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Exhibit 4(i)
SECOND SUPPLEMENTAL SENIOR INDENTURE, dated as of October __,
1995, between TEXTRON INC., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company") and CHEMICAL
BANK, as successor to Manufacturers Hanover Trust Company, as Trustee under the
below mentioned Indenture (hereinafter called the "Trustee"), which term shall
include any successor trustee appointed pursuant to Article Six of the
Indenture hereinafter referred to.
W I T N E S S E T H
WHEREAS, the Company and the Trustee have heretofore executed
and delivered the Indenture, dated as of April 15, 1987 (hereinafter referred
to as the "Indenture"), as amended by the First Supplemental Senior Indenture,
dated as of March 15, 1988, providing for the issuance from time to time of one
or more series of Securities evidencing unsecured indebtedness of the Company
(hereinafter called "Securities"); and
WHEREAS, terms used in this Second Senior Supplemental
Indenture which are defined in the Indenture shall have the meanings assigned
to them in the Indenture; and
WHEREAS, this Second Senior Supplemental Indenture amends the
Indenture, pursuant to Section 901 thereof, in order to add certain
definitions, govern the issuance, transfer, and exchange of Global Securities
and provide for defeasance and covenant defeasance;
NOW, THEREFORE;
For and in consideration of the premises and the purchase of
Securities by the holders thereof, the Company covenants and agrees, for the
equal and proportionate benefit of the respective holders from time to time
hereafter of the Securities, as follows:
ARTICLE I
Section 1.1 Section 101 of the Indenture is amended to
add the following definitions:
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"Covenant Defeasance" has the meaning specified in Section 403.
"Defeasance" has the meaning specified in Section 402.
"Depositary" means, with respect to Securities of any series issuable
in whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor legislation.
"Global Security" means a Security that evidences all or part of the
Securities of any series and is authenticated and delivered to, and registered
in the name of, the Depositary for such Securities or a nominee thereof.
"U.S. Government Obligations" has the meaning specified in Section 404.
Section 1.2. The Indenture is amended by adding a new Section 312
to read in its entirety as follows:
Section 312. Global Securities.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Company shall execute and the Trustee shall, in accordance
with Section 303 and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount
of all of the Securities of such series to be issued in the form of Global
Securities and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, and (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions.
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Global Securities shall bear a legend substantially to the following
effect:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Global Security is
exchangeable for Securities registered in the name of a Person other
than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Security (other
than a transfer of this Security as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered
except in such limited circumstances. Every Security delivered upon
registration of transfer of, or in exchange for, or in lieu of, this
Global Security shall be a Global Security subject to the foregoing,
except in the limited circumstances described above.
Unless this certificate is presented by an authorized
representative of The Depositary Trust Company, a New York corporation
("DTC"), to the Company or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the
name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is to be made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
Notwithstanding the provisions of Section 305, unless and until it is
exchanged in whole or in part for Securities in definitive registered form, a
Global Security representing all or a part of the Securities of a series may
not be transferred in the manner provided in Section 305 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.
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If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under this
Section 312, the Company shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company's election pursuant to
Section 301 that such Securities be represented by one or more Global
Securities shall no longer be effective and the Company shall execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver Securities
of such series in definitive registered form, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Securities in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Company shall execute, and the Trustee, upon receipt of a
Company Order or an Officer's Certificate for the authentication and delivery
of definitive Securities of such series, shall authenticate and deliver,
Securities of such series in definitive registered form, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such Securities, in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as
are acceptable to the Company and such Depositary. Thereupon, the Company
shall execute, and the Trustee shall authenticate and deliver, without service
charge,
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(i) to the Person specified by such Depositary, a new
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to clause
(i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Company or the Trustee. Securities
in definitive registered form issued in exchange for a Global Security pursuant
to this Section 312 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Company or the Trustee. The Trustee or
such agent shall deliver at its office such Securities to or as directed by the
Persons in whose names such Securities are so registered.
Section 1.3. Article Four of the Indenture is amended to
read in its entirety as follows:
ARTICLE FOUR
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and delivered
and all coupons, if any, appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii)Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306
and (iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 106 and (iv) Securities and coupons for
whose payment money has theretofore been deposited in trust or
segregated and held in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
i) have become due and payable, or
ii) will become due and payable at their Stated
Maturity within one year, or
iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities and
coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
to
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the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.}
Section 402. Defeasance and Discharge.
The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officer's
Certificate or indenture supplemental hereto provided pursuant to Section 301.
In addition to discharge of this Indenture pursuant to Sections 401 and 403, in
the case of any series of Securities with respect to which the exact amount
described in subparagraph (a) of Section 404 can be determined at the time of
making the deposit referred to in such subparagraph (a), the Company shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series as provided in this Section on and after the date
the conditions set forth in Section 404 are satisfied, and the provisions of
this Indenture with respect to the Securities of such series shall no longer be
in effect (except as to (i) rights of registration of transfer and exchange of
Securities of such series, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities of such series, (iii) rights of Holders of Securities
of such series to receive, solely from the trust fund described in subparagraph
(a) of Section 404, payments of principal thereof
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and interest, if any, thereon upon the original stated due dates therefor (but
not upon acceleration), and remaining rights of the Holders of Securities of
such series to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) this
Section 402 and (vi) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them) (hereinafter called "Defeasance"), and the
Trustee at the cost and expense of the Company, shall execute proper
instruments acknowledging the same.
Section 403. Covenant Defeasance.
In the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) of Section 404 can be determined at
the time of making the deposit referred to in such subparagraph (a), (i) the
Company shall be released from its obligations under any covenants specified in
or pursuant to this Indenture (except as to (i) rights of registration of
transfer and exchange of Securities of such series, (ii) substitution of
mutilated, defaced, destroyed, lost or stolen Securities of such series, (iii)
rights of Holders of Securities of such series to receive, from the Company
pursuant to Section 1001, payments of principal thereof and interest, if any,
thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of such series
to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder and (v) the rights
of the Holders of Securities of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them), and (ii) the occurrence of any event specified in Sections 501(4) (with
respect to any of the covenants specified in or pursuant to this Indenture) and
501(7) shall be deemed not to be or result in an Event of Default, in each case
with respect to the Outstanding Securities of such series as provided in this
Section on and after the date the conditions set forth in Section 404 are
satisfied (hereinafter called "Covenant Defeasance"), and the Trustee at the
cost and expense of the Company, shall execute proper instruments acknowledging
the same. For this purpose, such Covenant Defeasance means that the Company
may omit to comply with and shall
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have no liability in respect of any term, condition or limitation set forth in
any such covenant (to the extent so specified in the case of Section 501(4)),
whether directly or indirectly by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document, but the remainder of this
Indenture and the Securities of such series shall be unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
402 or 403 to the Outstanding Securities:
(a) with reference to Section 402 or 403, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Securities of such
series (i) cash in an amount, or (ii) direct obligations of the United
States of America, backed by its full faith and credit ("U.S.
Government Obligations"), maturing as to principal and interest, if
any, at such times and in such amounts as will insure the availability
of cash, or (iii) a combination thereof, in each case sufficient, in
the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge (A) the principal of and interest,
if any, on all Securities of such series on each date that such
principal or interest, if any, is due and payable, and (B) any
mandatory sinking fund payments on the dates on which such payments
are due and payable in accordance with the terms of this Indenture and
the Securities of such series;
(b) in the case of Defeasance under Section 402, the
Company has delivered to the Trustee an Opinion of Counsel based on
the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y), since the
date hereof, there has been a change
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in the applicable United States federal income tax law, in either case
to the effect that, and such opinion shall confirm that, the Holders
of the Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit,
Defeasance and discharge and will be subject to federal income tax on
the same amount and in the same manner and at the same times, as would
have been the case if such deposit, Defeasance and discharge had not
occurred;
(c) in the case of Covenant Defeasance under Section 403,
the Company has delivered to the Trustee an Opinion of Counsel to the
effect that, and such opinion shall confirm that, the Holders of the
Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and Covenant
Defeasance and will be subject to federal income tax on the same
amount and in the same manner and at the same times, as would have
been the case if such deposit and Covenant Defeasance had not
occurred;
(d) such Defeasance or Covenant Defeasance will not
result in a breach or violation of, or constitute a default under, any
agreement or instrument to which the Company is a party or by which it
is bound; and
(e) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied
with.
Section 405. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 404 shall be held in trust, and such money and all money from such U.S.
Government Obligations shall be applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal (and premium, if
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any) and interest for whose payment such money and U.S. Government Obligations
has been deposited with the Trustee.
Section 406. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 404 or the principal or interest received in
respect of such obligations other than any such tax, fee or other charge that
by law is for the account of the Holders of Outstanding Securities.
ARTICLE II
Section 2.1. This Second Supplemental Senior Indenture
shall be effective as of the date hereof upon the execution and delivery hereof
by each of the parties hereto.
Section 2.2. The recitals contained herein shall be taken
as the statements of the Company and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
Section 2.3. This Second Supplemental Senior Indenture
shall be governed by and construed in accordance with the laws of the
jurisdiction which govern the Indenture and its construction.
Section 2.4. This Second Supplemental Senior 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Senior Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the day and year
first written above.
TEXTRON INC.
By______________________________
Name:
Title:
ATTEST:
____________________________
Name:
Title:
CHEMICAL BANK, Trustee
By______________________________
Name:
Title:
ATTEST:
____________________________
Name:
Title:
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