EXHIBIT 4
[FORM OF SECOND SUPPLEMENTAL INDENTURE]
SECOND SUPPLEMENTAL INDENTURE (this "Second
Supplemental Indenture") dated as of , 1996 among
ROCKWELL INTERNATIONAL CORPORATION, a Delaware
corporation (hereinafter called the "Company"), having
its principal executive office at 0000 Xxxx Xxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxxxxxxx, 00000-0000, THE
BOEING COMPANY, a Delaware corporation (hereinafter
called the "Guarantor"), having its principal executive
office at 0000 Xxxx Xxxxxxxx Xxx Xxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, and THE CHASE MANHATTAN BANK, a New
York banking corporation (formerly known as Chemical
Bank), as successor by merger to Manufacturers Hanover
Trust Company, as trustee (hereinafter called the
"Trustee"), having its principal corporate trust office
in the Borough of Manhattan, The City of New York.
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have entered into an
Indenture dated as of October 1, 1982, as supplemented by a First
Supplemental Indenture dated as of February 27, 1987 (hereinafter
collectively called the "Indenture"), providing for the issuance from
time to time of unsecured debentures, notes or other evidences of
indebtedness of the Company (hereinafter called the "Securities") to
be issued in one or more series as provided for in the Indenture;
WHEREAS, $300,000,000 in aggregate principal amount of
7-5/8% Notes due February 17, 1998 (the "7-5/8% Notes") have been
issued as a series of Securities pursuant to the Indenture and are
outstanding;
WHEREAS, $300,000,000 in aggregate principal amount of
8-7/8% Notes due September 15, 1999 (the "8-7/8% Notes") have been
issued as a series of Securities pursuant to the Indenture and are
outstanding;
WHEREAS, $200,000,000 in aggregate principal amount of
8-3/8% Notes due February 15, 2001 (the "8-3/8% Notes") have been
issued as a series of Securities pursuant to the Indenture and are
outstanding;
WHEREAS, $300,000,000 in aggregate principal amount of
6-3/4% Notes due September 15, 2002 (the "6-3/4% Notes") have been
issued as a series of Securities pursuant to the Indenture and are
outstanding;
WHEREAS, $200,000,000 in aggregate principal amount of
7-7/8% Notes due February 15, 2005 (the "7-7/8% Notes") have been
issued as a series of Securities pursuant to the Indenture and are
outstanding;
WHEREAS, $300,000,000 in aggregate principal amount of
6-5/8% Notes due June 1, 2005 (the "6-5/8% Notes") have been issued as
a series of Securities pursuant to the Indenture and are outstanding;
WHEREAS, the Company desires to modify the Indenture with
respect to the Securities as provided herein;
WHEREAS, the Guarantor desires to provide for the
unconditional and irrevocable guarantee by the Guarantor of the due and
punctual payment of the principal of, premium, if any, interest on, and
all other amounts due under, the Securities; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid supplemental indenture to the Indenture in
accordance with the terms of the Indenture have been done and the
execution and delivery of this Supplemental Indenture have been duly
authorized in all respects.
NOW, THEREFORE, for consideration, the adequacy and
sufficiency of which is hereby acknowledged by the parties hereto,
each party agrees as follows, for the benefit of the other parties and
for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
AMENDMENTS
SECTION 1.01. The Guarantor is hereby made a party to the
Indenture.
SECTION 1.02. Article I of the Indenture is hereby amended
by adding the following definitions to Section 1-1 in the appropriate
alphabetic position:
"Consolidated Net Tangible Assets" shall mean the aggregate
amount at which the assets of the Guarantor and all Guarantor
Subsidiaries are reflected, in accordance with generally accepted
accounting practices, on the asset side of the consolidated
balance sheet, as at the close of a monthly accounting period
(selected by the Guarantor) ending within 65 days next preceding
the date of determination, of the Guarantor and its Guarantor
Subsidiaries (after deducting all related depreciation,
amortization and other valuation reserves), except capital lease
property rights, and except goodwill, trade names, trademarks,
patents, unamortized debt discount and expenses and other like
intangibles, and after deducting from such amount current
liabilities as reflected, in accordance with such practices, on
said balance sheet.
"Guarantee" means the guarantee set forth in Section 8-1 hereof.
The Guarantee shall be deemed part of the Guaranteed Securities.
"Guarantee Event of Default" means, with respect to any
series of Securities, (1) default in the performance, or breach,
of any covenant or warranty of the Guarantor in Sections 8-2,
8-3 or 8-4 of this Indenture, and continuance of such default or
breach for a period of 90 days after there has been given, by
registered or certified mail, to the Guarantor by the Trustee or
to the Guarantor and the Trustee by the record holders of at
least 25% in principal amount of the Securities of such series at
the time Outstanding a written notice specifying such default or
breach and
requiring it to be remedied and stating that such notice is a
"Notice of Guarantee Default" hereunder; or
(2) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Guarantor
in an involuntary case or proceeding under applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Guarantor a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Guarantor under any applicable Federal or state
law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Guarantor
or of any substantial part of the property of the Guarantor, or
ordering the winding up or liquidation of the affairs of the
Guarantor, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(3) the commencement by the Guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the
Guarantor to the entry of a decree or order for relief in an
involuntary case or proceeding under the Federal or state
bankruptcy laws or to the commencement of any bankruptcy or
insolvency case or proceeding against the Guarantor, or the
filing by the Guarantor of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or
state bankruptcy law, or the consent by the Guarantor to the
filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Guarantor or of
any substantial part of the property of the Guarantor, or the
making by the Guarantor of an assignment for the benefit of
creditors, or the admission by the Guarantor in writing of its
inability to pay its debts generally as they become due.
"Guaranteed Securities" means, collectively, the
$300,000,000 in principal amount of 7-5/8% Notes, the
$300,000,000 in principal amount of 8-7/8% Notes, the
$200,000,000 in principal amount of 8-3/8% Notes, the
$300,000,000 in principal amount of 6-3/4% Notes, the
$200,000,000 in principal amount of 7-7/8% Notes and
the $300,000,000 in principal amount of 6-5/8% Notes issued under
the Indenture prior to the date of the Second Supplemental
Indenture and remaining Outstanding as of such date and
"Guaranteed Security" means any of such Securities.
"Guarantor" means the corporation named as the "Guarantor"
in the preamble of the Second Supplemental Indenture until a
successor corporation shall have become the Guarantor pursuant to
the applicable provisions of this Indenture, and thereafter,
"Guarantor" shall mean such successor corporation.
"Guarantor Board of Directors" shall mean the board of
directors of the Guarantor or any committee of such board duly
authorized to act with respect hereto.
"Guarantor Indenture" shall mean the Indenture dated as of
August 15, 1991 between the Guarantor and The Chase Manhattan
Bank, successor in interest to The Chase Manhattan Bank (National
Association), as Trustee, as originally executed or as it may
from time to time be supplemented or amended by one or more
indentures supplemental thereto entered into pursuant to the
applicable provisions thereof, and shall include the terms of any
series of Guarantor Securities established as contemplated by
Section 301 thereof; provided, however, that if at any time more
than one Person is acting as Guarantor Indenture Trustee
thereunder, "Guarantor Indenture" shall mean, with respect to any
one or more series of Guarantor Securities for which a Person is
the Guarantor Indenture Trustee, the Guarantor Indenture as
originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental
thereto entered into pursuant to the applicable provisions
thereof and shall include the terms of the or those particular
series of Guarantor Securities for which such Person is the
Guarantor Indenture Trustee established as contemplated by
Section 301 thereof, exclusive, however, of any provisions or
terms which relate solely to other series of Guarantor Securities
for which such Person is the Guarantor Indenture Trustee,
regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or
more indentures supplemental thereto executed and delivered after
such Person had become such Guarantor Indenture
Trustee but to which such Person, as such Guarantor
Indenture Trustee, was not a party.
"Guarantor Indenture Trustee" shall mean The Chase
Manhattan Bank, successor in interest to The Chase Manhattan
Bank (National Association) and, subject to the provisions
of Article Six of the Guarantor Indenture, shall also
include its successors and assigns, and, if at any time
there is more than one Person acting as the Guarantor
Indenture Trustee thereunder, "Guarantor Indenture Trustee",
as used with respect to Guarantor Securities of any series,
shall mean the Guarantor Indenture Trustee with respect to
the Guarantor Securities of that series.
"Guarantor Securities" shall mean "Securities" as
defined in the first recital of the Guarantor Indenture and
shall more particularly mean any Guarantor Securities
authenticated and delivered under the Guarantor Indenture;
provided, however, that if at any time there is more than
one Person acting as the Guarantor Indenture Trustee under
the Guarantor Indenture, "Guarantor Securities," with
respect to the series as to which such Person is the
Guarantor Indenture Trustee, shall mean "Securities" as
defined in the first recital of the Guarantor Indenture and
shall more particularly mean the Guarantor Securities
authenticated and delivered under the Guarantor Indenture,
exclusive, however, of Guarantor Securities of any series as
to which such Person is not Guarantor Indenture Trustee.
"Guarantor Security Register" and "Guarantor Security
Registrar" shall mean "Security Register" and "Security
Registrar", respectively, as defined in Section 305 of the
Guarantor Indenture.
"Guarantor Subsidiary" shall mean a corporation more
than 50% of the outstanding voting stock of which is owned,
directly or indirectly, by the Guarantor or by one or more
other Guarantor Subsidiaries, or by the Guarantor and one or
more other Guarantor Subsidiaries. For the purposes of this
definition, "voting stock" means stock that ordinarily has
voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such
voting power by reason of any contingency.
"Maturity," when used with respect to any Security or
Guarantor Security, shall mean the date on which the
principal of such Security or Guarantor Security or an
installment of principal becomes due and payable as therein,
herein or in the Guarantor Indenture provided, whether at
the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, Chairman of the Executive
Committee, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant
Secretary of the Company or the Guarantor, as the case may
be, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of legal
counsel, who may (except as otherwise expressly provided in
this Indenture) be an employee of or of counsel for the
Company or the Guarantor, as the case may be, and who shall
be reasonably acceptable to the Trustee.
"Original Issue Discount Security" shall mean any
Guarantor Security that provides for an amount less than the
principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant
to Section 502 of the Guarantor Indenture.
"Payment Default" with respect to any series of
Securities shall mean an Event of Default referred to in
Sections 5-1(a), (b) or (c) of this Indenture with respect to
such series of Securities.
"Principal Property" shall mean all real property and
tangible personal property constituting a manufacturing
plant located within the United States owned by the
Guarantor or a Guarantor Subsidiary, exclusive of (i) motor
vehicles, mobile materials- handling equipment and other
rolling stock, (ii) office furnishings and equipment,
information and electronic data processing equipment, (iii)
any property financed through obligations issued by a state,
territory or possession of the United States, or any
political subdivision or instrumentality of the foregoing,
on which the interest is not, in the opinion of tax counsel
of recognized standing or in accordance with a ruling issued
by the Internal Revenue Service, includible in gross income
of the holder by reason of Section 103(a)(1) of the Internal
Revenue Code (or any successor to such provision) as in
effect at the time of the issuance of such obligations, (iv)
any real
property held for development or sale, or (v) any property
the gross book value of which (including related land and
improvements thereon and all machinery and equipment
included therein without deduction of any depreciation
reserves) is less than 15% of Consolidated Net Tangible
Assets or which the Guarantor Board of Directors determines
is not material to the operation of the business of the
Guarantor and its Guarantor Subsidiaries taken as a whole.
"Sale and Lease-Back Transaction" of a corporation
shall mean any arrangement whereby (i) property has been or
is to be sold or transferred by such corporation to any
Person with the intention on the part of such corporation of
taking back a lease of such property pursuant to which the
rental payments are calculated to amortize the purchase
price of such property substantially over the useful life of
such property and (ii) such property is in fact so leased by
such corporation.
"Second Supplemental Indenture" means the Second
Supplemental Indenture dated as of , 1996 to
this Indenture.
"Stated Maturity," when used with respect to any
Security or Guarantor Security or any installment of
principal thereof or interest thereon, shall mean the date
specified in such Security or Guarantor Security as the
fixed date on which the principal of such Security or
Guarantor Security or such installment of principal or
interest is due and payable.
SECTION 1.03. Article I of the Indenture is hereby amended by
deleting the definitions of "Consolidated Funded Debt", "Funded Debt",
"indebtedness", "Maturity", "Officers' Certificate", "Opinion of
Counsel", "Principal Property", "Restricted Subsidiary", "Sale and
Lease-Back Transaction", "Secured Debt", "Stated Maturity",
"Stockholders Equity", "Unrestricted Subsidiary" and "Wholly-owned
Restricted Subsidiary" from Section 1-1 thereof.
SECTION 1.04. Article I of the Indenture is hereby amended by
amending and restating Section 1-5 thereof as follows:
Section 1-5. Notices, etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Securityholders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Securityholder or by the Company or by
the Guarantor shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the Trustee
at its principal corporate trust office,
(2) the Company by the Trustee or by any Securityholder or by
the Guarantor shall be sufficient for every purpose hereunder if
in writing and mailed, first-class, postage prepaid, to the
Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee and
the Guarantor by the Company, or
(3) the Guarantor by the Trustee or by any Securityholder or
by the Company shall be sufficient for every purpose hereunder if
in writing and mailed, first-class, postage prepaid, to the
Guarantor addressed to it at the address of its principal office
specified in the preamble to the Second Supplemental Indenture or
at any other address previously furnished in writing to the
Trustee and the Company by the Guarantor".
SECTION 1.05. Article I of the Indenture is hereby amended by
adding the words "or the Guarantor" after the words "the Company" in
Section 1-9 thereof.
SECTION 1.06. Article III of the Indenture is hereby amended
by amending and restating Section 3-8 thereof in its entirety as
follows:
Prior to due presentment for registration of transfer
of any Security, the Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor or the Trustee may
treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject
to Section 3.07) interest on, such Security and for all
other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Guarantor, the Trustee
nor any agent of the Company, the Guarantor or the Trustee
shall be affected by notice to the contrary.
SECTION 1.07. Article IV of the Indenture is hereby
amended by adding the words "including the Guarantee" after the
words "this Indenture" in Section 4-3 thereof the first time such
words appear in such section. Article X of the Indenture is hereby
amended by amending and restating the introductory clause to Section
10-12 thereof as follows:
"If this Section 10-12 has been specified in accordance
with Section 3-1 to be applicable to Securities of any series,
the Guarantor may omit to comply with any term, provision or
condition set forth in Sections 8-2 and 8-3, and Sections
5-1(h) with respect to Sections 8-2 and 8-3 shall be deemed not
to be an Event of Default, in each case with respect to the
Securities of that series, when"
SECTION 1.08. Article V of the Indenture is hereby amended
by (i) adding the words "and the Guarantor" after the words "the
Company" in Section 5-2 thereof the first and second time such words
appear in such section, (ii) adding the words "or the Guarantor"
after the words "the Company" in subsection (1) of such section;
(iii) replacing the words "The Company covenants" in Section 5-3
with the words "The Company and the Guarantor covenant,"
(iv) adding the words "or the Guarantor" after the words "the Company"
all other times such words appear in such section and (v) amending and
restating Section 5-1 thereof in its entirety as follows:
Section 5-1. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) default in the due and punctual payment of any interest
upon any of the Securities 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 due and punctual payment of the principal
of (and premium, if any, on) any Securities of such series as and
when the same shall become due and payable at Maturity or by
declaration as authorized by this Indenture; or
(c) default in making any mandatory or optional sinking fund
payment provided for in Section 11-1 with respect to Securities of
such series as and when the same shall become due and payable,
and continuance of such default for a period of 5 days; or
(d) failure on the part of the Company to duly observe or
perform any other of the covenants or agreements on the part of
the Company in such Securities or in this Indenture contained
(other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in
this Indenture solely for the benefit of a series of Securities
other than such series) for a period of 90 days after the date on
which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Trustee, or
to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Securities of such series at the time
Outstanding; or
(e) the entry of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Company in
an involuntary case under the Federal bankruptcy laws, as now
constituted or hereafter amended, or any other applicable Federal
or State bankruptcy, insolvency or other similar law, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 90
consecutive days; or
(f) the commencement by the Company of a voluntary case
under the Federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable Federal or State
bankruptcy, insolvency or other similar law, or the consent by it
to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of
its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any
such action; or
(g) any other Event of Default provided with respect to
Securities of such series; or
(h) the occurrence of a Guarantee Event of Default with
respect to Securities of such series.
SECTION 1.09. Article VII of the Indenture is hereby amended
by amending and restating Section 7-4 thereof in its entirety as follows:
Section 7-4. Filings by the Company.
The Company will
(a) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as
the Commission
may from time to time by rules and regulations prescribe) which
the Company is required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of
1934, as amended; or, if the Company is not required to file
information, documents or reports pursuant to either of such
Sections, then the Company will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed
by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant
to Section 13 of the Securities Exchange Act of 1934, as amended,
in respect of a security listed and registered on a national
securities exchange as may be prescribed in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed by the Commission, such
additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of
this Indenture as may be required from time to time by such rules
and regulations;
(c) transmit by mail to all Holders of Securities as their
names and addresses appear in the Security Register, within 30
days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by
the Company pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed by the
Commission; and
(d) furnish to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this
Indenture. For purposes of this subsection (d), such compliance
shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 1.10. Article VII of the Indenture is hereby further
amended by the addition of the following as Section 7-5 thereof.
Section 7-5. Filings by the Guarantor.
The Guarantor will
(a) file with the Trustee, within 15 days after the
Guarantor is required to file the same with the Commission,
copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Guarantor is required to file
with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934, as amended; or, if the
Guarantor is not required to file information, documents or
reports pursuant to either of such Sections, then the Guarantor
will file with the Trustee and the Commission, in accordance with
rules and regulations prescribed by the Commission, such of the
supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended, in respect of a security listed
and registered on a national securities exchange as may be
prescribed in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed by the Commission, such
additional information, documents and reports with respect to
compliance by the Guarantor with the conditions and covenants of
this Indenture as may be required from time to time by such rules
and regulations;
(c) transmit by mail to all Holders of Securities as their
names and addresses appear in the Security Register, within 30
days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by
the Guarantor pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed by the
Commission; and
(d) furnish to the Trustee, within 120 days after the end of
each fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Guarantor's
compliance with all conditions and covenants under this
Indenture. For purposes of this subsection (d), such compliance
shall
be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 1.11. Article VIII of the Indenture is hereby
deleted and replaced in its entirety with the following:
ARTICLE VIII
GUARANTEE
Section 8-1. Guarantee.
The Guarantor hereby unconditionally and irrevocably
guarantees to each Holder of a Guaranteed Security and the
Trustee the due and punctual payment of the principal of,
premium, if any, interest on, and all other amounts due under the
Guaranteed Securities, when and as the same shall become due and
payable, whether at Maturity, pursuant to mandatory or optional
prepayments, by acceleration or otherwise, in each case after any
applicable grace periods or notice requirements or both,
according to the terms of the Guaranteed Securities and this
Indenture. The Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of any such Guaranteed Security or
this Indenture, any change or amendment thereto, the absence of
any action to enforce the same, any waiver or consent by the
Trustee or the Holder of such Guaranteed Security with respect to
any provision of such Guaranteed Security or this Indenture, the
recovery of any judgment against the Company or any action to
enforce the same, or any other circumstances that may otherwise
constitute a legal or equitable discharge or defense of a
guarantor; provided, however, that nothing contained herein shall
constitute or be deemed to constitute a waiver by the Guarantor
of presentment or demand of payment or notice to the Guarantor
with respect to such Guaranteed Security and the obligations
evidenced thereby or hereby. The Guarantor further waives any
right of set-off or counterclaim it may have against any Holder
of any Guaranteed Security arising from any other obligations any
such Holder may have to the Company or the Guarantor. The
Guarantor covenants that this Guarantee will not be discharged
except by complete performance
of the obligations contained in the Guaranteed Securities, this
Indenture and the Guarantee.
The Guarantor shall be subrogated to all rights against the
Company of any Holder in respect of any amounts paid by the
Guarantor pursuant to the provisions of the Guarantee; provided,
however, that the Guarantor shall be entitled to enforce, or to
receive any payments arising out of or based upon, such right of
subrogation only after the principal of and interest on all
Guaranteed Securities and all other amounts owed to the Holders
hereunder have been paid in full.
This Guarantee shall continue to be effective or reinstated,
as the case may be, if at any time any payment of the principal
of or interest on any of the Guaranteed Securities or any other
amounts owed to the Holders hereunder is rescinded or must
otherwise be returned by such Holders upon the insolvency,
bankruptcy or reorganization of the Company or the Guarantor or
otherwise, all as though such payment had not been made.
Section 8-2. Limitations on Liens.
(a) The Guarantor will not, and will not permit any
Guarantor Subsidiary to, issue, assume or guarantee any notes,
bonds, debentures or other similar evidences of indebtedness for
money borrowed (herein referred to for purposes of this Section 8-2
and Section 8-3 as "indebtedness") secured by any mortgage, security
interest, pledge or lien (herein referred to for purposes of this
Section 8-2 and Section 8-3 as a "mortgage") of or upon any Principal
Property, or shares of capital stock or evidences of indebtedness
for borrowed money issued by any Guarantor Subsidiary and owned
by the Guarantor or any Guarantor Subsidiary whether owned at the
date of the Second Supplemental Indenture or thereafter acquired,
without making effective provision, and the Guarantor in each
case will make or cause to be made effective provision, whereby
the Guarantor's obligations under the Guarantee shall be secured
by such mortgage equally and ratably with any and all other
indebtedness thereby secured, so long as such indebtedness shall
be so secured (for the purpose of providing such equal and
ratable security the principal amount of the Guarantor's
obligations under the Guarantee shall mean and shall not be less
than that principal amount of the Securities that could be
declared to be due and payable pursuant to Section 5-2 on the date of
the making of such effective provision and the extent of such
equal and ratable security shall be adjusted as and when said
principal amount changes over time pursuant to Section 5-2 and any
other provision of this Indenture or the Securities); provided,
however, that the foregoing restriction shall not apply to
indebtedness secured by any of the following:
(1) mortgages on any property existing at the time of
acquisition thereof or at the date of the Second Supplemental
Indenture;
(2) mortgages on property of a corporation existing at the
time such corporation is merged into or consolidated with the
Guarantor or a Guarantor Subsidiary or a Guarantor Subsidiary is
merged into such corporation or at the time of a sale, lease or
other disposition of the properties of such corporation (or a
division thereof) as an entirety or substantially as an entirety
to the Guarantor or a Guarantor Subsidiary, provided that such
mortgage as a result of such merger, consolidation, sale, lease
or other disposition is not extended to property owned by the
Guarantor or such Guarantor Subsidiary immediately prior thereto;
(3) mortgages on property of a corporation existing at the
time such corporation first becomes a Guarantor Subsidiary;
(4) mortgages securing indebtedness of a Guarantor
Subsidiary to the Guarantor or to another Guarantor Subsidiary;
(5) mortgages on property to secure all or part of the cost
of acquiring, substantially repairing or altering, constructing,
developing or substantially improving all or any part of such
property, or to secure indebtedness incurred to provide funds for
any such purpose or for reimbursement of funds previously
expended for any such purpose, provided the commitment of the
creditor to extend the credit secured by any such mortgage shall
have been obtained not later than 120 days after the later of (a)
the completion of the acquisition, substantial repair or
alteration, construction, development or substantial improvement
of
such property or (b) the placing in operation of such property or
of such property as so substantially repaired or altered,
constructed, developed or substantially improved;
(6) mechanic's liens, tax liens, liens in favor of any
governmental body to secure progress, advance or other payments
or the acquisition of real or personal property from such
governmental body pursuant to any contract or provision of any
statute, and other liens, charges and encumbrances incidental to
construction, to the conduct of business or the ownership of
property of the Guarantor or any Guarantor Subsidiary which were
not incurred in connection with the borrowing of money or the
obtaining of advances or credits or the acquisition of property
and do not in the aggregate materially impair the use of any
Principal Property for the purposes for which it is held or which
are being contested in good faith by the Guarantor or such
Guarantor Subsidiary; or
(7) 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 (1) to (6),
inclusive; provided, however, that the principal amount of
indebtedness secured thereby and not otherwise authorized by said
clauses (1) to (6), inclusive, shall not exceed the principal
amount of indebtedness, plus any premium or fee payable in
connection with any such extension, renewal or replacement, so
secured at the time of such extension, renewal or replacement.
(b) Notwithstanding the provisions of Section 8-2(a), the
Guarantor or any Guarantor Subsidiary may issue, assume or
guarantee indebtedness secured by mortgages which would otherwise
be subject to the restrictions of Section 8-2(a) in an aggregate
amount which, together with all attributable debt outstanding
pursuant to Section 8-3(b) and all indebtedness outstanding pursuant
to this Section 8-2(b) does not at the time of such issuance,
assumption or guarantee of secured indebtedness exceed 15% of
Consolidated Net Tangible Assets.
Section 8-3. Limitations on Sale and Lease-Back Transactions.
(a) the Guarantor will not, nor will it permit any Guarantor
Subsidiary to, enter into any Sale and Lease-Back Transaction
with respect to any Principal Property (except for a transaction
providing for a lease for a term, including any renewal thereof,
of not more than three years, except for a transaction between
the Guarantor and a Guarantor Subsidiary or between Guarantor
Subsidiaries and except for any lease of property acquired after
the date of the Second Supplemental Indenture if the rent payable
by the Guarantor or such Guarantor Subsidiary thereunder is to be
reimbursed under a contract with the government of the United
States or any instrumentality or agency thereof), if the
commitment by or on behalf of the purchaser is obtained more than
120 days after the later of (i) the completion of the
acquisition, substantial repair or alteration, construction,
development or substantial improvement of such Principal Property
or (ii) the placing in operation of such Principal Property or of
such Principal Property as so substantially repaired or altered,
constructed, developed or substantially improved, unless either
(x) the Guarantor or such Guarantor Subsidiary would be entitled
pursuant to Section 8-2(a) to issue, assume or guarantee debt secured
by a mortgage on such Principal Property without equally and
ratably securing the Guarantor's obligations under the Guarantee
or (y) the Guarantor shall apply or cause to be applied, in the
case of a sale or transfer for cash, an amount equal to the net
proceeds thereof (but not in excess of the net book value of such
Principal Property at the date of such sale or transfer) and, in
the case of a sale or transfer otherwise than for cash, an amount
equal to the fair value (as determined by the Guarantor Board of
Directors) of the Principal Property so leased to the retirement,
within 180 days after the effective date of such Sale and
Lease-Back Transaction, of Securities, Guarantor Securities or
other indebtedness of the Guarantor or a Guarantor Subsidiary;
provided, however, that the amount to be applied to any such
retirement of Securities or the Guarantor Securities shall be
reduced by an amount equal to the sum of (A) an amount equal to
the principal amount of Securities or Guarantor Securities
delivered within 180 days after the effective date of such Sale
and Lease-Back Transaction
to the Trustee or the Guarantor Indenture Trustee, as the case
may be, for retirement and cancellation (for purposes of making
such calculation the principal amount of Original Issue Discount
Securities so retired or cancelled shall mean the portion thereof
that could have been declared due and payable pursuant to Section
502 of the Guarantor Indenture at the time retired and cancelled)
and (B) the principal amount, plus any premium or fee paid in
connection with any redemption in accordance with the terms, of
other indebtedness voluntarily retired by the Guarantor within
such 180-day period, excluding retirements pursuant to prepayment
provisions and payments at Maturity.
(b) Notwithstanding the provisions of Section 8-3(a), the
Guarantor or any Guarantor Subsidiary may enter into a Sale and
Lease-Back Transaction which would otherwise be subject to the
restrictions of Section 8-3(a) so as to create an aggregate amount of
attributable debt which, together with all indebtedness
outstanding pursuant to Section 8-2(b), and all attributable debt
outstanding pursuant to this Section 8-3(b), does not at the time of
such Sale and Lease-Back Transaction exceed 15% of Consolidated
Net Tangible Assets. "Attributable debt" in respect of any Sale
and Lease-Back Transaction means, as of the time of the
determination, the lesser of (i) the sale price of the Principal
Property so leased multiplied by a fraction the numerator of
which is the remaining portion of the base term of the lease
included in such transaction and the denominator of which is the
base term of such lease and (ii) the total obligation (discounted
to present value at the implicit interest factor, determined in
accordance with generally accepted financial practice, included
in the rental payments or, if such interest factor cannot be
readily determined, at a rate of interest of 10% per annum,
compounded semiannually) of the lessee for rental payments (other
than amounts required to be paid on account of property taxes as
well as maintenance, repairs, insurance, water rates and other
items which do not constitute payments for property rights)
during the remaining portion of the base term of the lease
included in such transaction.
Section 8-4. Consolidations and Mergers of the Guarantor and
Conveyances Permitted Subject to Certain Conditions.
(a) The Guarantor may consolidate with, or sell or convey
all or substantially all its assets to, or merge into any other
corporation; provided, however, that in any such case, (i) the
Guarantor is the surviving corporation, or the successor
corporation shall be a corporation organized and existing under
the laws of the United States of America or a State thereof and
such corporation shall expressly assume the due and punctual
performance and observance of all the covenants and conditions
of the Guarantor under the Guarantee and of the other covenants
and conditions of this Indenture to be performed or observed by
the Guarantor by a supplemental indenture, executed and
delivered to the Trustee by such corporation and (ii)
immediately after such merger or consolidation or such sale or
conveyance, no Payment Default or Guarantee Event of Default,
and no event that, after notice or lapse of time or both, would
become a Payment Default or Guarantee Event of Default shall
have occurred and be continuing.
(b) In case of any such consolidation, merger, sale or
conveyance and upon any such assumption by the successor
corporation, such successor corporation shall succeed to and be
substituted for the Guarantor with the same effect as if it had
been named herein as the Guarantor, and the predecessor
corporation shall be relieved of any further obligation
hereunder.
(c) The Trustee shall receive an Officers' Certificate and
an Opinion of Counsel each stating that any such consolidation,
merger, sale or conveyance, and any such assumption, and all
conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8-5. Notation of Guarantee.
The Guarantee may, but need not be, noted on the reverse of
any Guaranteed Security authenticated and delivered by the
Trustee after the date of the Second Supplemental Indenture.
The Guarantor hereby agrees that the Guarantee set forth in
Section 8-1 hereof shall remain in full force and effect and shall
apply to each Guaranteed Security executed, authenticated, issued
and delivered under this Indenture, whether or not a notation of
the Guarantee is endorsed on such Guaranteed Security.
The execution and delivery by the Company and the Guarantor of
the Second Supplemental Indenture to the Trustee shall constitute
delivery of the Guarantee set forth herein on behalf of the
Guarantor with respect to all Outstanding Guaranteed Securities.
Section 8-6. Directors, Officers, Employees and Stockholders of
the Guarantor Exempt from Personal Liability.
No director, officer, employee or stockholder as such, of
the Guarantor shall have any liability for any obligations of the
Guarantor with respect to the Guaranteed Securities or the
Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation; and any and all such
personal liability is expressly waived and released as a
condition of, and as consideration for, the execution of the
Second Supplemental Indenture by the Guarantor and the issuance
of the Guarantee.
SECTION 1.12. Article IX of the Indenture is hereby amended
by adding the words "the Guarantor" after the words "Board
Resolution," in the introductory clause to Section 9-1 thereof and by
adding the words "(including the Guarantee)" after the words "this
Indenture" in clause (3) of Section 9-1 thereof and by renumbering clause
(9) of Section 9-1 thereof as clause (10) and adding the following as
clause (9):
"(9) to evidence the succession of another corporation to
the Guarantor, and the assumption by any such successor of the
covenants of the Guarantor herein and in the Securities
contained; or"
Article IX of the Indenture is hereby further amended by
adding the words "the Guarantor" after the words "Board Resolution,"
in the introductory clause to Section 9-2.
SECTION 1.13. Article X of the Indenture shall be amended by
deleting Section 10-4, Section 10-5, Section 10-6, Section 10-8,
Section 10-9, Section 10-10 and Section 10-11 in their entirety.
ARTICLE 2
MISCELLANEOUS
SECTION 2.01. Notwithstanding anything contained in this
Second Supplemental Indenture to the contrary, none of the provisions
contained in Article 1 hereof will become effective or be of any force
or effect until the Effectiveness Date (as defined in Section 2.03
below) has occurred.
SECTION 2.02. The Trustee will deliver a copy of the
Guarantee to each record holder of Securities as of the Effectiveness
Date, as soon as practicable after the Effectiveness Date.
SECTION 2.03. For purposes of this Second Supplemental
Indenture, the "Effectiveness Date" means the date on which the later
of the following events occurs: (i) this Second Supplemental Indenture
has been duly executed and delivered by the parties hereto and (ii)
the Effective Time, as defined in the Agreement and Plan of Merger
dated as of July 31, 1996 among the Company, Boeing and Boeing NA,
Inc., shall have occurred or shall be simultaneously occurring.
SECTION 2.04. This Second Supplemental Indenture is executed
and shall be construed as an indenture supplemental to the Indenture
with respect to the Securities and, as provided in the Indenture, this
Second Supplemental Indenture forms a part thereof with respect to the
Securities. Except as herein modified, the Indenture is in all
respects ratified and confirmed with respect to the Securities and all
the terms, provisions and conditions thereof shall be and remain in
full force and effect with respect to the Securities and every Holder
of Securities shall be bound hereby. Except as herein expressly
otherwise defined, the use of the terms and expressions herein is in
accordance with the definitions, uses and constructions contained in
the Indenture.
SECTION 2.05. If any provision of this Second Supplemental
Indenture limits, qualifies or conflicts with any other provision
hereof or of the Indenture which provision is required to be included
in the Indenture by any of the provisions of the TIA, such required
provision shall control.
SECTION 2.06. All covenants and agreements in this Second
Supplemental Indenture by the Company or the Guarantor shall bind
their respective successors and assigns, whether so expressed or not.
SECTION 2.07. If any provision of this Second Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 2.08. This Second Supplemental Indenture shall be
construed in accordance with and governed by the laws of the State of
New York.
SECTION 2.09. 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.
SECTION 2.10. Nothing in this Second Supplemental Indenture,
express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under
this Supplemental Indenture.
SECTION 2.11. The recitals contained herein shall be taken
as the statements of the Company and the Guarantor 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Second Supplemental Indenture to be executed and their respective
corporate seals to be hereunto affixed and attested, all as of the day
and year first above written.
[Seal] ROCKWELL INTERNATIONAL
CORPORATION,
Attest:
by
------------------------ --------------------
Assistant Secretary Name:
Title:
[Seal] THE BOEING COMPANY,
Attest: by
------------------------ --------------------
Assistant Secretary Name:
Title:
[Seal] THE CHASE MANHATTAN BANK,
as Trustee,
Attest:
by
------------------------ --------------------
Assistant Secretary Name:
Title:
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this th day of , 1996, before me personally
appeared , to me known, who being by me duly sworn,
did depose and say that he resides at ;
that he is the of ROCKWELL INTERNATIONAL CORPORATION,
one of the parties described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation,
and that he signed his name thereto by like authority.
Sworn to before me this
th day of ,
1996.
------------------------
Notary Public
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On this th day of , 1996, before me
personally appeared , to me known, who being by me duly
sworn, did depose and say that he resides at ;
that he is an of THE CHASE MANHATTAN BANK, one of the parties described
in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
Sworn to before me this
th day of ,
1996.
-----------------------
Notary Public
STATE OF WASHINGTON, )
) ss.:
COUNTY OF KING, )
On this th day of , 1996, before me personally
appeared , to me known, who being by me duly sworn,
did depose and say that he resides at '
that he is an of THE BOEING COMPANY, one of the parties described in
and which executed the foregoing instrument; that he knows the seal of
said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by
like authority.
Sworn to before me this
th day of ,
1996.
------------------------
Notary Public
