
a Security or Securities of the same series in other authorized denominations,
in an equal aggregate principal amount and having the same interest rate,
maturity, redemption and repayment provisions. Securities of any series to be
exchanged shall be surrendered at any office or agency to be maintained by the
Issuer for the purpose as provided in Section 3.2, and the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange therefor the Security
or Securities of the same series and having the same interest rate and maturity
which the Securityholder making the exchange shall be entitled to receive,
bearing numbers or other distinguishing symbols not contemporaneously
outstanding. Each Person designated by the Issuer pursuant to the provisions of
Section 3.2 as a Person authorized to register and register transfer of the
Security is sometimes herein referred to as a "Security registrar".
The Issuer will at all times designate one Person (who may be
the Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other Person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer
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<PAGE> 23
and exchanges effected by such registrar, as may be necessary to enable such
repository to maintain the Register on as current a basis as is practicable.
No Person shall at any time be designated as or act as a
Security registrar unless such Person is at such time empowered under applicable
law to act as such and duly registered to act as such under and to the extent
required by applicable law and regulations.
All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer or exchange in form satisfactory to the Issuer and the
Trustee duly executed by, the Securityholder or his attorney duly authorized in
writing.
The Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities, other than exchanges
pursuant to Section 2.13, 7.5 or 10.3 not involving any registration of
transfer. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the selection of Securities of that series to be redeemed, or (b) any
Securities selected, called or being called for redemption or surrendered for
repayment in whole or in part except, in the case of any Security to be redeemed
or repaid in part, the portion thereof not so to be redeemed or repaid.
SECTION 2.11 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security shall become mutilated,
defaced or be destroyed, lost or stolen and, in the absence of notice to the
Issuer or the Trustee that such Security has been acquired by a bona fide
purchaser, the Issuer may in its discretion execute and the Trustee shall
authenticate and deliver, a new Security of the same series and of like tenor,
bearing a number or other distinguishing symbol not contemporaneously
Outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and substitution for the Security so destroyed, lost or stolen. In
every case the applicant for a substitute Security shall furnish to the Issuer
and to the Trustee (and any agent of the Issuer or Trustee, if requested by the
Issuer) such security or indemnity as may be required by them to indemnify and
defend and to save each of them harmless and, in every case of destruction, loss
or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer 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.
In case any Security that has matured or is about to mature or
has been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer in its discretion may instead of issuing a
substitute Security, pay or authorize the payment of the same (without surrender
thereof except in the case of a mutilated or defaced Security) , if the
applicant for such payment shall furnish to the Issuer and to the Trustee (and
any agent of the
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<PAGE> 24
Issuer or Trustee, if requested by the Issuer) such security or indemnity as any
of them may require to indemnify and defend and to save each of them harmless,
and, in every case of destruction, loss or theft, evidence to their satisfaction
of the destruction, loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to
the provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, 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 (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.12 CANCELLATION OF SECURITIES PAID, ETC. All
Securities surrendered for the purpose of payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer, any Security registrar, any
paying agent or any other agent of the Issuer or any agent of the Trustee, shall
be delivered to the Trustee and promptly cancelled by it or, if surrendered to
the Trustee, shall be promptly cancelled by it; and no Securities shall be
issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee shall destroy cancelled Securities held by it and
deliver a certificate of destruction to the Issuer. If the Issuer shall acquire
any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.13 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced). Temporary Securities of any
series shall be issuable as registered Securities without coupons, in any
authorized denomination, and substantially in the form of the definitive
Securities of such series in lieu of which they are issued but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer. Temporary Securities may
contain such reference to any provisions of this Indenture as may be
appropriate. Every temporary Security shall be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Securities in lieu of which they are issued. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for that purpose pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
of such series a like aggregate principal amount of definitive Securities of the
same series of authorized denominations having the same interest rate, maturity
and redemption and repayment provisions, and bearing interest from the same date
as such
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<PAGE> 25
temporary Securities. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive
Securities of the same series authenticated and delivered hereunder.
ARTICLE THREE
COVENANTS OF THE ISSUER
-----------------------
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of and interest, if
any, on each of the Securities of such series at the place or places, at the
respective times and in the manner provided in such Securities. Each installment
of interest on the Securities of any series may be paid by mailing checks for
such interest payable to or upon the written order of the holders of Securities
entitled thereto as they shall appear in the Register.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any of the
Securities remain Outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) an office or
agency where the Securities may be presented for registration of transfer and
for exchange as in this Indenture provided and (c) an office or agency where
notices and demands to or upon the Issuer in respect of the Securities or of
this Indenture may be served. In addition to such office or offices or agency or
agencies, the Issuer may from time to time designate and maintain one or more
additional offices or agencies within or outside the Borough of Manhattan, The
City of New York, where the Securities of that series may be presented for
payment or for registration of transfer or for exchange, and the Issuer may from
time to time rescind such designation, as it may deem desirable or expedient.
The Issuer will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. The Issuer hereby
designates the New York Location and the Corporate Trust Office as the initial
offices to be maintained by it for such purposes. In case the Issuer shall fail
to maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the Corporate Trust Office and the Issuer
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
SECTION 3.3 PAYING AGENTS. Whenever the Issuer shall appoint a
paying agent or agents other than the Trustee with respect to the Securities of
any series, it will cause each such paying agent to execute and deliver to the
Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest, if any, on the
Securities of such series (whether such sums have been paid to it by
the Issuer or by any other obligor on the Securities of such 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,
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(b) that it will give the Trustee notice of any default by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest, if any, on the
Securities of such series when the same shall be due and payable, and
(c) that, at any time during the continuance of any such
default referred to in clause (b) above, upon the written request of
the Trustee, it will forthwith pay to the Trustee all sums so held in
trust by such paying agent.
Whenever the Issuer shall have one or more paying agents with
respect to Securities of any series, it will, prior to each due date of the
principal of or interest, if any, on the Securities of such series, deposit with
a designated paying agent a sum sufficient to pay such principal or interest, if
any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal or interest, if any, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee of any failure
to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest, if any, on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Persons entitled to such
principal and interest, if any, a sum sufficient to pay such principal or
interest, if any, so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or
for any other reason, pay or cause to be paid to the Trustee all sums held in
trust for any such series by the Issuer or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.4 LIMITATION ON LIENS. The Issuer will not at any
time directly or indirectly, and will not permit any Subsidiary to, create,
assume, incur or suffer to be created, assumed or incurred or to exist any Lien
upon any of the properties and assets of any character of the Issuer or any
Subsidiary without making effective provision whereby the Securities of any
series then outstanding shall be secured equally and ratably with (or prior to)
any other obligation or indebtedness so secured, so long as such other
obligation or indebtedness remains secured; except, however, that,
notwithstanding the foregoing, the Issuer or any Subsidiary, without so securing
the Securities of any series, may:
(a) lease property to others in the ordinary course of the
business of the Issuer or any Subsidiary or lease or sublease any property if
the property subject thereto is not needed by the Issuer or any Subsidiary in
the operation of its business;
(b) create, assume, incur, or suffer to be created, assumed or
incurred or to exist any Lien, provided, in each case, that the Lien secures
indebtedness for borrowed money, including purchase money indebtedness, which is
incurred to finance the acquisition of the
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property subject to such Lien and that such Lien attaches to such asset
concurrently with or within 90 days after the acquisition thereof;
(c) assume or suffer to exist (i) any Lien existing on any
asset of any corporation at the time such corporation becomes a Subsidiary and
not created in contemplation of such event; (ii) any Lien on any asset of any
corporation existing at the time such corporation is merged or consolidated with
or into the Issuer or a Subsidiary and not created in contemplation of such
event; and (iii) any Lien existing on any asset prior to the acquisition thereof
by the Issuer or a Subsidiary and not created in contemplation of such
acquisition;
(d) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or governmental
regulation in order to enable the Issuer or such Subsidiary to maintain
self-insurance, or to participate in any fund in connection with workmen's
compensation, unemployment insurance, old-age pensions, or other social
security, or to share in any privileges or other benefits available to
corporations participating in any such arrangement, or for any other purpose at
any time required by law or regulation promulgated by any governmental agency or
office as a condition to the transaction of any business or the exercise of any
privilege or license, or deposit assets of the Issuer or such Subsidiary with
any surety company or clerk of any court, or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal by the Issuer or such
Subsidiary from any judgment or decree against it, or in connection with any
other proceedings in actions at law or suits in equity by or against the Issuer
or such Subsidiary;
(e) incur or suffer to be incurred or to exist upon any of its
property or assets (i) Liens for taxes, assessments or other governmental
charges or levies which are not yet due or are payable without penalty or of
which the amount, applicability or validity is being contested by the Issuer or
such Subsidiary in good faith by appropriate proceedings and the Issuer or such
Subsidiary shall have set aside on its books reserves which it deems to be
adequate with respect thereto (segregated to the extent required by generally
accepted accounting principles), provided that foreclosure, distraint, sale or
similar proceedings have not been commenced, (ii) the Liens of any judgment, if
such judgment shall not have remained undischarged, or unstayed on appeal or
otherwise, for more than six months, (iii) undetermined Liens or charges
incident to construction, (iv) materialmen's, mechanics', workmen's, repairmen's
or other like Liens arising in the ordinary course of business in respect of
obligations which are not overdue or which are being contested by the Issuer or
such Subsidiary in good faith by appropriate proceedings, or deposits to obtain
the release of such Liens, or (v) any encumbrances consisting of zoning
restrictions, licenses, easements and restrictions on the use of real property
and minor defects and irregularities in the title thereto, which do not
materially impair the use of such property by the Issuer or such Subsidiary in
the operation of its business or the value of such property for the purpose of
such business;
(f) create other Liens arising in the ordinary course of its
business which (i) do not secure Debt, (ii) do not secure any obligation in an
amount exceeding $5,000,000 and (iii) do not in the aggregate materially detract
from the value of its property or assets or materially impair the use thereof in
the operation of its business;
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(g) create or suffer to be created Liens not otherwise
permitted securing Debt in an aggregate principal amount at any time outstanding
not to exceed $10,000,000;
(h) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Issuer or a Subsidiary in
the ordinary course of business a banker's lien or right of offset in the holder
of such indebtedness or moneys of the Issuer or a Subsidiary deposited with such
lender or holder in the ordinary course of business;
(i) create, assume or suffer to exist Liens securing
indebtedness owed to the Issuer or any Subsidiary by another Subsidiary;
(j) create, assume, incur, or suffer to be created, assumed or
incurred or to exist any Lien upon any of its properties or assets of any
character in connection with the sale, transfer or other disposition of such
assets (i) in connection with the securitization or other asset-based financing
thereof, (ii) to a real estate investment trust or similar entity or (iii) in
connection with any transaction similar to the transactions referred to in the
immediately preceding clauses (i) or (ii); provided, however, that any such
sale, transfer or other disposition shall be for valid consideration and shall
not be to prefer directly or indirectly any holder of any other obligation or
indebtedness of the Issuer as to any such other obligation or indebtedness that
was already outstanding and did not previously benefit from a Lien; and
(k) cause or allow any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses; provided, however, that the principal
amount of any and all other obligations and indebtedness secured thereby shall
not exceed the principal amount thereof so secured at the time of such
extension, renewal or replacement (except that (A) the amount of obligations or
indebtedness secured by extensions, renewals or replacements of Liens on
property acquired through the exercise of rights arising out of defaults on
receivables may exceed the principal amount prior to such extension, renewal or
replacement and (B) the amount of obligations or indebtedness secured by
extensions, renewals or replacements of Liens on property may exceed the
principal amount of such obligations or indebtedness prior to such extension,
renewal or replacement if the value of such property has increased and the loan
to value ratio of the refinanced obligation or indebtedness does not exceed the
loan to value ratio of the obligation or indebtedness relating to the original
Lien); and provided further that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the Lien so extended,
renewed or replaced (plus improvements on such property).
SECTION 3.5 MINIMUM CONSOLIDATED NET WORTH. Consolidated Net
Worth will at no time be less than $100,000,000.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 EVENTS OF DEFAULT. Event of Default" with respect
to Securities of a particular series wherever used herein, means any one of the
following events and such other
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events as may be established with respect to the Securities of such series as
contemplated by Section 2.5 hereof, continued for the period of time, if any,
and after the giving of notice, if any, designated in this Indenture or as may
be established with respect to such Securities as contemplated by Section 2.5
hereof, as the case may be, unless such event is either inapplicable or is
specifically deleted or modified in, or pursuant to, the applicable Resolution
or in the supplemental indenture under which such series of Securities is
issued, as the case may be, as contemplated by Section 2.5:
(a) default in the payment of any interest on such Securities
when due and payable, and continuance of such default for a period of 30 days;
(b) default in the payment of the principal of, or any premium
on, the Securities of such series when the same shall become due and payable
either at maturity upon redemption by declaration or otherwise;
(c) default in the performance, or breach, of any covenant or
warranty of the Issuer contained in the Securities of such series or this
Indenture, as the case may be, and continuance of such default or breach for a
period of 90 days after written notice thereof shall have been given to the
Issuer by the holders of at least 25% in aggregate principal amount of the
Securities of such series then outstanding;
(d) if any Event of Default as defined in any mortgage,
indenture or instrument under which there may be issued, or by which there may
be secured or evidenced, any indebtedness of the Issuer for money borrowed,
whether such indebtedness now exists or shall hereafter be created, shall occur
and shall result in such indebtedness in principal amount in excess of
$25,000,000 (or the equivalent thereof in foreign or composite currencies)
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not be rescinded
or annulled, or such indebtedness shall not have been discharged, within a
period of 30 days after written notice thereof shall have been given to the
Issuer by the holders of at least 25% in aggregate principal amount of
Securities of such series then outstanding;
(e) the Support Agreement shall have ceased to be in full
force and effect for any reason or shall be amended or modified in any manner
unless, prior to such cessation, amendment or modification, S&P, Moody's and any
other "nationally recognized statistical rating organization" (as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act) then rating
securities of the Issuer at the Issuer's request, have each confirmed that the
rating assigned to securities of the Issuer by such rating agency immediately
prior to such cessation, amendment or modification will be unchanged or greater
as a result of such cessation, amendment or modification; provided, that, if the
cessation amendment or modification of the Support Agreement is in connection
with the assumption of the Securities of such series by any other corporation
pursuant to the provisions described in Section 8.1 of this Indenture (whether
by merger, consolidation, conveyance, transfer, lease or assignment) or in
connection with the transfer by Textron of the capital stock of the Issuer to
any other 100% direct or indirect subsidiary of Textron, it shall not constitute
an Event of Default if the senior debt securities of the corporation assuming
the Securities of such series are rated by S&P or Moody's immediately
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following such transfer or assumption at a rating equal to or greater than the
respective rating assigned to securities of the Issuer by each such rating
agency;
(f) Textron, the Issuer or any "significant subsidiary" (as
such term is defined in Section 1.02(w) of Regulation S-X of the Securities Act)
of the Issuer shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding commenced against it,
or shall make a general assignment for the benefit of creditors, or shall fail
generally or admit its inability to pay its debts as they become due, or shall
take any corporate action to authorize any of the foregoing; or
(g) an involuntary case or other proceeding shall be commenced
against Textron, the Issuer or any significant subsidiary of the Issuer seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the Issuer or
any significant subsidiary of the Issuer under the federal bankruptcy laws as
now or hereafter in effect.
In case an Event of Default other than one under clause (f) or
(g) above shall have occurred and be continuing, in which case the principal of
all outstanding Securities of such series shall become immediately due and
payable, then the holders of at least 25% in aggregate principal amount of the
Securities of such series then outstanding may declare the principal of all
outstanding Securities of such series to be immediately due and payable. If an
Event of Default under clause (f) or (g) above shall have occurred and be
continuing, the principal of all outstanding Securities of such series shall
automatically become due and payable. Upon any such an acceleration, any premium
and interest on the Securities of such series shall also become immediately due
and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the moneys due shall have been obtained or entered as hereinafter provided,
(a) the Issuer shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any,
upon all the Securities of such series and the principal of any and all
Securities of such series which shall have become due otherwise than by
such declaration of acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest, if any, at the
Overdue Rate applicable to such series to the date of such payment or
deposit), and all amounts payable to the Trustee pursuant to Section
5.5. and
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(b) any and all Events of Default under the Indenture with
respect to such series of Securities other than the non-payment of the
principal of such Securities which shall have become due by such
declaration of acceleration, shall have been cured, waived or otherwise
remedied as provided herein or provision shall have been made therefor
to the satisfaction of the Trustee,
then and in every such case the holders of not less than a majority in aggregate
principal amount of the Securities of such series then Outstanding, by written
notice to the Issuer and to the Trustee, may rescind and annul such declaration
and its consequences with respect to such series, but no such rescission and
annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and annulled,
the principal amount of such Original Issue Discount Securities shall be deemed,
for all purposes hereunder, to be such portion of the principal thereof as shall
be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 4.2 PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR.
The Issuer covenants that (a) in case a default shall be made in the payment of
any installment of interest on any of the Securities of any series as and when
such interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case a default shall be made in the
payment of the principal of any of the Securities of any series as and when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon redemption or by declaration or otherwise, or (c) in case
of a default in the making or satisfaction of any sinking fund payment or
analogous obligation when the same becomes due by the terms of the Securities of
any series -- then, upon demand of the Trustee, the Issuer will pay to the
Trustee for the benefit of the holders of the Securities of such series the
whole amount then due and payable on all Securities of such series for principal
and interest, if any, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest, if any, at the Overdue Rate applicable to Securities of such series);
and in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, and any further amounts payable to the Trustee
pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest, if any, on the Securities of any series to the
registered holders, whether or not the principal of and interest, if any, on the
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
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enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Issuer or any other obligor upon the Securities
of any series under Title 11 of the United States Code or any other similar
applicable Federal or state law, or in case a receiver, trustee in bankruptcy or
similar official shall have been appointed for the property of the Issuer or
such other obligor, or in case of any other similar judicial proceedings
relative to the Issuer or other obligor upon the Securities of any series, or to
the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any 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 pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be due
and payable with respect to such series pursuant to a declaration in
accordance with Section 4.1) and interest, if any, owing and unpaid in
respect of the Securities of any series, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for any amounts payable to the Trustee
pursuant to Section 5.5) and of the Securityholders allowed in any
judicial proceedings relating to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer
or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in any
election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or of a person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf (after deduction of costs and expenses
of collection, and any further amounts payable to the Trustee pursuant
to Section 5.5 and incurred by it up to the date of distribution); and
any trustee in bankruptcy, receiver, or other similar official is
hereby authorized by each of the Securityholders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the Securityholders, to pay to the
Trustee costs and expenses of collection, and any further amounts
payable to the Trustee pursuant to Section 5.5 and incurred by it up to
the date of distribution.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
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Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under the Securities of any series, may be enforced by the Trustee
without the possession of any of the Securities of such series or the production
thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, shall be for the
ratable benefit of the holders of the Securities in respect of which such action
was taken,
In any proceedings brought by the Trustee (and also any
proceedings in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities to which such proceedings relate, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.3 APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any
moneys 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 the case of
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
of like series and tenor if only partially paid, or upon surrender thereof if
fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant
to Section 5.5;
SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest, if any, on the
Securities in default in the order of the maturity of the installments
of such interest, with interest (to the extent that such interest has
been collected by the Trustee and to the extent permitted by applicable
law) upon the overdue installments of interest at the Overdue Rate
applicable to such Securities, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall have become and shall
be then due and payable by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for
principal and interest, if any, with interest upon the overdue
principal, and (to the extent that such interest has been collected by
the Trustee and to the extent permitted by applicable law) upon overdue
installments of interest, if any, at the Overdue Rate applicable to
such Securities; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon such Securities, then
to the payment of such principal and interest, if any, without
preference or priority of principal over interest, if any, or of
interest, if any, over principal, or of any installment of interest, if
any, over any other installment of interest, if any, or of any Security
over any other
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Security, ratably to the aggregate of such principal and accrued and
unpaid interest, if any; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.4 PROCEEDINGS BY TRUSTEE. In case an Event of
Default hereunder has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Issuer and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 4.6 PROCEEDINGS BY SECURITYHOLDERS. No holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee in bankruptcy, receiver or other
similar official or for any other remedy hereunder, unless such holder
previously shall have given to the Trustee written notice of default with
respect to Securities of such series and of the continuance thereof, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action, suit
or proceedings in its own name as Trustee hereunder and shall have offered to
the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 4.8; it being understood and intended, and being
expressly covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of any Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Securities, or to obtain or seek to obtain priority over or
preference to any other holder or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable and common
benefit of all holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
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SECTION 4.7 REMEDIES CUMULATIVE AND CONTINUING. Except as
provided in Section 4.6, no right or remedy herein conferred upon or reserved to
the Trustee or to the Securityholders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
No delay or omission of the Trustee or of any Securityholder
to exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8 CONTROL BY SECURITYHOLDERS. The holders of not
less than a majority in aggregate principal amount of the Securities of each
series affected at the time Outstanding (with each such series voting separately
as a class) 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 by this Indenture with respect to
Securities of such series. Notwithstanding any of the foregoing, no such
direction shall be otherwise than in accordance with law and the provisions of
this Indenture and (subject to the requirements of the Trust Indenture Act of
1939) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good faith
by its board of directors, the executive committee, or a trust committee of
directors or Responsible Officers of the Trustee shall determine that the action
or proceedings so directed would involve the Trustee in personal liability.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
SECTION 4.9 WAIVER OF PAST DEFAULTS. Prior to the declaration
of the acceleration of the maturity of the Securities of any particular series
the holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the holder of each
Outstanding Security affected as provided in Section 7.2 hereof. In the case of
any such waiver, the Issuer, the Trustee and the holders of the Securities of
each series affected shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
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Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
----------------------
SECTION 5.1 RELIANCE ON DOCUMENTS, OPINIONS, ETC.; NO
REQUIREMENT FOR EXPENDITURE OF OWN Funds. Subject to the requirements of the
Trust Indenture Act of 1939:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, direction 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, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any Resolution may be evidenced to the
Trustee by a copy thereof certified by the secretary or an assistant
secretary or attesting secretary of the Issuer;
(c) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken 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;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, 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, consent, order, bond, direction, note, or
other paper or document unless requested in writing so to do by the
holders of not less than a majority in aggregate principal amount of
the Securities of any series affected then Outstanding; PROVIDED that,
if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of
such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded
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to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; and the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee,
shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee
shall not be responsible for any misconduct or negligence on the part
of any such agent or attorney appointed with due care by it hereunder.
None of the provisions contained in this Indenture shall be
construed as requiring the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers if there shall be reasonable grounds
for believing that the repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the requirements of the Trust Indenture Act of 1939.
SECTION 5.2 NO RESPONSIBILITY FOR RECITALS, ETC. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities, provided that the Trustee shall not be relieved of its duty to
authenticate Securities only as authorized by this Indenture. The Trustee shall
not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 5.3 TRUSTEE AND AGENTS MAY HOLD SECURITIES. The
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
the requirements of the Trust Indenture Act of 1939, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 5.4 MONEYS TO BE HELD IN TRUST. Subject to the
provisions of Sections 9.3 and 9.4 hereof, all moneys received by the Trustee or
any paying agent, all money and U.S. Government Obligations deposited with the
Trustee pursuant to Section 12.2 or Section 12.3 and all money received by the
Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Section 12.2 or Section 12.3, shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any paying agent shall be
under any liability for interest on any moneys received by it hereunder, except
such as it may agree with the Issuer to pay thereon. So long as no Event of
Default shall have occurred and be continuing, all interest allowed on any such
moneys shall be paid from time to time upon the written order of the Issuer
signed by one of its officers, who is one of the officers who may sign an
Officers' Certificate.
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SECTION 5.5 COMPENSATION AND EXPENSES OF TRUSTEE. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided, the Issuer will pay or reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Issuer also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against any claim of liability in the premises. The obligations of the Issuer
under this Section 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 secured by a
lien prior 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 benefit of
the holders of particular Securities.
SECTION 5.6 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE,
ETC. Subject to the requirements of the Trust Indenture Act of 1939, whenever
in the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee, and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 5.7 ELIGIBILITY OF TRUSTEE. The Trustee for each
series of Securities hereunder shall at all times be a corporation which
complies with the requirements of the Trust Indenture Act of 1939, having a
combined capital and surplus of at least $10,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
at any time shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and with the effect
specified in Section 5.8.
SECTION 5.8 RESIGNATION OR REMOVAL OF TRUSTEE; APPOINTMENT OF
SUCCESSOR TRUSTEE. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and by mailing
notice thereof to holders of the applicable series of Securities at their last
addresses as they shall appear in the Register. Upon receiving such notice of
resignation, the
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Issuer shall promptly appoint a successor trustee or trustees with respect to
the applicable series by written instrument in duplicate, executed by authority
of the Board of Directors, one copy of which instrument shall be delivered to
the resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the requirements of the Trust
Indenture Act of 1939, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.7 with respect to any series of Securities
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect
to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities (or all series, if required) and appoint a
successor trustee for such series by written instrument, in duplicate, executed
by authority of the Board of Directors, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the requirements of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide holder of a Security or Securities of
such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee with
respect to such series.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 5.8 shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 5.9.
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SECTION 5.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with like
effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor trustee,
upon payment (or due provision therefor) of any amounts then due it pursuant to
Section 5.5, the predecessor Trustee ceasing to act shall, subject to Section
9.4, pay over to the successor trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
5.5.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not retiring shall continue to be vested in the predecessor Trustee,
and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such trustee's co-trustees of
the same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee.
No successor trustee with respect to any series of Securities
shall accept appointment as provided in this Section 5.9 unless at the time of
such acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as
provided in this Section 5.9, the Issuer shall mail notice thereof to the
holders of Securities of any series for which such successor trustee is acting
as trustee at their last addresses as they shall appear in the Register. If the
acceptance of appointment is substantially contemporaneous with the resignation,
then the notice called for by the preceding sentence may be combined with the
notice called for by Section 5.8. If the Issuer fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Issuer.
SECTION 5.10 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it
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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 the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, PROVIDED that such corporation shall be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee by merger, conversion or consolidation may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities of any series
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of such successor to the Trustee or, if such
successor to the Trustee is a successor by merger, conversion or consolidation,
in the name of any predecessor hereunder; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities of such series
or in this Indenture provided that the certificate of the Trustee shall have.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
------------------------------
SECTION 6.1 ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the holders of a specified percentage in aggregate
principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Securities voting
in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of this Article, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments and/or such record
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent or proxy shall be sufficient for any purpose
of this Indenture and (subject to the requirements of the Trust Indenture Act of
1939 and Section 5.1) conclusive in favor of the Trustee and the Issuer, if made
in the manner provided in this Article.
In determining whether the holders of the requisite principal
amount of Outstanding Securities of any or all series have taken any action
(including the making of any demand or request), the giving of any notice,
consent or waiver (or the taking of any other action) hereunder and in
determining voting rights of any holder of a Security hereunder (i) the
principal amount of Original Issue Discount Securities that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date
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of such determination upon a declaration of acceleration of the maturity thereof
pursuant to Section 4.1 and (ii) the principal amount of any Security, the
principal amount of which is denominated in a currency other than U.S. dollars
or in units of currencies or in a composite currency (the "Specified Currency")
shall be deemed to be that amount of U.S. dollars which could have been obtained
by the principal amount of such Specified Currency at the Market Exchange Rate.
For purposes of this Section 6.1, "Market Exchange Rate" means, unless otherwise
specified for a Specified Currency with respect to any series of Securities
pursuant to Section 2.6, the noon U.S. dollar buying rate in New York City for
cable transfers of the Specified Currency published by the Federal Reserve Bank
of New York.
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Securityholders.
If the Issuer shall solicit from the Securityholders any
demand, request, notice, consent, waiver or the taking of any other action
(other than in accordance with the Securityholders' voting provisions set forth
in Sections 6.6 through 6.13 of this Article), the Issuer may, at its option, by
a Resolution, fix in advance a record date for the determination of holders
entitled to give such demand, request, notice, consent, or waiver or to take
such other action, but the Issuer shall have no obligation to do so. If such a
record date is fixed, such demand, request, notice, consent, waiver or such
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be holders for the purposes of determining whether holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be computed
as of the record date; PROVIDED, that no such demand, request, notice, consent,
waiver or taking of any other action by the holders on the record date shall be
deemed effective unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
SECTION 6.2 PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to
the requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11,
proof of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be proved by the
Register or by a certificate of the Person designated by the Issuer to keep the
Register and to act as repository in accordance with the provisions of Section
2.10.
The record of any Securityholders' meeting shall be proved in
the manner provided in Section 6.12.
SECTION 6.3 HOLDERS TO BE TREATED AS OWNERS. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the Person
in whose name any Security shall be registered in the Register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
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subject to the provisions of this Indenture, interest, if any, on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such Person, or upon his order, shall be valid,
and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Security.
SECTION 6.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING.
In determining whether the holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such demand, request, notice, direction, consent or waiver only Securities which
the Trustee knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding for
purposes of this Section 6.4 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 Issuer or any other obligor upon the Securities or
any Person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject to the requirements
of the Trust Indenture Act of 1939 and Section 5.1, the Trustee shall, in the
absence of manifest error, accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
SECTION 6.5 RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.1, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any holder of a
Security the serial number or other distinguishing symbol of which is shown by
the evidence to be included among the serial numbers or other distinguishing
symbols of the Securities the holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such holder and upon all future
holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the holders of
all the Securities affected by such action.
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SECTION 6.6 SECURITYHOLDERS' MEETINGS; PURPOSES. A meeting of
holders of Securities of any series or all series, as the case may be, may be
called at any time and from time to time pursuant to the provisions of this
Article Six for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of
the Securities of any series or all series, as the case may be, under
any other provision of this Indenture or under applicable law.
SECTION 6.7 CALL OF MEETINGS BY TRUSTEE. The Trustee may at
any time call a meeting of holders of Securities of any series or all series, as
the case may be, to take any action specified in Section 6.6, to be held at such
time and at such place in the Borough of Manhattan, The City of New York, as the
Trustee shall determine. Notice of every meeting of the holders of Securities of
any series or all series, as the case may be, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed to holders of Securities of each series affected
at their addresses as they shall appear in the Register as of a date not more
than 15 days prior to the mailing of such notice. Such notice shall be mailed
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
SECTION 6.8 CALL OF MEETINGS BY ISSUER OR SECURITYHOLDERS. In
case at any time the Issuer, pursuant to a Resolution, or the holders of at
least 10% in aggregate principal amount of the Securities then Outstanding of
any or all series, as the case may be, shall have requested the Trustee to call
a meeting of the holders of Securities of such series or all series, as the case
may be, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Issuer or such Securityholders, in the amount specified above, may determine the
time and the place in the Borough of Manhattan, the City of New York, for such
meeting and may call such meeting to take any action authorized in Section 6.6,
by mailing notice thereof as provided in Section 6.7.
SECTION 6.9 QUALIFICATIONS FOR VOTING. To be entitled to vote
at any meeting of Securityholders a Person shall (a) be a holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a holder of one or more of
such Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting
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and their counsel and any representatives of the Trustee and its counsel and any
representatives of the Issuer and its counsel.
SECTION 6.10 QUORUM; ADJOURNED MEETINGS. The Persons entitled
to vote a majority in aggregate principal amount of the Securities of the
relevant series at the time Outstanding shall constitute a quorum for the
transaction of all business specified in Section 6.6. No business shall be
transacted in the absence of a quorum (determined as provided in this Section
6.10). In the absence of a quorum within 30 minutes after the time appointed for
any such meeting, the meeting shall, if convened at the request of the holders
of Securities (as provided in Section 6.8), be dissolved. In any other case, the
meeting shall be adjourned for a period of not less than ten days as determined
by the chairman of the meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting shall be further adjourned for a period of not
less than ten days as determined by the chairman of the meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section 6.7,
except that such notice must be mailed not less than five days prior to the date
on which the meeting is scheduled to be reconvened.
Any holder of a Security who has executed in person or by
proxy and delivered to the Trustee an instrument in writing complying with the
provisions of Section 6.2 shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted; PROVIDED that such holder of a
Security shall be considered as present or voting only with respect to the
matters covered by such instrument in writing.
SECTION 6.11 REGULATIONS. Notwithstanding any other provisions
of this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall determine.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Securityholders as provided in Section 6.8, in which case the
Issuer or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 6.4, at any meeting each
holder of Securities with respect to which such meeting is being held or proxy
shall be entitled to one vote for each U.S. $1,000 (or if any Securities are
denominated in a currency other than U.S. dollars or in a composite currency,
the equivalent of U.S. $1,000 in the applicable currency or composite currency)
principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of "Outstanding"
in Section 1.1) of such Securities held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of any
such Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no right
to vote other than by virtue of such Securities held by him or instruments in
writing as aforesaid duly designating him as the Person to vote on behalf of
other such Securityholders. Any meeting
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of holders of Securities with respect to which a meeting was duly called
pursuant to the provisions of Section 6.7 or 6.8 may be adjourned from time to
time by a majority of those present, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 6.12 VOTING. The vote upon any resolution submitted to
any meeting of holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures of
such holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities, such
principal amount to be determined as provided in the definition of "Outstanding"
in Section 1.1) and number or numbers or other distinguishing symbol or symbols
of such Securities held or represented by them. The permanent chairman of the
meeting shall appoint two inspectors of votes who shall count all votes cast at
the meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Securityholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 6.7. The record
shall show the principal amount of the Securities (in the case of Original Issue
Discount Securities, such principal amount to be determined as provided in the
definition of "Outstanding" in Section 1.1) voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Issuer and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 6.13 NO DELAY OF RIGHTS BY MEETING. Nothing in this
Article Six shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Securityholders of any or all such series under any of the
provisions of this Indenture or of the Securities.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
-----------------------
SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Issuer, when authorized by, or pursuant to a Resolution,
and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
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(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as the Issuer and the
Trustee shall consider to be for the benefit of the holders of one or
more series of Securities (and if such covenants, restrictions,
conditions or provisions are to be for the benefit of less than all
series of Securities, stating that such covenants, restrictions,
conditions or provisions are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Issuer;
(d) to add additional Events of Default and to provide with
respect thereto for any particular periods of grace after default
(which may be shorter or longer than that allowed in the case of other
defaults) or for immediate enforcement upon such default or for any
limitation of the remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of
Securities in bearer form (including Securities registrable as to
principal only) with or without interest coupons and to provide for
exchangeability of such Securities with the Securities of the same
series issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to change or eliminate any
provision or to make such other provisions in regard to matters or
questions arising under this Indenture or under any supplemental
indenture as the Issuer may deem necessary or desirable and which shall
not adversely affect the interests of the holders of the Securities at
the time Outstanding;
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 2.5; or
(h) 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 5.9.
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary or attesting
secretary of the Issuer authorizing the execution of any such supplemental
indenture, the Trustee shall join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment,
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mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to (but may in its discretion) enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Issuer and the Trustee without the consent
of the holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 7.2.
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article Six) of the
holders of not less than a majority in aggregate principal amount of the
Securities of all series affected by such supplemental indenture (all such
series voting as a single class) at the time Outstanding, the Issuer, when
authorized by, or pursuant to a Resolution, and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights and obligations of the Issuer and the rights of the holders of the
Securities of all such series; PROVIDED that no such supplemental indenture
shall (a) extend the fixed maturity of any Security, or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption or reduce the Overdue Rate
thereof or make the principal thereof or interest thereon payable in any coin or
currency other than that provided in the Security or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 4.1 or the
amount thereof provable in bankruptcy pursuant to Section 4.2, or impair, if the
Securities provide therefor, any right of repayment at the option of the
Securityholder, without the consent of the holder of each Security so affected,
or (b) reduce the aforesaid percentage of Securities the consent of the holders
of which is required for any such supplemental indenture, without the consent of
the holders of each Security so affected.
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 Securityholders of such series with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Securityholders of any other series. The preceding sentence
shall not, however, raise any inference as to whether or not a particular series
is affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary or attesting
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid and other documents, if any, required by Section
6.1, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture adversely affects the
Trustee's open rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to,
enter into such supplemental indenture.
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It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section 7.2, the
Issuer shall mail a notice thereof to the holders of Securities of each series
affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 7.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
SECTION 7.4 CERTAIN DOCUMENTS TO BE GIVEN TO TRUSTEE. The
Trustee, subject to the requirements of the Trust Indenture Act of 1939 and
Section 5.1, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article Seven complies with the requirements of this Article.
SECTION 7.5 NOTATION ON SECURITIES. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a notation in form approved
by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared and executed by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
-------------------------------------------------
SECTION 8.1 ISSUER MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
The Issuer may consolidate or merge with or into any other corporation and may
convey, transfer or lease its property as an entirety or substantially as an
entirety to any corporation, provided that (a) the corporation (if other than
the Issuer) formed by or resulting from any such consolidation or merger or
which shall have received such property shall be a corporation organized and
existing under the laws of the United States of America, any state thereof or
the District of Columbia and shall expressly assume by supplemental agreement
the due and punctual payment of the principal of, and premium, if any, and
interest, if any, on, the Securities of any series and the performance
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and observance of each agreement or covenant to be performed or observed by the
Issuer under the Securities and this Indenture, and (b) 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 occurred
and be continuing. In addition, the Issuer may assign or otherwise transfer any
or all of its rights and obligations under the Securities under any series if
(i) the assignee is a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia, (ii)
the assignee is 100% directly or indirectly owned by Textron, (iii) the assignee
is in the finance business, (iv) no Event of Default and no event which, after
notice or lapse of time or both, would become an Event of Default shall have
occurred and be continuing, (v) the assignee shall expressly assume by
supplemental agreement the due and punctual payment of the principal of, any
premium, if any, and interest, if any, on, the Securities of any series and the
performance and observance of each agreement or covenant to be performed or
observed by the Issuer under such Securities and this Indenture, (vi) the
assignee shall have provided the Trustee such documents as may be necessary to
make the obligation of payment under the Securities of any series then
outstanding a legal, valid and binding obligation with respect to the assignee,
(vii) the assignee agrees to indemnify each holder of Securities of any series
then outstanding against any costs or expenses (inclusive of taxes, fees,
duties, assessments or governmental charges of whatever nature and without any
limitation or exception) of the act of assignment and (viii)(a)(1) the Issuer
shall have duly amended the Support Agreement to apply to the assignee or (2)
the assignee shall have entered into a new support agreement with Textron on
terms substantially similar to the Support Agreement but with such amended or
modified terms as shall be appropriate for such assignee and shall not cause an
Event of Default or any event which, after notice or lapse of time or both,
would become an Event of Default and (b) if the Support Agreement is no longer
in effect, received confirmation from Moody's and "S&P" and any other
"nationally recognized statistical rating organization" as have a current credit
rating for any of the relevant Securities then Outstanding that such credit
rating will not be downgraded, or placed on what is commonly referred to as a
"watch list" for possible downgrading, as a result of the assignment of
obligations under the Securities of any series then outstanding to the assignee.
Concurrently with any such conveyance, transfer, lease or assignment, the Issuer
shall be released from further obligations with respect to the Securities of any
series then outstanding and this Indenture.
SECTION 8.2 SUCCESSOR CORPORATION TO BE SUBSTITUTED. In case
of any consolidation, merger, sale, conveyance or lease referred to in Section
8.1 and upon the assumption by the successor entity, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the due and punctual payment of the principal of and interest, if any, on all
of the Securities and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Issuer, such successor
entity shall succeed to and be substituted for the Issuer, with the same effect
as if it had been named herein as the party of the first part. Such successor
entity thereupon may cause to be signed, and may issue either in its own name or
in the name of Textron Financial Corporation, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor entity
instead of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor entity thereafter shall cause to be signed and delivered to
the Trustee for that
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purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof. In the
event of any such sale or conveyance, but not any such lease, the Issuer or any
successor entity which shall theretofore have become such in the manner
described in this Article Eight shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be dissolved and
liquidated.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
SECTION 8.3 OPINION OF COUNSEL AND OFFICERS' CERTIFICATE TO BE
GIVEN TO TRUSTEE. The Trustee, subject to the requirements of the Trust
Indenture Act of 1939 and Section 5.1, may receive an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such consolidation,
merger, sale, conveyance or lease and any such assumption complies with the
provisions of this Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
----------------------------------------
UNCLAIMED MONEYS
----------------
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any particular series Outstanding hereunder
(other than Securities which have been mutilated, defaced, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.11 or in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for cancellation
all Securities of such series theretofore authenticated (other than any
Securities of such series which shall have been mutilated, defaced, destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
2.11 or in lieu of or in substitution for which other Securities shall have been
authenticated and delivered) and not theretofore cancelled, or (c)(i) all the
Securities of such series not theretofore cancelled or delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as trust funds the entire amount in cash (other
than moneys repaid by the Trustee or any paying agent to the Issuer in
accordance with Section 9.4) sufficient to pay at maturity or upon redemption
all Securities of such series not theretofore delivered to the Trustee for
cancellation (other than any Securities of such series which shall have been
mutilated, defaced, destroyed, lost or stolen which have been replaced or paid
as provided in Section 2.11 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered), including principal and
interest, if any, due or to become due to such date of maturity or the date
fixed for redemption, as the case may
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be, and if, in any such case, the Issuer shall also pay or cause to be paid all
other sums payable hereunder by the Issuer with respect to Securities of such
series, then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer
and exchange, and the Issuer's right of optional redemption, (ii) substitution
of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of
Securityholders to receive payments of principal thereof and interest, if any,
thereon, and remaining rights of the Securityholders to receive mandatory
sinking fund payments, if any, (iv) the rights, obligations and immunities of
the Trustee hereunder, including its rights under Section 5.5 and (v) the rights
of the Securityholders of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them), and
the Trustee, on demand of the Issuer accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture with respect to such series.
SECTION 9.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. Subject to Section 9.4, all moneys deposited with the
Trustee pursuant to Section 9.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the holders of the particular Securities of
such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest, if any.
SECTION 9.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent, other than
the Trustee, under the provisions of this Indenture with respect to such series
of Securities shall, upon demand of the Issuer, be repaid to it or paid to the
Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 9.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR TWO YEARS. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal, premium or interest, as the case may
be, shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the holder of such Security of
such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Issuer for any payment which such holder may be entitled to collect.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
------------------------------------------
SECTION 10.1 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to the Securities of any series which are redeemable
before their maturity and to any
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sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 2.5 for Securities of such series.
SECTION 10.2 NOTICE OF REDEMPTION; SELECTION OF SECURITIES. In
case the Issuer shall desire to exercise any right to redeem all or any part of
the Securities of any series in accordance with their terms, the Issuer shall
fix a date for redemption and the Issuer, or at the request and at the expense
of the Issuer, the Trustee, shall mail a notice of such redemption, at least 30
days and not more than 60 days prior to the date fixed for redemption, to the
holders of Securities of such series so to be redeemed in whole or in part at
their last addresses as they shall appear in the Register. Any notice which is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the holder receives the notice. Failure to give
notice by mail, or any defect in the notice, to the holder of any Security of a
series designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Security of such
series.
The notice of redemption to each such holder shall specify the
date fixed for redemption, the redemption price, the place or places of payment,
that payment will be made upon presentation and surrender of such Securities,
that any interest accrued to the date fixed for redemption will be paid as
specified in such notice and that on and after said date any interest thereon or
on the portions thereof to be redeemed will cease to accrue. If less than all of
the Outstanding Securities of a series are to be redeemed, the notice of
redemption shall specify the number or numbers or distinguishing symbol or
symbols of the Securities to be redeemed. In case any Security of a series is to
be redeemed in part, only the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the date fixed for redemption, upon surrender of such Security, a new Security
or Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
Prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, segregate and hold in trust as required by the Trust Indenture
Act of 1939) an amount of money (in the currency or units of currency in which
the Securities so called for redemption are denominated or an appropriate
equivalent thereof) sufficient to redeem on the redemption date all the
Securities of such series or portions thereof so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption. If less than all the Outstanding Securities of a series are to
be redeemed (or less than the full principal amount of each Security in such
series is to be redeemed), the Issuer will deliver to the Trustee at least 60
days prior to the date fixed for redemption (or such shorter period if
acceptable to the Trustee) an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed and, if the Trustee is not acting
as the repository of the Register for such series, a current list of all
Outstanding Securities of such series.
If less than all the Outstanding Securities of a series are to
be redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Except as otherwise specified for Securities of a particular series
pursuant to Section 2.5, Securities may be redeemed in part in amounts equal to
the minimum authorized denomination for Securities of such series or any
multiple thereof. The
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Trustee shall promptly notify the Issuer in writing of the Securities of such
series selected for redemption and, in the case of any Securities of such series
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 of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 10.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as provided in Section 10.2 above, the
Securities or portions of Securities specified in such notice shall become due
and payable on the date and at the place or places stated in such notice at the
applicable redemption price, together with interest accrued to the date fixed
for redemption, and on and after said date (unless the Issuer shall default in
the payment of such Securities or portions thereof at the redemption price,
together with interest accrued to said date) interest on the Securities or
portions of Securities so called for redemption shall cease to accrue and,
except as provided in Sections 5.4 and 9.4, such Securities shall cease from and
after the date fixed for redemption to be entitled to any benefit or security
under this Indenture, and the holders of such Securities shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; PROVIDED that if the date fixed for
redemption is an interest payment date, the interest due on that date shall be
payable to the holders of such Securities registered as such on the relevant
record date according to their terms.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal thereof so to be redeemed
shall, until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on the
order of the holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 10.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY
FOR SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number or other distinguishing symbol in a written statement signed by an
authorized officer of the Issuer and delivered to the Trustee at least 10 days
prior to the date on which Securities are to be selected for redemption as being
owned of record and beneficially by, and not pledged or hypothecated by, either
(a) the Issuer or (b) an entity specifically identified in such written
statement directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer.
SECTION 10.5 MANDATORY AND OPTIONAL SINKING FUNDS. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any series is herein
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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". The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund
payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.12, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities, and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
On or before the sixtieth day next preceding each sinking fund
payment date for any series of Securities, the Issuer will deliver to the
Trustee a certificate of the Issuer (which need not contain the statements
required by the Trust Indenture Act of 1939) signed by an officer of the Issuer
who is one of the officers authorized to sign an Officers' Certificate (a)
specifying the portion, if any, of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion, if any, to be satisfied by credit
of Securities of such series, (b) stating that none of such Securities has
theretofore been so credited, (c) stating that no Event of Default with respect
to such series has occurred (which has not been waived or cured) and is
continuing and (d) stating whether or not the Issuer intends to exercise its
right to make an optional sinking fund payment with respect to such series and,
if so, specifying the amount of such optional sinking fund payment which the
Issuer intends to pay on or before the next succeeding sinking fund payment
date. Any Securities of such series to be credited and required to be delivered
to the Trustee in order for the Issuer to be entitled to credit therefor as
aforesaid which have not theretofore been delivered to the Trustee shall be
delivered for cancellation pursuant to Section 2.12 to the Trustee with such
certificate. Such certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become obligated to make all the cash payments or
payments therein referred to, if any (which cash may be deposited with the
Trustee or with one or more paying agents, or, if the Issuer is acting as its
own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939), on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such sixtieth day, to deliver such
certificate and securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Issuer will make no optional sinking
fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any
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preceding sinking fund payments made in cash shall exceed $100,000 or, if
payments on Securities of such series are to be made in a currency other than
Dollars or in units or composites of two more currencies, the equivalent thereof
in the relevant currency or unit or composite currency (or such other amount as
is specified for a particular series of Securities pursuant to Section 2.5), or
a lesser sum if the Issuer shall so request, with respect to the Securities of
any particular series, such cash shall be applied by the Trustee (or by the
Issuer if the Issuer is acting as its own paying agent) on the sinking fund
payment date on which such payment is made (or, if such payment is made before a
sinking fund payment date, on the next sinking fund payment date following the
date of such payment) to the redemption of such Securities at the sinking fund
redemption price specified in such Securities for operation of the sinking fund
together with accrued interest, if any, to the date fixed for redemption. If
such amount shall be $100,000 or if payments on Securities of such series are to
be made in a currency other than Dollars or in units or composites of two more
currencies, the equivalent thereof in the relevant currency or unit or composite
currency (or such other amount as is specified for the particular series
pursuant to Section 2.5), or less and the Issuer makes no such request then it
shall be carried over until a sum in excess of $100,000, or the equivalent
thereof in the relevant currency or unit or composite currency, is available.
The Trustee shall select, in the manner provided in Section
10.2, for redemption on such sinking fund payment date Securities of such series
to absorb said cash, as nearly as may be, and shall (if requested in writing by
the Issuer) inform the Issuer of the serial numbers or other distinguishing
symbols of the Securities of such series (or portions thereof) so selected. If
the Trustee shall be required to select Securities of any series for the sinking
fund and is not acting as repository of the Register for such series, at least
60 days prior to the sinking fund payment date, the Issuer shall furnish to the
Trustee a current list of all Outstanding Securities of such series. Securities
of any series which are (a) owned by the Issuer or an entity known by the
Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Register, and
not known to the Trustee to have been pledged or hypothecated by the Issuer or
any such entity or (b) identified in an Officers' Certificate at least 60 days
prior to the sinking fund payment date as being beneficially owned by, and not
pledged or hypothecated by, the Issuer or an entity directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer, shall be excluded from Securities of such series eligible for selection
for redemption. The Trustee, in the name and at the expense of the Issuer (or
the Issuer, if it shall so request the Trustee in writing) shall cause notice of
redemption of the Securities of such series to be given in substantially the
manner provided in Section 10.2, except that the notice of redemption shall also
state that the Securities are being redeemed by operation of the sinking fund
(and with the effect provided in Section 10.3) for the redemption of Securities
of such series in part at the option of the Issuer. The amount of any sinking
fund payments not so applied or allocated by the Trustee (or by the Issuer if
the Issuer is acting as its own paying agent) to the redemption of Securities of
such series shall be added to the next cash sinking fund payment received by the
Trustee (or if the Issuer is acting as its own paying agent, segregated and held
in trust as required by the Trust Indenture Act of 1939) for such series and,
together with such payment (or such amount so segregated), shall be applied in
accordance with the provisions of this Section 10.5. Any and all sinking fund
moneys held by the Trustee (or if the Issuer is acting as its own paying agent,
segregated and held in trust as required by the Trust Indenture Act of 1939) on
the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the
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payment or redemption of particular Securities of such series shall be applied
by the Trustee (or by the Issuer if the Issuer is acting as its own paying
agent), together with other moneys, if necessary, sufficient for the purpose, to
the payment of the principal of, and interest on, the Securities of such series
at maturity.
On or before each sinking fund payment date, the Issuer shall
pay to the Trustee in cash (or if the Issuer is acting as its own paying agent
will segregate and hold in trust as required by the Trust Indenture Act of 1939)
or shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on such
sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any notice
of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest, if any, on such
Securities or of any Event of Default (other than an Event of Default occurring
as a consequence of this paragraph, with respect to such Securities) except
that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking
fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article Four and held for the payment of all
such Securities. Notwithstanding anything in the foregoing to the contrary, in
case such default or Event of Default shall have been waived as provided in
Section 4.9 or the default or Event of Default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section 10.5 to the redemption of such Securities.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
------------------------
SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
official or director, as such, of the Issuer or of any successor, either
directly or through the Issuer or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND SECURITYHOLDERS. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto and their
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successors and assigns and the holders of the Securities, any legal or equitable
right, remedy or claim under this Indenture or under any covenant, condition or
provision herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the holders of the
Securities.
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements contained in
this Indenture by the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND
SECURITYHOLDERS. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Securities to or on the Issuer may be given or served by being deposited
postage prepaid, first-class mail, in a post office letter box (except as
otherwise specifically provided herein) addressed (until another address of the
Issuer is furnished by the Issuer to the Trustee) to Textron Financial
Corporation, 40 Westminster Street, P.O. Box 6687, Providence, Rhode Island
02940-6657, Attention: [Treasurer]. Any notice, direction, request or demand by
the Issuer or any Securityholder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or made in writing
at the office of the Trustee at [__________________] Attention: Indenture Trust.
Where this Indenture provides for notice to Securityholders,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Securityholder entitled thereto, at his last address as it appears in the
Register. In any case where notice to Securityholders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Securityholder shall affect the sufficiency of such notice with
respect to other Securityholders. 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 Securityholders 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. Notwithstanding
anything to the contrary elsewhere in this Indenture as to the giving of notice,
any other form of written notice is sufficient, if received.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then notwithstanding anything to the contrary
elsewhere in this Indenture as to the giving of notice, any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 11.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the Issuer
to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer 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 have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such documents is
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specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the Person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous.
Any certificate, statement or Opinion of Counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 11.6 OFFICIAL ACTS BY SUCCESSOR ENTITY. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Issuer shall and may be
done and performed with like force and effect by the like board, committee or
officer of any entity that shall at the time be the lawful sole successor of the
Issuer.
SECTION 11.7 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND LEGAL
HOLIDAYS. If the date of maturity of interest on or principal of the Securities
of any series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of such interest, if any, or principal
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption or repayment, and no interest shall accrue for the
period from and after such date.
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SECTION 11.8 NEW YORK LAW TO GOVERN. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
such State, except as may otherwise be required by mandatory provisions of law.
SECTION 11.9 COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience of reference only,
are not to be considered a part hereof and shall not affect the construction
hereof.
SECTION 11.11 CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act of 1939 that is required under such Act to be a part of and govern
this Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of 1939
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or excluded, as the case may be.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
----------------------------------
SECTION 12.1 APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. The Issuer may at its option, by or
pursuant to a Resolution, at any time, with respect to the Securities of any
series elect to have either Section 12.2 or Section 12.3 be applied to the
Outstanding Securities of such series upon compliance with the conditions set
forth below in this Article Twelve.
SECTION 12.2 DEFEASANCE AND DISCHARGE. Upon the Issuer's
exercise of the above option applicable to this Section, the Issuer shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions set forth below
are satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Issuer, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 12.4 and
as more fully set forth in such Section, payments in respect of the principal of
and interest on such Securities when such payments are due, (B) the Issuer's
obligations with respect to such Securities under Sections 2.10, 2.11, 2.13,
[3.2 and 3.3], (C) the rights, powers, trusts, duties, and immunities of the
Trustee under Sections 2.11, 2.12, 2.13, 4.3, 5.5 and 9.4, and otherwise the
duty of the Trustee to authenticate Securities of such series issued on
registration of transfer or exchange and (D) this Article Twelve. Subject to
compliance with
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this Article Twelve, the Issuer may exercise its option under this Section 12.2
notwithstanding the prior exercise of its option under Section 12.3 with respect
to the Securities of such series.
SECTION 12.3 COVENANT DEFEASANCE. Upon the Issuer's exercise
of the above option applicable to this Section, the Issuer shall be released
from its obligations under Sections [3.4 and 3.5] and Section 4.1(d) with
respect to the Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that, with respect to the
Outstanding Securities of such series, the Issuer may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section with respect to it, whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 12.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 12.2 or
Section 12.3 to the Outstanding Securities of such series:
(a) the Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.7 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of and each installment of principal of and interest on the
Outstanding Securities of such series on the stated maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United States
of America for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America
the payment of which is unconditionally guaranteed, as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount
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received by the custodian in respect of the U.S. Government Obligation
or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(b) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit.
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting
interest for purposes of the Trust Indenture Act of 1939 with respect
to any securities of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Issuer is a party or
by which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(f) In the case of an election under Section 12.2, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Issuer has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(g) In the case of an election under Section 12.3, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(h) The Issuer shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 12.2 or the covenant defeasance under Section 12.3 (as
the case may be) have been complied with.
SECTION 12.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions
of Section 9.4, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 12.5, the "Trustee") pursuant to
Section 12.4 in respect of the Outstanding Securities of such series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to
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the payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent) as the Trustee may determine, to the holders of
such Securities, of all sums due and to become due thereon in respect of
principal and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 12.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the holders of the Outstanding Securities of such
series.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon the Issuer's request any money or U.S. Government Obligations held by
it as provided in Section 12.4 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of [______ __], 1999.
TEXTRON FINANCIAL CORPORATION
By___________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By______________________
Assistant Secretary
[__________________________]
By____________________________
Name:
Title:
[CORPORATE SEAL]
Attest:
By______________________
Assistant Secretary
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<PAGE> 65
STATE OF RHODE ISLAND )
) ss.:
COUNTY OF [ ] )
On this ____ day of _______, 1999, before me personally came [
], to me personally known, who, being by me duly sworn, did depose and say that
he resides at [ ]; that he is [ ] of Textron Financial Corporation, one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
_____________________________
Notary Public
<PAGE> 66
STATE OF [ ] )
) ss.:
COUNTY OF [ ] )
On this ___ day of _____, 1999, before me personally came [ ],
to me personally known, who, being by me duly sworn, did depose and say that he
resides at [ ]; that he is [ ] of [insert name of trustee], one of the
corporations described in and which executed the above instrument; that he knows
the corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
_____________________________
Notary Public
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related prospectus of Textron Financial
Corporation for the registration of debt securities and to the incorporation by
reference therein of our report dated January 26, 1999, with respect to the
consolidated financial statements of Textron Financial Corporation included in
its Form 10, filed with the Securities and Exchange Commission on October 6,
1999.
/s/ Ernst & Young LLP
Boston, Massachusetts
October 5, 1999
<PAGE> 1
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) X
---
-------------------
SUNTRUST BANK, ATLANTA
(Exact name of trustee as specified in its charter)
58-0466330
(I.R.S. employer identification no.)
25 PARK PLACE, N.E.
ATLANTA, GEORGIA 30303
(Address of principal executive offices) (Zip Code)
-------------------
KRISTINE PRALL
SUNTRUST BANK, ATLANTA
25 PARK PLACE, N.E.
24TH FLOOR
ATLANTA, GEORGIA 30303
(404) 588-7296
(Name, address and telephone number of agent for service)
TEXTRON FINANCIAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 05-6008768
(State or other jurisdiction of (IRS employer
incorporation or organization) identification no.)
40 WESTMINSTER STREET
PROVIDENCE, RHODE ISLAND 02940-6657
(Address of principal executive offices) (Zip Code)
-----------------
[Unsecured Securities]*
(Title of the indenture securities)
- -----------
*Applicable to all securities
registered pursuant to the delayed
offering registration statement
- --------------------------------------------------------------------------------
<PAGE> 2
1. General information.
(a) Name and address of each examining or supervising authority to
which it is subject.
DEPARTMENT OF BANKING AND FINANCE
STATE OF GEORGIA
ATLANTA, GEORGIA
FEDERAL RESERVE BANK OF ATLANTA
104 MARIETTA STREET, N.W.
ATLANTA, GEORGIA
FEDERAL DEPOSIT INSURANCE CORPORATION
WASHINGTON, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
YES.
2. Affiliations with obligor.
NONE.
3. Voting Securities of the Trustee.
NOT APPLICABLE.
4. Trusteeships under Other Indentures.
NOT APPLICABLE.
5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
NOT APPLICABLE.
6. Voting Securities of the Trustee Owned by the Obligor or its Officials.
NOT APPLICABLE.
7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
NOT APPLICABLE.
<PAGE> 3
8. Securities of the Obligor Owned or Held by the Trustee.
NOT APPLICABLE.
9. Securities of Underwriters Owned or held by the Trustee.
NOT APPLICABLE.
10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
NOT APPLICABLE.
11. Ownership or Holdings by the Trustee of any Securities or a Person
Owning 50 Percent or More of the Voting Securities of the Obligor.
NOT APPLICABLE.
12. Indebtedness of the Obligor to the Trustee.
NOT APPLICABLE.
13. Defaults by the Obligor.
(a) Whether there is or has been a default with respect to the
securities under this indenture.
THERE IS NOT AND HAS NOT BEEN ANY SUCH DEFAULT.
(b) If the trustee is a trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the obligor are
outstanding, or is trustee for more than one outstanding
series of securities under the indenture, state whether there
has been a default under any such indenture or series.
THERE HAS NOT BEEN ANY SUCH DEFAULT.
14. Affiliations with the Underwriters.
NOT APPLICABLE.
-2-
<PAGE> 4
15. Foreign Trustee.
NOT APPLICABLE.
16. List of Exhibits.
The additional exhibits listed below are filed herewith; exhibits, if
any, identified in parentheses are on file with the Commission and are
incorporated herein by reference as exhibits hereto pursuant to Rule 7a-29 under
the Trust Indenture Act of 1939, as amended, and Rule 24 of the Commission's
Rules of Practice.
Exhibit
Number
- ------
1 A copy of the Articles of Amendment and Restated Articles of
Incorporation as now in effect. (Exhibit 1 to Form T-1, Registration
No. 333-25463.)
2 A copy of the certificate of authority of the Trustee to commence
business. (Included in Exhibit 1.)
3 A copy of the authorization of the Trustee to exercise trust powers.
(Included in Exhibit 1.)
4 By-laws of the Trustee. (Included in Exhibit 4 to Form T-1,
Registration No. 333-25463.)
5 Not applicable.
6 Consent of the trustee required by Section 321(b) of the Trust
Indenture Act of 1939, as amended.
7 Latest report of condition of the Trustee published pursuant to law or
the requirements of its supervising or examining authority as of the
close of business on June 30, 1999.
8 Not applicable.
9 Not applicable.
-3-
<PAGE> 5
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, SunTrust Bank, Atlanta, a banking corporation organized and existing
under the laws of the State of Georgia, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Atlanta and the State of Georgia,
on the 5th day of October, 1999
SUNTRUST BANK, ATLANTA
By: /s/ Kristine Prall
-------------------------
Trust Officer
-4-
<PAGE> 6
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issuance of Textron Financial
Corporation [Unsecured Securities] to be issued under the Indenture, SunTrust
Bank, Atlanta hereby consents that reports of examinations by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
SUNTRUST BANK, ATLANTA
By: /s/ Kristine Prall
-------------------------
Trust Officer
<PAGE> 7
EXHIBIT 7 FORM T-1
LATEST REPORT OF CONDITION
OF
SUNTRUST BANK, ATLANTA
<PAGE> 8
SUNTRUST BANK ATLANTA CALL DATE: 6/30/99 STATE #: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 VENDOR ID: D CERT #: 00867 RC-1
ATLANTA, GA 30302 TRANSIT #: 61000104
-------------
11
-------------
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1999
ALL SCHEDULES ARE TO BE REPORTED IN THOUSANDS OF DOLLARS. UNLESS OTHERWISE
INDICATED, REPORT THE AMOUNT OUTSTANDING AS OF THE LAST BUSINESS DAY OF THE
QUARTER.
SCHEDULE RC -- BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coins(1).................... 0081 976,301 1.a
b. Interest-bearing balances(2).............................................. 0071 11,291 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)................ 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B column D)............... 1773 3,195,671 2.b
3. Federal funds sold and securities purchased under agreements to resell........ 1350 1,971,155 3.
4. Loans and lease financing receivables: RCFD
----
a. Loans and losses, net of unearned income (from Schedule RC-C)............. 2122 13,394,948 4.a
b. LESS: Allowances for loan and lease losses................................ 3123 133,428 4.b
c. LESS: Allocated transfer risk reserve..................................... 3128 0 4.c
RCFD
d. Loans and leases, net of unearned income, ----
allowance, and reserve (Item 4.a minus 4.b and 4.c)....................... 2125 13,261,520 4.d
5. Trading assets (from Schedule RC-D)........................................... 3545 42,643 5.
6. Premises and fixed assets (including capitalized leases)...................... 2145 99,503 6.
7. Other real estate owned (from Schedule RC-M).................................. 2150 862 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 12,664 8.
9. Customers' liability to this bank on acceptances outstanding.................. 2155 335,127 9.
10. Intangible assets (from Schedule RC-M)........................................ 2143 13,992 10.
11. Other assets (from Schedule RC-F)............................................. 2160 212,301 11.
12. Total assets (sum of items 1 through 11)...................................... 2170 20,133,030 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
2
<PAGE> 9
SUNTRUST BANK ATLANTA CALL DATE: 3/31/98 STATE #: 130330 FFIEC 031
P.O. BOX 4418 CENTER 632 VENDOR ID: D CERT #: 00867 RC-1
ATLANTA, GA 30302 TRANSIT #: 6100010-4
-------------
12
-------------
Schedule RC -- Continued
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS
LIABILITIES
13. Deposits: RCON
--------
<S> <C> <C> <C> <C>
a. In domestic offices (sum of totals of columns A and C from Schedule 2200 7,091,113 13.a
RC-E, part I)............................................................ RCON
--------
(1) Noninterest-bearing(1).............................................. 6631 2,903,890 13.a.1
(2) Interest-bearing.................................................... 6636 4,187,223 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from RCON 4,988,807 13.b
Schedule RC-E, part II).................................................. RCFN
--------
2200
--------
(1) Noninterest-bearing................................................. 6631 0 13.b.1
(2) Interest-bearing.................................................... 6636 4,988,807 RCFD 13.b.2
--------
14. Federal funds purchased and securities sold under agreements to repurchase... 2800 3,770,733 14
RCON
--------
15. a. Demand notes issued to the U.S. Treasury................................. 2840 0 15.a
RCFD
--------
b. Trading liabilities (from Schedule RC-D)................................. 3548 3 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less............................ 2332 174,403 16.a
b. With a remaining maturity of more than one year through three years...... A547 2,557 16.b
c. With a remaining maturity of more than three years....................... A548 107 16.c
17. Not applicable
18. Bank's liability on acceptances executed and outstanding..................... 2920 335,127 18
19. Subordinated notes and debentures(2)......................................... 3200 250,000 19
20. Other liabilities (from Schedule RC-G)....................................... 2930 1,163,188 20
21. Total liabilities (sum of items 13 through 20)............................... 2948 17,776,055 21
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................................ 3638 0 23
24. Common stock................................................................. 3230 21,601 24
25. Surplus (exclude all surplus related to preferred stock)..................... 3839 703,406 25
26. a. Undivided profits and capital reserves................................... 3632 680,588 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities... 8434 951,380 26.b
27. Cumulative foreign currency translation adjustments.......................... 3284 0 27
28. Total equity capital (sum of items 23 through 27)............................ 3210 2,356,975 28
29. Total liabilities and equity capital (sum of items 21 and 28)................ 3300 20,133,030 29
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. Indicate in the box at the right the number of the statement below that best describes the most RCFD Number M.1
----
comprehensive level of auditing work performed for the bank by independent external auditors as of
any date during 1997.......................................................... 6724 N/A
</TABLE>
1= Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
3
<PAGE> 10
2= Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3= Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4= Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5= Review of the bank's financial statements by external auditors
6= Compilation of the bank's financial statements by external auditors
7= Other audit procedures (excluding preparation work) 8 = No external audit
work
---------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
4
