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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON , 1996
REGISTRATION NO. 33-
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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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SUNDSTRAND CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 36-1840610
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
P.O. BOX 7003
4949 HARRISON AVENUE
ROCKFORD, ILLINOIS 61125-7003
(815) 226-6000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
RICHARD M. SCHILLING
VICE PRESIDENT AND GENERAL COUNSEL
SUNDSTRAND CORPORATION
P.O. BOX 7003
4949 HARRISON AVENUE
ROCKFORD, ILLINOIS 61125-7003
(815) 226-6305
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
Edward S. Best
Mayer, Brown & Platt
190 S. LaSalle St.
Chicago, Illinois 60603
(312) 782-0600
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions.
If the only securities being registered in 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. / /
CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED
TITLE OF EACH MAXIMUM AGGREGATE PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED TO BE REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Debt Securities............... $150,000,000(2) 100% $150,000,000 $51,724
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</TABLE>
(1) Estimated in accordance with Rule 457 solely for purposes of determining the
registration fee.
(2) Or, if debt securities are issued (i) with original issue discount, such
greater aggregate principal amount as shall result in an aggregate initial
offering price of $150,000,000 or (ii) with a principal amount denominated
in a foreign currency or currency unit, such principal amount as shall
result in an aggregate offering price equivalent to $150,000,000 at the time
of the offering.
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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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED , 1996
$150,000,000
SUNDSTRAND CORPORATION
DEBT SECURITIES
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Sundstrand Corporation (the "Company" or "Sundstrand") may offer and sell
from time to time its debt securities, consisting of debentures, notes and/or
other unsecured evidences of indebtedness denominated in United States dollars
or any other currency or currency unit (the "Debt Securities"), up to an amount
resulting in net proceeds to the Company of $150,000,000. The Debt Securities
may be offered in one or more separate series on terms to be determined at the
time of sale. The specific designation, aggregate principal amount,
denominations, currency of issue and payment, maturity, premium, if any,
interest rate (which may be fixed or variable) and time of payment of any
interest, terms for any redemption at the option of the Company or the holder,
terms for any sinking fund payments, the initial public offering price and the
other terms in connection with the offering and sale of the Debt Securities in
respect of which this Prospectus is being delivered will be set forth in the
accompanying Prospectus Supplement (the "Prospectus Supplement").
The Company may sell Debt Securities to or through underwriters, and may
also sell Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co. or may be a group of underwriters
represented by firms including such firm. Goldman, Sachs & Co. may also act as
agents. See "Plan of Distribution." The names of such underwriters and the
principal amounts, if any, to be purchased by them and their compensation will
be set forth in the accompanying Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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GOLDMAN, SACHS & CO.
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The date of this Prospectus is , 1996.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549; and at the regional offices of the Commission at 7 World
Trade Center, 7th Floor, New York, New York 10048 and Suite 1400, Northwestern
Chicago Center, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material may be obtained at prescribed rates from the Public Reference Section
of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Such reports,
proxy statements and other information concerning the Company may also be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005; the Chicago Stock Exchange, Incorporated, 440 South
LaSalle Street, Chicago, Illinois 60605; and the Pacific Stock Exchange
Incorporated, 301 Pine Street, San Francisco, California 94104.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(including all amendments thereto, the "Registration Statement") filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). This Prospectus does not contain all of the information set
forth in the Registration Statement and reference is hereby made to the
Registration Statement and to the exhibits thereto for further information with
respect to the Company and the Debt Securities. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission under the
Exchange Act (File No. 1-5358) are incorporated by reference herein: (i) the
Annual Report on Form 10-K of the Company for the fiscal year ended December 31,
1994; (ii) the Quarterly Reports on Form 10-Q of the Company for the quarters
ended March 31, June 30 and September 30, 1995; and (iii) the Current Report on
Form 8-K of the Company dated November 27, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Debt Securities shall be deemed
incorporated by reference herein and to be a part hereof from the date of filing
such document.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or replaces such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a Prospectus is delivered, on the written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference, other than exhibits to such documents, unless such exhibits
are specifically incorporated by reference in such documents. Requests should be
directed to: Investor Relations, Sundstrand Corporation, P.O. Box 7003, 4949
Harrison Avenue, Rockford, Illinois 61125-7003, telephone (815) 226-6000.
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THE COMPANY
The Company is engaged in the design, manufacture and sale of a variety of
proprietary, technology-based components and systems for diversified
international aerospace and industrial markets. The Company's mechanical,
hydromechanical, electromechanical and electronic products require significant
research, development engineering and processing expertise. The Company employs
approximately 9,200 people and has manufacturing facilities in ten states and
Puerto Rico and in France, Singapore and the United Kingdom.
The Company's principal offices are located at 4949 Harrison Avenue, P.O.
Box 7003, Rockford, Illinois 61125-7003; telephone (815) 226-6000.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be used for general corporate
purposes, including working capital, capital expenditures, possible acquisitions
of, or investments in, businesses and assets, the possible repurchase of
securities of the Company and the repayment of indebtedness. The Company has not
allocated a specific portion of the net proceeds for any particular use at this
time. Pending application of the net proceeds for specific purposes, such
proceeds may be invested in marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is the Company's consolidated ratio of earnings to fixed
charges for each of the years in the five-year period ended December 31, 1994,
and the nine-month period ended September 30, 1994, and 1995.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
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1995 1994 1994 1993 1992 1991 1990
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
(unaudited)...................... 3.7 4.8 5.3 3.9 2.7 2.9 2.6
</TABLE>
For the purpose of calculating the ratio of earnings to fixed charges,
earnings consist of income before income taxes and fixed charges (excluding
capitalized interest). Fixed charges consist of interest on all indebtedness,
amortization of debt discount and expense, and one-third of rental expense
(which is deemed representative of the interest factor).
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DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate. The particular terms of the Debt Securities offered by any
Prospectus Supplement (the "Offered Debt Securities") and the extent, if any, to
which such general provisions may apply to the Offered Debt Securities will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities are to be issued under an indenture (the indenture, as
supplemented from time to time, is referred to herein as the "Indenture")
between the Company and M&I First National Bank, as trustee (the "Trustee"). The
following summary of certain provisions of the Debt Securities and the Indenture
does not purport to be complete and is subject to the detailed provisions of the
Indenture, a copy of which is filed as an exhibit to the Registration Statement.
Whenever particular provisions or defined terms in the Indenture are referred to
herein, such provisions or defined terms are incorporated by reference herein.
Section references used herein are references to the Indenture.
The Debt Securities will be unsecured obligations of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness of the
Company.
The Indenture does not limit the aggregate principal amount of the Debt
Securities or of any particular series of Offered Debt Securities and provides
that Debt Securities may be issued thereunder from time to time in one or more
series. (Section 2.01)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Offered Debt Securities will be issued in fully registered form only,
without coupons, in denominations of $1,000 and any integral multiple thereof.
Principal of and premium, if any, and interest, if any, will be payable, and the
Offered Debt Securities may be transferred or exchanged without payment of any
charge (other than any tax or other governmental charge payable in connection
therewith), at the office or agency of the Trustee in West Bend, Wisconsin or
New York, New York.
Reference is made to the Prospectus Supplement relating to the particular
series of the Offered Debt Securities for the following terms of the Offered
Debt Securities: (i) the designation and aggregate principal amount of such
Offered Debt Securities; (ii) the percentage of the principal amount at which
such Offered Debt Securities will be issued; (iii) the date or dates on which
such Offered Debt Securities will mature; (iv) the rate or rates (which may be
fixed or variable) at which such Offered Debt Securities will bear interest, if
any, and the date from which such interest, if any, will accrue; (v) the dates
on which any such interest will be payable; (vi) the currency or currency unit
in which such Offered Debt Securities are issuable and payable; (vii) any terms
for redemption or for sinking fund payments; (viii) any provisions for
defeasance or covenant defeasance; (ix) whether the Offered Debt Securities will
be represented by one or more global securities registered in the name of a
depository or its nominee and, if so, the method of transferring beneficial
interests in the global securities; and (x) other specific terms associated with
such Offered Debt Securities. (Section 2.01)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount securities will be
described in the Prospectus Supplement relating thereto. "Original Issue
Discount Security" means any security which provides for the declaration of
acceleration of the maturity of an amount less than the principal amount thereof
upon the occurrence of an Event of Default and the continuation thereof.
(Section 1.01)
CERTAIN COVENANTS OF THE COMPANY
LIMITATION ON SECURED DEBT. The Indenture provides that, so long as any of
the Debt Securities remain outstanding, the Company will not, nor will it permit
any Restricted Subsidiary (as defined below)
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to issue, assume or guarantee any indebtedness for money borrowed (herein
referred to as "Debt") if such Debt is secured by a mortgage, security interest,
pledge, lien or other encumbrance (herein referred to as a "mortgage") upon any
Principal Property (as defined below), or on any shares of stock or indebtedness
of any Restricted Subsidiary (whether such Principal Property, shares of stock
or indebtedness are now owned or hereafter acquired) without in any such case
effectively providing that the Debt Securities (together with, if the Company
shall so determine, any other indebtedness of or guaranteed by the Company or
such Restricted Subsidiary ranking equally with the Debt Securities then
existing or thereafter created) shall be secured equally and ratably with such
Debt so long as such Debt shall be so secured, except that the foregoing
restrictions shall not apply to: (i) mortgages on property, shares of stock or
indebtedness (herein referred to as "property") of any corporation existing at
the time such corporation becomes a Restricted Subsidiary; (ii) mortgages on
property existing at the time of acquisition thereof or mortgages to secure all
or part of the purchase price of such property or to secure Debt incurred prior
to, at the time of, or within 180 days after, the later of the acquisition,
completion of construction or commencement of commercial operation of such
property for the purpose of financing the purchase price of such property or
construction or improvements thereon, provided that the mortgage shall not apply
to property theretofore owned by the Company or any Restricted Subsidiary other
than real property substantially unimproved for the use intended by the Company
or such Restricted Subsidiary; (iii) mortgages on property of a Restricted
Subsidiary securing Debt owing to the Company or another Restricted Subsidiary;
(iv) mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation or firm as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary, provided that any such
mortgages do not attach to or affect property theretofore owned by the Company
or such Restricted Subsidiary; (v) mortgages on property owned or leased by the
Company or a Restricted Subsidiary in favor of the United States of America, any
State, any other country, or any political subdivision of any of the foregoing
or in favor of the holders of securities issued by any such entity, pursuant to
any contract or statute (including mortgages to secure Debt of the pollution
control or industrial revenue bond type) or to secure any indebtedness incurred
for the purpose of financing the cost of construction of the property subject to
such mortgages; (vi) mortgages existing at the date of the Indenture; (vii)
certain landlords' liens; (viii) mortgages to secure partial, progress, advance
or other payments or any Debt incurred for the purpose of financing all or part
of the purchase price or cost of construction, development or substantial
repair, alteration or improvement of the property subject to such mortgage if
the commitment for such financing is obtained within one year after the later of
completion of or the placing into operation of such constructed, developed,
repaired, altered or improved property; (ix) mortgages arising in connection
with contracts with or made at the request of the United States, any State, or
any department, agency or instrumentality of any of the foregoing; (x)
mechanics' and similar liens arising in the ordinary course of business in
respect of obligations not due or being contested in good faith; (xi) mortgages
arising from deposits with or the giving of any form of security to any
governmental authority required as a condition to the transaction of business or
exercise of any privilege, franchise or license; (xii) mortgages for taxes,
assessments or governmental charges or levies not yet delinquent or which, if
delinquent, are being contested in good faith; (xiii) mortgages (including
judgment liens) arising from legal proceedings being contested in good faith
and, in the case of judgment liens, so long as execution thereof is stayed; or
(xiv) any extension, renewal or replacement (or successive extensions, renewals,
or replacements), in whole or in part, of any mortgage referred in the foregoing
clauses (i) to (xiii), inclusive. Notwithstanding the above, the Company and one
or more Restricted Subsidiaries may, without securing the Debt Securities,
issue, assume or guarantee Debt which would otherwise be subject to the
foregoing restrictions, provided that after giving effect thereto the aggregate
amount of such Debt then outstanding (not including secured Debt permitted under
the foregoing exceptions) at such time does not exceed 10% of the Consolidated
Net Tangible Assets (as defined in the Indenture) of the Company as calculated
on the basis of its latest consolidated quarterly financial statements. (Section
4.05)
LIMITATION ON SALE AND LEASEBACK. Sale and leaseback transactions by the
Company or any Restricted Subsidiary of any Principal Property (except for
temporary leases for a term of not more than
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three years and except for leases between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries) are prohibited unless: (a) the
Company or such Restricted Subsidiary would be entitled to issue, assume or
guarantee Debt secured by the Principal Property involved at least equal in
amount to the Attributable Debt (as defined below) in respect of such
transaction without equally and ratably securing the Debt Securities (provided
that such Attributable Debt shall thereupon be deemed to be Debt subject to the
provisions of Sections 4.05), or (b) an amount in cash equal to such
Attributable Debt is applied to the retirement (other than any mandatory
retirement) of long-term non-subordinated Debt of the Company or long-term Debt
of a Restricted Subsidiary. Attributable Debt is defined as the present value
(discounted at an appropriate rate) of the obligation of a lessee for rental
payments during the remaining term of any lease. (Section 4.06)
CONSOLIDATION OR MERGER. The consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party, or the sale, conveyance or lease of
all or substantially all the property of the Company to any other corporation
(whether or not affiliated with the Company) is permitted; provided, however,
that in any such event, other than a merger in which the Company is the
surviving corporation, the due and punctual payment of principal and interest on
the Debt Securities and the due and punctual performance and observance of all
of the covenants and conditions of the Indenture to be performed by the Company,
shall be expressly assumed, by supplemental indenture, satisfactory in form to
the Trustee, by the corporation formed by such consolidation or into which the
Company shall have been merged or by the corporation which shall have acquired
or leased such property. (Section 11.01)
CERTAIN DEFINITIONS
The term "Subsidiary" is defined to mean any corporation which is
consolidated in the Company's accounts and any corporation of which at least a
majority of the outstanding stock having voting power under ordinary
circumstances to elect a majority of the board of directors of said corporation
shall at the time be directly or indirectly owned by the Company, by the Company
and one or more Subsidiaries, or by one or more Subsidiaries. (Section 1.01)
The term "Restricted Subsidiary" is defined to mean any Subsidiary (i)
substantially all the property of which is located within the United States of
America, (ii) which owns a Principal Property, and (iii) in which the Company's
direct or indirect investment exceeds 2% of the consolidated assets of the
Company as shown on its latest quarterly consolidated financial statements;
provided, however, that the term "Restricted Subsidiary" does not include any
Subsidiary which is principally engaged in certain types of leasing and
financing activities. (Section 1.01)
The term "Principal Property" is defined to mean any manufacturing plant or
facility which is located within the United States of America and is owned by
the Company or any Restricted Subsidiary, unless the Board of Directors of the
Company (or any duly authorized committee thereof) by resolution declares that
such plant or facility, together with all other plants and facilities previously
so declared, is not of material importance to the total business conducted by
the Company and its Restricted Subsidiaries as an entirety. (Section 1.01)
EVENTS OF DEFAULT
An Event of Default with respect to any series of Debt Securities will be
defined as being: (a) default in payment of interest on any Debt Securities of
that series that continues for 30 days; (b) default in payment of principal of
(or premium, if any, on) any Debt Securities of that series as and when the same
becomes due, or default in the making of any Sinking Fund payment with respect
to that series; (c) default by the Company in the performance of any of the
other covenants or agreements in the Indenture relating to Debt Securities of
that series which shall not have been remedied within a period of 60 days after
notice to the Company by the Trustee or holders of at least 25% in aggregate
principal amount of Stated Maturity of the Debt Securities of such series then
outstanding; (d) certain events of
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bankruptcy, insolvency or reorganization of the Company; or (e) default under
other indebtedness of the Company for borrowed money having unpaid principal in
excess of the greater of (i) $10,000,000 or (ii) 2% of the Company's
Consolidated Net Tangible Assets, which indebtedness shall be or be declared due
prior to the date it would otherwise become due and payable and such
acceleration not being rescinded or annulled within 60 days after notice to the
Company by the Trustee or holders of at least 25% in aggregate principal amount
at Stated Maturity of the Debt Securities of such series then outstanding.
(Section 6.01) Additional Events of Default may be prescribed for the benefit of
holders of certain series of Debt Securities. (Section 10.01) The Indenture
provides that the Trustee shall, with certain exceptions, notify the holders of
Debt Securities of each series of any Event of Default known to it within 90
days after the occurrence thereof. (Section 6.07)
The Indenture provides that if an Event of Default with respect to any
series of Debt Securities shall have occurred and be continuing, either the
Trustee or the holders of at least 25% in aggregate principal amount at Stated
Maturity of Debt Securities of such series then outstanding may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Debt Securities of that series to be due
and payable immediately, but upon certain conditions such declaration may be
annulled and past defaults (except, unless theretofore cured, a default in
payment of principal of or interest or premium on Debt Securities of that
series) may be waived by the holders of a majority in aggregate principal amount
at Stated Maturity of the Debt Securities of such series then outstanding.
(Sections 6.01 and 6.06)
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default with respect to any series of Debt
Securities shall occur and be continuing, the Trustee shall be under no
obligation to exercise any of the rights or powers in the Indenture at the
request or direction of any of the holders of that series, unless such holders
shall have offered to the Trustee reasonable security or indemnity. (Sections
7.01 and 7.02) Subject to such provisions for security or indemnification and
certain limitations contained in the Indenture, the holders of a majority in
aggregate principal amount at Stated Maturity of the Debt Securities of each
series affected by an Event of Default and then outstanding shall have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee under the Indenture or exercising any trust or power
conferred on the Trustee with respect to the Debt Securities of that series.
(Section 6.06) The Indenture requires the annual filing by the Company with the
Trustee of a certificate as to the absence of any defaults under the Indenture.
(Section 4.07)
No holder of any Debt Securities of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such holder shall have previously given the Trustee written
notice of an Event of Default with respect to Debt Securities of that series and
unless also the holders of at least 25% in aggregate principal amount at Stated
Maturity of the then outstanding Debt Securities of that series shall have made
written request of, and offered reasonable indemnity to, the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the holders of a majority in aggregate principal amount at Stated Maturity
of the outstanding Debt Securities of that series a direction inconsistent with
such request and the Trustee shall have failed to institute such proceeding
within 60 days of such request. However, any right of a holder of any Debt
Security to receive payment of the principal of (and premium, if any) and any
interest on such Debt Security on or after the due dates expressed in such Debt
Security or to institute suit for the enforcement of any such payment on or
after such dates shall not be impaired or affected without the consent of such
holder. (Section 6.04)
DEFEASANCE AND COVENANT DEFEASANCE
The Company will have the option, if specified in the Prospectus Supplement
relating to any series of Debt Securities, either (A) to defease and be
discharged from any and all obligations in respect of the Debt Securities of any
series (except for certain obligations to register the transfer or exchange of
Debt Securities of such series, to replace stolen, lost or mutilated Debt
Securities of such series, to maintain paying agencies and to hold monies for
payment in trust) or (B) to be released from complying with its
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obligations in respect of the Debt Securities of such series under Sections 4.05
(Limitation on Secured Debt) and 4.06 (Limitations on Sales and Leaseback), and
Section 6.01(c) (described in clause (c) under "Events of Default") with respect
to Sections 4.05 and 4.06 shall not be deemed to be an Event of Default under
the Indenture and the Debt Securities of such series, upon the deposit with the
Trustee, in trust, for such purpose, of money and/or U.S. Government Obligations
(as defined) which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any) and each installment of
interest on the Debt Securities of such series on the scheduled due dates of
such payments in accordance with the terms of the Indenture and the Debt
Securities of such series. In any such case, such a trust may only be
established if, among other things, the Company has delivered to the Trustee an
opinion of counsel (who may be an employee of or counsel for the Company) to the
effect that (i) the holders of the Debt Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and defeasance and will be subject to federal income tax on the
same amount and in the same manner and at the same times, as would have been the
case if such deposit and defeasance had not occurred, and (ii) the Debt
Securities of such series, if then listed on the New York Stock Exchange, Inc.,
will not be delisted as a result of such deposit and such defeasance. In the
event of a defeasance as provided in clause (A) above, holders of Debt
Securities of any series would be able to look only to the trust fund
established for payment of principal of and interest on their series of Debt
Securities until maturity. (Section 12.01)
MODIFICATIONS, AMENDMENTS AND WAIVERS IN RESPECT OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in principal amount of
the Debt Securities of each series affected at the time outstanding, to execute
supplemental indentures adding any provisions to, or changing in any manner or
eliminating any of the provisions of, the Indenture or any supplemental
indenture with respect to the Debt Securities of such series or modifying in any
manner the rights of the holders of the Debt Securities of such series; provided
that no such supplemental indenture may (i) extend the stated Maturity of any
Debt Security, reduce the rate or extend the time of payment of any interest
thereon, reduce the principal amount thereof, reduce any premium payable upon
redemption, reduce the amount of an Original Issue Discount Security that would
be due upon a declaration of acceleration, modify provisions relating to amount
or regularity of mandatory sinking fund payments or make the principal amount
thereof payable in any money other than United States legal tender for the
payment of public and private debts, without the consent of the holder of each
Debt Security so affected, or (ii) reduce the aforesaid percentage of Debt
Securities of such series, the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holders of all Debt
Securities of such series then outstanding. (Sections 10.01 and 10.02)
CONCERNING THE TRUSTEE
The Company maintains lines of credit and has customary banking
relationships with M&I Marshall and Ilsley Bank, a sister bank of M&I First
National Bank, the Trustee under the Indenture.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters and also
may sell Debt Securities directly to other purchasers or through agents. Such
underwriters may include Goldman, Sachs & Co. or may be a group of underwriters
represented by such firm. Such firm may also act as an agent.
The distribution of the Offered Debt Securities may be effected from time
to time in one or more transactions at a fixed price or prices which may be
changed, at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. The Prospectus Supplement
will describe the method of distribution of the Offered Debt Securities.
8
<PAGE> 10
In connection with a sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions, or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them and any profit on the resale of Debt
Securities by them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such underwriter or agent will be identified, and
any such compensation will be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the underwriters, dealers or agents may be required to make in
respect thereof.
LEGAL OPINIONS
Certain legal matters will be passed upon for the Company by Richard M.
Schilling, Vice President and General Counsel of the Company, and for any
underwriters or agents by Mayer, Brown & Platt.
EXPERTS
The consolidated financial statements of Sundstrand Corporation
incorporated by reference in the Company's Annual Report (Form 10-K) for the
year ended December 31, 1994, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
9
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities registered hereby, other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee............... $ 51,724
Blue sky fees and expenses........................................ 5,000
Trustee fees and expenses......................................... 20,000
Printing and engraving fees....................................... 25,000
Accounting fees and expenses...................................... 25,000
Legal Fees........................................................ 5,000
Rating agency fees................................................ 100,000
Miscellaneous..................................................... 18,276
--------
Total........................................................ $250,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides that a
corporation created thereunder may indemnify 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 by reason of the fact that he is or was a director or officer
of such corporation or is or was serving at the request of such corporation as a
director or officer of another corporation or other enterprise against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding, subject to certain limitations referred to therein.
Article Sixteenth of the Company's Restated Certificate of Incorporation
provides that no director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the Delaware General Corporation Law.
Article VI of the Company's By-Laws provides for indemnification of
directors and officers as follows:
The Corporation shall, to the fullest extent to which it is empowered
to do so by the General Corporation Law of Delaware, or any other
applicable laws, as from time to time in effect, indemnify 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,
administrative or investigative, by reason of the fact that he is or was a
director or officer of the Corporation or a division thereof, or is or was
serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
against all expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding.
The provisions of this Article shall be deemed to be a contract
between the Corporation and each director or officer who serves in any such
capacity at any time while this Article and the relevant provisions of the
General Corporation Law of Delaware or other applicable law, if any, are in
effect, and any repeal or modification of any such law or of this Article
shall not affect any rights or obligations then existing with respect to
any state of facts then or theretofore existing or any action, suit or
proceeding theretofore or thereafter brought or threatened based in whole
or in part upon any such state of facts.
The Corporation shall, to the fullest extent to which it is empowered
to do so by the General Corporation Law of Delaware, and with respect to
the Employee Retirement Income Security Act of
II-1
<PAGE> 12
1974, or any other applicable laws, as from time to time in effect,
indemnify any officer, director or employee of the Corporation or an
affiliated corporation, 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, administrative or investigative, by reason of the
fact that he is or was serving at the request of the Corporation as an
individual Trustee, Committee member, administrator or fiduciary of a
pension or other benefit plan for employees of the Corporation, or of an
affiliated corporation or other enterprise.
Persons who are not covered by the foregoing provisions of this
Article and who are or were employees or agents of the Corporation or a
division thereof, or are or were serving at the request of the Corporation
as employees or agents of another corporation, partnership, joint venture,
trust or other enterprise, may be indemnified to the extent authorized at
any time or from time to time by the Board of Directors of the Corporation.
The indemnification provided or permitted by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be
entitled by law or otherwise, and shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or arising
out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article.
The Corporation shall, to the fullest extent to which it is empowered
to do so by the General Corporation Law of Delaware, or any other
applicable laws, as from time to time in effect, pay expenses, including
attorneys' fees, incurred in defending any action, suit or proceeding, in
advance of the final disposition of such action, suit or proceeding, to any
person who is or was a party or is threatened to be made a party to any
such threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation, upon
receipt of an undertaking by or on behalf of such person to repay such
amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Corporation as authorized by applicable
laws.
ITEM 16. EXHIBITS
A list of exhibits is set forth in the Exhibit Index appearing elsewhere in
this Registration Statement and is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to the Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the
"Securities Act"); (ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
II-2
<PAGE> 13
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 (a)(1)(i) and
(a)(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 by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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 the 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.
(b) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d)(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
II-3
<PAGE> 14
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
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 Rockford, Illinois on February 5, 1996.
SUNDSTRAND CORPORATION
By: /s/ Paul Donovan
----------------------------------
Its: Executive Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of February 5, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------- -----------------------------------------------------
<S> <C>
* President and Chief Executive Officer and Director
- -----------------------------------
Robert H. Jenkins
* Executive Vice President and Chief Financial Officer
- -----------------------------------
Paul Donovan
* Vice President and Controller
- -----------------------------------
DeWayne J. Fellows
* Chairman of the Board
- -----------------------------------
Don R. O'Hare
* Director
- -----------------------------------
J.P. Bolduc
* Director
- -----------------------------------
Gerald Grinstein
* Director
- -----------------------------------
Charles Marshall
Director
- -----------------------------------
Klaus H. Murmann
* Director
- -----------------------------------
Donald E. Nordlund
</TABLE>
II-4
<PAGE> 15
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ----------------------------------- -----------------------------------------------------
<S> <C>
* Director
- -----------------------------------
Thomas G. Pownall
* Director
- -----------------------------------
John A. Puelicher
* Director
- -----------------------------------
Ward Smith
* Director
- -----------------------------------
Robert J. Smuland
* Director
- -----------------------------------
Berger G. Wallin
*By: /s/ Paul Donovan
-----------------------------
Paul Donovan,
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 16
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
- ------ ------------------------------------------------------------------------- ----------
<C> <S> <C>
1.1 Form of Underwriting Agreement
4.1 Form of Indenture between the Company and M&I First National Bank, as
Trustee
4.2 Form of Debt Security (included in Exhibit 4.1 as Schedule A to the
Indenture)
5.1 Opinion of Richard M. Schilling
12.1 Computation of Ratio of Earnings to Fixed Charges
23.1 Consent of Ernst & Young LLP
23.2 Consent of Richard M. Schilling (included in Exhibit 5.1)
24.1 Powers of Attorney
25.1 Statement of Eligibility on Form T-1 of M&I First National Bank
</TABLE>
II-6
<PAGE> 1
EXHIBIT 1.1
SUNDSTRAND CORPORATION
DEBT SECURITIES
UNDERWRITING AGREEMENT
, 199
Goldman, Sachs & Co.
As representatives of the several Underwriters
named in Schedule I to the related Pricing Agreement,
85 Broad Street
New York, New York 10004
Dear Sirs:
From time to time Sundstrand Corporation, a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time
to time to the Underwriters of such Securities, for whom the firms designated
as representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the "Representatives").
The term "Representatives" also refers to a single firm acting as sole
representative of the Underwriters and to Underwriters who act without any firm
being designated as its or their representative. This Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to purchase the
Securities. The obligation of the Company to issue and sell any of the
Securities and the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial
public offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
<PAGE> 2
2. The Company represents and warrants to, and agrees with, each of
the Underwriters that:
(a) A registration statement in respect of the Securities has
been filed with the Securities and Exchange Commission (the
"Commission") (the "Initial Registration Statement"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including
all documents incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other Underwriters have
been declared effective by the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b)
under the Securities Act of 1933, as amended (the "Act"), which became
effective upon filing, no other document with respect to the Initial
Registration Statement or document incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or a Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act, being hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the registration statement became effective but excluding
Form T-1, each as amended at the time such part of the registration
statement became effective or such part of the Rule 462(b) Registration
Statement, if any, became or hereafter becomes effective, being
hereinafter collectively called the "Registration Statement"; the
prospectus relating to the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with the Commission on
or prior to the date of this Agreement, being hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under
the Act, as of the date of such Preliminary Prospectus or Prospectus, as
the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and incorporated
by reference in such Preliminary Prospectus or the Prospectus, as the
case may be; any reference to any amendment to the Registration
Statement shall be deemed to refer to and include any annual report of
the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act
after the effective date of the Initial Registration Statement that is
incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is first filed,
or transmitted for filing, with the Commission pursuant to Rule 424
under the Act, including any documents incorporated by reference therein
as of the date of such filing or mailing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment
or supplement thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
-2-
<PAGE> 3
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply
to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by an Underwriter
of Designated Securities through the Representatives expressly for use
in the Prospectus as amended or supplemented relating to such
Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than
as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock [, OTHER THAN [DISCLOSE ANY CHANGES],] or long-term debt
of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus;
(f) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable;
(g) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form filed
as an exhibit to the Registration Statement; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the
Time of Delivery (as defined in Section 4 hereof) the Indenture will
constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the Designated Securities
will conform, to the descriptions thereof in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Pricing Agreement, and the
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<PAGE> 4
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
the Company is a party or by which the Company is bound or to which any
of the property or assets of the Company is subject, nor will such
action result in any violation of the provisions of the Restated
Certificate of Incorporation, as amended, or the By-Laws of the Company
or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation by the Company of the other transactions contemplated
by this Agreement or any Pricing Agreement or the Indenture except such
as have been, or will have been prior to the Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others; and
(j) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by certified
or official bank check or checks, payable to the order of the Company or, if
set forth in the Pricing Agreement, wire transfer to the account specified by
the Company in the funds specified in such Pricing Agreement, all in the manner
and at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented in
relation to the applicable Designated Securities in a form approved by
the Representatives, which approval shall not be unreasonably withheld,
and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second business day
following the execution and delivery of the Pricing Agreement relating
to such Designated Securities or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement
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<PAGE> 5
to the Registration Statement or Prospectus as amended or supplemented
after the date of the Pricing Agreement relating to such Securities and
prior to the Time of Delivery for such Securities which shall be
disapproved by the Representatives for such Securities promptly after
reasonable notice thereof; to advise the Representatives promptly of any
such amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus is
required in connection with the offering or sale of such Securities, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission of any stop order
or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of
such Securities for offering or sale in any jurisdiction, of the
initiation or threat of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its
best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of such
Securities, provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with copies of the Prospectus as
amended or supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Securities and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c)), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the rules and regulations of the Commission thereunder (including at the
option of the Company Rule 158); and
(e) During the period beginning from the date of the Pricing
Agreement for such Designated Securities and continuing to and including
the later of (i) the termination of trading restrictions for such
Designated Securities, as notified to the Company by the Representatives
and (ii) the Time
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<PAGE> 6
of Delivery for such Designated Securities, not to offer, sell, contract
to sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda and any other documents
in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Securities by them,
and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to
the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been
initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to the Representatives' reasonable satisfaction;
(b) Mayer, Brown & Platt, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the Indenture, the Designated Securities,
the Registration Statement, the Prospectus as amended or supplemented
and other related matters as the Representatives may reasonably request,
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Richard M. Schilling, Vice President and General Counsel
of the Company, or other counsel for the Company satisfactory to the
Representatives, shall have furnished to the Representatives their
written opinion (a draft of each such opinion is attached as Exhibit 1
hereto),
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<PAGE> 7
dated the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) Each of Dosapro-Milton Roy S.A., The Falk
Corporation, Sullair Europe S.A., Milton Roy Company, Sullair
Corporation, Sundstrand Pacific Aerospace Pte Ltd., and
Sundstrand Pacific Holdings (Pte) Ltd. have been duly
incorporated and are validly existing as corporations in good
standing (where appropriate under applicable laws) under the laws
of their respective jurisdictions of incorporation, with
corporate power and authority to own their respective properties
and conduct their respective businesses as described in the
Prospectus as amended or supplemented or, if not so described, as
presently conducted;
(iii) The Company is duly qualified as a foreign
corporation for the transaction of business and is in good
standing in all jurisdictions in which the failure to be so
qualified would have a material adverse effect on the Company;
(iv) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the
issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-
assessable;
(v) To the best of such counsel's knowledge and other
than as set forth or contemplated in the Prospectus, there are no
legal or governmental proceedings, other than routine litigation
arising in the ordinary course, pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the consolidated financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered by the Company;
(vii) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the
Designated Securities and the Indenture conform to the
descriptions thereof in the Prospectus as amended or
supplemented;
(viii) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding instrument of the Company, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; and the Indenture has been duly qualified under the
Trust Indenture Act;
(ix) The issue and sale of the Designated Securities and
the compliance by the Company with all of the provisions of the
Designated Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated Securities and
the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default
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<PAGE> 8
under, any indenture, mortgage, deed of trust, loan agreement or
other material agreement or material instrument known to such
counsel to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation
of the provisions of the Restated Certificate of Incorporation,
as amended, or the By-Laws of the Company or any statute or any
order, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction
over the Company or any of its properties;
(x) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of
the Designated Securities or the consummation by the Company of
the transactions contemplated by this Agreement or such Pricing
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(xi) The statements set forth in the Prospectus under
the captions "Description of Securities," and "Description of
Notes" insofar as they purport to constitute a summary of the
terms of the Securities and under the captions "Plan of
Distribution" and "Underwriting," insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate and complete;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as
to form in all material respects with the requirements of the Act
or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they became effective or
were so filed, as the case may be, contained, in the case of a
registration statement which became effective under the Act, an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and, in the case of other
documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such documents were so filed, not misleading;
and
(xiii) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the Time of
Delivery for the Designated Securities (other than the financial
statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; except
for those referred to in the opinion in subsection (x) of this
Section 7(c), such counsel has no reason to believe that, as of
its effective date, the Registration Statement or any further
amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial statements and related
schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements
therein, in light of the circumstances under
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<PAGE> 9
which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statement or the Prospectus as
amended or supplemented or any further amendment or supplement
thereto made by the Company prior to Time of Delivery (other than
the financial statements and related schedules therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
such counsel does not know of any amendment to the Registration
Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required.
(d) On the date of the Pricing Agreement for such Designated
Securities, at a time prior to the execution of the Pricing Agreement
with respect to such Designated Securities and at the Time of Delivery
for such Designated Securities, the Representatives, Ernst & Young,
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated
by reference in the Registration Statement, shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by reference
in the Registration Statement, if the date of such report is later than
such effective date, and letters dated as of such date of the Pricing
Agreement and Time of Delivery, respectively, to the effect set forth in
Annex II hereto, and with respect to such letter dated such Time of
Delivery, as to such other matters as the Representatives may reasonably
request and in form and substance satisfactory to the Representatives
(the executed copy of the letter delivered prior to the execution of
this Agreement is attached as Exhibit 2 hereto and a draft of the form
letter to be delivered on the effective date of any post-effective
amendment to the Registration Statement and as of each Time of Delivery
is attached as Exhibit 3 hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus as
amended or supplemented and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in Clause (i) or (ii), is in
the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to
the Designated Securities (i) no downgrading shall have occurred in the
rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no
such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities;
(g) On or after the date of the Pricing Agreement relating to
the Designated Securities there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in
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<PAGE> 10
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the New
York Stock Exchange; (iii) a general moratorium on commercial banking
activities declared by either Federal, New York or Illinois State
authorities; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this
Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented; or (v) the
occurrence of any material adverse change in the existing financial,
political or economic conditions in the United States or elsewhere
which, in the judgment of the Representatives, would materially and
adversely affect the financial markets or the market for the Designated
Securities and other debt securities;
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated
Securities a certificate or certificates of officers of the Company
satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of this
Section and as to such other matters as the Representatives may
reasonably request; and
(i) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any such amendment or supplement in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration Statement, the Prospectus
as amended or supplemented and
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<PAGE> 11
any other prospectus relating to the Securities, or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters of the Designated Securities on the other from the offering of the
Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such amount paid or
payable by such indemnified party in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters of the Designated Securities on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and such Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged, untrue statement of a material fact or, the omission or
alleged omission to state a material fact relates to information supplied by
the Company on the one hand or such Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subsection (d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Designated Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been
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<PAGE> 12
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section 8 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the Company and
to each person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other
parties to purchase such Designated Securities on the terms contained herein.
If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties reasonably satisfactory
to the Representatives to purchase such Designated Securities on such terms.
In the event that, within the respective prescribed period, the Representatives
notify the Company that they have so arranged for the purchase of such
Designated Securities, or the Company notifies the Representatives that it has
so arranged for the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in the opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall
not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating to such
Designated Securities shall thereupon terminate, without liability on the part
of any non-defaulting Underwriter or
-12-
<PAGE> 13
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section
9 hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth
in the Registration Statement: Attention: Secretary; provided, however, that
any notice to an Underwriter pursuant to Section 8(c) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any
one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
-13-
<PAGE> 14
If the foregoing is in accordance with your understanding, please sign
and return six counterparts hereof.
Very truly yours,
SUNDSTRAND CORPORATION
By ___________________________
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
_________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-14-
<PAGE> 15
ANNEX I
Pricing Agreement
Goldman, Sachs & Co.
As Representatives of the several
Underwriters named in Schedule I hereto,
85 Broad Street
New York, New York 10004
, 199
Dear Sirs:
Sundstrand Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated , 199 (the "Underwriting Agreement"),
between the Company on the one hand and Goldman, Sachs & Co. on the other hand,
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions have been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty with respect to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives
herein and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the Representatives and on
behalf of each of the Underwriters of the Designated Securities pursuant to
Section 12 of the Underwriting Agreement and the address of the Representatives
referred to in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed, or in the case of
a supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall
<PAGE> 16
be submitted to the Company for examination, upon request, but without warranty
on the part of the Representatives as to the authority of the signers thereof.
Very truly yours,
SUNDSTRAND CORPORATION
By ________________________________
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
___________________________________
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
-2-
<PAGE> 17
SCHEDULE I
<TABLE>
<CAPTION>
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ------------
<S> <C>
Goldman, Sachs & Co. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
[Names of other Underwriters] . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $
</TABLE>
-3-
<PAGE> 18
SCHEDULE II
Title of Designated Securities:
Aggregate principal amount:
Price to Public:
Purchase Price by Underwriters:
Form of Designated Securities:
Specified funds for payment of purchase price:
Indenture:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Restriction on Refunding:
Sinking Fund Provisions:
Defeasance:
Time of Delivery:
Closing Location:
Names and addresses of Representatives:
-4-
<PAGE> 19
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) or examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma financial
information, financial forecasts and/or condensed financial statements
derived from audited financial statements of the Company for the periods
specified in such letter, as indicated in their reports thereon, copies of
which have been furnished to the representative or representatives of the
Underwriters (the "Representatives") such term to include an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives and are attached hereto;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which are attached hereto; and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules
and regulations, nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements do not comply
as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published rules
and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company for
the five most recent fiscal years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's Annual Report on Form
10-K for the most recent fiscal year agrees with the corresponding amounts
(after restatement where applicable) in the audited consolidated financial
statements for five such fiscal years which were included or incorporated by
reference in the Company's Annual Reports on Form 10-K for such fiscal
years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects with
the disclosure requirements of Items 301, 302, 402 and 503(d), respectively,
of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements
<PAGE> 20
of the Company and its subsidiaries, inspection of the minute books of the
Company and its subsidiaries since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus,
inquiries of officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included or incorporated by reference
in the Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Exchange Act
and the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by reference in
the Prospectus for them to be in conformity with generally accepted
accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and items were
not determined on a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated financial
statements included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis substantially
consistent with the basis for the audited financial statements included
or incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet included
or incorporated by reference in the Prospectus) or any increase in the
consolidated long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or stockholders' equity or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes, increases
or decreases which the Prospectus discloses have occurred or may occur
or which are described in such letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in Clause (E) there were any decreases in
consolidated net revenues or operating profit or the total or per share
amounts of consolidated net income or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of
-2-
<PAGE> 21
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (iii) and (vi) above, they have carried out
certain specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein)
as defined in the Underwriting Agreement as of the date of the letter delivered
on the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
-3-
<PAGE> 1
EXHIBIT 4.1
================================================================================
SUNDSTRAND CORPORATION
AND
M&I FIRST NATIONAL BANK
AS TRUSTEE
_____________________
INDENTURE
DATED AS OF FEBRUARY 15, 1996
_____________________
================================================================================
<PAGE> 2
SUNDSTRAND CORPORATION
CROSS REFERENCE SHEET*/
[This Cross Reference Sheet shows the location in the Indenture of the
provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust
Indenture Act of 1939, as amended.]
<TABLE>
<CAPTION>
SECTIONS OF
TRUST INDENTURE ACT THE INDENTURE
- ------------------- ---------------
<S> <C>
310(a)(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.09
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.14
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
310(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08 and 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(a) and (c)(1) and (2)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.13(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable 312(a), 5.01 and 5.02(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(a) and (b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.02(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
(c)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.04
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.03
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(c)(1)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.05
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
315(a)(c)(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
316(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.06
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Inapplicable
(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . 8.04
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.06
317(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.07
</TABLE>
__________________________________
*/ THE CROSS REFERENCE SHEET IS NOT PART OF THE INDENTURE.
<PAGE> 3
TABLE OF CONTENTS
Page
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS:
Purpose of Indenture . . . . . . . . . . . . . . . . . . . . . . . 1
Form of Security . . . . . . . . . . . . . . . . . . . . . . . . . 1
Form of Trustee's Certificate of Authentication . . . . . . . . . 1
Compliance with legal requirements . . . . . . . . . . . . . . . . 1
Purpose of and consideration for Indenture . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Terms Defined . . . . . . . . . . . . . . . 1
Attributable Debt . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . 2
Certified Board Resolution . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Direction . . . . . . . . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . 3
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Global Security . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . 5
Officers' Certificate . . . . . . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 5
Principal Property . . . . . . . . . . . . . . . . . . . . 6
Record Date . . . . . . . . . . . . . . . . . . . . . . . 6
Responsible Officer . . . . . . . . . . . . . . . . . . . 6
Restricted Subsidiary . . . . . . . . . . . . . . . . . . 7
Sale and Lease-Back Transaction . . . . . . . . . . . . . 7
Security or Securities . . . . . . . . . . . . . . . . . . 7
i
<PAGE> 4
Security Register and Security Registrar . . . . . . . . . 7
Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 8
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 8
Trust Indenture Act of 1939 . . . . . . . . . . . . . . . 8
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. Amount Unlimited; Establishment of Series . . . . . . . 8
Section 2.02. Form of Securities and Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . 10
Section 2.03. Denomination, Authentication and Dating of Securities . . 10
Section 2.04 Execution of Securities . . . . . . . . . . . . . . . . . 13
Section 2.05. Registration of Transfer and Exchange . . . . . . . . . . 14
Section 2.06. Temporary Securities . . . . . . . . . . . . . . . . . . 16
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities . . . . . 16
Section 2.08. Cancellation of Surrendered Securities . . . . . . . . . 17
Section 2.09. Provisions of Indenture and Securities for the
Sole Benefit of the Parties and the Holders . . . . . 17
Section 2.10 Computation of Interest . . . . . . . . . . . . . . . . 18
ARTICLE THREE
REDEMPTION OF SECURITIES -- SINKING FUND
Section 3.01. Applicability of Article . . . . . . . . . . . . . . . . 18
Section 3.02. Notice of Redemption; Selection of Securities . . . . . 18
Section 3.03. When Securities Called for Redemption Become Due and
Payable . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 3.04. Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 20
Section 3.05 Use of Acquired Securities to Satisfy Sinking Fund
Obligations . . . . . . . . . . . . . . . . . . . . 21
Section 3.06 Effect of Failure to Deliver Officers' Certificate or
Securities . . . . . . . . . . . . . . . . . . . . . 21
Section 3.07 Manner of Redeeming Securities . . . . . . . . . . . . 21
Section 3.08 Sinking Fund Moneys to Be Held as Security During
Continuance of Event of Default; Exceptions . . . . . 22
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ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payments of Principal of (and Premium, if any)
and Interest on Securities . . . . . . . . . . . . . . . . 22
Section 4.02. Maintenance of Offices or Agencies for Registration
of Transfer, Exchange and Payment of Securities
and for Service on the Company . . . . . . . . . . . . . . 23
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee . . . . 23
Section 4.04. Duties of Paying Agents, etc . . . . . . . . . . . . . . . . . 23
Section 4.05. Limitation on Secured Debt . . . . . . . . . . . . . . . . . . 24
Section 4.06 Limitation on Sale and Lease-Back . . . . . . . . . . . . . . 27
Section 4.07. Statement by Officers as to Default . . . . . . . . . . . . . 28
Section 4.08. Further Instruments and Acts . . . . . . . . . . . . . . . . . 28
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . 28
Section 5.02. Preservation of Information; Communications to Holders . . . . 29
Section 5.03. Reports by Company . . . . . . . . . . . . . . . . . . . . . . 30
Section 5.04. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . 33
Section 6.02. Collection of Indebtedness by Trustee, etc . . . . . . . . . . 35
Section 6.03. Application of Moneys Collected by Trustee . . . . . . . . . . 37
Section 6.04. Limitation on Suits by Holders . . . . . . . . . . . . . . . . 38
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise
of Rights Not a Waiver of Default . . . . . . . . . . . . . 38
Section 6.06. Rights of Holders of Majority in Principal Amount
of Securities of Any Series to Direct Trustee and
to Waive Default . . . . . . . . . . . . . . . . . . . . . 39
Section 6.07. Trustee to Give Notice of Default Known to It,
But May Withhold Such Notice in Certain Circumstances . . . 39
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee . . . . . . 40
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Section 6.09. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . 40
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities . . . . . . . . . . . . . 40
Section 7.02. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . 42
Section 7.03. Trustee Not Liable for Recitals in Indenture or in Securities. 43
Section 7.04. Trustee, Paying Agent or Security Registrar May Own
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 7.05. Moneys Received by Trustee to Be Held in Trust . . . . . . . . 43
Section 7.06. Compensation and Reimbursement . . . . . . . . . . . . . . . . 43
Section 7.07 Right of Trustee to Rely on an Officers' Certificate
Where No Other Evidence Specifically Prescribed . . . . . . 44
Section 7.08. Disqualification of Trustee; Conflicting Interests . . . . . . 44
Section 7.09. Requirements for Eligibility of Trustee . . . . . . . . . . . 44
Section 7.10. Resignation and Removal of Trustee . . . . . . . . . . . . . . 45
Section 7.11. Acceptance by Successor to Trustee . . . . . . . . . . . . . . 46
Section 7.12. Successor to Trustee by Merger, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 7.13. Preferential Collection of Claims Against Company . . . . . . 48
Section 7.14 Appointment of Additional and Separate Trustees . . . . . . . 51
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Evidence of Action by Holders . . . . . . . . . . . . . . . . 54
Section 8.02. Proof of Execution of Instruments and of Holding of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 8.03. Who May Be Deemed Owner of Securities . . . . . . . . . . . . 55
Section 8.04. Securities Owned by Company or Controlled or Controlling
Companies Disregarded for Certain Purposes . . . . . . . . . 55
Section 8.05. Instruments Executed by Holders Bind Future Holders . . . . . 55
Section 8.06 Record Date for Determination of Holders Entitled to Vote . . 56
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS
Section 9.01. Purposes for Which Meeting May Be Called . . . . . . . . . . . 56
Section 9.02. Manner of Calling Meetings . . . . . . . . . . . . . . . . . . 57
Section 9.03. Call of Meetings by Company or Holders . . . . . . . . . . . . 57
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Section 9.04. Who May Attend and Vote at Meetings . . . . . . . . . . . . . 57
Section 9.05. Regulations May Be Made by Trustee . . . . . . . . . . . . . . 57
Section 9.06. Manner of Voting at Meetings and Record to Be Kept . . . . . . 58
Section 9.07. Written Consent in Lieu of Meetings . . . . . . . . . . . . . 58
Section 9.08. No Delay of Rights by Meeting . . . . . . . . . . . . . . . . 59
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for Which Supplemental Indentures May be
Entered into Without Consent of Holders . . . . . . . . . . 59
Section 10.02. Modification of Indenture with Consent of Holders
66-2/3% in Principal Amount of Securities . . . . . . . . . 61
Section 10.03. Effect of Supplemental Indentures . . . . . . . . . . . . . . 62
Section 10.04. Securities May Bear Notation of Changes by
Supplemental Indentures . . . . . . . . . . . . . . . . . . 62
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
Section 11.01. Company May Consolidate, etc., on Certain Terms . . . . . . . 62
Section 11.02. Successor Corporation to be Substituted . . . . . . . . . . . 63
Section 11.03. Opinion of Counsel and Officers' Certificate to Be Given
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE TWELVE
DISCHARGE OF INDENTURE AND DEFEASANCE
Section 12.01. Termination of Company's Obligations . . . . . . . . . . . . 64
Section 12.02. Application of Trust Deposit . . . . . . . . . . . . . . . . 67
Section 12.03. Repayment to Company . . . . . . . . . . . . . . . . . . . . 67
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
Section 13.01. Incorporators, Stockholders, Officers, Directors
and Employees of Company Exempt from Individual Liability . 67
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ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Successors and Assigns of Company Bound by Indenture . . . . 68
Section 14.02. Acts of Board, Committee or Officer of Successor
Corporation Valid . . . . . . . . . . . . . . . . . . . . . 68
Section 14.03. Required Notices or Demands . . . . . . . . . . . . . . . . . 68
Section 14.04. Indenture and Securities to be Construed in Accordance
with the Laws of the State of New York . . . . . . . . . . 69
Section 14.05. Officers' Certificate and Opinion of Counsel to be
Furnished upon Application or Demand by the Company . . . . 69
Section 14.06. Payments Due on Holidays . . . . . . . . . . . . . . . . . . 69
Section 14.07. Provisions Required by Trust Indenture Act of 1939 to
Control . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 14.08. Indenture May be Executed in Counterparts . . . . . . . . . . 70
Section 14.09. Separability Clause . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
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<PAGE> 9
INDENTURE, dated as of the 15th day of February, 1996, between
SUNDSTRAND CORPORATION, a corporation incorporated under the laws of Delaware
(the "Company"), party of the first part, and M&I FIRST NATIONAL BANK, a
banking corporation incorporated under the laws of New York (the "Trustee"),
party of the second part.
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of its unsecured debentures, notes and other
evidences of indebtedness (hereinafter referred to as the "Securities"), to be
issued in one or more series in an unlimited amount as provided in this
Indenture.
WHEREAS, the text of the Securities is to be substantially in the form
attached hereto as Schedule A, with such specific terms, additions or omissions
as may be determined pursuant to an Officers' Certificate or a supplemental
indenture as contemplated in Section 2.01 hereof.
WHEREAS, the Trustee's certificate of authentication for the
Securities is to be substantially in the form attached hereto as Schedule B.
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement of the Company have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In consideration of the premises and of the sum of One Dollar duly
paid by the Trustee to the Company at the execution and delivery of these
presents, the receipt whereof is hereby acknowledged, the Company and the
Trustee covenant and agree with each other, for the equal and proportionate
benefit of all Holders from time to time of the Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Terms Defined. The terms defined in this
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
indenture supplemental hereto and of any Officers' Certificate establishing the
terms of a particular series of Securities as herein provided shall have the
respective meanings specified in this Section 1.01. All other terms used in
this Indenture which are defined in the Trust Indenture Act of 1939, or which
are by reference therein defined in the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context
<PAGE> 10
otherwise requires), shall have the meanings assigned to such terms in the
Trust Indenture Act of 1939 and in such Securities Act as in force as of the
date of this Indenture.
Attributable Debt:
The term "Attributable Debt" shall have the meaning specified in
Section 4.06.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper printed in the
English language and customarily published at least once a day on each Business
Day in each calendar week and of general circulation in the Borough of
Manhattan, The City and State of New York, whether or not such newspaper is
published on Saturdays, Sundays and legal holidays. Whenever, under the
provisions of this Indenture, two or more publications of a notice or other
communication are required or permitted, such publications may be in the same
or different authorized newspapers. If, because of temporary or permanent
suspension of publication or general circulation of any newspaper or for any
other reason, it is impossible or impracticable to publish any notices required
by this Indenture in the manner herein provided, then such publication in lieu
thereof or such other notice as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
Board of Directors:
The term "Board of Directors," when used with reference to the
Company, shall mean the Board of Directors of the Company or any executive
committee of such Board to which the powers of such Board have lawfully been
delegated.
Business Day:
The term "Business Day" means, except as may otherwise be provided in
the form of Securities of any particular series, with respect to any Place of
Payment, any day, other than a Saturday or Sunday, that is not a legal holiday,
or a day on which banking institutions are authorized or required by law or
regulation to close in The City of New York or the City of West Bend or in that
Place of Payment, or with respect to Securities denominated in a Foreign
Currency, the capital city of the country of such Foreign Currency, or with
respect to Securities denominated in ECU, Brussels, Belgium.
Certified Board Resolution:
The term "Certified Board Resolution" shall mean one or more
resolutions certified by the Secretary or any Assistant Secretary of the
Company to have been duly adopted by the Board of Directors of the Company and
to be in full force and effect on the date of such certification, which are
delivered to the Trustee.
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<PAGE> 11
Company:
The term "Company" shall mean SUNDSTRAND CORPORATION and, subject to
the provisions of Article Eleven, shall mean its successors and assigns from
time to time hereafter.
Company Direction:
The term "Company Direction" shall mean a written direction, order or
instruction, signed in the name of the Company by its Chairman of the Board or
its President or any Vice President and by its Treasurer or its Secretary or
any Assistant Treasurer or any Assistant Secretary and delivered to the
Trustee.
Consolidated Net Tangible Assets:
The term "Consolidated Net Tangible Assets" means, as of any
particular time, the total amount of assets (less applicable reserves) after
deducting therefrom (a) all current liabilities (excluding any thereof which
are by their terms extendible or renewable at the option of the obligor thereon
to a time more than 12 months after the time as of which the amount thereof is
being computed and excluding current maturities of long-term indebtedness) and
(b) all goodwill, trade names, trademarks, patents, unamortized debt discount
and expense, and other like intangible assets, all as shown in the latest
quarterly consolidated balance sheet of the Company contained in the Company's
then most recent annual report to stockholders or quarterly report filed with
the Securities and Exchange Commission, as the case may be, except that assets
shall include an amount equal to the Attributable Debt in respect of any Sale
and Lease-Back Transaction not capitalized on such balance sheet.
Corporate Trust Office:
The term "Corporate Trust Office," or other similar term, shall mean
the principal office of the Trustee in the City of West Bend, at which at any
particular time its corporate trust business shall be principally administered
or, if no such office is maintained, such other office of the Trustee as shall
be designated. The Corporate Trust Office on the date hereof is located at 321
North Main Street, P.O. Box 1980, West Bend, Wisconsin 53095, Attention:
Corporate Trust and Agency Group.
Defaulted Interest:
The term "Defaulted Interest" shall have the meaning specified in
Section 2.03.
Depositary:
The term "Depositary" shall mean, with respect to the Securities of
any series issuable or issued in the form of one or more Global Securities, a
clearing agency registered under the
3
<PAGE> 12
Securities Exchange Act of 1934 and any other applicable statute or regulation
designated as Depositary by the Company pursuant to Section 2.01 until a
successor Depositary shall have become such pursuant to Section 2.05, and
thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Global Securities of that series.
ECU:
The term "ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
Event of Default:
The term "Event of Default" shall mean any event specified in Section
6.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
Global Security:
The term "Global Security" means a Security bearing the legend
prescribed in Section 2.03 and issued in definitive form without coupons,
evidencing all or a part of an issuance of Securities of any series, and issued
to the Depositary for such series in accordance with Section 2.03.
Holder:
The term "Holder," with respect to a registered Security, shall mean
any person in whose name such Security shall be registered on the Security
Register and, with respect to an unregistered Security, shall mean the bearer
thereof.
Indenture:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the terms of particular series of Securities
established as contemplated hereunder; provided, however, that if at any time
more than one Trustee is serving as such under this instrument, "Indenture"
shall mean, with respect to any one or more series of Securities for which any
such Trustee is serving, this Indenture as originally executed or as amended or
supplemented as herein provided, exclusive, however, of any provisions or terms
which relate solely to one or more series of Securities for which such Trustee
is not serving, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted with respect to a particular
series of Securities executed and delivered after such Trustee had become a
Trustee hereunder but with respect to which series such Trustee was not serving
as Trustee.
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<PAGE> 13
Interest Payment Date:
The term "Interest Payment Date" shall mean the date on which an
installment of interest on any series of Securities shall become due and
payable, as therein or herein provided.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
any two of the Chairman of the Board, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any Assistant Treasurer of
the Company, provided that one of the officers signing the Officers'
Certificate shall be the Chairman of the Board, or the President, or any Vice
President (which Vice President, if executing any Officers' Certificate
delivered pursuant to Section 2.01, shall be the chief financial officer of the
Company, or, if no such Vice President exists, a Vice President having similar
responsibility as to financial matters), which complies with Section 14.05 and
is delivered to the Trustee.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who may be an employee of, or counsel to, the Company. Each
such opinion shall include (except as otherwise provided in this Indenture) the
statements provided for in Section 14.05.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Stated Maturity thereof
pursuant to Section 6.01.
Outstanding:
The term "outstanding," when used with reference to Securities of any
series, subject to the provisions of Section 8.04, shall mean, as of any
particular time, all Securities of such series authenticated by the Trustee and
delivered under this Indenture, except:
(a) Securities of such series theretofore cancelled by
the Trustee or delivered to the Trustee for cancellation;
(b) Securities of such series or portions thereof for the
payment or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent
(other than the Company) or shall have been set aside and segregated
in trust by the Company (if the Company shall act as its own paying
agent); provided that, if such Securities or portions thereof are to
be redeemed, notice
5
<PAGE> 14
of such redemption shall have been given as in Article Three provided
or provision satisfactory to the Trustee shall have been made for
giving such notice;
(c) Securities of such series in lieu of or in
substitution for which other Securities shall have been authenticated
and delivered pursuant to the terms of Section 2.07; and
(d) Securities of any series the indebtedness in respect
to which has been discharged in accordance with Section 12.01(a).
Principal Property:
The term "Principal Property" shall mean any manufacturing plant or
facility which is located within the United States of America and is owned by
the Company or any Restricted Subsidiary, except any such plant or facility
which the Board of Directors by resolution declares is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries as an entirety and which, when taken together with all other
plants and facilities as to which such a declaration has been made, are so
declared by the Board of Directors to be not of material importance to the
total business conducted by the Company and its Restricted Subsidiaries as an
entirety.
Record Date:
The term "Record Date," as used with respect to any Interest Payment
Date, shall mean the close of business on the 15th day of the month preceding
the month in which an Interest Payment Date occurs, if such Interest Payment
Date is the 15th day of such month, in each case whether or not a Business Day,
or such other dates with respect to a particular series of Securities, as may
be specified in the instrument establishing such series, so long as such Record
Date is not less than 15 days prior to the applicable Interest Payment Date.
Responsible Officer:
The term "Responsible Officer," when used with respect to the Trustee,
shall mean any officer within the Corporate Trust and Agency Group (or any
successor group of the Trustee), including any Vice President, any Assistant
Vice President, any Assistant Secretary, or any other Officer or Assistant
Officer of the Trustee customarily performing functions similar to those
performed by persons who at the time shall be such officers to whom any
corporate trust matter is referred at the Trustee's corporate trust office
because of his knowledge of and familiarity with the particular subject.
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<PAGE> 15
Restricted Subsidiary:
The term "Restricted Subsidiary" shall mean any Subsidiary (i)
substantially all the property of which is located within the United States of
America, (ii) which owns a Principal Property, and (iii) in which the Company's
investment, direct or indirect and whether in the form of equity, debt or
advances, as shown on the consolidating balance sheet used in the preparation
of the latest quarterly consolidated financial statements of the Company
preceding the date of determination, is in excess of 2% of the total
consolidated assets of the Company as shown on such quarterly consolidated
financial statements; provided, however, that the term "Restricted Subsidiary"
shall not include any Subsidiary which is principally engaged in leasing or in
financing installment receivables or which is principally engaged in financing
the Company's operations outside the continental United States of America.
Sale and Lease-Back Transaction:
The term "Sale and Lease-Back Transaction" shall have the meaning
specified in Section 4.06.
Security or Securities:
The terms "Security" or "Securities" shall have the meaning stated in
the recital of this Indenture and shall mean any Security or such Securities,
as the case may be, authenticated and delivered pursuant to this Indenture;
provided, however, that if at any time there is more than one Trustee serving
under this Indenture, "Securities" with respect to this Indenture, as to which
such Trustee is serving, shall have the meaning stated in the recital and shall
more particularly mean Securities authenticated and delivered pursuant to this
Indenture, exclusive of Securities of any series as to which such Trustee is
not serving as Trustee.
Security Register and Security Registrar:
The terms "Security Register" and "Security Registrar," with respect
to any series of Securities, shall have the respective meanings specified in
Section 2.05.
Sinking Fund:
The term "Sinking Fund" shall mean any fund established by the Company
for redemption of the Securities of any series prior to Stated Maturity.
Stated Maturity:
The term "Stated Maturity," when used with respect to any Security,
shall mean the date on which the last payment of principal of such Security is
due and payable in accordance with the terms thereof.
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<PAGE> 16
Subsidiary:
The term "Subsidiary" shall mean any corporation which is consolidated
in the Company's accounts and any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power to
elect a majority of the board 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 or controlled by
the Company, or by one or more Subsidiaries, or by the Company and one or more
Subsidiaries.
Trustee:
The term "Trustee" shall mean M&I First National Bank until a
successor Trustee shall have become such pursuant to the applicable provisions
hereof, and thereafter "Trustee" shall mean or include all Trustees hereunder
and, subject to the provisions of Article Seven, shall also include its
successors and assigns and, unless the context otherwise requires, shall also
include any co-trustee or co-trustees or separate trustee or trustees appointed
pursuant to Section 7.14.
Trust Indenture Act of 1939:
The term "Trust Indenture Act of 1939" (except as herein otherwise
expressly provided) shall mean the Trust Indenture Act of 1939 as in force on
the date of this Indenture.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. Amount Unlimited; Establishment of 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. All Securities of
any one series shall be substantially identical except as to denomination and
except as the Company in an Officers' Certificate delivered pursuant to this
Section 2.01 or in any supplemental indenture may otherwise provide. The
Securities may bear interest at such lawful rate or rates, from such date or
dates, shall mature at such time or times, may be redeemable at such price or
prices and upon such terms, including, without limitation, out of proceeds from
the sale of other Securities, or other indebtedness of the Company, and may
contain and/or be subject to such other terms and provisions as shall be
determined by the Company in accordance with the authority granted in one or
more resolutions of the Board of Directors reasonably acceptable to the Trustee
and set forth in an Officers' Certificate or a supplemental indenture, which
instrument shall establish with respect to each series of Securities:
8
<PAGE> 17
(1) the designation of the Securities of such series,
which shall distinguish the Securities of one series from all other
Securities;
(2) the limit upon the aggregate principal amount at
Stated Maturity of the Securities of such series which may be
authenticated and delivered under this Indenture (not including
Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of such series
pursuant to Sections 2.05, 2.06, 2.07, 3.02 or 10.04);
(3) the rate at which the Securities of such series shall
bear interest, if any, or the formula by which interest shall accrue,
the dates from which interest shall accrue, and the Interest Payment
Dates on which such interest shall be payable;
(4) the Stated Maturity of the Securities of such series;
(5) the period or periods within which, the price or
prices at which, and the terms and conditions upon which, the
Securities of such series may be redeemed, in whole or in part, at the
option of the Company;
(6) the obligation, if any, of the Company to redeem or
purchase Securities of such series pursuant to a sinking, purchase or
analogous fund and the period or periods within which, the price or
prices at which, and the terms and conditions upon which the
Securities of such series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(7) if other than the principal amount at Stated
Maturity, the portion of the principal amount at Stated Maturity of
the Securities of such series which shall be payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.01;
(8) if other than denominations of $1,000 and any
multiple thereof, the denominations in which Securities of such series
shall be issuable;
(9) any changes in, omissions from or additions to the
form of Security to be used to evidence ownership of Securities of
such series;
(10) any terms with respect to conversion of the
Securities of such series, warrants attached thereto or terms pursuant
to which warrants may exist;
(11) the place or places where the principal of (and
premium, if any) and interest on the Securities of such series shall
be payable;
(12) any additional office or agencies maintained pursuant
to Section 4.02;
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<PAGE> 18
(13) whether the Securities of such series shall be issued
as registered Securities or as unregistered Securities, with or
without coupons; provided that no Securities will be issued as
unregistered Securities if such issuance would violate applicable law;
(14) whether Article Twelve hereof, including, without
limitation, Section 12.01(a) and (b) thereof, is applicable to the
Securities;
(15) whether any Securities are to be Original Issue
Discount Securities;
(16) if other than United States dollars, the currency or
currencies, including composite currencies, in which payments of
interest or principal are payable with respect to the Securities of
the series;
(17) if the amount of payments of principal of or interest
on the Securities of any series may be determined with reference to
the differences in the price of or rate of exchange between any
indexes, currencies or commodities, the manner in which such amounts
shall be determined;
(18) whether any Securities of the series shall be issued
as, or exchanged for, in whole or in part, one or more Global
Securities and, in such case, (i) the terms upon which interests in
such Global Security or Securities shall be exchangeable by the
Company or the holder thereof for definitive Securities and (ii) the
identity of the Depositary for such Global Security or Securities; and
(19) any other terms of the Securities of such series
(which term shall not be inconsistent with the provisions of this
Indenture).
Section 2.02. Form of Securities and Trustee's Certificate of
Authentication. The Securities and the Trustee's certificate of authentication
to be borne by such Securities shall be substantially in the respective forms
thereof set forth in Schedules A (or a form established by or pursuant to a
Certified Board Resolution) and B to this Indenture with such specific terms,
additions or omissions as may be determined pursuant to an Officers'
Certificate or a supplemental indenture as contemplated in Section 2.01 hereof,
in each case with such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the Company may deem appropriate and as are not inconsistent with
the provisions of this Indenture (the provisions of which shall be appropriate
to reflect the terms of each series of Securities, including the currency or
denomination, which may be United States dollars, foreign currency or ECU) or
as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Securities may be listed, or to conform to usage.
Section 2.03. Denomination, Authentication and Dating of
Securities. The Securities of each series may be issued as registered
Securities or, if provided by the terms of the instrument
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establishing such series of Securities, as unregistered Securities, with or
without coupons. The Securities of each series shall be issuable in
denominations of $1,000 and any integral multiple of $1,000, unless otherwise
provided by the terms of the instrument establishing such series of Securities.
Each Security shall be dated as of the date of its authentication.
If the Company shall establish pursuant to Section 2.01 that the
Securities of a series may be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with this Section 2.03, authenticate and deliver one or more Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of the outstanding Securities to be represented by
such Global Security or Securities, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "This Security is a Global Security
within the meaning of the Indenture hereinafter referred to and is registered
in the name of a Depositary or a nominee of a Depositary. This Security is
exchangeable for securities registered in the name of a Person other than the
Depositary or its nominee only in the limited circumstances described in the
Indenture, and no transfer of this Security (other than a transfer of this
Security as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in such limited circumstances."
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company
Direction for authentication and delivery of such Securities, and the Trustee
shall thereupon authenticate and deliver such Securities in accordance with
such Company Direction. Prior to the issuance of Securities of any series, the
Trustee shall be entitled to receive and, subject to Section 7.01, shall be
fully protected in relying upon:
(1) a Certified Board Resolution pursuant to which the
issuance of the Securities of such series is authorized;
(2) an executed supplemental indenture, if any;
(3) an Officer's Certificate, if any, delivered in
accordance with Section 2.01 and an Officers' Certificate as to the
absence of any Event of Default or any event which with notice or
lapse of time or both could become an Event of Default; and
(4) an Opinion of Counsel of the Company which in
substance shall state that:
(i) the form and the terms of the Securities of
such series have been established in conformity with
the provisions of this Indenture;
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(ii) the Securities of such series have been duly
authorized and, when executed and authenticated in accordance
with the provisions of this Indenture and subject to any other
reasonable and customary conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of this
Indenture;
(iii) the registration statement, if any, relating
to the Securities of such series and any amendments thereto
has become effective under the Securities Act of 1933 and, to
the best knowledge of such counsel, no stop order suspending
the effectiveness of such registration statement, as amended,
has been issued and no proceedings for that purpose have been
instituted or threatened;
(iv) no consent, approval, authorization or order
of any court or governmental agency or body in the United
States is required for the issuance of the Securities of such
series, except such as have been obtained and such as may be
required under the blue sky laws of any jurisdiction in the
United States in connection with the purchase and distribution
of the Securities of such series;
(v) neither the issue nor sale of the Securities
of such series will conflict with, result in a breach of or
constitute a default under the terms of any indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its Subsidiaries is a party or is bound, or
any order or regulation known to such counsel to be applicable
to the Company or any of its Subsidiaries of any court,
regulatory body, administrative agency or governmental body
having jurisdiction over the Company or any of its
Subsidiaries;
(vi) the authentication and delivery of the
Securities of such series by the Trustee in accordance with
the Company Direction so to do, and the Company's execution
and delivery of the Securities of such series, will not
violate the terms of this Indenture; and
(vii) such other opinions as shall be reasonably
requested by the Trustee.
The Trustee shall have the right to decline to authenticate and
deliver any Securities of such series (A) if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or (B) if the
Trustee in good faith by its board of directors or 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 Holders of outstanding Securities of any series.
So long as there is no existing default in the payment of interest on
registered Securities of any series, all such Securities authenticated by the
Trustee after the close of business on the Record Date for the payment of
interest on any Interest Payment Date relating thereto and prior
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to such Interest Payment Date shall be dated the date of authentication but
shall bear interest from such Interest Payment Date; provided, however, that if
and to the extent that the Company shall default in the interest due on such
Interest Payment Date, then any such Securities shall bear interest from the
next preceding Interest Payment Date relating to such Security with respect to
which interest has been paid or duly provided for on such Securities, from the
date from which interest shall accrue as such date is set forth in the
instrument establishing the terms of such Securities.
The person in whose name any Security is registered at the close of
business on any Record Date with respect to any Interest Payment Date shall be
entitled to receive the interest payable on such Interest Payment Date
notwithstanding the cancellation of such Security upon any registration of
transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date, except if and to the extent the Company shall default in
the payment of the interest due on such Interest Payment Date, in which case
such defaulted interest (herein called "Defaulted Interest") shall be paid to
the persons in whose names outstanding Securities of such series are registered
at the close of business on a subsequent record date selected by the Trustee,
which shall not be less than five Business Days preceding the date of payment
of such Defaulted Interest, established for such purpose by notice given by
mail or on behalf of the Company to Holders of such Securities not less than 15
days preceding such subsequent record date. Such notice shall be given to the
persons in whose names such outstanding Securities of such series are
registered at the close of business on the third Business Day preceding the
date of the mailing of such notice.
Section 2.04 Execution of Securities. The Securities and coupons
appertaining thereto, if any, shall be signed on behalf of the Company by its
Chairman or its President or any Vice President and by its Secretary or
Assistant Secretary under its corporate seal. Such signatures may be the
manual or facsimile signatures of the present or any future such authorized
officers and may be imprinted or otherwise reproduced on the Securities and
such coupons. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Securities and such coupons.
Only such Securities as shall bear thereon a Trustee's certificate of
authentication substantially in the form provided for in Schedule B, signed
manually by the Trustee, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. The Trustee's certificate of
authentication on any Security executed by the Company shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Securities or such coupons shall cease to be such officer before the Securities
or such coupons so signed shall have been authenticated by the Trustee and
delivered or disposed of by the Company, such Securities and such coupons
nevertheless may be authenticated and delivered or disposed of as though the
person who signed such Securities and such coupons had not ceased to be such
officer of the Company; and any Security or such coupons may be signed on
behalf of the Company by such
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persons as, at the actual date of the execution of such Security or such
coupons, shall be the proper officers of the Company, although at the date of
such Security or such coupons or of the execution of this Indenture any such
person was not such officer.
Section 2.05. Registration of Transfer and Exchange. The Company
shall keep, at an office or agency maintained by the Company in accordance with
the provisions of Section 4.02, a register for each series of registered
Securities (such register being herein referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall register Securities of such series and shall register the
transfer of such Securities as in this Article Two provided. At all reasonable
times the Security Register shall be open for inspection by the Trustee. Upon
due presentment for registration of transfer of any such Security at such
office or agency, or such other offices or agencies as the Company may
designate, the Company shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of authorized denominations, of the same series and of like
aggregate principal amount at Stated Maturity.
Unless and until otherwise determined by the Company by resolution of
its Board of Directors, the Security Register for the purpose of registration,
exchange or registration of transfer of registered Securities shall be kept at
the Corporate Trust Office and, for this purpose, the Trustee shall be
designated the "Security Registrar."
At the option of the Holder, Securities of any series may be exchanged
for Securities of the same series of like aggregate principal amount at Stated
Maturity and of other authorized denominations. Securities to be so exchanged
shall be surrendered at the offices or agencies to be maintained by the Company
as provided in Section 4.02, and the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor the Security or Securities
which the Holder making the exchange shall be entitled to receive.
All Securities presented or surrendered for registration of transfer,
exchange, redemption or payment shall (if so required by the Company or the
Security Registrar) be duly endorsed or be accompanied by a written instrument
or instruments of transfer, in form satisfactory to the Company and the
Trustee, duly executed by the Holder or his attorney duly authorized in
writing.
No service charge shall be made for any exchange or registration of
transfer or Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Securities of any series for a period of 15 days next
preceding any selection of Securities of such series to be redeemed or (b) to
register the transfer of or exchange any Securities of such series selected,
called or being called for redemption.
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Notwithstanding any other provision of this Section 2.05 to the
contrary, unless and until it is exchanged in whole or in part for Securities
in definitive registered form without coupons, a Global Security representing
all or a portion of the Securities of a series may not be transferred except as
a whole by the Depositary for such series to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities of a series
represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depositary for the Securities of such series
or if at any time the Depositary for such Securities shall no longer be
eligible under Section 2.01, the Company shall appoint a successor Depositary
with respect to the Securities. If (i) the Depositary for Securities of a
series represented by one or more Global Securities is at any time unwilling or
unable to continue as Depositary or the Depositary for the Securities of such
series ceases to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and a successor Depositary is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility or (ii) the Company executes and delivers to the Trustee
an order to the effect that the Securities of any series issued in the form of
one or more Global Securities shall no longer be represented by such Global
Security or Securities, then the Company's election pursuant to Section 2.01
that the Securities of such series be represented by one or more Global
Securities shall no longer be effective with respect to the Securities of such
series, and the Company will execute, and the Trustee, upon receipt of an order
of the Company for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form without coupons, in any authorized denominations, in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Securities in exchange for such Global
Security or Securities.
If specified by the Company pursuant to Section 2.01 with respect to a
series of Securities represented by a Global Security, the Depositary for such
Global Security may surrender such Global Security in exchange in whole or in
part for Securities of the same series in definitive registered form without
coupons on such terms as are acceptable to the Company and such Depositary.
Thereupon, the Company shall execute, and the Trustee upon receipt of an order
for the authentication and delivery of definitive Securities of such series
shall authenticate and deliver, without service charge,
(i) to the person specified by such Depositary a new
Security or Securities of the same series, of any authorized
denominations as requested by such person, in an aggregate
principal amount equal to and in exchange for such person's
beneficial interest in the Global Security; and
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(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form without coupons, in authorized denominations, such Global
Security shall be cancelled by the Trustee. Securities in definitive
registered form without coupons issued in exchange for a Global Security
pursuant to this Section 2.05 shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to or as
directed by the persons in whose names such Securities are so registered.
Section 2.06. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and deliver and the Trustee,
upon Company Direction and the satisfaction of the conditions set forth in
Section 2.03 hereof, shall authenticate and deliver temporary Securities
(printed, lithographed or typewritten) of any authorized denomination and
substantially in the form of the definitive Securities, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Company. Temporary Securities may
be issued without a recital of the specific redemption prices, if any,
applicable to such Securities and may contain such reference to any provisions
of this Indenture as may be appropriate. Every temporary Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Securities. The Company shall execute and furnish definitive
Securities as soon as practicable, and thereupon any or all temporary
Securities may be surrendered in exchange therefor at the Corporate Trust
Office, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities a like aggregate principal amount at Stated Maturity of
definitive Securities of the same series. Until so exchanged, the temporary
Securities shall be entitled to the same benefits under this Indenture as
definitive Securities authenticated and delivered hereunder.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. In
case any temporary or definitive Security and, in the case of a definitive
Security, coupons appertaining thereto, if any, shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
Company Direction the Trustee shall authenticate and deliver, a new Security or
such coupons of the same series bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Security or such
coupons, or in lieu of and in substitution for the Security or such coupons so
destroyed, lost or stolen. In every case, the applicant for a substituted
Security or such coupons shall furnish to the Company, and to the Security
Registrar and any paying agent, such security or indemnity as may be required
by them to save each of them harmless from all risk, however remote, and, in
every case of destruction,
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loss or theft, the applicant shall also furnish to the Company, and to the
Trustee and any paying agent, evidence to their satisfaction of the
destruction, loss or theft of such Security or such coupons and of the
ownership thereof. The Trustee may authenticate any such substituted Security
and deliver the same upon Company Direction. Upon the issuance of any
substituted Security or such coupons, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. In
case any Security which has matured or is about to mature or which has been
called for redemption shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substituted Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Security) if the applicant for such payment shall furnish the Company
and any paying agent with such security or indemnity as either may require to
save it harmless from all risk, however remote, and, in case of destruction,
loss or theft, evidence to the satisfaction of the Company of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substituted Security of any series or coupon issued pursuant to
the provisions of this Section 2.07 by virtue of the fact that any Security or
coupon is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security or coupon shall be found at any time, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of such series or coupons duly issued and delivered hereunder. All
Securities and coupons shall be held and owned upon the express condition that
the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and coupons and
shall preclude (to the extent lawful) any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
Section 2.08. Cancellation of Surrendered Securities. All Securities
surrendered for payment, redemption (whether through the operation of a Sinking
Fund or otherwise), registration of transfer or exchange, and all coupons
surrendered for payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee for cancellation by it or, if surrendered
to the Trustee, shall be cancelled by it, and all Securities delivered to the
Trustee in discharge or satisfaction in whole or in part of any Sinking Fund
payment (referred to in Section 3.04) shall be cancelled by the Trustee, and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee will destroy cancelled
Securities and coupons and deliver a certificate of destruction to the Company
unless requested otherwise. If the Company shall acquire any of the Securities
or coupons, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness or rights represented by such Securities or
coupons unless and until the same are delivered or surrendered to the Trustee
for cancellation.
Section 2.09. Provisions of Indenture and Securities for the Sole
Benefit of the Parties and the Holders. Nothing in this Indenture or in the
Securities, expressed or implied, shall give
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or be construed to give to any person, firm or corporation, other than the
parties hereto and the Holders of the Securities, any legal or equitable right,
remedy or claim under or in respect of this Indenture, or under any covenant,
condition or provision herein contained, all its covenants, conditions and
provisions being for the sole benefit of the parties hereto and the Holders.
Section 2.10 Computation of Interest. Except as otherwise specified
as contemplated by Section 2.01 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.
ARTICLE THREE
REDEMPTION OF SECURITIES -- SINKING FUND
Section 3.01. Applicability of Article. The Company may become
obligated, or reserve the right, to redeem and pay, prior to Stated Maturity,
all or any part of the Securities of any series, either by optional redemption,
Sinking Fund or otherwise, by provision therefor in the instrument establishing
such series of Securities pursuant to Section 2.01 or in the Securities of such
series. Redemption of any series shall be made in accordance with the terms of
such Securities and to the extent that this Article does not conflict with such
terms, in accordance with this Article.
Section 3.02. Notice of Redemption; Selection of Securities. In case
the Company shall exercise the right or be obligated to redeem Securities as
provided for in the first sentence of Section 3.01, it shall fix a date for
redemption (unless, by the terms of the instrument establishing such series of
Securities or the terms of such Securities, such date is fixed), and it or, at
its request, the Trustee, in the name of and at the expense of the Company,
shall give notice of such redemption to the Holders of the Securities to be
redeemed as a whole or in part, with respect to registered Securities, by
mailing a notice of such redemption not less than 20 nor more than 60 days
prior to the date fixed for redemption to their last addresses as they shall
appear upon the Security Register and, with respect to unregistered Securities,
by publishing in an authorized newspaper notice of such redemption on two
separate days, each of which is not less than 20 nor more than 60 days prior to
the date fixed for redemption. Any notice which is mailed or published, as the
case may be, in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder actually receives such notice.
In any case, failure duly to give notice by mail, or any defect in the notice,
to the Holder of any registered Security of any 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.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impractical to mail notice of any event to Holders of
registered Securities when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving
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<PAGE> 27
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities are to be redeemed, and
shall state that payment of the redemption price of the Securities or portions
thereof to be redeemed, together with interest accrued to the date fixed for
redemption, will be made at the offices or agencies to be maintained by the
Company in accordance with the provisions of Section 4.02 upon presentation and
surrender of such Securities and that, on and after such date, interest thereon
or on the portions thereof to be redeemed will cease to accrue. If less than
all the Securities of any series are to be redeemed, the notice to the Holders
of Securities to be redeemed shall specify the Securities to be redeemed. In
case any Security is to be redeemed in part only, such notice shall state the
portion of the principal amount thereof to be redeemed and shall state that, on
and after the redemption date, upon surrender of such Security, a new Security
or Securities of the same series in authorized denominations and in a principal
amount at Stated Maturity equal to the unredeemed portion thereof will be
issued.
If less than all the Securities of any series are to be redeemed, the
Company shall give the Trustee written notice, at least 15 days prior to the
date on which notice is to be given to the Holders of such Securities (or such
shorter period acceptable to the Trustee), as to the aggregate principal amount
at Stated Maturity of Securities of such series to be redeemed, which shall be
an integral multiple of $1,000, and thereupon the Trustee shall select, in such
manner as it shall deem appropriate and fair, the Securities of such series to
be redeemed in part and shall thereafter promptly notify the Company in writing
of the numbers of the Securities so to be redeemed and, in the case of
Securities to be redeemed in part only, the principal amount at Stated Maturity
so to be redeemed.
Section 3.03. When Securities Called for Redemption Become Due and
Payable. If the Company has fixed a date for redemption pursuant to Section
3.02, the Securities or portions of Securities specified in the notice provided
in Section 3.02 shall become due and payable on the date and at the place
stated in such notice at the applicable redemption price, together with
interest accrued to the date fixed for redemption, and on and after such date
fixed for redemption (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to the date
fixed for redemption) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue. On presentation and surrender of
such Securities on or after the date fixed for redemption at the place of
payment specified in such notice, such Securities shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
to the dated fixed for redemption; provided, however, that installments of
interest becoming due on the date fixed for redemption on Securities which are
in registered form shall be payable to the Holders of such Securities or of one
or more previous such Securities evidencing all or a portion of the same debt
as that evidenced by such particular Securities, registered as such on the
relevant Record Dates according to their terms and the provisions of Section
2.03.
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Upon presentation of any Security which is redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, at the expense of the Company, a new Security or
Securities of the same series in authorized denominations and in a principal
amount at Stated Maturity equal to the unredeemed portion of the Security so
presented.
Section 3.04. Sinking Fund. In the event that the instrument
establishing the terms of a particular series shall provide for a Sinking Fund,
the Company covenants that as and for a Sinking Fund for the redemption of
Securities of such series, so long as any of the Securities of such series are
outstanding:
(a) It will pay to the Trustee or to a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in
trust as provided in Section 4.04), on or before each date set forth
as a Sinking Fund payment date (each such date is herein called a
"Sinking Fund payment date") in the instrument establishing such
series, a sum in cash sufficient to retire on each such date, at the
Sinking Fund redemption price provided for in such instrument and upon
the conditions, if any, applicable thereto as specified in such
instrument, the principal amount of such Securities as specified in
such instrument, together with interest accrued to the Sinking Fund
payment date. Each sum payable as provided in this paragraph (a) is
herein called a "mandatory Sinking Fund payment."
(b) If the instrument establishing any series of
Securities so provides, and upon the terms provided herein, the
Company may elect to pay to the Trustee or to a paying agent (or, if
the Company is acting as its own paying agent, segregate and hold in
trust as provided in Section 4.04), on or before any Sinking Fund
payment date with respect to a particular series of Securities, an
additional sum in cash sufficient to retire on such Sinking Fund
payment date, at the Sinking Fund redemption price, up to any
additional principal amount of Securities, together with interest
accrued to the Sinking Fund payment date set forth in such instrument.
Any sum payable as provided in this paragraph (b) is herein called an
"optional Sinking Fund payment." Any such election by the Company
shall be evidenced by an Officers' Certificate, delivered to the
Trustee not later than 60 days (or such shorter period acceptable to
the Trustee) preceding such Sinking Fund payment date, which
certificate shall set forth the amount of the optional Sinking Fund
payment which the Company then elects to pay. The Company's election,
so evidenced, shall be irrevocable and the Company shall, upon
delivery of such certificate to the Trustee, become bound to pay or
segregate and hold in trust as aforesaid on or before such Sinking
Fund payment date the amount specified in such certificate. Unless
otherwise provided in the instrument establishing such series, any
such right to make an optional Sinking Fund payment shall be
noncumulative and shall in no event relieve the Company of its
obligation set forth in paragraph (a) of this Section 3.04.
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All moneys paid or segregated and held in trust pursuant to this
Section 3.04 shall be applied on the Sinking Fund payment date in respect of
which such payment or segregation was made to the redemption of Securities as
provided in this Article Three.
Section 3.05 Use of Acquired Securities to Satisfy Sinking Fund
Obligations. In lieu of making all or any Sinking Fund payment in cash as may
be required by Section 3.04(a), the Company may, not later than 60 days (or
such shorter period acceptable to the Trustee) preceding any applicable Sinking
Fund payment date relating to a particular series of Securities, deliver to the
Trustee for cancellation Securities of such series theretofore acquired by the
Company (otherwise than through the use of Sinking Fund moneys pursuant to
Section 3.07) and not theretofore made the basis for the reduction of any
Sinking Fund payment with respect to such series, accompanied by an Officers'
Certificate stating the Company's election to use such Securities to reduce the
amount of such Sinking Fund payment with respect to such series (specifying the
amount of the reduction of each such payment) and certifying that such
Securities have not theretofore been acquired pursuant to Section 3.07 or made
the basis for a reduction of any Sinking Fund payment with respect to such
series. Securities so delivered shall be credited against the Sinking Fund
payment due on such Sinking Fund payment date at the Sinking Fund redemption
price thereof.
Section 3.06 Effect of Failure to Deliver Officers' Certificate or
Securities. In case of a failure of the Company, at or before the time
provided above, to deliver any Officers' Certificate as may be required by
Section 3.05, together with any Securities of the particular series required by
Section 3.05, the Company shall not be permitted to make any such reduction of
the amount of the Sinking Fund payment with respect to such series payable on
such Sinking Fund payment date.
Section 3.07 Manner of Redeeming Securities. The Securities of
any series to be redeemed from time to time through the operation of any
Sinking Fund relating to such series, as in Section 3.04 provided, shall be
selected by the Trustee for redemption in the manner provided in Section 3.02,
and notice thereof shall be given by the Trustee to the Company, and the
Company hereby irrevocably authorizes the Trustee, in the name of and at the
expense of the Company, to give notice on behalf of the Company of the
redemption of such Securities, all in the manner and with the effect in this
Article Three specified, except that, in addition to the matters required to be
included in such notice by Section 3.02, such notice shall also state that the
Securities therein designated for redemption are to be redeemed through
operation of such Sinking Fund. Such Securities shall be so redeemed and paid
in accordance with such notice in the manner and with the effect provided in
Sections 3.02 and 3.03.
Notwithstanding the foregoing, if at any time the amount of cash to be
paid into any Sinking Fund with respect to a particular series of Securities on
any next succeeding Sinking Fund payment date for such series, together with
any unused balance of any preceding Sinking Fund payment or payments with
respect to such series which shall not, in any case, include funds held by the
Trustee for Securities of such series which previously have been called for
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redemption, shall not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not select Securities for or give notice of the
redemption of Securities through the operation of the Sinking Fund with respect
to such series on the next succeeding Sinking Fund payment date. Such unused
balance of moneys deposited in the Sinking Fund with respect to a particular
series of Securities shall be added to the next Sinking Fund payment for such
series to be made in cash or, at the request of the Company, shall be applied
at any time or from time to time to the purchase of Securities of such series,
by public or private purchase, in the open market or otherwise.
Section 3.08 Sinking Fund Moneys to Be Held as Security During
Continuance of Event of Default; Exceptions. Unless all Securities of any
series then outstanding are to be redeemed, neither the Trustee nor any paying
agent shall redeem any Securities of such series with Sinking Fund moneys if
such person shall at the time have knowledge of the continuance of any Event of
Default with respect to such series, except that where the mailing or
publication of notice of redemption of any such Securities shall theretofore
have been made, the Trustee or any paying agent, if sufficient funds shall have
been deposited with it for such purpose, shall redeem such Securities.
However, the Company itself shall not redeem any such Securities with Sinking
Fund moneys during the continuance of any Event of Default with respect to such
series. The Trustee shall not mail or publish any notice of redemption if it
shall at the time have knowledge of the continuance of any Event of Default
with respect to such series. Except as aforesaid, any moneys in the Sinking
Fund with respect to such series at such time and any moneys thereafter paid
into the Sinking Fund shall during such continuance be held as security for the
payment of all Securities of that series; provided, however, that in case such
Event of Default with respect to such series shall have been waived as
permitted by this Indenture or otherwise cured, such moneys shall thereafter be
held and applied in accordance with the provisions of this Article Three.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payments of Principal of (and Premium, if any) and
Interest on Securities. The Company will duly and punctually pay or cause to
be paid the principal of (and premium, if any) and interest, if any, on
Securities of each series at the place, at the time or times and in the manner
provided in the instrument establishing such series and in the Securities of
such series. The interest on the Securities, if any, shall be payable (subject
to the provisions of Section 2.03) only to or upon the written order of the
Holders thereof or, in the case of unregistered Securities with coupons, the
Holders of coupons relating thereto. Any installment of interest on registered
Securities of any series may, at the Company's option be paid by mailing checks
for such interest payable to or upon the written order of the person entitled
thereto pursuant to Section 2.03 to the address of such person as it appears on
the Security Register.
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In the case of Global Securities, each installment of interest on the
Securities of any series shall be made by wire transfer of immediately
available funds if appropriate wire transfer instructions in writing have been
received by the Trustee not less than 15 days prior to the Interest Payment
Date.
Section 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Securities and for Service on the Company.
As long as any of the Securities of any series remain outstanding, the Company
will maintain one or more offices or agencies in the City of West Bend, and at
such other locations as the Company may from time to time designate for any
series of Securities, where such Securities may be presented for registration
of transfer and exchange as in this Indenture provided, where such Securities
or of this Indenture may be served. The Corporate Trust Office shall be such
office in the City of West Bend. The City of West Bend and the Trustee shall
be the agent of the Company in the City of West Bend for all of the foregoing
purposes, unless the Company shall designate and maintain some other office and
agency for such purposes and give the Trustee written notice of the location
thereof. The Company will give to the Trustee notice of the location of each
such office or agency and of any change of location thereof.
Section 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee for any one or more series of Securities, will appoint, in the manner
provided in Section 7.10, a Trustee so that there shall at all times be a
Trustee with respect to each series of Securities hereunder.
Section 4.04. Duties of Paying Agents, etc. (a) The Company shall cause
each paying agent, if any, other than the Trustee, for any series of
Securities, to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
4.04, that:
(1) it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any) or interest on the
Securities of such series (whether such sums have been paid to it by the
Company or by any other obligor on the Securities of such series) in
trust for the benefit of the Holders of the Securities of such series;
(2) it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities of such series) to
make any payment of the principal of (or premium, if any) or interest on
the Securities of such series when the same shall be due and payable;
(3) it will at any time during the continuance of an Event of
Default with respect to such series of Securities, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held by
it as such agent; and
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(4) it will give the Trustee prompt written notice of any
change of address of any Holder of the Securities.
Whenever the Company has one or more paying agents for any series
of Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on Securities of such series, deposit with such
paying agent or agents a sum sufficient to pay such principal (and premium, if
any) or interest on such Securities so becoming due.
(b) if the Company shall act as its own paying agent for any series
of Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest, including dates fixed for redemption (including
Sinking Fund payment dates), on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities of
such series a sum sufficient to pay such principal (and premium, if any) or
interest on such Securities so becoming due. The Company will promptly notify
the Trustee of any failure by the Company to take such action or the failure by
any other obligor on the Securities of such series to make any payment of the
principal of (or premium, if any) or interest on the Securities of such series
when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it or any paying agent hereunder, as
required by this Section 4.04, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
paying agent.
(d) Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Section 12.03.
Section 4.05. Limitation on Secured Debt. (a) The Company will not,
nor will it permit any Restricted Subsidiary to, issue, assume or guarantee any
indebtedness for money borrowed (hereinafter in this Article Four called
"Debt"), secured by a mortgage, security interest, pledge, lien or other
encumbrance (mortgages, security interests, pledges, liens and other
encumbrances being hereinafter in this Article Four called "mortgage" or
"mortgages") upon any Principal Property of the Company or any Restricted
Subsidiary or upon any shares of stock or indebtedness of any Restricted
Subsidiary (whether such Principal Property, shares of stock or indebtedness
are now owned or hereafter acquired) without in any such case effectively
providing concurrently with the issuance, assumption or guaranty of any such
Debt that the Securities (together with, if the Company shall so determine, any
other indebtedness of or guaranteed by the Company or such Restricted
Subsidiary ranking equally with the Securities and then existing or thereafter
created) shall be secured equally and ratably with (or, at the option of the
Company, prior to) such Debt so long as such Debt shall be so secured;
provided, however, that the foregoing restrictions shall not apply to Debt
secured by
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(i) mortgages on property, shares of stock or
indebtedness (hereinafter in this Article Four called "property")
of any corporation existing at the time such corporation becomes
a Restricted Subsidiary;
(ii) mortgages on property existing at the time of
acquisition of the affected property by the Company or a
Restricted Subsidiary, or mortgages to secure the payment of all
or any part of the purchase price of such property upon the
acquisition of such property by the Company or a Restricted
Subsidiary or to secure any Debt incurred by the Company or a
Restricted Subsidiary prior to, at the time of, or within 180
days after the later of the acquisition, the completion of
construction (including any improvements on an existing property)
or the commencement of commercial operation of such property,
which Debt is incurred for the purpose of financing all or any
part of the purchase price thereof or construction or
improvements thereon; provided, however, that in the case of any
such acquisition, construction or improvement the mortgage shall
not apply to any property theretofore owned by the Company or a
Restricted Subsidiary, other than, in the case of any such
construction or improvement, any real property on which the
property so constructed or the improvement is located which, in
the opinion of the Board of Directors, was, prior to such
construction or improvement, substantially unimproved for the use
intended by the Company or such Restricted Subsidiary;
(iii) mortgages on property of a Restricted Subsidiary
securing Debt owing to the Company or to another Restricted
Subsidiary;
(iv) mortgages on property of a corporation existing at
the time such corporation is merged into or consolidated with the
Company or a Restricted Subsidiary or at the time of a sale,
lease or other disposition of the properties of a corporation or
firm as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary; provided, however, that any
such mortgages do not attach to or affect property theretofore
owned by the Company or such Restricted Subsidiary;
(v) mortgages on property owned or leased by the
Company or a Restricted Subsidiary in favor of the United States
of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country or
any political subdivision thereof, or in favor of holders of
securities issued by any such entity, pursuant to any contract or
statute (including, without limitation, mortgages to secure Debt
of the pollution control or industrial revenue bond type), or to
secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or the cost of construction of
the property subject to such mortgages;
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(vi) mortgages existing at the date of this Indenture;
(vii) landlords' liens on fixtures located on premises
leased by the Company or a Restricted Subsidiary in the ordinary
course of business;
(viii) mortgages on property of the Company or a
Restricted Subsidiary to secure partial, progress, advance or
other payments or any Debt incurred for the purpose of financing
the cost of construction, development, or substantial repair,
alteration or improvement of the property subject to such
mortgages if the commitment for the financing is obtained not
later than one year after the later of the completion of or the
placing into operation (exclusive of test and start-up periods)
of such constructed, developed, repaired, altered or improved
property;
(ix) mortgages arising in connection with contracts and
subcontracts with or made at the request of the United States of
America, or any state thereof, or any department, agency or
instrumentality of the United States or any state thereof;
(x) mechanics', materialmen's, carriers' or other like
liens arising in the ordinary course of business (including
construction of facilities) in respect of obligations which are
not due or which are being contested in good faith;
(xi) any mortgage arising by reason of deposits with, or
the giving of any form of security to, any governmental agency or
any body created or approved by law or governmental regulations,
which is required by law or governmental regulation as a
condition to the transaction of any business, or the exercise of
any privilege, franchise or license;
(xii) mortgages for taxes, assessments or governmental
charges or levies not yet delinquent or mortgages for taxes,
assessments or governmental charges or levies already delinquent
but the validity of which is being contested in good faith;
(xiii) mortgages (including judgment liens) arising in
connection with legal proceedings so long as such proceedings are
being contested in good faith and, in the case of judgment liens,
execution thereon is stayed; or
(xiv) any extension, renewal or replacement (or
successive extensions, renewals or replacements) in whole or in
part of any mortgage referred to in the foregoing clauses (i) to
(xiii), inclusive, provided, however, that the principal amount
of Debt secured or securable thereby shall not exceed the
principal amount of Debt so secured or securable at the time of
such extension, renewal or replacement mortgage, and that such
extension, renewal or replacement mortgage
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shall be limited to all or a part of the property which secured
the mortgage so extended, renewed or replaced (plus
improvements on such property).
(b) Notwithstanding the foregoing provisions of this Section
4.05, the Company and any one or more Restricted Subsidiaries may issue,
assume or guarantee Debt secured by mortgage which would
otherwise be subject to the foregoing restrictions in an aggregate
amount which, together with all other Debt of the Company and its
Restricted Subsidiaries which (if originally issued, assumed or
guaranteed at such time) would otherwise be subject to the foregoing
restrictions (not including Debt permitted to be secured under clauses
(i) through (xiv) above), does not at the time exceed 10% of
Consolidated Net Tangible Assets, as shown on the latest quarterly
consolidated financial statements of the Company preceding the date of
determination.
Section 4.06 Limitation on Sale and Lease-Back. The Company will not,
nor will it permit any Restricted Subsidiary to, enter into any arrangement
with any person providing for the leasing by the Company or any Restricted
Subsidiary of any Principal Property of the Company or any Restricted
Subsidiary (whether such Principal Property is now owned or hereafter acquired)
(except for temporary leases for a term of not more than three years and except
for leases between the Company and a Restricted Subsidiary or between
Restricted Subsidiaries), which Principal Property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such person (herein
referred to as a "Sale and Lease-Back Transaction"), unless (a) the Company or
such Restricted Subsidiary would be entitled, pursuant to the provisions of
Section 4.05, to issue, assume or guarantee Debt secured by a mortgage upon
such Principal Property at least equal in amount to the Attributable Debt in
respect of such arrangement without equally and ratably securing the
Securities, provided, however, that from and after the date on which such
arrangement becomes effective the Attributable Debt in respect of such
arrangement shall be deemed for all purposes under Sections 4.05 and 4.06 to be
Debt subject to the provisions of Section 4.05 or (b) the Company shall apply
an amount in cash equal to the Attributable Debt in respect of such arrangement
to the retirement (other than any mandatory retirement or by way of payment at
maturity), within 120 days of the effective date of any such arrangement, of
Debt of the Company or any Restricted Subsidiary (other than Debt owned by the
Company or any Restricted Subsidiary and other than Debt of the Company which
is subordinated to the Securities) which by its terms matures at or is
extendible or renewable at the option of the obligor to a date more than twelve
months after the date of the creation of such Debt.
The term "Attributable Debt" shall mean the present value (discounted at
the actual percentage rate inherent in such arrangement as determined in good
faith by the Company, compounded semiannually) of the obligation of a lessee
for rental payments during the remaining term of any lease (including any
period for which such lease has been extended). Such rental payments shall not
include amounts payable by the lessee for maintenance and repairs, insurance,
taxes, assessments and similar charges and for contingent rents (such as those
based on sales). In case of any lease which is terminable by the lessee upon
the payment of a penalty, such rental
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payments shall also include such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which it
may be so terminated. Any determination of any actual percentage rate inherent
in any such arrangement made in good faith by the Company shall be binding and
conclusive, and the Trustee shall have no duty with respect to any
determination made under this Section 4.06.
Section 4.07. Statement by Officers as to Default. The Company will
deliver to the Trustee, on or before a date not more than four months after the
end of each of its fiscal years ending after the date hereof during which any
Securities are outstanding, an Officers' Certificate stating that neither of
the signers thereof has any knowledge, after due investigation, of the
existence of any Event of Default, or any event which could with the passage of
time or notice mature into an Event of Default, by the Company under this
Indenture or stating that they have knowledge of the existence of such an event
of which the signers have knowledge and the nature thereof.
Section 4.08. Further Instruments and Acts. The Company will, upon
request of the Trustee, execute and deliver such further instruments and do
such further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
ARTICLE FIVE
HOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee with respect to each series of Securities:
(a) semiannually, not more than 15 days after each Record Date
for the payment of interest, and not less than 15 days before each
interest payment, if any, with respect to such series of Securities (or,
in the case of any series of Securities not having semiannual Record
Dates, semiannually on the dates determined pursuant to Section 2.01 for
such series), a list, in such form as the Trustee may reasonably require
of the names and addresses of the Holders of such series as of such
Record Date; and
(b) at such other time as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the date such list is furnished;
except that, so long as the Trustee is the Security Registrar with respect to
such series of Securities, no such list need be furnished under this Section
5.01.
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Section 5.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of Holders (1)
contained in the most recent list furnished to it as provided in Section 5.01
and (2) received by it in the capacity of paying agent or Security Registrar
(if so acting) hereunder.
The Trustee may destroy any list furnished to it with respect to
Securities of any series as provided in Section 5.01 upon receipt of a new list
with respect to such series so furnished.
(b) In case three or more Holders of registered Securities of any
series (hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each applicant has
owned a Security of such series for a period of at least six months preceding
the date of such application and such application states that the applicants
desire to communicate with other Holders of Securities of such series with
respect to their rights under this Indenture or under the Securities of such
series, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02, or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series whose names and addresses appear in
the information preserved at the time by the Trustee, in accordance with
the provisions of subsection (a) of this Section 5.02, and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each such Holder whose name and address appears in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02, a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interests of such
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If such Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, such
Commission shall find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so declaring,
the Trustee shall mail copies of such material to all such Holders
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with reasonable promptness after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be relieved of any obligation or duty
to such applicants respecting their application.
(c) Each and every Holder, by receiving and holding any Security,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Security Registrar nor any paying agent shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with the provisions of subsection
(b) of this Section 5.02, regardless of the source from which such information
was derived, and that Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under said subsection (b).
Section 5.03. Reports by Company. (a) The Company covenants and
agrees to file with the Trustee, within 15 days after the Company is required
to file the same with the Securities and Exchange Commission, copies of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as said Commission may from time to
time by rules and regulations prescribe) which the Company may be required to
file with such Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then to
file with the Trustee and such Commission, in accordance with rules and
regulations prescribed from time to time by such Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Securities and Exchange Commission, in accordance with the rules and
regulations prescribed from time to time by such Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in its Indenture and the
Securities as may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit to the Holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.04, such
summaries of any information, documents and reports required to be filed by the
Company pursuant to subsections (a) and (b) of this Section 5.03 as may be
required by rules and regulations prescribed from time to time by the
Securities and Exchange Commission.
(d) The Company covenants to furnish to the Trustee, not less often
than annually, a brief certificate from the principal executive officer,
principal financial officer, principal treasurer or principal accounting
officer of the Company as to his or her knowledge of the
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Company's compliance with all conditions and covenants under this Indenture.
For purposes of this paragraph, such compliance shall be determined without
regard to any period of grace or requirement of notice provided under this
Indenture.
Section 5.04. Reports by Trustee. (a) On or before May 15, 1996, and
on or before May 15th in every year thereafter, so long as any Securities of
any series, are outstanding hereunder, the Trustee shall transmit to the
Holders of Securities of each such series as hereinafter in this Section 5.04
provided, and to the Company a brief report dated as of the preceding March
15th, with respect to any of the following events which may have occurred
within the previous 12 months (but if no such event has occurred within such
period no report need be transmitted):
(1) its eligibility under Section 7.09 and its qualifications
under Section 7.08, or in lieu thereof, if to the best of its knowledge
it has continued to be eligible and qualified under such Sections, a
written statement to such effect;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of such series,
on any property or funds held or collected by it as Trustee, except that
the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount at Stated Maturity of
Securities of such series outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Securities of such series) to the Trustee in its individual capacity, on
the date of such report, with a brief description of any property held
as collateral security therefor, except an indebtedness based upon a
creditor relationship arising in any manner described in paragraph (2),
(3), (4) or (6) of subsection (b) of Section 7.13;
(5) the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Securities of such series which
the Trustee has not previously reported; and
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(7) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects any of the Securities of such
series, except action in respect of a default, notice of which has been
or is to be withheld by it in accordance with the provisions of Section
6.07.
(b) The Trustee shall transmit to Holders of Securities of each
series, as hereinafter provided, and to the Company a brief report with respect
to the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee
(as such) since the date of the last report transmitted pursuant to the
provisions of subsection (a) of this Section 5.04 (or if no such report has yet
been so transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of such series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate ten percent or
less of the principal amount at Stated Maturity of Securities of such series
outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) Reports to Holders pursuant to this Section 5.04 shall be
transmitted by mail:
(1) to all Holders of Registered Securities of each series
entitled thereto, as the names and addresses of such Holders appear upon
the Security Register with respect to such series;
(2) such Holders as have, within two years preceding such
transmission, filed their names and addresses with the Trustee for that
purpose; and
(3) except in the case of reports pursuant to subsection (b)
of this Section 5.04, to each Holder whose name and address is preserved
at the time by the Trustee, as provided in Section 5.02.
(d) A copy of each such report shall, at the time of such
transmission to such Holders, be filed by the Trustee with each stock exchange
upon which the Securities of such series are listed and also with the
Securities and Exchange Commission. The Company agrees to notify the Trustee
when and as the Securities of any series become listed on any stock exchange.
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ARTICLE SIX
REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
Section 6.01. Events of Default. In case one or more of the following
Events of Default (unless it is either inapplicable to a particular series or
it is specifically deleted from or modified in the instrument establishing such
series and the form of Security for such series) shall have occurred and be
continuing with respect to any series of Securities, that is to say:
(a) default in the payment of any installment of interest upon
any Security of such series as and when the same shall become due and
payable and continuance of such default for a period of 30 days; or
(b) default in the payment of principal of (or premium, if
any, on) the Securities of such series as and when the same shall become
due and payable either at Stated Maturity, upon redemption (whether
through the operation of a Sinking Fund or otherwise), by declaration or
otherwise, or default in the making of any mandatory Sinking Fund
payment or optional Sinking Fund payment; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Securities of such series, or in this Indenture contained
and relating to such series, for a period of 60 days after the date on
which written notice specifying such failure and requiring the Company
to remedy the same shall have been given by registered or certified mail
to the Company by the Trustee, or to the Company and the Trustee by the
Holder of at least twenty-five percent in aggregate principal amount at
Stated Maturity of the Securities of such series at the time
outstanding; or
(d) the Company shall make an assignment for the benefit of
creditors, or shall file a petition in bankruptcy, or the Company shall
be adjudicated insolvent or bankrupt, or shall petition or shall apply
to any court having jurisdiction in the premises for the appointment
of a receiver, trustee, liquidator or sequestrator of, or for, the
Company or any substantial portion of the property of the Company; or
the Company shall commence any proceeding relating to the Company or any
substantial portion of the property of the Company under any insolvency,
reorganization, arrangement, or readjustment of debt, dissolution,
winding-up, adjustment, composition or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect (hereinafter in this
subsection (d) called "Proceeding"); or if there shall be commenced
against the Company any Proceeding and an order approving the petition
shall be entered, or such Proceeding shall remain undischarged for a
period of 60 days; or a receiver, trustee, liquidator or sequestrator
of, or for, the Company or any substantial portion of the property of
the Company shall be appointed and shall not be discharged within a
period of 60 days; or the Company by any act shall indicate consent to
or approval of or acquiescence in any Proceeding or the appointment of a
receiver, trustee, liquidator or sequestrator of, or for, the Company or
any substantial portion of the property of the Company; provided that a
resolution or order for
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winding-up the Company with a view to its consolidation, amalgamation or
merger with another company or the transfer of its assets as a whole, or
substantially as a whole, to such other company as provided in
Section 11.01 shall not make the rights and remedies herein enforceable
under this subsection (d) of Section 6.01 if such last-mentioned company
shall, as a part of such consolidation, amalgamation, merger or
transfer, and within 60 days from the passing of the resolution or the
date of the order, comply with the conditions to that end stated in
Section 11.01; or
(e) default under any other indebtedness of the Company for
money borrowed having unpaid principal in excess of the greater of (a)
$10,000,000 or (b) 2 percent of the Company's Consolidated Net Tangible
Assets or under any indenture or other instrument under which any such
indebtedness having unpaid principal in excess of the greater of (a)
$10,000,000 or (b) 2 percent of the Company's Consolidated Net Tangible
Assets has been issued or by which it is governed, whether now existing
or hereafter created, which results in such other indebtedness becoming
or being declared due and payable prior to the date on which it would
otherwise become due and payable, without such acceleration being
rescinded or annulled within 60 days after the date on which written
notice specifying such default and requiring the Company to remedy the
same shall have been given by registered or certified mail to the
Company by the Trustee, or to the Company and the Trustee by the Holders
of at least twenty-five percent in aggregate principal amount at Stated
Maturity of the Securities of such series at the time outstanding;
then and in each and every such case, so long as such Event of Default with
respect to such series shall not have been remedied or waived, unless the
principal of all Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than twenty-five percent
in aggregate principal amount at Stated Maturity of the Securities of such
series then outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by such Holders), may declare the principal (or, in the
case of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) of all the Securities of such
series to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if
at any time after the principal of the Securities of such series (or, in the
case of Original Issue Discount Securities, such principal amount as may be
determined in accordance with the terms thereof) 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, the
Company 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 (and premium, if any, on) any and all Securities of
such series which shall have become due otherwise than by such acceleration
(with interest upon such principal (and premium, if any), and to the extent
that payment of such interest is enforceable under
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applicable law, upon overdue installments of interest at the rate borne by the
Securities of such series (or, in the case of Original Issue Discount
Securities, at the yield to Stated Maturity) to the date of such payment or
deposit), and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith, and any and all defaults under this
Indenture, other than the nonpayment of the principal of Securities of such
series which shall have become due by such acceleration, shall have been
remedied -- then and in every such case the Holders of a majority in aggregate
principal amount at Stated Maturity of the Securities of such series then
outstanding, by written notice to the Company and to the Trustee, may waive all
defaults and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holders, then and
in every such case the Company, the Trustee and such Holders shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company and the Trustee shall continue as though no
such proceedings had been taken.
Section 6.02. Collection of Indebtedness by Trustee, etc. The Company
covenants that (1) in case default shall be made in the payment of any
installment of interest on any Securities of any series, as and when the same
shall become due and payable, and such default shall have continued for a
period of 60 days, or (2) in case default shall be made in the payment of the
principal of (or premium, if any, on) any Securities of any series when the
same shall have become due and payable, whether at the Stated Maturity of the
Securities of such series or upon redemption (whether through the operation of
a Sinking Fund or otherwise) or upon declaration or otherwise -- then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of
the Holders of the Securities of such series, the whole amount that then shall
have become due and payable on all such Securities for principal (and premium,
if any) or interest, or both, as the case may be, with interest upon the
overdue principal (and premium, if any) and (to the extent that payment of such
interest is enforceable under applicable law) upon overdue installments of
interest at the rate borne by the Securities of such series (or, in the case of
Original Issue Discount Securities, at the yield to Stated Maturity); and, in
addition thereto, such further amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
In case the Company 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
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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 enforce any such judgment or final decree
against the Company or other obligor upon the Securities of such series and
collect in the manner provided by law out of the property of the Company or
other obligor upon the Securities of such series wherever situated the moneys
adjudged or decreed to be payable.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization or other similar judicial proceedings relative to
the Company, its creditors, or its property, the Trustee (irrespective of
whether the principal of the Securities of any series 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 6.02) shall, if permitted by law, be entitled and empowered to
file and prove a claim or claims for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities of
such series to which the Trustee or the Holders of the Securities of such
series shall be entitled, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee and of such
Holders hereunder or on the Securities of such series allowed in such judicial
proceedings, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of any amount payable to the Trustee for compensation and expenses, including
counsel fees; and any trustee in bankruptcy or receiver is hereby authorized by
each of such Holders to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to such
Holders, to pay the Trustee any amount due to it for compensation and expenses,
including counsel fees, incurred by it to the date of such payment. Nothing
herein contained shall be deemed to authorize or empower the Trustee, except in
accordance with action taken under Article Nine, to consent to or accept or
adopt, on behalf of any Holder, any plan of reorganization or readjustment of
the Company affecting the Securities of any series or the rights of any Holder
thereof, or to authorize or empower the Trustee to vote in respect of the claim
of any such Holder in any such proceedings.
All rights of action and of asserting claims under this Indenture, or
under any Securities of any series, may be enforced by the Trustee without the
possession of any such Securities, or the production thereof at trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name and as trustee of an express
trust, and any recovery of judgment (except for any amounts payable to the
Trustee pursuant to Section 7.06) shall be for the ratable benefit of the
Holders in respect of which the action was taken.
In case of an Event of Default hereunder, 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
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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 6.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee, pursuant to Section 6.02 on account of a default
relating to a particular series of Securities, shall be applied in the order
following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the several Securities of such series and
coupons appertaining thereto, if any, and the notation thereon of the payment,
if only partially paid, and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all sums due the Trustee pursuant to Section 7.06
hereof;
SECOND: In case the principal of the Securities of such series
shall not have become due, to the payment of interest on the Securities
of such series, in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest may be
lawfully paid under applicable law and has been collected by the
Trustee) upon the overdue installments of interest at the rate borne by
the Securities of such series (or, in the case of Original Issue
Discount Securities, at the yield to Stated Maturity), such payments to
be made ratably to the persons entitled thereto without discrimination
or preference;
THIRD: In case the principal of the Securities of such series
shall have become due, by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon the Securities of such
series for principal (and premium, if any) and interest, with interest
on the overdue principal (and premium, if any) and (to the extent that
such interest may be lawfully paid under applicable law and has been
collected by the Trustee) upon overdue installments of interest at the
rate borne by the Securities of such series (or, in the case of Original
Issue Discount Securities, at the yield to Stated Maturity); and in case
such moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Securities of such series, then to the payment of
such principal (and premium, if any) and interest, without preference or
priority of principal (and premium, if any) over interest, or of
interest over principal (and premium, if any), or of any installment of
interest over any other installment of interest, or of any Securities of
such series over any other Securities of such series, ratably to the
aggregate of such principal (and premium, if any) and accrued and unpaid
interest; and
FOURTH: The remainder, if any, shall be paid to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
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Section 6.04. Limitation on Suits by Holders. 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 proceedings at law or in
equity upon or under or with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of
Default with respect to Securities of that series and unless the Holders of not
less than twenty-five percent in aggregate principal amount at Stated Maturity
of the then outstanding Securities of such series shall have made written
request upon the Trustee to institute such action 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 cost, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request an offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the taker and Holder
of any Security of any series with every other such taker and Holder and the
Trustee, that no one or more Holders of such 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 the Holders of any other such
Securities or to obtain or seek to obtain priority over or preference to any
other such 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 such Securities. For the protection and enforcement of the
provisions of this Section 6.04, each and every Holder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding the foregoing paragraph or any other provision in this
Indenture, however, any right of any Holder to receive payment of the principal
of (and premium, if any) and interest on any Security on or after the
respective due dates expressed in such Security (including any date fixed for
redemption pursuant hereto, including any Sinking Fund payment date) or to
institute suit for the enforcement of any such payment on or after such
respective dates shall not be impaired or affected without the consent of such
Holder.
Section 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default. All powers and remedies given by this Article
Six to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article Six or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
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Section 6.06. Rights of Holders of Majority in Principal Amount of
Securities of Any Series to Direct Trustee and to Waive Default. The Holders
of a majority in aggregate principal amount at Stated Maturity of the
Securities of any series at the time outstanding shall have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to Securities of such series; provided, however, that such
direction shall not be otherwise than in accordance with law and the provisions
of this Indenture, and that subject to the provisions of Section 7.01 hereof,
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 so directed
may not lawfully be taken, or if the Trustee shall by a responsible officer or
officers determine that the action so directed would involve it in personal
liability or would be unjustly prejudicial to Holders of Securities of such
series not taking part in such direction; and provided further, that nothing in
this Indenture contained 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 by such Holders. Prior to the declaration of
the maturity of the Securities of any series as provided in Section 6.01, the
Holders of a majority in aggregate principal amount at Stated Maturity of the
Securities of such series at the time outstanding may on behalf of the Holders
of all of the Securities of such series waive any past default hereunder and
its consequences, except a default in the payment of the principal of (and
premium, if any) or interest on any of the Securities of such series. In case
of any such waiver, the Company, the Trustee and the Holders of the Securities
of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 6.07. Trustee to Give Notice of Default Known to It, But May
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90
days after the occurrence of a default, give to the Holders of all then
outstanding Securities, in the manner and to the extent provided in subsection
(c) of Section 5.04, notice of all defaults known to the Trustee with respect
to such Securities, unless such defaults shall have been cured or waived before
the giving of such notice (the term "default" or defaults" for the purposes of
this Section 6.07 being hereby defined to be any event or events, as the case
may be, specified in clauses (a), (b), (c), (d) and (e) of Section 6.01, not
including periods of grace, if any, provided for therein and irrespective of
the giving of the written notice specified in clauses (c) and (e) of Section
6.01); provided that, except in the case of default in the payment of the
principal of (or premium, if any, on) or interest on any of the Securities of
any series or in the making of any Sinking Fund payment, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or responsible
officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders thereof.
Section 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee. All parties to this
Indenture agree, and each Holder by his acceptance of any Security shall be
deemed to have agreed, that any court may in its discretion
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require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 6.08 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder or group of Holders holding in
the aggregate more than ten percent in principal amount at Stated Maturity of
the Outstanding Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Security, on or after the respective due dates
expressed in such Security (including any date fixed for redemption, including
any Sinking Fund payment date).
Section 6.09. Waiver of Stay or Extension Laws. The Company covenants
and agrees (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities. The Trustee, prior
to the occurrence of an Event of Default with respect to a particular series of
Securities and after the curing or waiving of all Events of Default which may
have occurred with respect to such series, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case
an Event of Default with respect to a particular series of Securities has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Indenture relating to such
series, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its own wilful misconduct, except that:
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(a) prior to the occurrence of an Event of Default with
respect to a particular series of Securities and after the curing or
waiving of all Events of Default which may have occurred with respect to
such series:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but
in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for an error of judgment
made in good faith by a responsible officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it in good faith relating to
Securities of any series in accordance with the direction of the Holders
of not less than a majority in principal amount at Stated Maturity of
the Securities of such series at the time outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, with respect to the Securities of such series under
this Indenture; and
(d) whether or not therein so provided, every provision of
this Indenture relating to the conduct or affecting the liability of, or
affording protection to the Trustee, shall be subject to the provisions
of this Section.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any duties hereunder, or in the exercise of any
of its rights or powers, if there shall be reasonable grounds for believing
that repayment of such funds or adequate security or indemnity against such
risk or liability is not reasonably assured to it.
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Section 7.02. Certain Rights of Trustee. Except as otherwise provided
in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note 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 Company
mentioned herein shall be sufficiently evidenced by a Company Direction
(unless other evidence in respect thereof is herein specifically
prescribed), and any resolution of the Board of Directors of the Company
shall be evidenced to the Trustee by a Certified Board Resolution;
(c) the Trustee may consult with counsel and the advice of
such counsel or any opinion of counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in accordance with such advice
or 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 Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or waiving
of all such Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, approval or other paper or
document, unless requested in writing to do so by the Holders of a
majority in aggregate principal amount at Stated Maturity of Securities
of any series then outstanding; provided, however, 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 not, in the opinion of the Trustee, reasonably assured
to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such
costs, expenses or liabilities as a condition to so proceeding; the
reasonable expense of every such investigation shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon
demand; and
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(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 7.03. Trustee Not Liable for Recitals in Indenture or in
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities of any series. The Trustee
represents that it is duly authorized to execute and deliver this Indenture and
perform its obligations hereunder. The Trustee shall not be accountable for
the use or application by the Company of any of the Securities of any series or
of the proceeds thereof.
Section 7.04. Trustee, Paying Agent or Security Registrar May Own
Securities. The Trustee or any paying agent or Security Registrar with respect
to any series of Securities, in its individual or any other capacity, may
become the owner or pledgee of Securities of such series with the same rights
it would have if it were not Trustee, paying agent or Security Registrar with
respect to such Securities.
Section 7.05. Moneys Received by Trustee to Be Held in Trust. Subject
to the provisions of Article Twelve hereof, all moneys received by the Trustee
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 law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 7.06. Compensation and Reimbursement. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, such reasonable compensation for all services rendered by it
hereunder as is mutually agreed upon by the Company and the Trustee (which
shall not be limited by any provisions of law in regard to the compensation of
a trustee of an express trust), and, except as otherwise expressly provided,
the Company will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents,
attorneys and 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. If any property other than cash shall at any time be subject to a
lien in favor of the Holders, the Trustee, if and to the extent authorized by a
receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax liens or other prior liens or encumbrances thereon. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including the
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reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder) incurred without negligence or bad faith on the part of
the Trustee, arising out of or in connection with the acceptance or
administration of this trust. The obligations of the Company under this
Section 7.06 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 the Indenture. Such additional indebtedness shall be secured by a
lien, prior to that of the Securities of any series with respect to which the
indebtedness arose, upon all property and funds held or collected by the
Trustee, as such, relating to such series except funds held in Trust for the
payment of principal of (and premium, if any) or interest on Securities of such
series.
Section 7.07 Right of Trustee to Rely on an Officers' Certificate Where
No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof is 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 7.08. Disqualification of Trustee; Conflicting Interests. If
the Trustee has or shall acquire any conflicting interest, as defined in the
Trust Indenture Act, then, within 90 days after ascertaining that it has such
conflicting interest, and if the default (as defined in the Trust Indenture
Act) to which such conflicting interest relates has not been cured or waived or
otherwise eliminated before the end of such 90-day period, the Trustee shall
either eliminate such conflicting interest or resign in the manner and with the
effect specified in the Trust Indenture Act and this Indenture.
Section 7.09. Requirements for Eligibility of Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or of any State or of the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $5,000,000 subject to
supervision or examination by Federal, State or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 7.09, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 7.09, the Trustee shall resign immediately in the
manner and with the effect specified in Section 7.10.
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Section 7.10. Resignation and Removal of Trustee. (a) The Trustee, or
any trustee or trustees hereafter appointed, may at any time resign as Trustee
with respect to any series of Securities by giving written notice of
resignation to the Company and by giving notice thereof to the Holders of the
Securities of such series in the manner and to the extent provided in
subsection (c) of Section 5.04. Upon receiving such notice of resignation, the
Company shall promptly appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee with respect to the Securities of
such series shall have been so appointed 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 Holder who has been a bona fide Holder of a Security
or Securities of the affected series for at least six months may, subject to
the provisions of Section 6.08, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee
with respect to the Securities of such series. Such court may thereupon, after
such notice, if any, as it may deem proper and advisable, appoint a successor
trustee with respect to the Securities of such series.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
or Securities of the affected series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to all
Securities of any affected series and appoint a successor trustee thereof by
written instrument, in duplicate, executed by order 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 provisions of Section
6.08, any Holder 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 thereof.
Such court may thereupon, after such notice, if any, as it may deem proper and
advisable, remove the Trustee and appoint a successor trustee with respect to
the Securities of such series.
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(c) The Holders of a majority in aggregate principal amount at Stated
Maturity of the Securities of any series at the time outstanding may at any
time remove the Trustee with respect to the Securities of such series and
appoint a successor trustee therefor by the delivery to the Trustee so removed,
to the successor trustee and to the Company of the evidence provided for in
Section 8.01 of the action in that regard taken by such Holders.
(d) Any resignation or removal of the Trustee and any appointment of
a successor trustee for the Securities of any series pursuant to any of the
provisions of this Section 7.10 shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
Section 7.11. Acceptance by Successor to Trustee. (a) No successor
trustee with respect to any series of Securities shall accept appointment as
provided in this Section 7.11 unless at the time of such acceptance such
successor trustee shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09.
(b) In case of the appointment hereunder of a successor trustee with
respect to all Securities, every such successor trustee so appointed shall
execute, acknowledge and deliver to the Company and to its predecessor Trustee
as provided in Section 7.10 an instrument accepting such appointment, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to all such Securities; but, on the
request of the Company or the successor trustee, such predecessor Trustee, with
like effect as if originally named as Trustee herein, shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers and trusts of the predecessor Trustee and shall
duly assign, transfer and deliver to such successor trustee all property and
money held by such predecessor Trustee hereunder subject, nevertheless, to its
lien, if any, provided for in Section 7.06.
(c) In case of the appointment hereunder of a successor trustee with
respect to the Securities of one or more (but not all) series, the Company, the
predecessor Trustee and each successor trustee with respect to the Securities
of the affected series shall execute and deliver an indenture supplemental
hereto wherein each successor trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to
transfer and confirm to, and to vest in, each successor trustee all the rights,
powers, trusts and duties of the predecessor Trustee with respect to the
Securities of that or those series to which the appointment of such successor
trustee relates, (2) if the predecessor Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of that or those series as
to which the predecessor Trustee is not resigning shall continue to be vested
in the predecessor Trustee and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in
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such supplemental indenture shall constitute such trustees co-trustees of the
same trust and that each such trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such trustee; and upon the execution and delivery of such
supplemental indenture, the resignation or removal of the predecessor Trustee
shall become effective to the extent provided therein and each such successor
trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the predecessor Trustee with
respect to the Securities of that or those series to which the appointment of
such successor trustee relates; but, on request of the Company or any successor
trustee, such predecessor Trustee shall duly assign, transfer and deliver to
such successor trustee all property and money held by such predecessor Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor trustee relates.
(d) Upon acceptance of appointment by a successor trustee with
respect to any series of Securities as provided in this Section 7.11, the
Company shall give notice of the succession of such trustee and the address of
its Corporate Trust Office to all Holders of Securities of any such series in
the manner and to the extent provided in subsection (c) of Section 5.04. If
the Company fails to provide such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be provided at the expense of the Company.
Section 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be qualified under the provisions of Section 7.08 and
eligible under the provisions of Section 7.09 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 the particular series
shall have been authenticated but not delivered, any such successor to the
Trustee 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 such series shall not have been authenticated, any successor
Trustee with respect to the Securities of such series may authenticate such
Securities either in the name of any predecessor hereunder with the consent of
such predecessor if the predecessor still exists, which consent shall not
unreasonably be withheld, or in the name of the successor trustee; and in all
such cases such certificates shall have the full force which it is anywhere in
such Securities or in this Indenture provided that the certificate of
authentication of the Trustee shall have; provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities of the particular series in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion
or consolidation.
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Section 7.13. Preferential Collection of Claims Against Company.
(a) Subject to the provisions of subsection (b) of this Section 7.13,
if the Trustee in its individual capacity shall be or shall become a creditor,
directly or indirectly, secured or unsecured, of the Company or of any other
obligor on any Securities within three months prior to a default, as defined in
subsection (c) of this Section 7.13, or subsequent to such a default, then,
unless and until such default shall be cured, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee individually, the
Holders of the Securities and the holders of other indenture securities (as
defined in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company upon the
date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or
applicable state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior to
the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving, that at the time such
property was so
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received, the Trustee had no reasonable cause to believe that a default
as defined in subsection (c) of this Section 7.13 would occur within
three months; or
(D) to receive payment of any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may be,
to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any such paragraphs is created in renewal
of, or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held
in such special account and the proceeds thereof shall be apportioned between
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to Title 11 of the
United States Code or applicable state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee
anything on account of the receipt by it from the Company of the funds and
property in such special account and before crediting to the respective claims
of the Trustee, the Holders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to Title 11 of the United States
Code or applicable state law, but after crediting thereon receipts on account
of the indebtedness represented by their respective claims from all sources
other than from such dividends and from the funds and property so held in such
special account. As used in this paragraph, with respect to any claim, the
term "dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable state law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any, of
such claim. The court in which such bankruptcy, receivership, or proceeding
for reorganization is pending shall have jurisdiction (i) to apportion between
the Trustee, the Holders and the holders of other indenture securities, in
accordance with the provisions of this paragraph, the funds and property held
in such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made
to the Trustee, the Holders and the holders of other indenture securities with
respect to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held in
such special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and
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unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this subsection (a)
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as Trustee, occurred after the beginning of such three months'
period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the Holders at
the time and in the manner provided in Section 5.04;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 7.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
United States Federal Reserve Act, as amended, which is directly or
indirectly a creditor of the Company; or
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(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13:
(1) The term "default" shall mean any failure to make payment
in full of the principal or interest upon any Security of any series or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the Trust
Indenture Act of 1939) outstanding under any other indenture (A) under
which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 7.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
(5) The term "Company" shall mean any obligor upon any
Security.
Section 7.14 Appointment of Additional and Separate Trustees. Whenever
the Trustee shall deem it necessary or prudent in order to conform to any law
of any jurisdiction, or the Trustee shall be advised by counsel, satisfactory
to it, that it is necessary or prudent in the interest of the Holders of
Securities of any series or in the event that the Trustee shall have been
requested to do so by the Holders of a majority in principal amount at Stated
Maturity of the Securities of any series at the time outstanding, the Trustee
and the Company shall execute and deliver an indenture supplemental hereto and
all other instruments and agreements necessary or proper to constitute another
bank or trust company, or one or more persons appointed by the Company, either
to act as additional trustee or trustees hereunder, jointly with the Trustee, or
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to act as separate trustee or trustees hereunder, in any such case with such
powers with respect to the affected series of Securities as may be provided in
such indenture supplemental hereto, and to vest in such bank, trust company or
person as such additional trustee or separate trustee, as the case may be, any
property, title, right, power, duty or obligation of the Trustee with respect
to the affected series of Securities deemed necessary or advisable by the
Trustee, subject to the provisions of this Section 7.14 below set forth. In
the event the Company shall not have joined in the execution of such indenture
supplemental hereto within ten days after the receipt of a written request from
the Trustee so to do, or in case an Event of Default with respect to the
particular series of Securities shall occur and be continuing, the Trustee may
act under the foregoing provisions of this Section 7.14 without the concurrence
of the Company; and the Company hereby appoints the Trustee its agent and
attorney-in-fact to act for it under the foregoing provisions of this Section
7.14 in either of such contingencies. The Trustee may execute, deliver and
perform any deed, conveyance, assignment or other instrument in writing as may
be required by any additional trustee or separate trustee for more fully and
certainly vesting in and confirming to it any property, title, right or powers
with respect to the affected series of Securities conveyed or conferred to or
upon such additional trustee or separate trustee, and the Company shall, upon
the Trustee's request, join therein and execute, acknowledge and deliver the
same; and the Company hereby makes, constitutes and appoints the Trustee its
agent and attorney-in-fact for it and in its name, place and stead to execute,
acknowledge and deliver any such deed, conveyance, assignment or other
instrument with respect to the affected series of Securities in the event that
the Company shall not itself execute and deliver the same within ten days after
receipt by it of such request so to do. Any supplemental indenture executed
pursuant to the provisions of this Section 7.14 shall conform to the provisions
of the Trust Indenture Act of 1939 as in effect as of the date of such
supplemental indenture.
Every additional trustee and separate trustee hereunder shall, to the
extent permitted by law, be appointed and act, and the Trustee shall act with
respect to a particular series of Securities, subject to the following
provisions and conditions:
(1) the Securities of such series shall be authenticated by
the Trustee and all powers, duties, obligations and rights conferred
upon the Trustee in respect of the receipt, custody, investment and
payment of moneys shall be exercised solely by the Trustee;
(2) all other rights, powers, duties and obligations with
respect to the Securities of such series conferred or imposed upon the
Trustee and such additional trustee or separate trustee or any of them
shall be conferred or imposed upon and exercised or performed by the
Trustee and such additional trustee or trustees and separate trustee or
trustees jointly, except to the extent that, under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations with
respect to the Securities of such series shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees;
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(3) no power hereby given to, or with respect to which it is
hereby provided may be exercised by, any such additional trustee or
separate trustee with respect to a particular series of Securities shall
be exercised hereunder by such additional trustee or separate trustee
except with the consent of the Trustee; and
(4) No trustee with respect to a particular series of
Securities hereunder shall be personally liable by reason of any act or
omission of any other trustee with respect to such series of Securities
hereunder.
If at any time the Trustee shall deem it no longer necessary or prudent in
order to conform to any such law or shall be advised by counsel that it is no
longer so necessary or prudent in the interest of the Holders of Securities of
any series or in the event that the Trustee shall have been requested to do so
in writing by the Holders of a majority in principal amount at Stated Maturity
of the Securities of such series at the time outstanding, the Trustee and the
Company shall execute and deliver an indenture supplemental hereto and all
other instruments and agreements necessary or proper to remove any additional
trustee or separate trustee with respect to such series. In the event that the
Company shall not have joined in the execution of such indenture supplemental
hereto, instruments and agreements, the Trustee may act on behalf of the
Company to the same extent provided above.
Any additional trustee or separate trustee with respect to any series of
Securities may at any time by an instrument in writing constitute the Trustee,
its agents or attorney-in-fact with full power and authority, to the extent
which may be authorized by law, to do all acts and things and exercise all
discretions which it is authorized or permitted to do or exercise with respect
to such series, for and in its behalf and in its name. In case any such
additional trustee or separate trustee shall die, become incapable of acting,
resign or be removed, all the assets, property, rights, powers, trusts, duties
and obligations of such additional trustee or separate trustee with respect to
such series, as the case may be, so far as permitted by law, shall vest in and
be exercised by the Trustee, without the appointment of a new successor to such
additional trustee or separate trustee unless and until a successor with
respect to such series is appointed in the manner hereinbefore provided.
Any request, approval or consent in writing by the Trustee to any
additional trustee or separate trustee of any series of Securities shall be
sufficient warrant to such additional trustee or separate trustee, as the case
may be, to take such action with respect to the particular series of Securities
as may be so requested, approved or consented to.
Each additional trustee or separate trustee appointed pursuant to this
Section 7.14 shall be subject to, and shall have the benefit of, Articles Six,
Seven (other than Section 7.09) and Eight hereof and the following Sections of
this Indenture shall be specifically applicable to each additional trustee and
separate trustee: 5.04(a) (except to the extent that reference therein is made
to its eligibility under Section 7.09), (b), (c) and (d), 6.02, 6.07, 7.01,
7.06 and 7.13; provided, however, that no resignation of an additional or
separate trustee pursuant to Section
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7.10 hereof shall be conditioned in any sense whatever upon the appointment of
a successor to such trustee.
ARTICLE EIGHT
CONCERNING THE HOLDERS
Section 8.01. Evidence of Action by Holders. Whenever in this
Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount at Stated Maturity of the Securities of any series
may take any action (including the making of any demand or request, the giving
of any direction, notice, consent or waiver or the taking of any other action)
the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Holders in
person or by agent or proxy appointed in writing, or (b) by the record of such
Holders voting in favor thereof at any meeting of such Holders duly called and
held in accordance with the provisions of Article Nine, or (c) by a combination
of such instrument or instruments and any such record of such a meeting of such
Holders.
Section 8.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof
of the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
shall be satisfactory to the Trustee.
The ownership of a registered Security shall be proved by the Security
Register relating to the series or by a certificate of the Security Registrar.
The ownership of an unregistered Security or any coupon attached to such
Security at its issuance shall be proved by the production of such Security or
coupon or, with respect to unregistered Securities only, by a certificate
executed by any trust company, bank, broker or other depositary, wherever
situated, if such certificate shall be acceptable to the Trustee, showing that
at the date therein mentioned such person had on deposit with such depositary,
or exhibited to it, the Securities therein described; or such facts may be
proved by the certificate or affidavit of the person holding such Security, if
such certificate or affidavit is acceptable to the Trustee. The Trustee and
the Company may assume that such ownership of any unregistered Security
continues until (1) another certificate or affidavit bearing a later date
issued in respect of the same Security is produced, (2) such Security is
produced by some other person or (3) such Security is no longer outstanding.
The amount of unregistered Securities held by any person may also be proved in
any other manner which the Trustee deems sufficient.
The Trustee may require such additional proof of any matter referred to
in this Section 8.02 as it shall deem necessary.
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The record of any meeting of Holders shall be proved in the manner
provided in Section 9.06.
Section 8.03. Who May Be Deemed Owner of Securities. Prior to due
presentment for registration of transfer of a registered Security of any
series, the Company, the Trustee, any paying agent and any Security Registrar
may deem and treat the person in whose name such Security shall be registered
or, in the case of unregistered Securities, the bearer thereof or the owner
thereof determined, pursuant to Section 8.02, 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 made by anyone) for the purpose
of receiving payment of or on account of the principal of (and premium, if any)
and interest on such Security and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, 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 8.04. Securities Owned by Company or Controlled or Controlling
Companies Disregarded for Certain Purposes. In determining whether the Holders
of the requisite aggregate principal amount at Stated Maturity of Securities of
any series have concurred in any direction, consent or waiver under this
Indenture, Securities of such series which are owned by the Company or any
other obligor on the Securities of such series or by any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any other obligor on the Securities of such series
shall be disregarded and deemed not to be outstanding for the purposes of any
such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities of such series which the Trustee knows are so owned shall be so
disregarded. Securities of such series so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of this Section 8.04
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not the Company or any
other obligor on the Securities of such series or a person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute
as to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection for the Trustee.
Section 8.05. Instruments Executed by Holders Bind Future Holders. At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount at Stated Maturity of the Securities of any series
specified in this indenture in connection with such action, any Holder of a
Security of such series which is shown by the evidence to be included in the
Securities of the particular series the Holders of which have consented to such
action may, by filing written notice with the Trustee at its Corporate Trust
Office and upon proof of holding as provided in Section 8.02, revoke such
action so far as concerns such Security. Except as aforesaid, any such
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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
Security issued upon registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Security or such other Security. Any action taken by
the Holders of the percentage in aggregate principal amount at Stated Maturity
of the Securities of any series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all such Securities.
Section 8.06 Record Date for Determination of Holders Entitled to Vote.
The Company may, in the circumstances permitted by the Trust Indenture Act, set
a Record Date for the purpose of determining the Holders entitled to give or
take any request, demand, authorization, direction, notice, consent, waiver or
other action, or to vote on any action, authorized or permitted to be given or
taken by Holders. If not set by the Company prior to the first solicitation of
a Holder made by any Person in respect of any such action or, in the case of
any such vote, prior to such vote, the Record Date for any such action or vote
shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 4.01) prior to such first
solicitation or vote, as the case may be. With regard to any record date, only
the Holders on such date (or their duly appointed proxies) shall be entitled to
give or take, or vote on, the relevant action.
ARTICLE NINE
HOLDERS' MEETINGS AND CONSENTS
Section 9.01. Purposes for Which Meeting May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to the provisions of this Article Nine for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee, or to
give any directions to the Trustee, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of Securities of such series pursuant
to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee with
respect to Securities of such series pursuant to the provisions of
Article Seven;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action to be taken by or on behalf of
the Holders of any specified aggregate principal amount at Stated
Maturity of Securities of such series under any other provision of this
Indenture or under applicable law.
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Section 9.02. Manner of Calling Meetings. The Trustee may at any time
call a meeting of Holders of Securities of any series to take any action
specified in Section 9.01, to be held at such time and at such place in the
Borough of Manhattan, The City and State of New York, or at such other location
as the Trustee shall determine. With respect to registered Securities of any
series, notice of every such meeting, 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 such Holders at their addresses as they shall
appear on the Security Register with respect to such Securities. With respect
to unregistered Securities of any series, notice of every such meeting shall be
published in an authorized newspaper on two separate days. Such notice shall
be provided not less than 20 nor more than 120 days prior to the date fixed for
the meeting.
Section 9.03. Call of Meetings by Company or Holders. In case at any
time the Company, pursuant to a Certified Board Resolution, or the Holders of
at least ten percent in aggregate principal amount at Stated Maturity of
Securities of any series then outstanding shall have requested the Trustee to
call a meeting of Holders of Securities of such series to take any action
authorized in Section 9.01 by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have provided the notice of such meeting within 20 days after receipt of
such request, then the Company or the Holders of such Securities in the amount
above specified may determine the time and the place in the Borough of
Manhattan, The City and State of New York, for such meeting and may call such
meeting by providing notice thereof as provided in Section 9.02.
Section 9.04. Who May Attend and Vote at Meetings. To be entitled to
vote at any meeting of Holders of a particular series of Securities, a person
shall (a) be a Holder of one or more Securities of such series or (b) be a
person appointed by an instrument in writing as proxy by a Holder of one or
more Securities of such series. The only persons who shall be entitled to be
present or to speak at any meeting of Holders of a particular series of
Securities shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 9.05. Regulations May Be Made by Trustee. Notwithstanding any
other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Holders of Securities
of a particular series, in regard to proof of the holding of Securities of such
series and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem necessary. Except as
otherwise permitted or required by any such regulations, the holding of
Securities of such series shall be proved in the manner specified in Section
8.02 and the appointment of any proxy shall be proved in the manner specified
in Section 8.02.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided
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in Section 9.03, in which case the Company or such Holders 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 may be elected by
vote of the Holders of a majority in principal amount at Stated Maturity of
Securities of the particular series represented at the meeting and entitled to
vote.
Subject to the provisions of Section 8.04, at the meeting each Holder of
Securities of the particular series or proxy entitled to vote shall have one
vote for each $1,000 principal amount at Stated Maturity of Securities of such
series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security of such series
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 Securities of such series held by him or instruments in
writing as aforesaid duly designating him as the person to vote on behalf of
other Holders of Securities of the particular series. At any meeting of
Holders duly called pursuant to the provisions of Section 9.02 or Section 9.03,
the presence of persons holding or persons representing Securities of the
particular series in an aggregate principal amount at Stated Maturity
sufficient to take action on the business for the transaction of which such
meeting was called shall constitute a quorum, but, if less than a quorum be
present, the meeting may be adjourned from time to time by the Holders of a
majority in principal amount at Stated Maturity of the Securities of such
series represented at the meeting and entitled to vote, and the meeting may be
held as so adjourned without further notice.
Section 9.06. Manner of Voting at Meetings and Record to Be Kept. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders or proxies entitled to vote. The 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 Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
given as provided in Section 9.02. The record shall be signed and verified by
the affidavits of the chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company 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 9.07. Written Consent in Lieu of Meetings. The written
authorization or consent of the requisite percentage herein provided of Holders
of Securities of any series entitled to vote at any meeting of Holders of
Securities of a particular series, evidenced as provided in Article
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Eight and filed with the Trustee, shall be effective in lieu of a meeting of
such Holders with respect to any matter provided for in this Article Nine.
Section 9.08. No Delay of Rights by Meeting. Nothing in this Article
Nine contained shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Holders of Securities of any 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 Holders of Securities of such series under any of the
provisions of this Indenture or of the Securities of such series.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for Which Supplemental Indentures May be
Entered into Without Consent of Holders. Without the consent of Holders, the
Company, when authorized by a resolution of its Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Eleven;
(b) to appoint one or more additional or separate trustees to
act under this Indenture in the manner and to the extent contemplated by
Section 7.14;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection of
the Holders of Securities of any or all series as its Board of Directors
and the Trustee shall consider to be for the protection of the Holders
of Securities of such series, and to make the occurrence, or the
occurrence and continuance, of a default of any such additional
covenants, restrictions, conditions or provisions a default or an Event
of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth with respect to
Securities to such series; provided, however, that in respect of any
such additional covenant, restriction, condition or provision with
respect to Securities of such series, such supplemental indenture may
provide for a particular period of grace after default (which period may
be shorter or longer than that allowed in the case of other defaults) or
may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount at
Stated Maturity of the Securities of such series to waive such default;
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(d) to add, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that
any such addition, change or elimination (i) shall neither (A) apply to
any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no such
Security Outstanding;
(e) 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; to convey, transfer, assign, mortgage or
pledge any property to or with the Trustee; or to make such other
provisions in regard to matters or questions arising under this
Indenture as shall not adversely affect the interests of Holders of
Securities of any series;
(f) to modify, amend or supplement this Indenture to comply
with the provisions of Section 11.01;
(g) to provide for the issuance of unregistered Securities, or
the exchangeability of registered Securities of any series with
unregistered Securities of a series issued hereunder, or vice versa, and
to make all appropriate changes for such purpose;
(h) to provide for the issuance under this Indenture of
Securities of a series having any form or terms contemplated by Sections
2.01 and 2.02; and
(i) 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 7.14.
The Trustee is hereby authorized to join with the Company 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, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
10.01 may be executed by the Company and the Trustee without the consent of the
Holders of any Securities of any series at the time outstanding,
notwithstanding any of the provisions of Section 10.02.
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Section 10.02. Modification of Indenture with Consent of Holders
66-2/3% in Principal Amount of Securities. With the consent (evidenced as
provided in Section 8.01) of the Holders of not less than 66-2/3 percent in
aggregate principal amount at Stated Maturity of the Securities of each series
affected at the time outstanding, the Company, when authorized by a resolution
of its Board of Directors, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto with respect to
Securities of the particular series 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 relating to such series of
Securities or of modifying in any manner the rights of the Holders of
Securities of the particular series; provided, however, that no such
supplemental indenture shall (i) extend the Stated Maturity of any Security,
reduce the principal amount thereof, reduce the rate or extend the time of
payment of any interest thereon, reduce any premium payable upon the redemption
thereof, reduce the amount of an Original Issue Discount Security that would be
due and payable upon a declaration of acceleration of Stated Maturity thereof
pursuant to Section 6.01, modify provisions relating to amount or regularity of
mandatory Sinking Fund payments or make the principal amount thereof payable in
any money other than United States legal tender for the payment of public or
private debts, without the consent of the Holder of each Security so affected,
or (ii) reduce the aforesaid percentage of Securities of any series, the
consent of the Holders of which is required for any such supplemental
indenture, without the consent of the Holders of all Securities of each
affected series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with resect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any series not so affected.
Upon the request of the Company, accompanied by a Certified Board
Resolution authorizing the execution of any such supplemental indenture
relating to Securities of a particular series, and upon the filing with the
Trustee of evidence of the consent of Holders of Securities of the particular
series as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture affects the
Trustee's own 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.
It shall not be necessary for the Holders of Securities of a particular
series to approve under this Section 10.02 the particular form of any proposed
supplemental indenture with respect to such series of Securities, but it shall
be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 10.02, the
Company shall mail a notice thereof by first-class mail to the Holders of
registered Securities of each series affected thereby
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at their addresses as they shall appear on the Security Register for such
Securities, or, in the case of unregistered Securities, shall give notice in
the manner and to the extent provided in subsection (c) of Section 5.04,
setting forth in general terms the substance of such supplemental indenture.
Any failure of the Company to provide such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 10.03. Effect of Supplemental Indentures. Upon the execution
and delivery of any supplemental indenture with respect to any series of
Securities pursuant to the provisions of this Article Ten, this Indenture shall
be and be deemed to be modified and amended with respect to the affected series
of Securities in accordance therewith and the respective rights, limitations of
rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of Securities of the series affected 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.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
regard an Opinion of Counsel as conclusive evidence that any such supplemental
indenture with respect to any series of Securities complies with the provisions
of this Article Ten.
Section 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures. Securities authenticated and delivered after the execution,
pursuant to the provisions of this Article Ten, of any supplemental indenture
with respect to any series of Securities may bear a notation in the form
acceptable to the Trustee as to any matter provided for in such supplemental
indenture. New Securities of the affected series so modified as to conform, in
the opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture
with respect to such series of Securities may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Securities of
the particular series then outstanding.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE, CONVEYANCE OR LEASE
Section 11.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Company with or into any other corporation
or corporations (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Company to any other corporation
(whether or not affiliated with the Company) authorized to acquire and operate
the same; provided, however, and the Company hereby covenants and agrees, that
upon any such consolidation, merger, sale, conveyance or lease, other than a
merger in which the Company is the continuing corporation,
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the due and punctual payment of the principal of and interest on all the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the corporation (if other than the Company) formed by such consolidation, or
into which the Company shall have been merged, or by the corporation which
shall have acquired or leased such property.
Section 11.02. Successor Corporation to be Substituted. In case of any
such consolidation, merger, sale, conveyance or lease referred to in Section
11.01 and upon the assumption by the successor corporation, 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
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 Company, such
successor corporation shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as a party. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of Sundstrand Corporation any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor corporation
instead of the Company 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 Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for the 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 Company or any successor corporation which shall theretofore
previously have become such in the manner described in this Article Eleven
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
referred to in Section 11.01, 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 11.03. Opinion of Counsel and Officers' Certificate to Be Given
Trustee. The Trustee, subject to Section 7.01 and 7.02, shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel
and an Officers' Certificate stating that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of
this Article Eleven.
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ARTICLE TWELVE
DISCHARGE OF INDENTURE AND DEFEASANCE
Section 12.01. Termination of Company's Obligations.
(a) If the Securities of any series so provide, the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of a series, and except as otherwise provided in subsection (d) of
this Section 12.01, the provisions of this Indenture as it relates to such
Securities shall no longer be in effect, and the Trustee, at the expense of the
Company, shall, upon Company Direction, execute proper instruments
acknowledging the same if the conditions set forth in paragraphs (1) or (2) or
(3) below are satisfied:
(1)(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
2.07 and (ii) Securities for whose payment money (defined for purposes
of this Article Twelve as such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment
of public and private debts) has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 12.03)
have been delivered to the Trustee for cancellation;
(B) the Company has paid or caused to be paid all other sums
payable under this Indenture in respect of the Securities of such
series; and
(C) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction of the entire
indebtedness on all Securities of any such series and the discharge of
this Indenture as it relates to such Securities have been complied with;
or
(2)(A) all Securities of such series not theretofore delivered
to the Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company;
(B) the condition described in Section 12.01(b)(1) has been
satisfied;
(C) the conditions described in paragraphs 1(B) and 1(C) of
this Section 12.01(a) have been satisfied; and
(D) the Company has received an Opinion of Counsel to the
effect that the satisfaction and discharge contemplated by this Section
12.01(a)(2) will not violate the
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then applicable rules of, or any related undertaking of the Company to
any nationally-recognized securities exchange on which Securities of
that series are listed; or
(3)(A) the conditions referred to or described in paragraphs
2(B), 2(C) and 2(D) of this Section 12.01(a) have been satisfied; and
(B) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in Section 12.01(b)(1)
on the 91st day after the date of such deposit; provided, however, that
should that condition fail to be satisfied on or before such 91st day,
the Trustee shall promptly, upon satisfactory receipt of evidence of
such failure, return such deposit to the Company.
(b) If the Securities of any series so provide, except as otherwise
provided in subsection (d) of this Section 12.01, the Company may, at its
option, cease to be under any and all obligations with respect to the
Securities of any series or cease to be under any obligation to comply with any
term, provision or condition set forth in Sections 4.05 and 4.06, and Section
6.01(c) with respect to Sections 4.05 and 4.06 shall not be deemed to be an
Event of Default under the Indenture and the Debt Securities of such series, at
any time after the applicable conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination of (i) and (ii), sufficient,
after payment based on then applicable law, of all Federal, state and
local taxes in respect thereof, payable by the Trustee, in the opinion
(with respect to (ii) and (iii)) of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each instalment
of principal (including mandatory Sinking Fund payments) of, and
premium, if any, with respect to and interest on, the Outstanding
Securities of such series on the dates such instalments of interest or
principal are due;
(2) if the Securities of such series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Company's exercise
of its option under this paragraph would not cause such Securities to be
delisted;
(3) the interest in the Holders in such deposit shall have
been duly perfected under applicable provisions of the Uniform
Commercial Code;
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(4) no Event of Default or event (including such deposit)
which with notice or lapse of time 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;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for Federal income tax purposes
as a result of the Company's exercise of its option under this Section
12.01(b) and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the case
if such option had not been exercised; and
(6) the Company has delivered to the Trustee an Opinion of
Counsel and Officer's Certificate, each stating that all of the
conditions in this Section 12.01(b) have been complied with.
(c) For purposes of this Article Twelve, "U.S. Government
Obligations" means securities that are (i) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged
or (ii) 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 under clauses (i) or (ii) are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a specific payment of
interest to any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
(d) The Company's obligations in Sections 2.05, 2.07, 4.02, 4.03,
4.04, 5.01, 5.02(a), 7.06, 7.10, 7.11 and 14.01 with respect to the Securities
of such series, shall survive until all of the Securities of such series are no
longer outstanding. Thereafter the Company's obligations in Sections 7.06 and
14.01 shall survive.
(e) After a deposit described in subsection (a) or (b) of this
Section 12.01, such moneys or payments of principal of and any interest on such
U.S. Government Obligations, as the case may be, shall be payable to the
Holders of the Securities of such series, as principal of and any interest on
such Securities, in the manner and on the dates specified in the Securities of
such series. The Trustee then shall, upon request, acknowledge in writing the
discharge of the Company's obligations under the Securities of such series and
this Indenture with respect to the Securities of such series, except for those
surviving obligations specified above. Prior to making any deposit pursuant to
this Article Twelve, the Company shall mail a notice by first-
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class mail to each Holder of Registered Securities of such series and, if the
Securities of such series were initially issued as unregistered Securities,
shall cause to be published at least once in an authorized newspaper a notice,
in each case, that states that the Company intends to take such action.
(f) Notwithstanding any of the foregoing, the Trustee's rights,
duties, obligations and immunities under this Indenture with respect to
Securities of any series shall survive until all of the Securities of such
series are no longer outstanding.
Section 12.02. Application of Trust Deposit. The Trustee shall hold in
trust any money or U.S. Government Obligations deposited with it pursuant to
Section 12.01. The Trustee shall apply the deposited money or payments of
principal of and any interest on U.S. Government Obligations through the paying
agent and in accordance with this Indenture to the payment of principal and
interest, if any, on the Securities of the series, or to the payment of any
mandatory Sinking Fund payments, for which the money or U.S. Government
Obligations have been deposited.
Section 12.03. Repayment to Company. The Trustee and the paying agent
shall promptly pay to the Company upon written request any excess money or U.S.
Government Obligations held by them at any time. Subject to applicable law,
any money or U.S. Government Obligations deposited with the Trustee or any
paying agent, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or any interest on any Security, or for the
payment of any mandatory Sinking Fund payments, and remaining unclaimed for two
years after such principal, premium or interest, or such mandatory Sinking Fund
payments, have become due and payable shall be paid to the Company on written
request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such paying agent with respect to such trust money or U.S.
Government Obligations, and all liability of the Company as trustee thereof,
shall thereupon cease.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
Section 13.01. Incorporators, Stockholders, Officers, Directors and
Employees of Company Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly
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understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers, directors or employees, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute of, and any and all such rights and claims
against every such incorporator, stockholder, officer, director or employee, as
such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for,
the execution and delivery of this Indenture and the issue of Securities
hereunder.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 14.02. Acts of Board, Committee or Officer of Successor
Corporation Valid. 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 Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any corporation that shall at
that time be the successor of the Company.
Section 14.03. Required Notices or Demands. Except as provided in
Section 6.01(c) and (d), 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
any Holders of Securities of any series to or on the Company may be given or
served by being deposited first-class postage prepaid in a post office letter
box in the United States addressed (until another address is filed by the
Company with the Trustee) as follows or delivered by hand or courier to:
Sundstrand Corporation, 4949 Harrison Avenue, P.O. Box 7003, Rockford, Illinois
61125-7003, to the attention of the Secretary. Any notice, direction, request
or demand by the Company or by any Holder to or upon the Trustee may be given
or made, for all purposes, by being deposited first-class postage prepaid in a
post office letter box in the United States addressed to the Corporate Trust
Office. Any notice required or permitted to be mailed to a Holder of
Securities of any series by the Company or the Trustee pursuant to the
provisions of this Indenture shall be deemed to be properly mailed by being
deposited first-class postage prepaid in a post office letter box in the United
States addressed to such Holder at the address of such Holder as shown on the
Security Register for the particular series of Securities. Any notice required
or permitted to be given to a Holder of
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unregistered Securities of any series shall be deemed to be properly given if
such notice is published in an authorized newspaper on two separate days.
Notices, directions, requests and demands shall be deemed delivered on the
third day after being properly mailed, on the day delivered if delivered by
hand or by courier and on the day after the second publication if given by
publication in an authorized newspaper on two separate days.
Section 14.04. Indenture and Securities to be Construed in Accordance
with the Laws of the State of New York. This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be governed by and construed in accordance with the laws
of such State. The descriptive headings of the Articles and Sections of this
Indenture are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
Section 14.05. Officers' Certificate and Opinion of Counsel to be
Furnished upon Application or Demand by the Company. Upon any application or
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent 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 any such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion, as the
case may be, need be furnished.
Except as otherwise provided in this Indenture, each certificate or
opinion provided for in this Indenture (other than certificates provided
pursuant to Section 5.03(d)) and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall
include: (1) a statement that the person making such certificate or opinion has
read such covenant or condition; (2) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based; (3) a statement that, in
the opinion of 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 (4) a statement as to
whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Section 14.06. Payments Due on Holidays. In any case where the date of
maturity of interest on or principal of any Security or the date fixed for
redemption of any Security shall not be a business day, then payment of
interest or principal (and premium, if any) 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, and no
interest shall accrue for the period after such date.
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Section 14.07. Provisions Required by Trust Indenture Act of 1939 to
Control. If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by any of Sections 310 through 317 of the Trust
Indenture Act, by the operation of Section 318(c) thereof, such imposed duties
shall control, except as, and to the extent, expressly excluded from this
Indenture, as permitted by the Trust Indenture Act. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, such modification or exclusion shall be
controlling.
Section 14.08. Indenture May be Executed in 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 14.09. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
The party of the second part hereby accepts the trusts in this Indenture
declared and provided upon the terms and conditions hereinabove set forth.
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IN WITNESS WHEREOF, SUNDSTRAND CORPORATION, the party of the first part,
and M&I FIRST NATIONAL BANK, the party of the second part, have caused this
Indenture to be duly executed, and their respective corporate seals to be
affixed and attested, all as of the day and year first above written.
SUNDSTRAND CORPORATION
[CORPORATE SEAL] By ________________________________
Executive Vice President and
Chief Financial Officer
Attest:
__________________________________
Assistant Secretary
M&I FIRST NATIONAL BANK,
as Trustee
[CORPORATE SEAL] By _____________________________
R.T. Stephenson
Executive Vice President
Attest:
_____________________________
Assistant Secretary
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STATE OF ILLINOIS )
) SS:
COUNTY OF WINNEBAGO )
I, _______________, do hereby certify that on the ____ day of February,
1996, ____________ and _________________ personally appeared before me and
being first duly sworn by me severally acknowledged that they signed the
foregoing document in the respective capacities therein set forth and declared
that the statements therein contained are true.
IN WITNESS WHEREOF, I have hereunto set my hand and seal the day and
year before written.
_____________________________
Notary Public
My Commission Expires:
STATE OF WISCONSIN )
) SS:
COUNTY OF WASHINGTON )
On this ____ day of February, 1996, before me personally came R.T.
Stephenson to me known, who, being by me duly sworn, did depose and say that he
resides in West Bend, WI; that he is an Executive Vice President of M&I FIRST
NATIONAL BANK, one of the parties described in and which executed the above
instrument; that he knows the corporate seal of said corporation; that the seal
affixed to the instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said Corporation, and that he signed his
name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand the day and the year in
this Certificate first above written.
_____________________________
Notary Public
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SCHEDULE A(1)
[FORM OF FACE OF SECURITY]
SUNDSTRAND CORPORATION
No........... $..........
[If the Security is an Original Issue Discount Security, insert any
legend required for Federal income tax purposes.]
[Designation of Securities of each series as
specified in the instrument establishing such series]
SUNDSTRAND CORPORATION, a corporation incorporated under the laws of the
State of Delaware (hereinafter called the "Company"), for value received,
hereby promises to pay [if the Security is unregistered, insert-bearer] [if the
Security is registered, insert , or registered assigns] the principal sum
of DOLLARS on at the office or agency of the Company
in the Borough of Manhattan, The City and State of New York and such other
location or locations as may be provided for pursuant to the Indenture referred
to on the reverse hereof, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts [if the Security is registered and bears interest
prior to its Stated Maturity, insert and to pay interest on said principal sum
at the rate of % per annum, at said offices or agencies, in like coin or
currency, from the or , as the case may be, next preceding
the date of this [Security] to which interest has been paid or duly provided
for on the [Securities], or, if the date of this [Security] is a or
to which interest has been paid or duly provided for on the [Securities], from
or, if the date of this [Security] is after any or , and
prior to the next succeeding or , from such
or ; provided, however, that if an to the extent the Company shall
default in payment of the interest due on such or then from
the next preceding or to which interest has been paid or duly
provided for on the [Securities], or if no interest has been paid or duly
provided for on the [Securities], from . Interest will be payable on
and semi-annually on each and thereafter, until payment of said
principal sum has been made or duly provided for. The interest so payable on
any or 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 Record Date
( of , as the case may be) next preceding such or and
may, at the option of the Company, be paid by check mailed to the person
entitled thereto at his address last appearing on the Security Register.]
The provisions of this [Security] are continued on the reverse hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
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This [Security] shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed manually
by the Trustee under the Indenture referred to on the reverse hereof.
In Witness Whereof, SUNDSTRAND CORPORATION has caused this [Security] to
be signed by its duly authorized officers, manually or in facsimile, and a
facsimile of its corporate seal to be imprinted hereon.
Dated:____________________
SUNDSTRAND CORPORATION
(Corporate Seal) By__________________________
By__________________________
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SCHEDULE A(2)
[FORM OF REVERSE OF SECURITY]
SUNDSTRAND CORPORATION
[Designation of Securities of each series as specified in the
instrument establishing such series]
This Security is one of a duly authorized issue of "[insert full
designation of series]" of the Company, designated as its "[Securities]",
limited to the aggregate principal amount [if the Security is an Original Issue
Discount Security, insert - at Stated Maturity] of Dollars
($), all issued under and pursuant to an indenture, dated as of February 15,
1996 (herein referred to as the "Indenture"), duly executed and delivered by
the Company and Bankers Trust Company (hereinafter called the "Trustee"),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the Holders of
the [Securities].
[If the Security is not an Original Issue Discount Security, insert - In
case an Event of Default, as defined in the Indenture, relating to the
[Securities] shall have occurred and be continuing, the principal hereof may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the
Indenture. The Indenture provides that in certain events such declaration as
it affects the [Securities] and its consequences, may be waived by the Holders
of a majority in aggregate principal amount of the [Securities] then
outstanding. Any such 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 and owners of this [Security] and of any [Security]
issued [if the Security is registered, insert - upon the registration of
transfer hereof or] in exchange or substitution herefor, irrespective of
whether or not any notation of such waiver is made upon this [Security] or such
other [Securities].]
[If the Security is an Original Issue Discount Security, insert - In
case an Event of Default, as defined in the Indenture, relating to the
[Securities] shall have occurred and be continuing, an amount of principal of
the [Securities] may be declared 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, which amount shall be determined by the
Company and certified to the Trustee in an Officer's Certificate]. Upon
payment (1) of the amount of principal so declared due and payable and (2) of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all of
the Company's obligations in respect of the payment of the principal of, and
interest, if any, on the [Securities] shall terminate.]
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<PAGE> 84
[Include the following paragraph if series is subject
to a Sinking Fund]
The [Securities] are entitled to the benefit of a Sinking Fund as
provided for pursuant to the Indenture and are subject to redemption through
operation of the Sinking Fund on at [100%] of their principal amount
(herein called the "Sinking Fund redemption price") together with accrued
interest to the date fixed for redemption. Except as hereinafter provided, on
or prior to each date, the Company will deposit with the Trustee or a paying
agent (or segregate and hold in trust) an amount sufficient to redeem $
principal amount of [Securities] on such date. At its option, the Company may
pay into the Sinking Fund, on or prior to each such date, an additional sum up
to % of the amount required to be deposited on such date for the Sinking
Fund (before taking into account any applicable credits as hereinafter
mentioned). The Trustee will apply any such amounts deposited by the
Company to redemption of [Securities] as provided in the Indenture. In lieu of
making cash payments into the Sinking Fund the Company may, to the extent and
upon the terms provided in the Indenture, deliver to the Trustee for
cancellation, certain [Securities] theretofore acquired by the Company and
receive credit therefor, at the Sinking Fund redemption price, or receive
credit, at such price, for [Securities] theretofore called for redemption
otherwise than through the Sinking Fund and which shall have ceased to be
outstanding.
[Include the following four paragraphs if the series is
subject to redemption before Stated Maturity]
The [Securities] may be redeemed, at the option of the Company, as a
whole or from time to time in part (selected in such manner as the Trustee may
deem appropriate and fair) at any time on or after , upon the notice
referred to below, at the following redemption prices (expressed in percentages
of the principal amount) together with interest accrued to the date fixed for
redemption (except that any interest installments becoming due on the date
fixed for redemption will be payable to the holders of such [Securities], or of
one or more previous [Securities] evidencing all or a portion of the same debt
as that evidenced by such particular [Securities], of record at the close of
business on the relevant Record Date referred to on the face hereof or in the
Indenture).
If redeemed during the 12-month period beginning
Year Percentage Year Percentage
[Dates, years and percentages to be specified
in instrument establishing such series]
Notice of redemption shall be given to the Holders of [Securities] to be
redeemed, as a whole or in part, whether through operation of the Sinking Fund
or otherwise, [if the Security is unregistered, insert - by twice publishing a
notice in an authorized newspaper] [if the Security
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<PAGE> 85
is registered, insert - by mailing a notice of such redemption to their last
addresses as they shall appear upon the Security Register] not less than 20 nor
more than 60 days prior to the date fixed for redemption, all as provided in
the Indenture. If this [Security] (or a portion hereof) is duly called for
redemption and funds for payment duly provided, this [Security] (or such
portion) shall cease to bear interest from and after the date fixed for
redemption. The Company shall not be required (a) to issue, register the
transfer of or exchange any Securities of any series for a period of 15 days
next preceding any selection of Securities of such series to be redeemed or (b)
to register the transfer of or exchange any Securities of such series selected,
called or being called for redemption.
In the event of redemption of this [Security] in part only, a new
[Security] or [Securities] in authorized denominations and in principal amount
equal to the unredeemed portion hereof shall be issued upon the cancellation
hereof.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount at Stated Maturity of the [Securities] at the time
outstanding, evidenced as in the Indenture provided, to execute supplemental
indentures which, if they pertain specifically to the [Securities], may add any
provisions to or change in any manner or eliminate any of the provisions of the
Indenture relating to the [Securities] or of any supplemental indenture
relating to the [Securities] or modifying in any manner the rights of the
Holders of the [Securities]; provided, however, that no such supplemental
indenture shall (i) extend the Stated Maturity of any [Security], reduce the
principal amount thereof, reduce the rate or extend the time of payment of any
interest thereon, reduce any premium payable upon the redemption thereof, [if
the Security is an Original Issue Discount Security, insert - reduce the amount
of principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Stated Maturity thereof,] [if
the Security has mandatory Sinking Fund provisions - modify provisions relating
to amount or regularity of mandatory Sinking Fund payments,] or make the
principal amount thereof payable in any money other than United States legal
tender for the payment of public or private debts without the consent of the
Holder of each [Security] so affected, or (ii) reduce the aforesaid percentage
of [Securities], the consent of the Holders of which is required for any such
supplemental indenture relating to the [Securities], without the consent of the
Holders of all [Securities] then outstanding. It is also provided in the
Indenture that, prior to the declaration of maturity of the [Securities] upon
the occurrence of an Event of Default relating to the [Securities] as defined
in the Indenture, the Holders of a majority in aggregate principal amount at
Stated Maturity of the [Securities] at the time outstanding may on behalf of
the Holders of all of the [Securities] waive any past default under the
Indenture relating to the [Securities] and its consequences, except a default
in the payment of the principal of (or premium, if any) or interest on any of
the [Securities]. 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 and owners of this [Security] and
of any [Security] issued [if the Security is registered, insert - upon the
registration of transfer hereof or] in exchange or substitution
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<PAGE> 86
herefor, irrespective of whether or not any notation of such consent or waiver
is made upon this [Security] or such other [Securities].
No reference herein to the Indenture and no reference to any provision
of this [Security] or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest, if any, on this [Security] at the place, at the
respective times, at the rate and in the currency herein prescribed.
[If the series so provides, insert] The Company may terminate all of its
obligations under the [Securities] and, with certain limited exceptions
described in the Indenture, under the Indenture, by irrevocably depositing in
trust with the Trustee money, or U.S. Government Obligations (as defined in the
Indenture), or any combination of the two, sufficient to pay principal of and
interest on the [Securities] to maturity or redemption as the case may be.
The [Securities] are issuable as [if applicable - registered] [if
applicable - bearer] [Securities] [if applicable - without] [if applicable -
with] coupons in denominations of [$1,000] and any integral multiple of
[$1,000]. At the office or agency to be maintained by the Company in the
Borough of Manhattan, The City and State of New York, or at such other location
or locations as may be provided for in the Indenture, and in the manner and
subject to the limitations provided in the Indenture, [Securities] may be
exchanged by the Holder hereof without charge except for any tax or other
governmental charge imposed in relation thereto, for a like aggregate principal
amount at Stated Maturity of [Securities] of other authorized denominations.
[Include the following two paragraphs if series is registered]
This [Security] is transferable and the registration of the transfer
hereof may be effected by the registered Holder hereof or by his attorney duly
authorized in writing upon due presentment for registration of transfer at the
office or agency of the Company, in the Borough of Manhattan, The City and
State of New York, or at such other location or locations as may be provided
for in the Indenture, but only in the manner and subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in relation thereto. Upon any such registration of
transfer, a new [Security] or [Securities], of authorized denominations, for a
like aggregate principal amount at Stated Maturity will be issued to the
transferee in exchange therefor.
Prior to due presentment for registration of transfer of this
[Security], the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered Holder hereof as the absolute owner
hereof (whether or not this [Security] shall be overdue and notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose
of receiving payment as herein provided and all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any Security Registrar shall
be affected by any notice to the contrary.
78
<PAGE> 87
[Include the following paragraph if the Security is unregistered]
The Company, the Trustee, any paying agent and the Security Registrar
may deem and treat the bearer hereof and the bearer of any coupon appertaining
hereto as the absolute owner hereof and thereof (whether or not this [Security]
or such coupon shall be overdue and notwithstanding any notation of ownership
or other writing hereon or thereon made by anyone) for the purpose of receiving
payments as herein and therein provided and for all other purposes.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this [Security], or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future,
of the Company or of 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.
[Defeasance, if applicable]
All terms used in this [Security] which are defined in the Indenture
shall have the meanings assigned to them therein.
[Form of coupon, if any, to be provided
for in instrument establishing series]
79
<PAGE> 88
SCHEDULE B
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the [Securities] described in the within-mentioned Indenture.
M&I FIRST NATIONAL BANK,
As Trustee
By_________________________________
Authorized Signature
80
<PAGE> 1
Exhibit 5.1
[SUNDSTRAND CORPORATION LETTERHEAD]
February 6, 1996
Sundstrand Corporation
4949 Harrison Avenue
Rockford, Illinois 61125
RE: Sundstrand Corporation Registration
Statement on Form S-3
Gentlemen:
As the Vice President and General Counsel of Sundstrand Corporation,
a Delaware corporation (the "Company"), I have reviewed the corporate
proceedings (the "Corporate Proceedings") taken and to be taken to
authorize the execution and delivery by the Company of an indenture (the
"Indenture") to be dated as of the date of execution thereof with M&I
First National Bank as Trustee, providing for the issuance of debt
securities (the "Debt Securities") of the Company.
I have examined and am familiar with the Certificate of
Incorporation of the Company and its By-Laws, both as amended and/or
restated. I have also examined the proposed form of the Indenture, and
such other documents, records and certificates of the Company as I
consider necessary for the purpose of this opinion.
Based on the foregoing I am of the opinion that:
1. The Company is a corporation duly organized under the laws of
Delaware, is validly existing, and has the power and authority to execute
and deliver the Indenture and, subsequently, to sell the Debt Securities;
<PAGE> 2
Sundstrand Corporation
Registration Statement on Form S-3
February 6, 1996
Page Two
2. Upon completion of the Corporate Proceedings, the execution and
delivery of the Indenture and the issuance of the Debt Securities will
have been validly authorized on behalf of the Company, and when the
Indenture shall have been duly executed and delivered, the Indenture will
constitute a valid, binding and enforceable obligation of the Company in
accordance with its terms, except as enforcement of provisions thereof
may be limited by bankruptcy or other applicable laws affecting the
enforcement of creditors' rights;
3. The Debt Securities, when executed, manually or in facsimile, by
the proper officers of the Company and under its corporate seal, or a
facsimile thereof, and authenticated by the Trustee under the Indenture,
and issued and sold and paid for in accordance with the Corporate
Proceedings, will constitute legally issued, valid, binding and
enforceable obligations of the Company in accordance with their terms,
except as enforcement of provisions thereof may be limited by bankruptcy
or other applicable laws affecting the enforcement of creditors' rights,
and will be entitled to the benefits of the Indenture.
I hereby consent to the use of my name under the caption "Legal
Opinions" in the Prospectus constituting a part of the Registration
Statement of the Company under the Securities Act of 1933 relating to the
Debt Securities and to the filing of this opinion as an exhibit to such
Registration Statement.
Sincerely,
/s/ Richard M. Schilling
Richard M. Schilling
<PAGE> 1
EXHIBIT 12.1
SUNDSTRAND CORPORATION AND CONSOLIDATED SUBSIDIARIES
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Nine Months Ended
September 30, Year Ended December 31,
---------------------- -------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
--------- ---------- -------- --------- --------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings Available for Fixed Charges:
Income from continuing operations before
income taxes and cumulative effect of
accounting change $77 $95 $149 $133 $110 $146 $160
Equity in undistributed earnings of less-
than-fifty-percent-owned companies - - - - (1) - (1)
Fixed charges, excluding capitalized
interest 29 25 35 46 66 77 97
------ ------ ------ ------ ------ ------ ------
$106 $120 $184 $179 $175 $223 $256
====== ====== ====== ====== ====== ====== ======
Fixed Charges:
Interest and expense on indebtedness,
excluding capitalized interest $25 $21 $30 $40 $59 $70 $91
Capitalized interest - - - - - 1 1
One-third of rental expense, net of
subleasing, for operating leases 4 4 5 6 7 7 6
------ ------ ------ ------ ------ ------ ------
$29 $25 $35 $46 $66 $78 $98
====== ====== ====== ====== ====== ====== ======
Ratio of Earnings to Fixed Charges 3.7 4.8 5.3 3.9 2.7 2.9 2.6
</TABLE>
<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 Sundstrand
Corporation for the registration of $150,000,000 of debt securities and to the
incorporation by reference therein of our report dated January 26, 1995 (except
for the Subsequent Event note, as to which the date is February 21, 1995), with
respect to the consolidated financial statements of Sundstrand Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
February 5, 1996
<PAGE> 1
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, SUNDSTRAND
CORPORATION, a Delaware corporation, does hereby nominate, constitute and
appoint PAUL DONOVAN and RICHARD M. SCHILLING, and either or both of them as
its true and lawful attorneys-in-fact, in its name and on its behalf to file
with the Securities and Exchange Commission a Registration Statement on Form
S-3 and any amendments, supplements and post-effective amendments thereto, in
connection with the registration under the Securities Act of 1933, as amended,
of the Corporation's debt securities, consisting of debentures, notes and/or
other unsecured evidences of indebtedness, up to an aggregate of $150,000,000
principal amount of indebtedness having a maturity of more than one year from
the date of issuance.
That each of the undersigned directors and officers of said Corporation
does hereby nominate, constitute and appoint PAUL DONOVAN and RICHARD M.
SCHILLING, and either or both of them as his true and lawful attorneys-in-fact,
in his name and in the capacity indicated below, to execute the aforesaid Form
S-3.
And the undersigned do hereby authorize and direct the said
attorneys-in-fact, and either or both of them, to execute and deliver such
other documents to the Securities and Exchange Commission and to take all such
other action as they or either of them may consider necessary or advisable to
the end that said Form S-3 shall comply with the Securities Act of 1933 and the
applicable rules, rulings and regulations of the Securities and Exchange
Commission.
IN WITNESS WHEREOF, each of the undersigned has subscribed these presents
this 5th day of February, 1996.
SUNDSTRAND CORPORATION
By: /s/ Don R. O'Hare
------------------------
Don R. O'Hare
Chairman of the Board
(CORPORATE SEAL)
ATTEST:
/s/ William R. Coole
- ----------------------
William R. Coole
Assistant Secretary
<PAGE> 2
SIGNATURE TITLE
---------------------- ------------------------
/s/ Robert H. Jenkins President and Chief
---------------------- Executive Officer and
Robert H. Jenkins Director
/s/ Paul Donovan Executive Vice President
---------------------- and Chief Financial
Paul Donovan Officer
/s/ DeWayne J. Fellows Vice President and
---------------------- Controller
DeWayne J. Fellows
/s/ Don R. O'Hare Chairman of the Board
----------------------
Don R. O'Hare
/s/ J.P. Bolduc Director
----------------------
J.P. Bolduc
/s/ Gerald Grinstein Director
----------------------
Gerald Grinstein
/s/ Charles Marshall Director
----------------------
Charles Marshall
<PAGE> 3
SIGNATURE TITLE
---------------------- ------------------------
Director
----------------------
Klaus H. Murmann
/s/ Donald E. Nordlund Director
----------------------
Donald E. Nordlund
/s/ Thomas G. Pownall Director
----------------------
Thomas G. Pownall
/s/ John A. Puelicher Director
----------------------
John A. Puelicher
/s/ Ward Smith Director
----------------------
Ward Smith
/s/ Robert J. Smuland Director
----------------------
Robert J. Smuland
/s/ Berger G. Wallin Director
----------------------
Berger G. Wallin
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20545
___________________________
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 TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
___________________________
M&I FIRST NATIONAL BANK
(Exact name of trustee as specified in its charter)
WISCONSIN 39-0698093
(Jurisdiction of incorporation (I.R.S. Employer
of organization if not a U.S. Identification Number)
national bank)
321 NORTH MAIN STREET
WEST BEND, WISCONSIN 53095
(Address of principal executive offices) (Zip Code)
___________________________
R.T. STEPHENSON
321 NORTH MAIN STREET
WEST BEND, WISCONSIN 53095
(414) 335-3030
(Name, address and telephone number of agent for service)
___________________________
SUNDSTRAND CORPORATION
(Exact Name of obligor as specified in its charter)
DELAWARE 36-1840610
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4949 HARRISON AVENUE
ROCKFORD, ILLINOIS 61125-7003
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
<PAGE> 2
(Title of indenture securities)
Item 1. General information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington,
D.C.
The Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
The corporate trustee is authorized to exercise
corporate trust powers.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The obligor is not an affiliate of the trustee.
Item 3. Voting Securities of the Trustee.
Not applicable as the obligor is not presently in default.
Item 4. Trusteeships Under Other Indentures.
Not applicable as the obligor is not presently in default.
Item 5. Interlocking Directorates and Similar Relationships with the Obligor or
Underwriters.
Not applicable as the obligor is not presently in default.
Item 6. Voting securities of the Trustee Owned by the Obligor or its Officials.
Not applicable as the obligor is not presently in default.
Item 7. Voting Securities of the Trustee Owned by Underwriters or their
Officials.
Not applicable as the obligor is not presently in default.
Item 8. Securities of the Obligor Owned or Held by the Trustee.
Not applicable as the obligor is not presently in default.
Item 9. Securities of Underwriters Owned or Held by the Trustee.
Not applicable as the obligor is not presently in default.
Item 10. Ownership or Holdings by the Trustee of Voting Securities of Certain
Affiliates or Security Holders of the Obligor.
Not applicable as the obligor is not presently in default.
Item 11. Ownership or Holdings by the Trustee of any Securities of a Person
Owning 50 Percent or More of the
<PAGE> 3
Voting Securities of the Obligor.
Not applicable as the obligor is not presently in default.
Item 12. Indebtedness of the Obligor to the Trustee.
Not applicable as the obligor is not presently in default.
Item 13. Defaults by the Obligor.
Not applicable as the obligor is not presently in default.
Item 14. Affiliations with the Underwriters.
Not applicable as the obligor is not presently in default.
Item 15. Foreign Trustee.
Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility.
1. Articles of Association of M&I First National Bank.
2. Comptroller of the Currency authorization to commence
business (incorporated by reference to Exhibit 1 to
Statement of Eligibility of Trustee Exhibit to
Registration Statement on Form S-3 of Ziegler
Collateralized Securities, Inc. West Bend, Wisconsin,
Registration Number 33-42723).
3. Federal Reserve Board grant of Fiduciary powers
(incorporated by reference to Exhibit 1 to Statement
of Eligibility of Trustee Exhibit to Registration
Statement on Form S-3 of Ziegler Collateralized
Securities, Inc. West Bend, Wisconsin, Registration
Number 33-42723).
4. By-Laws of M&I First National Bank.
6. Consent of the Trustee required by Section 321(b) of
the Trust Indenture Act of 1939.
7. Latest report of condition of the Trustee published
pursuant to law or the requirement of its supervising
or examining authority.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, M&I First National Bank, a national banking association organized and
existing under the laws of the United States of America, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunder duly authorized, all in the City of West Bend and State of Wisconsin,
on the 5th day of February, 1996.
By:
-----------------------------------------
R. T. Stephenson, Executive Vice President
<PAGE> 4
ARTICLES OF ASSOCIATION
FIRST. The title of this Association shall be M&I First National
Bank.
SECOND. The Main Office of the Association shall be in West Bend,
County of Washington, State of Wisconsin. The general business of the
Association shall be conducted at its main office and its branches.
THIRD. The Board of Directors of this Association shall consist of
not less than five nor more than twenty-five Shareholders. At any meeting of
the Shareholders held for the purpose of electing Directors, or changing the
number thereof, the number of Directors may be determined by a majority of the
votes cast by the Shareholders in person or by proxy. Each director, during
the full term of his or her directorship, shall own a minimum of $1,000
aggregate par value of stock of this Association or a minimum market value or
equity interest of $1,000 of stock in the bank holding company controlling this
Association.
A majority of the Board of Directors shall be necessary to constitute a quorum
for the transaction of business at any Directors' meeting. The Board of
Directors, by the vote of a majority of the full board, may, between annual
meetings of Shareholders, increase the membership of the board by not more than
two members and by like vote appoint qualified persons to fill the vacancies
created thereby.
FOURTH. The regular annual meeting of the Shareholders of this
Association shall be held at its main banking house, or other convenient place
duly authorized by the Board of Directors on such day of each year as is
specified therefor in the bylaws.
FIFTH. The authorized amount of capital stock of this Association
shall be 262,500 shares of common stock of the par value of twenty dollars
($20.00) each; but said capital stock may be increased or decreased from time
to time, in accordance with the provisions of the laws of the United States.
If the capital stock is increased by the sale of additional shares thereof,
each Shareholder shall be entitled to subscribe for such additional shares in
proportion to the number of shares of said capital stock owned by him at the
time the increase is authorized by the Shareholders, unless another time
subsequent to the date of the Shareholders' meeting is specified in a
resolution by the Shareholders at the time the increase is authorized. The
Board of Directors shall have the power to prescribe a reasonable period of
time within which the preemptive rights to subscribe to the new shares of
capital stock must be exercised.
The Association, at any time and from time to time, may authorize and issue
debt obligations, whether or not Subordinated, without the approval of the
Shareholders.
SIXTH. The Board of Directors shall appoint one of its members
President of this Association, who shall be Chairperson of the Board, unless
the Board appoints another director to be the Chairperson. The Board of
Directors shall have the power to appoint one or more Vice Presidents; and to
appoint a Cashier and such other officers and employees as may be required to
transact the business of this Association.
The Board of Directors shall have the power to define the duties of the
officers and employees of the Association; to fix the salaries to be paid to
them; to dismiss them; to require bonds from them and to fix
<PAGE> 5
the penalty thereof; to regulate the manner in which any increase of the
capital of the Association shall be made; to manage and administer the
business and affairs of the Association; to make all Bylaws that it may be
lawful for them to make; and generally to do and perform all acts that it may
be legal for a Board of Directors to do and perform.
SEVENTH. The Board of Directors shall have the power to change
the location of the main office to any other place within the limits of West
Bend, without the approval of the Shareholders but subject to the approval of
the Comptroller of the Currency; and shall have the power to establish or
change the location of any branch or branches of the Association to any other
location, without the approval of the Shareholders but subject to the approval
of the Comptroller of the Currency.
EIGHTH. The corporate existence of this Association shall continue
until terminated in accordance with the laws of the United States.
NINTH. The Board of Directors of this Association, or any
Shareholder(s) owning, in the aggregate, not less than 10 percent of the stock
of this Association, may call a special meeting of Shareholders at any time.
Unless otherwise provided by the laws of the United States, a notice of the
time, place, and purpose of every annual and special meeting of the
Shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10 days prior to the date of such meeting to each Shareholder of record
at his address as shown upon the books of this Association.
TENTH. Section 1. Right of Directors and Officers to
Indemnification. Every person shall be indemnified to the fullest extent
permitted by law, as the same may exist or may hereafter be amended (but, in
the case of any such amendment, only to the extent such amendment permits the
Bank to provide broader indemnification rights than the law permitted the Bank
to provide prior to such amendment), for all reasonable expenses (including
fees, costs, charges, disbursements, attorneys fees and any other expenses) and
against all liability (including the obligation to pay a judgement, settlement,
penalty, assessment, forfeiture or fine, including an excise tax with respect
to an employee benefit plan) asserted against, incurred by or imposed on him or
her in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative ("Proceeding") to which he or she is made or
threatened to be made a party by reason of his or her being or having been a
Director, Officer, employee or agent of the Bank (or by reason of, while
serving as a Director, Officer, employee or agent of the Bank, having served at
the Bank's request as a Director, Officer, partner, trustee, member of any
governing or decision-making committee, employee or agent of another
corporation or foreign corporation, partnership, joint venture, trust or other
enterprise, including service to an employee benefit plan); provided, however,
in situations other than a successful defense of a Proceeding, the Director,
Officer, employee or agent shall not be indemnified where he or she breached or
failed to perform a duty to the Bank or such other corporation, partnership,
joint venture, trust, or other enterprise and the breach or failure to perform
constitutes (a) a willful failure to deal fairly with the Bank or such other
corporation, partnership, joint venture, trust, or other enterprise or its
Shareholders in connection with the matter in which the Director, Officer,
employee or agent has a material conflict of interest, (b) a violation of
criminal law, unless the Director, Officer, employee or agent had reasonable
cause to believe his or her conduct was lawful, or no reasonable cause to
believe his or her conduct was unlawful, (c) a transaction from which the
Director, Officer, employee or agent derived an improper personal benefit, or
(d) willful misconduct; and further provided, notwithstanding anything to the
contrary stated in this Article, no Director, Officer, employee or agent shall
be indemnified hereunder against expenses, penalties or other payments incurred
in an administrative proceeding or action instituted by the Bank's regulatory
agency, which proceeding or action results in a final order assessing civil
money penalties or requiring affirmative
<PAGE> 6
action by an individual or individuals in the form of payments to the Bank.
Such rights to indemnification shall include the right to be paid by the Bank
reasonable expenses as incurred in defending such Proceeding; provided,
however, that payment of such expenses as incurred shall be made only upon such
person delivering to the Bank (a) a written affirmation of his or her good
faith belief that he or she is entitled to indemnification hereunder, and (b) a
written undertaking, executed personally or on his or her behalf, to repay the
allowance to the extent it is ultimately determined that such person is not
entitled to indemnification under this Article. The Bank may require that the
undertaking be secured and may require payment of reasonable interest on the
allowance to the extent that it is ultimately determined that such person is
not entitled to indemnification. A Director, Officer, employee or agent
seeking indemnification under this Article shall select one of the means for
determining his or her right to indemnification set forth in Section 180.0855
of Wisconsin Statutes, or any successor thereto.
SECTION 2. Right of Director or Officer to Bring Suit. If a
claim under this Article is not paid in full by the Bank within 30 days after a
written claim has been received by the Bank, the claimant may at any time
thereafter bring suit against the Bank to recover the unpaid amount of the
claim and, if successful in whole or in part, the claimant shall be entitled to
be paid also the reasonable expense of prosecuting such claim. It shall be a
defense to any such action (other than an action brought to enforce a claim for
expenses incurred in defending any Proceeding in advance of its final
disposition where the required undertaking has been tendered to the Bank) that
the claimant has not met the standards of conduct under this Article which make
it permissible for the Bank to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Bank.
SECTION 3. Contract Rights; Amendment or Repeal. All rights
under this Article shall be deemed a contract between the Bank and the
Director, Officer, employee or agent pursuant to which the Bank and the
Director, Officer, employee or agent intend to be legally bound. Any repeal,
amendment or modification of this Article shall be prospective only as to
conduct of a Director, Officer, employee or agent occurring thereafter, and
shall not affect any rights or obligations then existing.
SECTION 4. Scope of Article. The rights granted by this Article
shall not be deemed exclusive of any other rights to which a Director, Officer,
employee or agent may be entitled under any statute, agreement, vote of
Shareholders or disinterested Directors or otherwise. The indemnification and
advancement of expenses provided by or granted pursuant to this Article shall
continue as to a person who has ceased to be a Director, Officer, employee or
agent in respect to matters arising prior to such time, and shall inure to the
benefit of the heirs, executors, administrators and personal representatives of
such a person.
SECTION 5. Insurance. The Bank may purchase and maintain insurance,
at its expense, to protect itself and any person who is or was a Director,
Officer, employee or agent of the Bank or is or was serving at the request of
the Bank as a Director, Officer, partner, trustee, member of any governing or
decision-making committee, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, including service to an
employee benefit plan, against any liability asserted against that person or
incurred by that person in any such capacity, or arising out of that person's
status as such, whether or not the Bank would have the power to indemnify such
person against such expense, liability or loss under this Article; provided,
however, that any such policy of insurance purchased by the Bank shall exclude
coverage for a formal order assessing civil money penalties against a Director,
Officer or employee of the Bank.
<PAGE> 7
SECTION 6. Interpretation of Provisions. In order for the Bank to
obtain and retain qualified Directors, Officers, employees and agents, the
foregoing provisions shall be liberally administered in order to afford maximum
indemnification of Directors, Officers, employees and agents and, accordingly,
the indemnification above provided for shall be granted in all cases unless to
do so would clearly contravene applicable law, controlling precedent or public
policy.
ELEVENTH. These Articles of Association may be amended at any
regular or special meeting of the Shareholders by the affirmative vote of the
holders of a majority of the stock of this Association unless the vote of the
holders of a greater amount of stock is required by law, and in that case by
the vote of the holders of such greater amount.
<PAGE> 8
AMENDED AND RESTATED BYLAWS
OF THE
M&I FIRST NATIONAL BANK
WEST BEND, WISCONSIN
ORGANIZED UNDER THE NATIONAL BANKING
LAWS OF THE UNITED STATES
_____________________
ARTICLE I
SHAREHOLDERS
SECTION 1. Annual Meeting. The annual meeting of the Shareholders
of the Association for the purpose of electing Directors, and for the
transaction of such other business as may properly come before the meeting,
shall be held on the fourth Tuesday of January of each year, or if that date
falls on a legal holiday in Wisconsin, on the next following banking day, at
such time as shall be fixed by the Secretary of the Association or the Board of
Directors.
SECTION 2. Special Meetings. Special meetings of the Shareholders
may be called by the Chairman of the Board or President, and special meetings
shall be called by either the Chairman of the Board or the President on the
written request of a majority of Directors or Shareholders owning ten percent
of the outstanding stock.
SECTION 3. Place of Meetings. All meetings of the Shareholders shall
be held at the main office of the Association, unless some other place shall be
designated and so specified in the notice of the meeting.
SECTION 4. Notice of Meetings. Except as otherwise provided by law,
the Association shall notify Shareholders of the date, time and place of each
annual and special meeting not less than ten (10) nor more than sixty (60) days
before the date of the meeting by first class mail, postage prepaid, addressed
to each Shareholder at the address of such Shareholder appearing on the books
of the Association. Notice of a special meeting shall include a description
of each purpose for which the meeting is called. Notice of the meeting shall
be given only to those Shareholders entitled to vote at the meeting, unless
otherwise required by law.
SECTION 5. Quorum. A majority of the outstanding shares of stock
represented in person or by proxy shall constitute a quorum at any meeting of
the Shareholders, except at a meeting to act upon amendments to the Articles of
Association or Bylaws, for which a quorum shall constitute shares of stock
represented in person or by proxy consisting of at least two-thirds of the
outstanding shares. In the absence of a quorum a meeting may be adjourned from
time to time and the meeting may be held as adjourned without further notice.
Unless otherwise provided by law, or these Bylaws, a majority of the votes
cast shall decide every matter submitted to the Shareholders at any meeting.
1
<PAGE> 9
SECTION 6. Proxies. Shareholders may vote at any meeting of the
Shareholders by proxies duly authorized in writing, except that no officer or
employee of the Association may be designated to act as proxy. Proxies shall
be valid only for one meeting, to be specified therein, unless otherwise
provided in the proxy, and any adjournments of such meeting. Proxies shall be
dated and shall be filed with the records of the meeting.
SECTION 7. Shares in Name of Another Corporation. Shares outstanding
in the name of another corporation may be voted by the president of such
corporation, or any other officer or proxy appointed by such president in the
absence of express notice of the designation of some other person by the board
of directors or bylaws of such other corporation.
SECTION 8. Waiver of Notice. A Shareholder may waive any notice or
defects in the notice required by these Bylaws, the Articles of Association or
any provision of law, before or after the date and time stated in the notice,
provided that such waiver is in writing and signed by the Shareholder entitled
to the notice, and contains the same information that would have been required
in the notice under any applicable provisions under any statute, except that
the time and place of meeting need not by stated. Such waiver must be
delivered to the Association for inclusion in the corporate records. A
Shareholder's attendance at a meeting in person or by proxy, waives objection
to (i) lack of notice or defective notice of the meeting, unless the
Shareholder at the beginning of the meeting or promptly upon arrival objects to
the holding of the meeting or transacting business at the meeting, and (ii)
consideration of a particular matter at the meeting that is not within the
purpose described in the meeting notice, unless the Shareholder objects to
considering the matter when it is presented.
SECTION 9. Unanimous Consent Without Meeting. Any action required
or permitted by the Articles of Association or Bylaws or any provision of law
to be taken at a meeting of the Shareholders, may be taken without a meeting
if a consent in writing, setting forth the action so taken, shall be signed by
all of the shareholders entitled to vote with respect to the subject matter
thereof and delivered to the Association for inclusion in the Association's
records.
2
<PAGE> 10
ARTICLE II
DIRECTORS
SECTION 1. Management. The business and affairs of the Association
shall be managed by a Board of not more than fifteen (15) Directors nor less
than five (5) Directors, at the discretion of the Shareholders. The number of
directors shall by designated annually within these limits by the Shareholders
at the annual meeting. Those persons elected as Directors must be qualified to
act as Directors in accordance with 12 U.S.C. Section 72. Except as expressly
limited by law, all corporate powers of the Association shall be vested in and
may be exercised by said Board.
SECTION 2. Election and Tenure. The Directors shall be elected by the
Shareholders at the regular annual meeting of shareholders, and a majority of
the stock represented shall be necessary for election. Each Director shall
hold office for one (1) year and until his or her successor has been elected
and qualified, or until his or her death, or until he or she shall resign or
until he or she has been removed in the manner hereinafter provided. A Director
may be removed from office by affirmative vote of a majority of the outstanding
shares entitled to vote for the election of such Director, taken at a special
meeting of Shareholders called for that purpose. A Director may resign at any
time by filing his written resignation with the President of the Association.
SECTION 3. Director Emeritus. No person shall be eligible to be
elected a Director at any meeting of Shareholders held on or after the date he
or she attains age seventy (70); provided that this provision shall not apply
to Directors who have already attained the aforesaid age prior to the date of
adoption of these Bylaws. The Board of Directors, at its discretion, may
designate such a person who has served as a Director of the Association as a
Director Emeritus. Any Director who has attained age sixty-five (65) upon
declining to stand for reelection shall likewise be eligible to be designated a
Director Emeritus by the Board. A Director Emeritus shall be entitled to
receive all notices of meetings and communications to Directors, attend all
meetings of the Board of Directors and to participate in discussions of the
Board. However, a Director Emeritus shall not vote or be counted in
determining a quorum at any meeting of Directors.
SECTION 4. Regular Meetings. The regular meetings of the Board of
Directors shall be held once each month at such day and hour as the Board may
fix. Nor formal notice of such meetings need be given to any Director.
SECTION 5. Special Meetings. Special meetings of the Board of
Directors may, and at the written request of any three Directors shall, be
called at any time by the Chairman of the Board or the President, or in the
absence of the Chairman of the Board and the President, by any Vice President
who is then a member of the board of Directors. Notice of any special meeting
shall be given at least forty-eight (48) hours previous thereto, except in the
case of an emergency as provided under the Wisconsin Business Corporation Law,
by written or oral notice, by telephone, telegraph, teletype, facsimile or by
mail or private carrier. Notice to Directors of any meeting shall be deemed
to be effective as provided in Section 180.0141 of Wisconsin Statutes, or any
successor thereto.
SECTION 6. Quorum. A majority of the whole number of directors shall
constitute a
3
<PAGE> 11
quorum at any meeting. In the absence of a quorum, a lesser number may adjourn
any meeting from time to time and the meeting may be held as adjourned, without
further notice, if a quorum is obtained.
SECTION 7. Notice, Waiver, Participation. Whenever any notice is
required to be given to any director of the Association under the provisions of
these Bylaws or under the provisions of the Articles of Association or under
the provisions of any law, a waiver thereof in writing, signed at any time,
whether before or after the time of meeting, by the Director entitled to such
notice, shall be deemed equivalent to the giving of such notice. The
attendance of a Director at a meeting shall constitute a waiver of notice of
such meeting, except where a Director attends a meeting and objects thereat to
the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting. Any or all of the Directors may
participate in a regular or special meeting of the Board of Directors, or such
meeting may be conducted through the use of, any means of communication by
which either (a) all participating Directors may simultaneously hear each other
during the meeting, or (b) all communication during the meeting is immediately
transmitted to each participating Director, and each participating Director is
able to immediately send messages to all other participating Directors;
provided that, all participating Directors must be informed that a meeting is
taking place at which official business may be transacted.
SECTION 8. Vacancies. When any vacancy occurs among the Directors, a
majority of the remaining members of the Board shall appoint a Director to fill
such vacancy at any regular meeting of the Board, or at a special meeting
called for that purpose.
SECTION 9. Unanimous Consent Without Meeting. Any action required or
permitted by the Articles of Association or Bylaws or any provision of law to
be taken by the Board of Directors at a meeting or by resolution may be taken
without a meeting if a consent in writing, setting forth the action so taken,
shall be signed by all of the Directors then in office.
SECTION 10. Presumption of Assent. A director of the Association who
is then present at a meeting of the Board of Directors or a committee thereof
of which he is a member at which action on any corporate matter is taken shall
be presumed to have assented to the action taken unless (i) the Director
objects at the beginning of the meeting or promptly upon his or her arrival to
holding the meeting or transacting business at the meeting, or (ii) the
Director's abstention or dissent to the action taken shall be entered in the
minutes of the meeting, or (iii) the Director shall file his or her written
dissent to such action with the person acting as the Secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered mail
to the Secretary of the Association immediately after the adjournment of the
meeting, or (iv) the Director dissents or abstains from an action taken,
minutes of the meeting are prepared that fail to show the Director's dissent or
abstention from the action taken and the Director delivers to the Association
by registered mail a written notice of that failure promptly after receiving
the minutes. A Director who votes in favor of action taken may not dissent or
abstain from that action.
SECTION 11. Compensation. The compensation of Directors shall be
determined by the Board of Directors.
4
<PAGE> 12
ARTICLE III
COMMITTEES OF THE BOARD
The Board of directors must formally ratify written policies
authorized by committees of the Board of Directors before such policies become
effective. Each committee must have one or more *member(s), who serve at the
pleasure of the Board of Directors. Provisions of the Articles of Association
and Bylaws governing place of meetings, notice of meeting, quorum and voting
requirements of the Board of Directors, apply to committees and their members
as well. The creation of a committee and appointment of members to it must be
approved by the Board of Directors.
SECTION 1. Loan Committee. There shall be a Loan Committee composed
of three (3) or more Directors, appointed by the board annually or more often.
The Loan Committee shall have power to discount and purchase bills, notes and
other evidences of debt, to buy and sell bills of exchange, to examine and
approve loans and discounts, to exercise authority regarding loans and
discounts, and to exercise, when the Board of Directors is not session, all
other powers of the Board of Directors that may lawfully be delegated. The
Loan Committee shall keep minutes of its meetings, and such minutes shall be
submitted at the regular meeting of the Board of Directors at which a quorum is
present, and any action taken by the Board of Directors with respect thereto
shall be entered in the minutes of the Board of Directors.
SECTION 2. Investment Committee. There shall be an Investment
Committee composed of three (3) or more Directors, appointed by the Board of
Directors annually or more often. The Investment Committee shall have the
power to ensure adherence to the investment policy, to recommend amendments
thereto, to purchase and sell securities, to exercise authority regarding
investments and to exercise, when the Board of Directors is not in session, all
other powers of the Board of Directors regarding investment securities that may
be lawfully delegated. The Investment Committee shall keep minutes of its
meetings, and such minutes shall be submitted at the next regular meeting of
the Board of Directors at which a quorum is present, and any action taken by
the Board of Directors with respect thereto shall be entered in the minutes of
the Board of Directors.
SECTION 3. Examining Committee. There shall be an Examining Committee
composed of not less than three (3) Directors, exclusive of any active
officers, appointed by the Board annually or more often. The duty of that
Committee shall be to make, or cause to be made, by either the internal audit
staff of Marshall & Ilsley Corporation or a qualified firm of Certified Public
Accountants approved by the Board of Directors, suitable examinations of the
affairs of the Association at least annually. The results of examinations
conducted by the internal audit staff of Marshall & Ilsley Corporation or a
firm of Certified Public Accountants, together with any recommendations for
revisions in accounting or operating procedures and controls which are deemed
advisable, shall be reported periodically in writing to the Examining
Committee. At least annually, the Examining Committee shall report in writing
to the Board of Directors the result of examinations conducted since the
previous report to the Board of Directors. Such report shall state whether the
Association is in a sound condition, and whether adequate internal accounting
controls and procedures are being maintained and shall recommend to the Board
of Directors such changes in the manner of conducting the affairs of the
Association as shall be deemed advisable.
5
<PAGE> 13
SECTION 4. Other Committees. The Board of Directors may appoint, from
time to time, from its own members, compensation, special litigation and other
committees of one or more persons for such purposes and with such powers as the
Board of directors may determine.
However, a committee may not:
(1) Authorize distributions of assets or dividends.
(2) Approve action required to be approved by
Shareholders.
(3) Fill vacancies on the Board of Directors or any of
its committees.
(4) Amend Articles of Association.
(5) Adopt, amend or repeal Bylaws.
(6) Authorize or approve issuance or sale or contract for
sale of shares, or determine the designation and
relative rights, preferences and limitations of a
class or series of shares.
6
<PAGE> 14
ARTICLE IV
OFFICERS
SECTION 1. Number and Election. The Officers of the Association
shall be a Chairman of the Board of Directors, if the Board of Directors elects
to fill such office, and a President, one or more Vice Presidents, a Secretary,
and such other Officers and Assistant Officers as may be required or desirable
for the prompt and orderly transaction of the business of the Association. One
or more of the vice Presidents may be designated as Executive Vice President,
Senior Vice President, or First Vice President, or have such other designation
as may be determined by the board of Directors. Such Officers shall be elected
by the Directors at the regular meeting of the board of Directors after the
adjournment of each regular annual meeting of the Shareholders or at any
regular meeting of the Board of Directors or at any special meeting of the
Board of Directors called for said purpose. A Vice President may serve as
Secretary, in which event there shall be at least one other Vice President.
The Board of Directors shall fix the compensation for each Officer.
SECTION 2. Officers to be Members of the Board of Directors.
The Chairman of the Board of Directors and the President shall be members of
the Board of Directors.
SECTION 3. Chairman of the Board. The duties of the Chairman of
the Board of Directors, if one be elected, shall be to preside at all meetings,
regular and special, of the Shareholders of the Association and of its Board of
Directors, and such other, further, and additional duties as may be conferred
upon said Chairman by the Board of Directors. The Board of Directors may from
time to time, by resolution, reapportion the duties and responsibilities for
the general overall management of the Association between the Chairman of the
Board and the President.
SECTION 4. President. The President shall preside at all
meetings of the Shareholders and at all meetings of the Board of Directors,
unless a Chairman of the Board of Directors shall have been elected in which
case the Chairman shall preside. The President shall perform all the usual
duties and have such powers as are incident to the office and shall have such
other powers and duties as may from time to time be prescribed by the Bylaws or
by resolution of the Board of Directors.
SECTION 5. Vice Presidents. In the absence of the President or
in the event of the death, inability or refusal to act, or in the event for any
reason which shall be impracticable for him to act personally, the Vice
President (or if there be more than one then according to the designations made
or in the order designated by the Board of Directors, or in the absence of any
designation, in the order of their election) shall perform the duties of the
President, and when so acting, shall have all of the powers of and be subject
to all of the restrictions upon the President. Any Vice President shall
perform such other duties and have such powers as are incident to the office of
Vice President, or incident to the office of Executive Vice President, Senior
Vice President, First Vice President, or other such designated office if any
such designations have been made by the Board of Directors, or as may be
prescribed from time to time by the Board of Directors or the President.
SECTION 6. Secretary. The Board of Directors shall appoint a
secretary, cashier or other designated officer who shall be secretary of the
Board of Directors and of the Association and shall
7
<PAGE> 15
keep accurate minutes of all meetings. The Secretary shall attend to the
giving of all notices required by these Bylaws; shall be the custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all of the powers and duties pertaining by law,
regulation or practice, to the office of cashier, as defined by the Comptroller
of the Currency or imposed by these Bylaws; and shall also perform such other
duties as may be assigned from time to time by the Board of Directors.
SECTION 7. Other Officers and Assistant Officers. There shall
be such number of other officers and assistant officers as the Board of
Directors may from time to time authorize and elect. They shall perform such
duties and have such authority as shall from time to time be delegated or
assigned to them by the President or the Board of Directors. Other officers
and assistant officers below the level of Assistant Vice President shall bear
functional titles descriptive of their area of responsibility, but shall be
deemed to be Assistant Cashiers for purposes prescribed by statute, supervisory
regulations, and appropriate resolutions of the Board of Directors.
SECTION 8. Term of Office. Each Officer shall hold office for
the term of one year, and until his or her successor shall have been duly
elected, or until his or her death, or until he or she shall resign, or shall
have been removed by the Board of Directors.
SECTION 9. Removal. Any officer or agent elected or appointed
by the Board of Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the Association will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of the
person so removed. Election or appointment shall not of itself create contract
rights.
SECTION 10. Vacancies. A Vacancy in any office because of death,
resignation, removal, disqualification or otherwise, shall be filled by the
Board of Directors for the unexpired portion of the term or left vacant.
8
<PAGE> 16
ARTICLE V
FIDUCIARY ACTIVITIES
SECTION 1. Trust Officer. There shall be a trust officer of this
Association whose duties shall be to manage, supervise, and direct all
fiduciary activities. Such person shall do or cause to be done all things
necessary or proper in carrying on the fiduciary business of the Association
according to provisions of law and applicable regulations; and shall act
pursuant to opinion of counsel where such opinion is deemed necessary. Opinions
of counsel shall be retained on file in connection with all important matters
pertaining to fiduciary activities. The trust officer shall be responsible for
all assets and documents held by the Association in connection with fiduciary
matters.
The Board of Directors may appoint other trust officers as it may deem
necessary, with such duties as may be assigned.
SECTION 2. Trust Investment Committee. There shall be a Trust
Investment Committee of this Association composed of three (3) or more members,
who shall be capable and experienced officers or Directors of the Association.
All investments of funds held in a fiduciary capacity shall be made, retained
or disposed of only with the approval of the Trust Investment Committee, and
the Committee shall keep minutes of all its meetings, showing the disposition
of all matters considered and passed upon by it. The committee shall, promptly
after the acceptance of an account for which the Association has investment
responsibilities, review the assets thereof, to determine the advisability of
retaining or disposing of such assets. The committee shall conduct a similar
review at least once during each calendar year thereafter and within fifteen
months of the last such review. A report of all such reviews, together with
the action taken as a result thereof, shall be noted in the minutes of the
committee.
SECTION 3. Trust Audit Committee. The Board of Directors shall
appoint a committee of Directors, exclusive of any active officer of the
Association, which shall, at least once during each calendar year and within
fifteen (15) months of the last such audit make suitable audits of the
Association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the Board of Directors, and at such time shall
ascertain whether fiduciary powers have been administered according to law,
Part 9 of the Regulations of the Comptroller of the Currency, and sound
fiduciary principles.
SECTION 4. Fiduciary Files. There shall be maintained by the
Association all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
SECTION 5. Trust Investments. Funds held in a fiduciary
capacity shall be invested according to the instrument establishing the
fiduciary relationship and local law. Where such instrument does not specify
the character and class of investments to be made and does not vest in the
Association a discretion in the matter, funds held pursuant to such instrument
shall be invested in investments in which corporate fiduciaries may invest
under local law.
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<PAGE> 17
ARTICLE VI
S E A L
The Board of Directors is empowered and instructed to adopt and
procure for the Association an official seal. An impression of the seal shall
be placed in the space immediately following this section. The Secretary of
the Association Shall have custody of the seal.
SEAL
10
<PAGE> 18
ARTICLE VII
AMENDMENTS
These Bylaws may be added to, amended, altered or repealed at any
regular meeting or special meeting called for that purpose of the Board of
Directors, by a vote of a majority of the total number of the directors. The
Shareholders may amend or repeal the Bylaws even though the Bylaws may also be
amended or repealed by the Board of Directors.
11
<PAGE> 19
ARTICLE VIII
EMERGENCY OPERATIONS
SECTION 1. General. In the event of an emergency declared by the
President of the United States, the Governor of this State or an official in
authority of this City or the persons performing their functions, and/or the
area in which the Association is situated is declared to be a disaster area
and/or, by reason of the occurrence of a disaster whereby the operations of the
Association cannot be immediately continued at its banking quarters or by its
duly elected Officers and other personnel, then the Officers and employees of
the Association will continue to conduct the affairs of the Association under
such guidance from the Directors as may be available except as to matters which
by statute require specific approval of the Board of Directors and subject to
conformance with any law, including 12 U.S.C. Section 95, and governmental
directives during the emergency, and the following sections of these Bylaws
shall be in full force and effect and shall prevail over other sections of
these Bylaws to the contrary.
SECTION 2. Meetings and Quorums. A valid Special Shareholders'
Meeting may be held on call by the President, the Acting President, any
Director of this Association or by an officer of Marshall & Ilsley Corporation
on three (3) hours notice of the time and place of such meeting to each
Shareholder by telegraph or telephone to the last known address of such
Shareholder or in person and any Corporation action may be taken at such
meeting at which the majority of the issued and outstanding shares of the
Association, represented in person or by proxy, shall be present. In the event
of failure of communications a valid Special Shareholders' meeting may be held
without call or notice by a Shareholder or Shareholders owning a majority of
the issued and outstanding shares of the Association represented in person or
by proxy at a time and place to be determined by agreement of such
Shareholders.
A valid Special Directors' Meeting may be held on call by the President, the
Acting President, or any Director of this Association or by an officer of
Marshall & Ilsley Corporation on three (3) hours notice of the time and place
of such meeting to each Director by telegraph or telephone to the last known
address of such Director or in person and three (3) or more duly elected and
qualified Directors and/or "temporary" Directors shall constitute a quorum for
such meeting. In the event of failure of communications a valid Special
Directors' Meeting may be held without call or notice by three (3) or more duly
elected and qualified Directors and/or "temporary" Directors at a time and
place to be determined by agreement among them.
SECTION 3. Executive Committee. In the event of a state of disaster
of sufficient severity to prevent the conduct and management of the affairs and
business of the Association by its Directors and Officers as contemplated by
these Bylaws, any two or more available members of the Executive committee, if
any, shall constitute a quorum of that committee for the full conduct and
management of the affairs and business of the Association. If there is no
Executive Committee or if a minimum of two members of the Executive Committee
are not available, any three or more Directors shall constitute an executive
committee for the full conduct and management of the affairs and business of
the Association during the period of the emergency. Normal functions of the
Board of Directors and Officers of the Association as provided in the Bylaws
shall be resumed when the emergency
12
<PAGE> 20
period has ceased.
SECTION 4. Disability of Officers. The Board of Directors shall have
the power, in the absence or disability of any Officer, or upon refusal of any
officer to act, to delegate and prescribe such Officer's powers and duties to
any other Officer, or to any Director, for the time being. This Section may be
implemented by an advance resolution adopted by the Board of Directors
designating order of succession among the Officers to be effective
automatically in the period of emergency when one or more Officers may be
unable to perform normal executive duties.
SECTION 5. Offices. The offices of the Association at which its
business shall be conducted shall be the main office or any other legally
authorized location which may be leased or acquired by the Association to carry
on its business. During an emergency resulting in any authorized place of
business of the Association being unable to function, the business ordinarily
conducted at such location shall be relocated elsewhere in suitable quarters,
in lieu of the locations heretofore mentioned, as may be designated by the
Board of Directors or by the Executive Committee, by virtue of the authority as
may be granted or by approval of the Comptroller of the Currency, for the
purpose of facilitating continuance of the business of banking during the
period of the emergency. Any temporarily relocated place of business of the
Association shall be returned to its legally authorized location as soon as
practicable and such temporary place of business shall then be discontinued.
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<PAGE> 21
ARTICLE VIII
CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares. Certificates representing
shares of the Association shall be in such form, consistent with law, as shall
be determined by the Board of Directors. Such certificates shall be signed by
the President or a Vice President, and the Secretary.
The name and address of the person to whom the shares represented
thereby are issued with the number of shares and date of issue, shall be
entered on the stock transfer books of the Association. All certificates
surrendered to the Association for transfer shall be cancelled and no new
certificate shall be issued until the former certificate for a like number of
shares shall have been surrendered and cancelled except as provided in Section
3 of this Article IX.
SECTION 2. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer, the Association may treat
the registered owner of such shares as the person exclusively entitled to vote,
to receive notifications and otherwise to exercise all the rights and power of
an owner. Where a certificate for shares is presented to the Association with
a request to register for transfer, the Association shall not be liable to the
owner or any other person suffering loss as a result of such registration of
transfer if (a) there were on or with the certificate the necessary
endorsements, and (b) the Association had no duty to inquire into adverse
claims or has discharged any such duty. The Association may require reasonable
assurance that said endorsements are genuine and effective and compliance with
such other regulations as may be prescribed under the authority of the Board of
Directors.
SECTION 3. Lost, Destroyed or Stolen Certificates. Where the
owner claims that a certificate for shares has been lost, destroyed or
wrongfully taken, a new certificate shall be issued in place thereof if the
owner (a) so requests before the Association has notice that such shares have
been acquired by a bona fide purchaser, and (b) satisfies such reasonable
requirements as the Board of Directors may prescribe which may include
furnishing an indemnification agreement or an indemnity bond.
SECTION 4. Stock Regulations. The Board of Directors shall have
the power and authority to make all such further rules and regulations not
inconsistent with the law or regulations and rulings of the comptroller of the
Currency as it may deem expedient concerning the issue, transfer, and
registration of certificates representing shares of the Association.
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<PAGE> 22
I, Roger T. Stephenson, Certify that: (1) I am the duly constituted
Secretary of M&I First National Bank, West Bend, and of its Board of Directors,
and as such officer, am the official custodian of its records; and (2) the
foregoing Bylaws, as amended, are the Bylaws of the Association, and all of
them are now lawfully in force and effect.
I have hereunto affixed my official signature and the Seal of the
Association, in the City of West Bend, on this 5th day of February, 1996.
S E A L ________________________________
Roger T. Stephenson, Secretary
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<PAGE> 23
Pursuant to the provisions of Section 321(b) of the Trust Indenture Act of
1939, M&I First National Bank hereby consents, in connection with the
qualification of the Indenture of Sundstrand Corporation governing debt
securities, that reports of examination of M&I First National Bank by Federal
and State authorities may be furnished by such authorities to the Securities
and Exchange Commission upon request therefore.
M&I FIRST NATIONAL BANK
By:__________________________________________
R. T. Stephenson, Executive Vice President
Dated: February 5, 1996
<PAGE> 24
COMPTROLLER OF THE CURRENCY
ADMINISTRATOR OF NATIONAL BANKS
REPORT OF CONDITION
Consolidating domestic subsidiaries of the
M&I FIRST NATIONAL BANK OF WEST BEND
in the state of Wisconsin, at the close of business on December 31, 1995
published in response to call made by Comptroller of the Currency, under Title
12, United States Code, Section 161.
Charter Number 11060, Comptroller of the Currency, 9 District.
Statement of Resources and Liabilities
Dollar Amounts in Thousands
ASSETS
<TABLE>
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin 13,823
Interest-Bearing balances 0
Securities (from Schedule RC-B):
Held to maturity securities 11,955
Available for sale securities 56,764
14,674
Federal funds sold 500
Securities purchased under agreements to resell
Loans and lease financing receivables:
Loans and Leases, net of unearned income 162,170 . . . . . . .
LESS: Allowance for loan and lease losses 2,444 . . . . . . .
LESS: Allocated transfer risk reserve 0 . . . . . . .
Loans and leases, net of unearned income, allowance, and reserve 159,726
Assets held in trading accounts 0
Premises and fixed assets (including capitalized leases) 3,633
Other real estate owned 0
Investments in unconsolidated subsidiaries and associated companies 0
Customers' liability to this bank on acceptances outstanding 20
Intangible assets 159
Other assets 2,834
Total assets 264,088
</TABLE>
(FDIC 8040/54B 3/90) Continued
<PAGE> 25
COMPTROLLER OF THE CURRENCY
ADMINISTRATOR OF NATIONAL BANKS
M&I FIRST NATIONAL BANK
REPORT OF CONDITION (Continued)
Dollar Amounts in Thousands
LIABILITIES
<TABLE>
<S> <C> <C>
Deposits:
In domestic offices 234,717
Noninterest-bearing 57,078 . . . . . . .
Interest-bearing 177,639 . . . . . . .
Federal funds purchased 0
Securities sold under agreements to repurchase 5,400
Demand notes issued to the U.S. Treasury 0
Trading Liabilities 0
Other borrowed money:
With original maturity of one year or less 0
With original maturity of more than one year 0
Mortgage indebtedness and obligations under capitalized leases 0
Bank's liability on acceptances executed and outstanding 20
Subordinated notes and debentures 0
Other liabilities 2,722
Total liabilities 242,859
Limited-Life preferred stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 5,250
Surplus 5,194
Undivided profits and capital reserves 9,958
Net unrealized holding gains (losses) on available for sale securities 827
Total equity capital 21,229
Total liabilities, limited-life preferred stock, and equity capital 264,088
</TABLE>
I, OSCAR W. STEELE
SR. VICE PRESIDENT & CASHIER
of the above-named bank do hereby declare that this Report
of Condition is true and correct to the best of my knowledge
and belief.
_______________________________________________
Signature
_______________________________________________
Date
(FDIC 8040/54B) (PAGE 2)
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