EXHIBIT 4.5
SECOND SUPPLEMENTAL INDENTURE, dated as of November 1,
1997, between ALLIEDSIGNAL INC., a Delaware corporation
(hereinafter called the "Corporation"), and The Chase Manhattan
Bank, a banking association organized and existing under the laws
of the State of New York (formerly The Chase Manhattan Bank
(National Association))(hereinafter called the "Trustee").
WHEREAS, the Corporation and the Trustee entered into
an Indenture, dated as of October 1, 1985 (hereinafter the
"Original Indenture"), providing for the creation, execution,
authentication and delivery of certain Debentures of the
Corporation;
WHEREAS, the Corporation and the Trustee entered into a
First Supplemental Indenture, dated as of February 1, 1991
(hereinafter the "First Supplemental Indenture" and, together
with the Original Indenture, the "Indenture as Amended"),
providing for the creation, execution, authentication and
delivery of certain Debentures of the Corporation;
WHEREAS, the Corporation has requested the Trustee to
join with it in the execution and delivery of this Second
Supplemental Indenture in order to supplement and amend the
Indenture as Amended, by amending certain provisions and by
adding certain provisions thereto, to clarify the provisions
relating to defeasance and to provide for an additional covenant
of the Corporation relating to consolidation, merger, conveyance,
transfer or lease;
WHEREAS, Section 901 of the Original Indenture
provides, among other things, that the Corporation, when
authorized by the Board of Directors and the Trustee, may from
time to time and at any time enter into an indenture or
indentures supplemental to the Original Indenture for the
purpose, inter alia, of making additional provisions in regard to
matters or questions arising thereunder which shall not be
inconsistent with the provisions of the Original Indenture and
shall not adversely affect the interests of the Holders of any
series or the Holders of any Coupons;
WHEREAS, the Corporation and the Trustee are desirous
of entering into this Second Supplemental Indenture for the
purposes set forth in Section 901 of the Original Indenture as
referred to above; and
WHEREAS, all acts and things necessary to cause this
Second Supplemental Indenture to be a valid, binding and legal
instrument of the Corporation have been done and performed by the
Corporation, and the execution and delivery of this Second
Supplemental Indenture have in all respects been duly authorized
by the Corporation, and the Corporation, in the exercise of the
legal right and power in it vested, executes this Second
Supplemental Indenture.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE
WITNESSETH:
For and in consideration of the premises and the
covenants herein contained and the purchase and acceptance of the
Debentures issued hereunder by the Holders thereof, and for other
valuable consideration, the receipt of which is hereby
acknowledged, the Corporation covenants and agrees with the
Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of the Debentures, as
follows:
ARTICLE ONE
DEFINITIONS
Except as otherwise defined in or amended by this
Second Supplemental Indenture, each capitalized term used herein
shall have the meaning assigned thereto in the Indenture as
Amended.
ARTICLE TWO
MODIFICATIONS OF THE ORIGINAL INDENTURE
A. Section 101 of the Indenture as Amended is further
amended to add a new definition thereto, in the appropriate
alphabetical sequence as follows:
"U.S. Government Obligations" means direct obligations of the
United States of America, backed by its full faith and credit.
B. Subsection 314(b) of the Indenture as Amended is
amended by amending such subsection to read in its entirety as
follows:
(b) Notwithstanding any contrary provision herein, (i)
Debentures of any series referred to as "Medium-Term Notes"
shall not be required to be identical as set forth in the
third sentence of Section 301, provided, however, that all
Debentures of any such series shall be identical in respect of
covenants and Events of Default, and (ii) the terms of any
Debenture of any such series may be determined at the time of
issuance of such Debenture by the Pricing Committee (or by any
Person authorized to determine such terms on behalf of the
Pricing Committee).
C. The Indenture as Amended is further amended by
adding the following Section 403:
SECTION 403. Defeasance and Discharge of Indenture.
If the principal of and any premium and interest on
Debentures of any series issued on or after November 1, 1997
are denominated and payable in United States of America
dollars, the Corporation shall be deemed to have paid and
discharged the entire indebtedness on all the Outstanding
Debentures of such series on the 91st day after the date of
the deposit referred to in subparagraph (1) of this section,
and the provisions of this Indenture, as it relates to such
Outstanding Debentures, shall no longer be in effect (and the
Trustee, at the expense of the Corporation, shall at the
Corporation's request, execute proper instruments
acknowledging the same), except as to:
(a) the rights of Holders of Debentures to receive, from the
trust funds described in subparagraph (1) of this section, (i)
payment of the principal of (and premium, if any) and interest
on the Outstanding Debentures on the Stated Maturity of such
principal or installment of principal and interest and (ii)
the benefit of any mandatory sinking fund payments applicable
to the Debentures on the day on which such payments are due
and payable in accordance with the terms of this Indenture and
the Debentures;
(b) the Corporation's obligations with respect to such
Debentures under Sections 306, 307, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder;
provided that, the following conditions shall have been
satisfied:
(1) The Corporation has deposited or caused to be irrevocably
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609) as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Debentures, (i) money in an
amount, or (ii) non-callable U.S. Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in
clause (A) or (B) of this subparagraph (1) money in an amount
or (iii) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (A) the
principal of (and premium, if any) and each installment of
principal of (and premium, if any) and interest on the
Outstanding Debentures on the Stated Maturity of such
principal or installment of principal and interest and (B) any
mandatory sinking fund payments applicable to the Debentures
on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of the
Debentures;
(2) such deposit shall not cause the Trustee with respect to
the Debentures to have a conflicting interest as defined in
Section 608 and for purposes of the Trust Indenture Act with
respect to the Debentures;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other
agreement or instrument to which the Corporation is a party or
by which it is bound;
(4) such provision would not cause any Outstanding Debentures
then listed on the New York Stock Exchange or other securities
exchange to be delisted as a result thereof;
(5) no Event of Default or event which with notice or lapse
of time would become an Event of Default with respect to the
Debentures shall have occurred and be continuing on the date
of such deposit or during the period ending on the 91st day
after such date;
(6) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that there
has been a change in applicable Federal law such that, or the
Corporation has received from, or there has been published by,
the Internal Revenue Service a ruling to the effect that,
Holders of the Debentures will not recognize income, gain or
loss for Federal income tax purposes as a result of such
deposits, defeasance and discharge and will be subject to
Federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such
deposit, defeasance and discharge had not occurred; and
(7) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the defeasance contemplated
by this Section have been complied with.
D. The Indenture as Amended is further amended by
adding the following Article 8A:
ARTICLE 8A: ALTERNATIVE CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 801A. Corporation May Consolidate, Etc., Only on
Certain Terms.
With respect to Debentures of any series issued on or after
November 1, 1997, notwithstanding any contrary provision in
Article 8, the Corporation shall not consolidate with or merge
into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any
Person unless:
(1) the Person formed by such consolidation or into
which the Corporation is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and
assets of the Corporation substantially as an entirety shall
be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Debentures and
the performance or observance of every covenant and agreement
of this Indenture on the part of the Corporation to be
performed or observed;
(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Corporation has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease
and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply
with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied
with.
SECTION 802A. Successor Substituted.
With respect to Debentures of any series issued on or after
November 1, 1997, notwithstanding any contrary provision in
Article 8, upon any consolidation of the Corporation with, or
merger by the Corporation into, any other Person or any
conveyance, transfer or lease of the properties and assets of
the Corporation substantially as an entirety in accordance
with Section 801A, the successor Person formed by such
consolidation or into which the Corporation is merged or to
which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and
power of, the Corporation under this Indenture with the same
effect as if such successor Person had been named as the
Corporation herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the
Debentures.
E. The Indenture as Amended is further amended by adding the
following to Article 10:
SECTION 1008. Defeasance of Certain Obligations.
The following provisions shall apply to the Debentures of
each series issued on or after November 1, 1997 unless
specifically otherwise provided in a Board Resolution,
Officers' Certificate or indenture supplemental hereto
provided pursuant to Section 301. The Corporation may omit to
comply with any term, provision or condition set forth in
Sections 1005 and 1006 and any such omission with respect to
Sections 1005 and 1006 shall not be an Event of Default, in
each case with respect to the Debentures of that series,
provided that the following conditions have been satisfied:
(1) with reference to this Section 1008, the Corporation
has deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of
Section 609) as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of the Debentures of that series, (i) money in an
amount, or (ii) non-callable U.S. Government Obligations which
through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later
than one day before the due date of any payment referred to in
clause (A) or (B) of this subparagraph (1) money in an amount,
or (iii) a combination thereof, sufficient, in the opinion of
a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge (A) the
principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest on the
Outstanding Debentures on the Stated Maturity of such
principal or installments of principal and interest and (B)
any mandatory sinking fund payments or analogous payments
applicable to the Debentures of such series on the day on
which such payments are due and payable in accordance with the
terms of this Indenture and of such Debentures;
(2) such deposit shall not cause the Trustee with
respect to the Debentures of that series to have a conflicting
interest as defined in Section 608 and for purposes of the
Trust Indenture Act with respect to the Debentures of any
series;
(3) such deposit will not result in a breach or
violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Corporation is
a party or by which it is bound;
(4) no Event of Default or event which with notice or
lapse of time would become an Event of Default with respect to
the Debentures of that series shall have occurred and be
continuing on the date of such deposit;
(5) the Corporation has delivered to the Trustee an
Opinion of Counsel to the effect that Holders of the
Debentures of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be
subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case
if such deposit and defeasance had not occurred; and
(6) the Corporation has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to
the defeasance contemplated in this Section have been complied
with.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
1. The Indenture as Amended, as further amended and
modified by this Second Supplemental Indenture, hereby is in all
respects ratified, confirmed and approved.
2. This Second Supplemental Indenture shall be
construed in connection with and as part of the Indenture as
Amended.
3. This Second Supplemental 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.
4. The recitals contained herein shall be taken as the
statements of the Corporation, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representation as to the validity or sufficiency of this Second
Supplemental Indenture.
5. This Second Supplemental Indenture shall be
governed by and construed in accordance with the laws of the
State of New York.
The Chase Manhattan Bank hereby accepts the trusts in
this Second Supplemental Indenture declared and provided, upon
the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, ALLIEDSIGNAL INC. has caused this
Second Supplemental Indenture to be duly signed and acknowledged
by one of its officers thereunto duly authorized, and its
corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and THE
CHASE MANHATTAN BANK has caused this Second Supplemental
Indenture to be duly signed and acknowledged by one of its
officers thereunto duly authorized, and its corporate seal to be
affixed hereunto, and the same to be attested by one of its
officers thereunto duly authorized.
ALLIEDSIGNAL INC.,
By: /s/ Xxxx X. Xxxxxx, Xx.
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SEAL Name:Xxxx X. Xxxxxx, Xx.
Title:Assistant Treasurer
Attest:
/s/ Xxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Secretary
THE CHASE MANHATTAN BANK
By: /s/ Xxxxxx Xxxxxxxx
----------------------
SEAL Name:Xxxxxx Xxxxxxxx
Title:Second Vice President
Attest:
/s/ Xxxxxx Xxxxxxxx
----------------------
Name:Xxxxxx Xxxxxxxx
Title:Assistant Secretary
