<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 19, 1997
REGISTRATION NO. 333-37117
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO.1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C>
DELAWARE 95-3630868
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
10260 CAMPUS POINT DRIVE
SAN DIEGO, CALIFORNIA 92121
(619) 546-6000
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DOUGLAS E. SCOTT
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
10260 CAMPUS POINT DRIVE
SAN DIEGO, CALIFORNIA 92121
(619) 546-6000
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
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Copies to:
SARAH JONES BESHAR
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
(212) 450-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities being offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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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, AS AMENDED OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
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EXPLANATORY NOTE
The Registration Statement of Science Applications International
Corporation (Registration No. 333-37117) is hereby amended ("Amendment No. 1")
to include additional exhibits as contained in Part II herein.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimates, except the
SEC registration fee.
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SEC registration fee.................................................................. $ 90,910
Printing and engraving................................................................ 30,000
Legal fees and expenses............................................................... 75,000
Fees of accountants................................................................... 27,000
Fees of trustee....................................................................... 7,500
Blue sky fees and expenses............................................................ 35,000
Rating agency fees.................................................................... 170,000
Miscellaneous......................................................................... 1,090
--------
Total....................................................................... $436,500
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director for violations of the director's fiduciary duty, except
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL (providing for liability of directors for the unlawful payment
of dividends or unlawful stock purchases or redemptions) or (iv) for any
transaction from which a director derived an improper personal benefit.
Section 145 of the DGCL empowers the Company to indemnify, subject to the
standards set forth therein, any person in connection with any action, suit or
proceeding brought before or threatened by reason of the fact that the person
was a director, officer, employee or agent of such company, or is or was serving
as such with respect to another entity at the request of such company. The DGCL
also provides that the Company may purchase insurance on behalf of any such
director, officer, employee or agent.
The Company's Restated Certificate of Incorporation provides in effect for
the elimination or limitation of personal liability and indemnification by the
Company of each director and elected and appointed officer of the Company to the
fullest extent permitted by applicable law.
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ITEM 16. EXHIBITS.
(a) Exhibits
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ ------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement
*3.1 Restated Certificate of Incorporation of the Registrant, as amended July 19, 1990 (incorporated
by reference to Exhibit 3(a) to the Registrant's Annual Report on Form 10-K for the fiscal year
ended January 31, 1991)
*3.2 Bylaws of the Registrant, as amended through April 11, 1997 (incorporated by reference to
Exhibit 3(b) to the Registrant's Annual Report on Form 10-K/A for the fiscal year ended January
31, 1997)
4.1 Form of Indenture between the Registrant and The Chase Manhattan Bank, as Trustee
4.2 Form of Debt Security (included in Exhibit 4.1)
*5.1 Opinion of Davis Polk & Wardwell
*12.1 Computation of ratio of earnings to fixed charges
*23.1 Consent of Price Waterhouse LLP
*23.2 Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
*23.3 Consent of Coopers & Lybrand L.L.P.
*23.4 Consent of Beard & Company, Inc.
*24.1 Powers of Attorney (included in signature pages)
*25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Trustee under the Indenture
</TABLE>
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* Previously filed
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the 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 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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 the undertakings set forth in paragraphs (i)
and (ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the
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<PAGE> 5
Securities Exchange Act of 1934) that is incorporated by reference in this
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 of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described in Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
(d)(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A
and contained in a 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 purposes of determining any liability under the Securities Act
of 1933, 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this amendment to the
registration statement on Form S-3 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of San Diego, State of
California, on November 19, 1997.
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By: *
------------------------------------------
J.R. Beyster
Chairman of the Board and Chief Executive
Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
TO THE REGISTRATION STATEMENT ON FORM S-3 HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
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SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- -------------------
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* Chairman of the Board, Chief November 19, 1997
- ------------------------------------------ Executive Officer and Director
J.R. Beyster (Principal Executive Officer)
* President, Chief Operating November 19, 1997
- ------------------------------------------ Officer and Director
W.A. Owens
* Chief Financial Officer November 19, 1997
- ------------------------------------------ (Principal Financial Officer)
W.A. Roper
* Principal Accounting Officer November 19, 1997
- ------------------------------------------
P.N. Pavlics
* Director November 19, 1997
- ------------------------------------------
D.P. Andrews
* Director November 19, 1997
- ------------------------------------------
V.N. Cook
* Director November 19, 1997
- ------------------------------------------
C.K. Davis
* Director November 19, 1997
- ------------------------------------------
W.H. Demisch
* Director November 19, 1997
- ------------------------------------------
W.A. Downing
* Director November 19, 1997
- ------------------------------------------
E.A. Frieman
</TABLE>
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<TABLE>
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SIGNATURE TITLE DATE
- ------------------------------------------ --------------------------------- -------------------
<C> <C> <S>
* Director November 19, 1997
- ------------------------------------------
J.E. Glancy
* Director November 19, 1997
- ------------------------------------------
B.R. Inman
* Director November 19, 1997
- ------------------------------------------
H.M.J. Kraemer, Jr.
* Director November 19, 1997
- ------------------------------------------
W.M. Layson
* Director November 19, 1997
- ------------------------------------------
C.B. Malone
* Director November 19, 1997
- ------------------------------------------
J.W. McRary
* Director November 19, 1997
- ------------------------------------------
S.D. Rockwood
* Director November 19, 1997
- ------------------------------------------
E.A. Straker
* Director November 19, 1997
- ------------------------------------------
M.E. Trout
* Director November 19, 1997
- ------------------------------------------
J.P. Walkush
* Director November 19, 1997
- ------------------------------------------
J.H. Warner, Jr.
* Director November 19, 1997
- ------------------------------------------
J.A. Welch
* Director November 19, 1997
- ------------------------------------------
J.B. Wiesler
* Director November 19, 1997
- ------------------------------------------
A.T. Young
*By: /s/ DOUGLAS E. SCOTT November 19, 1997
- ------------------------------------------
Douglas E. Scott
Attorney-in-Fact
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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1.1 Form of Underwriting Agreement
*3.1 Restated Certificate of Incorporation of the Registrant, as amended July 19, 1990
(incorporated by reference to Exhibit 3(a) to the Registrant's Annual Report on Form 10-K for
the fiscal year ended January 31, 1991)
*3.2 Bylaws of the Registrant, as amended through April 11, 1997 (incorporated by reference to
Exhibit 3(b) to the Registrant's Annual Report on Form 10-K/A for the fiscal year ended
January 31, 1997)
4.1 Form of Indenture between the Registrant and The Chase Manhattan Bank, as Trustee
4.2 Form of Debt Security (included in Exhibit 4.1)
*5.1 Opinion of Davis Polk & Wardwell
*12.1 Computation of ratio of earnings to fixed charges
*23.1 Consent of Price Waterhouse LLP
*23.2 Consent of Davis Polk & Wardwell (included in Exhibit 5.1)
*23.3 Consent of Coopers & Lybrand L.L.P.
*23.4 Consent of Beard & Company, Inc.
*24.1 Powers of Attorney (included in signature pages)
*25.1 Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of The
Chase Manhattan Bank, as Trustee under the Indenture
</TABLE>
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* Previously filed
<PAGE> 1
Exhibit 1.1
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
DEBT SECURITIES
Underwriting Agreement
_____________, 1997
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Science Applications International Corporation, a Delaware corporation
(the "Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture") between the
Company and the Trustee identified in such Schedule (the "Trustee"). If the firm
or firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain debt securities (the "Shelf Securities") to be issued from time to time
by the Company. The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act a prospectus supplement
specifically relating to the Securities. The registration statement as amended
to the date of this Agreement is hereinafter referred to as the "Registration
Statement" and the related prospectus covering the Shelf
<PAGE> 2
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), on the date and at
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the time and place set forth in Schedule I hereto (or at such other time and
place on the same or such other date, not later than the fifth Business Day (as
defined below) thereafter, as you and the Company may agree in writing). As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City. The time and date of
such payment and delivery with respect to the Designated Securities are referred
to herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Note") representing the Securities, with any transfer taxes payable in
connection with the transfer to the Underwriters of the Securities duly paid by
the Company. The Global Note will be made available for inspection by the
Representatives at the office of [-] at the address set forth above not later
than 1:00 P.M., New York City time, on the Business Day prior to the Closing
Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"), 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 date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the
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Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Company in writing by such Underwriter through the Representatives
expressly for use therein;
(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 Securities Act or the Exchange Act, as applicable, 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, in light of the circumstances under which
they were made, 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 Securities Act or the Exchange Act,
as applicable, 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 the statements therein, in light of the circumstances
under which they were made, not misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their consol-
idated cash flows for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, and the supporting schedules
included or incorporated by reference in the Registration Statement
present fairly the information required to be stated therein; and the
pro forma financial information, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable
and is based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been any material change in the capital stock 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, business, management, financial
position, stockholders'
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<PAGE> 5
equity or results of operations of the Company and its subsidiaries,
taken as a whole, otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the Prospectus
neither the Company nor any of its subsidiaries has entered into any
transaction or agreement (whether or not in the ordinary course of
business) material to the Company and its subsidiaries taken as a
whole;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries taken as
a whole;
(f) each of the Company's "significant subsidiaries", as
defined pursuant to Regulation S-X (such subsidiaries, collectively,
the "Material Subsidiaries"), has been duly incorporated and is validly
existing as a corporation under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus,
and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable, and (except for directors'
qualifying shares [and except as described in the Prospectus]) are
owned by the Company, directly or indirectly, free and clear of all
liens, encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and, when issued
and delivered against payment therefor pursuant to this Agreement, will
have been duly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of
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<PAGE> 6
the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and upon effectiveness of the
Registration Statement will have been duly qualified under the Trust
Indenture Act and, when executed and delivered by the Company and the
Trustee, the Indenture will constitute a valid and binding instrument;
and the Securities and the Indenture will substantially conform to the
descriptions thereof in the Prospectus;
(i) neither the Company nor any of its subsidiaries is, or
with the giving of notice or lapse of time or both would be, in
violation of or in default under, its Certificate of Incorporation or
By-Laws or any indenture, mortgage, deed of trust, loan agreement,
contract or subcontract or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the Securities and the
performance by the Company of all its obligations under the Securities,
the Indenture and this Agreement and the 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, contract or subcontract or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, except for conflicts, breaches or defaults which individually
and in the aggregate are not material to the Company and its
subsidiaries taken as a whole, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the
By-Laws of the Company or any applicable law or statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company, its subsidiaries or any of their
respective properties other than violations of any applicable law or
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company, its subsidiaries
or any of their respective properties, which would not, individually
and in the aggregate, have a material adverse effect on the Company and
its subsidiaries taken as a whole; and no consent, approval,
authorization, order, license, 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
transactions contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be
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<PAGE> 7
required under state securities or Blue Sky Laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(j) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental investigations, actions, suits or
proceedings pending or, to the knowledge of the Company, threatened, to
which the Company or any of its subsidiaries is or may be a party or to
which any property of the Company or any of its subsidiaries is or may
be 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 general affairs, business, management,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole; and there are no
contracts or other documents that are required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required;
(k) immediately after any sale of Securities by the Company
hereunder, the aggregate amount of Securities which have been issued
and sold by the Company hereunder and of any securities of the Company
(other than the Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the amount of
securities registered under the Registration Statement;
(l) Price Waterhouse LLP, who have certified certain
financial statements of the Company and its subsidiaries, Coopers &
Lybrand L.L.P., who have certified certain financial statements of Bell
Communications Research, Inc. and its subsidiaries, and Beard &
Company, Inc., who have certified certain financial statement of the
TransCore Retirement Savings Plan, are each independent public
accountants as required by the Securities Act;
(m) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(n) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida) relating to
doing business with the Government of Cuba or with any person or
affiliate located in Cuba;
7
<PAGE> 8
(o) except as described in the Registration Statement and
Prospectus, there is no tax deficiency which has been or might
reasonably be expected to be asserted or threatened against the Company
or any subsidiary that would have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(p) each of the Company and its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other governmental
authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, except for those instances in which the failure to
do so would not, individually and in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole;
except as set forth in the Registration Statement and the Prospectus,
neither the Company nor any subsidiary has received any actual notice
of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except for notices the content of which if accurate
would not, individually and in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole; and each
of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of
the date hereof, except for those instances in which the failure to so
be in compliance, individually and in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(q) each of the Company and its subsidiaries owns, possesses
or has the right to use the Intellectual Property employed by it in
connection with the business conducted by it as of the date hereof,
except for those instances in which the failure to do so would not,
individually and in the aggregate, have a material adverse effect on
the Company and its subsidiaries taken as a whole; and, except as set
forth in the Registration Statement and the Prospectus, neither the
Company nor any subsidiary has received any notice of infringement of
asserted rights of others with respect to any Intellectual Property,
except for notices the content of which if accurate would not,
individually and in the aggregate, have a material adverse effect on
the Company and its subsidiaries taken as a whole; "Intellectual
Property" means all patents, patent applications, trademarks, trademark
applications, service marks, tradenames, copyrights, trade secrets,
know-how (including all unpatented or unpatentable proprietary or
confidential information, systems or procedures), technology,
inventions, designs, processes, methods, technical data and
8
<PAGE> 9
information or other intangible asset or any license or other right to
any of the foregoing; and
(r) all contracts and subcontracts from which the Company and
its Material Subsidiaries derive revenue in connection with the
business conducted by them on the date hereof are valid and binding
obligations of the Company and/or one or more of its Material
Subsidiaries, as the case may be, and, to the Company's knowledge, of
the other parties thereto, and, to the Company's knowledge, no party
thereto is, or with the giving of notice or the lapse of time or both
would be, in default thereunder, except in such cases as have not had
and would not have, individually and in the aggregate, a material
adverse effect on the Company and its subsidiaries taken as a whole.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the Prospectus in a form approved by you
pursuant to Rule 424 under the Securities Act not later than
the Commission's close of business on the second Business Day
following the date of determination of the offering price of
the Securities or, if applicable, such earlier time as may be
required by Rule 424(b);
(b) to furnish to each Representative and counsel for
the Underwriters, at the expense of the Company, a signed copy
of the Registration Statement (as originally filed) and each
amendment thereto, in each case including exhibits and
documents incorporated by reference therein and, during the
period mentioned in paragraph (e) below, to furnish each of
the Underwriters as many copies of the Prospectus (including
all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably
request;
(c) from the date hereof and prior to the Closing
Date, to furnish to you a copy of any proposed amendment or
supplement to the Registration Statement or the Prospectus,
for your review, and not to file any such proposed amendment
or supplement (other than one resulting from the filing of any
document under the Exchange Act which you were afforded a
reasonable opportunity, in the light of the circumstances in
which any such filing is made, to comment upon) to which you
reasonably object;
9
<PAGE> 10
(d) 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 the Securities, and during such same period, to advise
you promptly,(i) when any amendment to the Registration
Statement shall have become effective, (ii) of any request by
the Commission for any amendment to the Registration Statement
or any amendment or supplement to the Prospectus or for any
additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation or threatening of
any proceeding for that purpose, and (iv) of the receipt by
the Company of any notification with respect to any suspension
of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and to use its best efforts to
prevent the issuance of any such stop order or notification
and, if issued, to obtain as soon as possible the withdrawal
thereof;
(e) if, during such period after the first date of
the public offering of the Securities as in the opinion of
counsel for the Underwriters a prospectus relating to the
Securities is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur
as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to
a purchaser, not misleading, or if it is necessary to amend or
supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses you
will furnish to the Company) to which Securities may have been
sold by you on behalf of the Underwriters and to any other
dealers upon request, such amendments or supplements to the
Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will
comply with law;
(f) to endeavor to qualify the Securities for offer
and sale under the securities or Blue Sky laws of such U.S.
jurisdictions as you shall reasonably request and to continue
such qualification in effect so long as reasonably required
10
<PAGE> 11
for distribution of the Securities; provided that the Company
shall not be required to file a general consent to service of
process in any jurisdiction;
(g) to make generally available to its security
holders and to you as soon as practicable an earnings
statement which shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 of the Commission
promulgated thereunder covering a period of at least twelve
months beginning with the first fiscal quarter of the Company
occurring after the "effective date" (as defined in Rule 158)
of the Registration Statement;
(h) so long as the Securities are outstanding, to
furnish to the first of the named Representatives on Schedule
I hereto, upon request, copies of all reports or other
communications (financial or other) furnished to holders of
Securities, and copies of any reports and financial statements
furnished to or filed with the Commission or any national
securities exchange;
(i) during the period beginning on the date hereof
and continuing to and including the [BUSINESS DAY FOLLOWING]
the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of or guaranteed by
the Company which are substantially similar to the Securities;
(i) to use the net proceeds received by the Company
from the sale of the Securities pursuant to this Agreement in
the manner specified in the Prospectus under the caption "Use
of Proceeds";
(k) whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all costs and expenses
incident to the performance of its obligations hereunder,
including without limiting the generality of the foregoing,
all costs and expenses (i) incident to the preparation,
issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee payable by
the Company pursuant to any agreement between the Company and
the Trustee, (ii) incident to the preparation, printing and
filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in
each case all exhibits, amendments and supplements thereto),
(iii) incurred in connection with the registration or
qualification and determination of eligibility for investment
of the Securities under the laws of such U.S. jurisdictions as
the
11
<PAGE> 12
Underwriters may designate (including reasonable fees of
counsel for the Underwriters and their disbursements), (iv)
related to any filing with National Association of Securities
Dealers, Inc., (v) in connection with the printing (including
word processing and duplication costs) and delivery of this
Agreement, the Indenture, the Preliminary and Supplemental
Blue Sky Memoranda and the furnishing to Underwriters and
dealers of copies of the Registration Statement and the
Prospectus, including mailing and shipping, as herein
provided, (vii) payable to rating agencies in connection with
the rating of the Securities, (viii) any expenses incurred by
the Company in connection with a "road show" presentation to
potential investors and (ix) the cost and charges of any
transfer agent.
6. The several obligations of the Underwriters hereunder shall
be subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on and as of the Closing
Date as if made on and as of the Closing Date and the Company
shall have complied with all agreements and all conditions on
its part to be performed or satisfied hereunder at or prior to
the Closing Date;
(b) the Prospectus shall have been filed with the
Commission pursuant to Rule 424 within the applicable time
period prescribed for such filing by the rules and regulations
under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending
before or threatened by the Commission; and all requests for
additional information on the part of the Commission made
subsequent to the execution and delivery of this Agreement and
prior to the Closing Date shall have been complied with to
your satisfaction;
(c) subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given
of (i) any downgrading, (ii) any intended or potential
downgrading or (iii) any review or possible change that does
not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act;
12
<PAGE> 13
(d) since the respective dates as of which
information is given in the Prospectus there shall not have
been any material change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any material
adverse change, or any development involving a material
adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries, taken as a whole, otherwise than
as set forth or contemplated in the Prospectus, the effect of
which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus; and 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;
(e) the Representatives shall have received on and as
of the Closing Date a certificate of an executive officer of
the Company, with specific knowledge about the Company's
financial matters, acting as an officer of the Company and not
in an individual capacity, reasonably satisfactory to you to
the effect set forth in subsections (a) through (c) (with
respect to the respective representations, warranties,
agreements and conditions of the Company) of this Section and
to the further effect that there has not occurred any material
adverse change, or any development involving a material
adverse change, in or affecting the business, financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole from that set
forth or contemplated in the Registration Statement.
(f) Davis Polk & Wardwell, counsel for the Company,
shall have furnished to you their written opinion, dated the
Closing Date, in form and substance satisfactory to you, to
the effect set forth in Exhibit A.
In rendering such opinions, such counsel may rely (A)
as to matters involving the application of laws other than the
laws of the United States and the States of Delaware and New
York to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or
opinions (in form
13
<PAGE> 14
and substance reasonably satisfactory, and copies of which
shall have been provided, to Underwriters' counsel) of other
counsel reasonably acceptable to the Underwriters' counsel,
familiar with the applicable laws; (B) as to matters of fact,
to the extent such counsel deems proper, on certificates of
responsible officers of the Company and certificates or other
written statements of officials of jurisdictions having
custody of documents respecting the corporate existence or
good standing of the Company. The opinion of such counsel for
the Company shall state that the opinion of any such other
counsel upon which they relied is in form satisfactory to such
counsel and, in such counsel's opinion, the Underwriters and
they are justified in relying thereon. With respect to the
matters to be covered in subparagraph (xi) above counsel may
state their opinion and belief is based upon their
participation in the preparation of the Registration Statement
and the Prospectus and any amendment or supplement thereto but
is without independent check or verification except as
specified.
The opinion of Davis Polk & Wardwell described above
shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(g) Douglas E. Scott, Senior Vice President and
General Counsel of the Company, shall have furnished to you
his written opinion, dated the Closing Date, in form and
substance satisfactory to you, to the effect set forth in
Exhibit B.
In rendering such opinions, such counsel may rely (A)
as to matters involving the application of laws other than the
laws of the United States and the States of California and
Delaware to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory,
and copies of which shall have been provided, to Underwriters'
counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; (B)
as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company
and certificates or other written statements of public
officials. The opinion of such counsel for the Company shall
state that the opinion of any such other counsel upon which he
relied is in form satisfactory to such counsel and, in such
counsel's opinion, the Underwriters and he are justified in
relying thereon.
(h) on the date hereof and on the Closing Date, Price
Waterhouse LLP and Coopers & Lybrand L.L.P. shall have
furnished to you letters, dated such date, in
14
<PAGE> 15
form and substance satisfactory to you, containing statements
and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to
the financial statements and certain financial information
contained in the Registration Statement and the Prospectus;
(i) you shall have received on and as of the Closing
Date an opinion of Sullivan & Cromwell, counsel to the
Underwriters, with respect to the validity of the Indenture
and the Securities, the Registration Statement, the Prospectus
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; and
(j) on or prior to the Closing Date, the Company
shall have furnished to the Representatives such further
certificates and documents as the Representatives shall
reasonably request.
7. The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including without limitation the
reasonable legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Representatives expressly
for use therein provided, however, that the foregoing indemnity
agreement with respect to any untrue statement or omission in the
preliminary Prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities or any person controlling
such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have
15
<PAGE> 16
been delivered, at or prior to the written confirmation of the sale of
the Securities to such person, and if such untrue statement or omission
was eliminated or remedied in the Prospectus (as so amended or
supplemented).
Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person who controls the
Company within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference
to information relating to such Underwriter furnished to the Company in
writing by such Underwriter through the Representatives expressly for
use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be
brought or asserted against any person in respect of which indemnity
may be sought pursuant to either of the two preceding paragraphs, such
person (the "Indemnified Person") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Person")
in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reason ably satisfactory to
the Indemnified Person to represent the Indemnified Person and any
others the Indemnifying Person may designate in such proceeding and
shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i)
the Indemnifying Person and the Indemnified Person shall have mutually
agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person
and the Indemnified Person and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate
firm for the Underwriters and such control persons of Underwriters
shall be designated in writing by the first of the named
Representatives on Schedule I hereto and any such separate firm for the
Company, its directors, its officers who sign the
16
<PAGE> 17
Registration Statement and such control persons of the Company or
authorized representatives shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
Indemnified Person shall have requested an Indemnifying Person to
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by the third sentence of this paragraph, the Indemnifying
Person agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement
is entered into more than 60 days after receipt by such Indemnifying
Person of the aforesaid request and (ii) such Indemnifying Person shall
not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party
and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of
such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first and
second paragraphs of this Section 7 is unavailable to an Indemnified
Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under
such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same respective proportions as the net proceeds
from the offering of such Securities (before deducting expenses)
received by the Company and the total underwriting discounts and the
commissions received by the Underwriters bear to the aggregate public
17
<PAGE> 18
offering price of the Securities. The relative fault of the Company on
the one hand and the Underwriters on the other 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 or
by the Underwriters 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 Section 7
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 that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, in no event
shall an Underwriter be required to contribute any amount in excess of
the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of any 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are
several in proportion to the respective principal amount of the
Securities set forth opposite their names in Schedule I hereto, and not
joint.
The remedies provided for in this Section 7 are not
exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law of in equity.
The indemnity and contribution agreements contained
in this Section 7 and the representations and warranties of the Company
set forth in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement
[PROVIDED THAT THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY SHALL
NOT SURVIVE A TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION 9],
(ii) any investigation made by or on behalf of any Underwriter or any
person controlling any
18
<PAGE> 19
Underwriter or by or on behalf of the Company, its officers or
directors or any other person controlling the Company and (iii)
acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this
Agreement may be terminated in the absolute discretion of the
Representatives, by notice given to the Company, if after the execution
and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or
by, as the case may be, the New York Stock Exchange, (ii) trading of
any securities of or guaranteed by the Company, if publicly issued and
traded, shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have
occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of
the Representatives, is material and adverse and which, in the judgment
of the Representatives, makes it impracticable to market the Securities
on the terms and in the manner contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase Securities which it or
they have agreed to purchase under this Agreement, and the aggregate
principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities, the
other Underwriters shall be obligated severally in the proportions that
the principal amount of Securities set forth opposite their respective
names in Schedule II hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Representatives may
specify, to purchase the Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date;
provided that in no event shall the principal amount of Securities that
any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by an amount in excess of
one-tenth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Securities and the
aggregate principal amount of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount
of Securities to be purchased, and arrangements satisfactory to you and
the Company for the purchase of such Securities are not made within 36
hours after such default, this Agreement shall terminate without
19
<PAGE> 20
liability on the part of any non-defaulting Underwriter or the Company.
In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect
of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be
unable to perform its obligations under this Agreement or any condition
of the Underwriters' obligations cannot be fulfilled, the Company
agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for
all out-of-pocket expenses (including the reasonable fees and expenses
of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of Securities.
11. This Agreement shall inure to the benefit of and
be binding upon the Company, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be
construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such
purchase.
12. Any action by the Underwriters hereunder may be
taken by you jointly or by the first of the named Representatives set
forth in Schedule I hereto alone on behalf of the Underwriters, and any
such action taken by you jointly or by the first of the named
Representatives set forth in Schedule I hereto alone shall be binding
upon the Underwriters. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be given at the address set forth in
Schedule I hereto. Notices to the Company shall be given to it at 10260
Campus Point Drive, San Diego, California 92121 (telecopier:
(619)_______); Attention: J. Dennis Heipt.
20
<PAGE> 21
13. This Agreement may be signed in counterparts,
each of which shall be an original and all of which together shall
constitute one and the same instrument.
21
<PAGE> 22
14. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving
effect to the conflicts of laws provisions thereof.
Very truly yours,
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By:______________________________
Name:
Title:
Accepted: __________, 1997
THE REPRESENTATIVES SET FORTH
IN SCHEDULE I HERETO
Acting severally on behalf of themselves and the several
Underwriters listed in Schedule II hereto.
By:
By:___________________________
Name:
Title:
22
<PAGE> 23
SCHEDULE I
Representatives:
Underwriting Agreement
dated: _________________________________________
Registration Statement
No.: _________________________________________
Title of Securities: _________________________________________
Aggregate principal
amount: $________________________________________
Price to Public: __% of the principal amount of the
Securities, plus accrued interest, if any,
from _______, 19__ to the Closing Date.
Indenture: Indenture dated as of _________ between the
Company and _____________________ as Trustee.
Maturity: _____________________________________________
Interest Rate: _____________________________________________
23
<PAGE> 24
Interest Payment Dates: _____________________________________________
Optional Redemption
Provisions: _____________________________________________
Sinking Fund Provisions: _____________________________________________
Other Provisions: _____________________________________________
Closing Date and
Time of Delivery: _____________________________________________
Closing Location: _____________________________________________
Address for Notices
to Underwriters: _____________________________________________
24
<PAGE> 25
SCHEDULE II
Principal Amount
of Securities
Underwriter to be Purchased
- ----------- ---------------
-------------
TOTAL ...................................................... $
=============
25
<PAGE> 26
EXHIBIT A
OPINION OF DAVIS POLK & WARDWELL
PURSUANT TO SECTION 6(f)
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus as amended or
supplemented;
(ii) the Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business, so
as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the Securities have been duly authorized, executed and delivered
by the Company and, when duly authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in accordance with
the terms of this Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits provided by the Indenture, except (A) as
limited by (x) bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration, if any, and (B) the
availability of equitable remedies may be limited by equitable principles of
general applicability;
(v) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding instrument of the Company; and
the Indenture has been duly qualified under the Trust Indenture Act, except (A)
as limited by (x) bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (y) rights of acceleration, if any, and (B) the
availability of equitable remedies may be limited by equitable principles of
general applicability;
(vi) neither the Company nor any of its Material Subsidiaries is, or
with the giving of notice or lapse of time or both would be, in violation of or
in default under, its
A-1
<PAGE> 27
Certificate of Incorporation or By-Laws or any indenture, mortgage,
deed of trust, loan agreement, contract or subcontract or other
agreement or instrument known to such counsel to which the Company or
any of its Material Subsidiaries is a party or by which it or any of
them or any of their respective properties is bound, except for
violations and defaults which individually and in the aggregate are not
material to the Company and its subsidiaries taken as a whole or to the
holders of the Securities; the issue and sale of the Securities and the
performance by the Company of its obligations under the Securities, the
Indenture and this Agreement and the 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, contract
or subcontract or other agreement or instrument known to such counsel
to which the Company or any of its Material Subsidiaries is a party or
by which the Company or any of its Material Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
Material Subsidiaries is subject, nor will any such action result in
any violation of the provisions of the Certificate of Incorporation, or
the By-Laws of the Company or any applicable law or statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company, its Material Subsidiaries or any
of their respective properties other than violations of any applicable
law or statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, its
Material Subsidiaries or any of their respective properties which would
not, individually and in the aggregate, have a material adverse effect
on the Company and its subsidiaries taken as a whole;
(vii) no consent, approval, authorization, order, license,
registration or qualification of or with any court or governmental
agency or body is required for the issue and sale of the Securities or
the consummation of the other transactions contemplated by this
Agreement or the Indenture, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as
have been obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriter;
(viii) the statements (A) in the Prospectus under
"[DESCRIPTIONS OF CREDIT FACILITY AND ANY LEGAL OR REGULATORY
MATTERS]", "Description of Securities" and "Underwriting" and
incorporated by reference from Item 3 of Part 1 of the Company's Annual
Report on Form 10-K for the fiscal year ended January 31, 1997 and (B)
in the Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information
A-2
<PAGE> 28
called for with respect to such legal matters in all material respects,
documents or proceedings;
(ix) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus as amended or supplemented (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) complied as to form when filed with the Commission
in all material respects with the Exchange Act, (B) believes that
(except for the financial statements included therein as to which such
counsel need express no belief) each part of the Registration Statement
(including the documents incorporated by reference therein) filed with
the Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, did 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 the statements therein not
misleading, (C) is of the opinion that the Registration Statement and
the Prospectus and any amendments and supplements thereto (except for
the financial statements and related schedules included therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act and the
Trust Indenture Act and (D) believes that (except for the financial
statements and related schedules included therein as to which such
counsel need express no belief) the Registration Statement and the
Prospectus, on the date of this Agreement, did not contain any 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, and that the Prospectus as amended or supplemented, if
applicable, does not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and
(x) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" as such terms are defined in the Investment Company Act.
A-3
<PAGE> 29
EXHIBIT B
OPINION OF DOUGLAS E. SCOTT, ESQ.,
PURSUANT TO SECTION 6(g)
(i) each of the Company's Material Subsidiaries has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorporation with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified and in good standing would not
have a material adverse effect on the Company and its subsidiaries
taken as a whole; and all of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for directors'
qualifying shares [and except as described in the Prospectus)] are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(ii) other than as set forth or contemplated in the
Prospectus, to the best of such counsel's knowledge, there are no legal
or governmental investigations, actions, suits or proceedings pending
or, threatened against or affecting the Company or any of its Material
Subsidiaries or any of their respective properties or to which the
Company or any of its Material Subsidiaries is or may be a party or to
which any property of the Company or its Material Subsidiaries is or
may be the subject which, if determined adversely to the Company or any
of its Material Subsidiaries, would individually or in the aggregate,
have a material adverse effect on the business, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries taken as a whole; to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or threatened by others; and such counsel does not know of
any statutes, regulations, contracts or other documents required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are not
filed or described as required;
(iii) each of the Company and its subsidiaries owns, possesses
or has obtained all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations
and filings with, all federal, state, local and other
B-1
<PAGE> 30
governmental authorities (including foreign regulatory agencies), all
self-regulatory organizations and all courts and other tribunals,
domestic or foreign, necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as conducted as
of the date hereof, except for those instances in which the failure to
do so would not, individually and in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole;
except as set forth in the Registration Statement and the Prospectus,
neither the Company nor any subsidiary has received any actual notice
of any proceeding relating to revocation or modification of any such
license, permit, certificate, consent, order, approval or other
authorization, except for notices the content of which if accurate
would not, individually and in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole; and each
of the Company and its subsidiaries is in compliance with all laws and
regulations relating to the conduct of its business as conducted as of
the date hereof, except for those instances in which the failure to so
be in compliance, individually and in the aggregate, would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole;
(iv) to the best of such counsel's knowledge, each of the
Company and its subsidiaries owns, possesses or has the right to use
the Intellectual Property (as defined in Section 4(s) hereof) employed
by it in connection with the business conducted by it as of the date
hereof; except for those instances in which the failure to do so would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole; and, except as set forth in the Registration
Statement and the Prospectus, neither the Company nor any subsidiary
has received any notice of infringement of asserted rights of others
with respect to any Intellectual Property, except for notices the
content of which if accurate would not, individually and in the
aggregate, have a material adverse effect on the Company and its
subsidiaries taken as a whole; and
(v) all contracts and subcontracts from which the Company and
its Material Subsidiaries derive revenue in connection with the
business conducted by them on the date hereof are valid and binding
obligations of the Company and/or one or more of its Material
Subsidiaries, as the case may be, and, to the best of such counsel's
knowledge, neither the Company nor any of its Material Subsidiaries,
is, or with the giving of notice or the lapse of time or both would be,
in default thereunder, except in such cases as have not had and would
not have, individually and in the aggregate, a material adverse effect
on the Company and its subsidiaries taken as a whole.
B-2
<PAGE> 1
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
and
THE CHASE MANHATTAN BANK
Trustee
------------------------
INDENTURE
Dated as of November [__], 1997
------------------------
<PAGE> 2
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
310(a)(1) and (2) 6.08
310(a)(3) and (4) Inapplicable
310(b) 6.09(a), (b) and (d)
310(c) Inapplicable
311(a) 6.12(a) and (c)(1) and (2)
311(b) 6.12(b)
311(c) Inapplicable
312(a) 4.01 and 4.02(a)
312(b) 4.02(b)
312(c) 4.02(c)
313(a) 4.04
313(b)(1) Inapplicable
313(b)(2) 4.04
313(c) 4.04
313(d) 4.04
314(a) 4.03 and 3.05
(continued on the following page)
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
2
<PAGE> 3
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
314(b) Inapplicable
314(c)(1) and (2) 11.05
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 11.05
314(f) Inapplicable
315(a), (c) and (d) 6.01
315(b) 5.11
315(e) 5.12
316(a)(1) 5.09
316(a)(2) Not required
316(a) (last sentence) 7.04
316(b) 5.07
317(a) 5.02
317(b) 3.04
318(a) 11.07
- ----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
3
<PAGE> 4
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined...........................................1
ARTICLE 2
SECURITIES
SECTION 2.01. Form Generally..................................................9
SECTION 2.02. Form of Trustee's Certificate of Authentication.................9
SECTION 2.03. Amount Unlimited; Issuable in Series...........................10
SECTION 2.04. Denominations..................................................13
SECTION 2.05. Authentication and Delivery of Securities......................13
SECTION 2.06. Execution of Securities........................................15
SECTION 2.07. Certificate of Authentication..................................16
SECTION 2.08. Denomination and Date of Securities; Payments of Interest......16
SECTION 2.09. Registration, Transfer and Exchange............................17
SECTION 2.10. Mutilated, Defaced, Destroyed, Lost and Stolen Securities......19
SECTION 2.11. Cancellation of Securities; Destruction Thereof................20
SECTION 2.12. Temporary Securities...........................................21
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest..............................21
SECTION 3.02. Offices for Payments, Etc......................................22
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee.............23
SECTION 3.04. Paying Agents..................................................23
SECTION 3.05. Written Statement to Trustee...................................24
SECTION 3.06. Limitation on Liens............................................25
SECTION 3.07. Limitations on Sale and Leaseback Transactions.................26
SECTION 3.08. Existence......................................................27
ARTICLE 4
LISTS OF HOLDERS OF SECURITIES AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Lists of Holders of Securities.................................27
SECTION 4.02. Preservation and Disclosure of Lists of Holders of
Securities............................................................28
<PAGE> 5
PAGE
----
SECTION 4.03. Reports by the Issuer..........................................29
SECTION 4.04. Reports by the Trustee.........................................29
ARTICLE 5
REMEDIES OF THE TRUSTEE AND HOLDERS OF SECURITIES ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default.....................................................30
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt..................................................................33
SECTION 5.03. Application of Proceeds........................................35
SECTION 5.04. Suits for Enforcement..........................................37
SECTION 5.05. Restoration of Rights on Abandonment of Proceedings............37
SECTION 5.06. Limitations on Suits by Holders of Securities..................37
SECTION 5.07. Unconditional Right of Holders of Securities to Institute
Certain Suits.........................................................38
SECTION 5.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default.....................................................38
SECTION 5.09. Control by Holders of Securities...............................38
SECTION 5.10. Waiver of Past Defaults........................................39
SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances.................................................40
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs.................................................................40
SECTION 5.13. Actual Knowledge of Trustee....................................40
SECTION 5.14. Waiver of Usury, Stay or Extension Laws........................41
ARTICLE 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default......................................................41
SECTION 6.02. Certain Rights of the Trustee..................................42
SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof.........................44
SECTION 6.04. Trustee and Agents May Hold Securities; Collections, etc.......44
SECTION 6.05. Moneys Held by Trustee.........................................44
SECTION 6.06. Compensation and Indemnification of Trustee and Its
Prior Lien............................................................44
SECTION 6.07. Right of Trustee to Rely on Officers' Certificates, etc........45
SECTION 6.08. Persons Eligible for Appointment as Trustee....................45
ii
<PAGE> 6
PAGE
----
SECTION 6.09. Resignation and Removal; Appointment of Successor
Trustee...............................................................45
SECTION 6.10. Acceptance of Appointment by Successor Trustee.................47
SECTION 6.11. Merger, Conversion, Consolidation or Succession to
Business of Trustee...................................................48
SECTION 6.12. Preferential Collection of Claims Against the Issuer...........48
ARTICLE 7
CONCERNING THE HOLDERS OF SECURITIES
SECTION 7.01. Evidence of Action Taken by Holders of Securities..............53
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Securities............................................................53
SECTION 7.03. Holders to Be Treated as Owners................................53
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding..............54
SECTION 7.05. Right of Revocation of Action Taken............................54
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders of
Securities............................................................55
SECTION 8.02. Supplemental Indentures with Consent of Holders of
Securities............................................................56
SECTION 8.03. Effect of Supplemental Indenture...............................57
SECTION 8.04. Documents to Be Given to Trustee...............................58
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures............................................................58
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms.................58
SECTION 9.02. Successor Issuer Substituted...................................59
SECTION 9.03. Opinion of Counsel to Trustee..................................59
ARTICLE 10
DEFEASANCE; SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONEYS
iii
<PAGE> 7
PAGE
----
SECTION 10.01. Defeasance Upon Deposit of Funds or Government
Obligations...........................................................60
SECTION 10.02. Satisfaction and Discharge of Indenture.......................61
SECTION 10.03. Application by Trustee of Funds Deposited for Payment
of Securities.........................................................62
SECTION 10.04. Repayment of Moneys Held by Paying Agent......................62
SECTION 10.05. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years.............................................63
SECTION 10.06. Reinstatement.................................................63
ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability...............................64
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities.................................................64
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture...........64
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities............................................................64
SECTION 11.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein....................................65
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays...............66
SECTION 11.07. Conflict of Any Provision of Indenture with Trust
Indenture Act; Trust Indenture Act Controls...........................66
SECTION 11.08. New York Law to Govern........................................66
SECTION 11.09. Separability Clause...........................................67
SECTION 11.10. Counterparts..................................................67
SECTION 11.11. Effect of Headings............................................67
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article......................................67
SECTION 12.02. Notice of Full and Partial Redemption; Partial
Redemptions...........................................................67
SECTION 12.03. Payment of Securities Called for Redemption...................69
SECTION 12.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption..............................................69
SECTION 12.05. Mandatory and Optional Sinking Funds..........................70
iv
<PAGE> 8
THIS INDENTURE, dated as of November [__], 1997 between SCIENCE
APPLICATIONS INTERNATIONAL CORPORATION, a Delaware corporation (the "Issuer"),
having its principal office at 10260 Campus Point Drive, San Diego, California
92121, and THE CHASE MANHATTAN BANK, a banking association duly organized and
existing under the laws of the State of New York, as Trustee (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to time of
its unsecured and unsubordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture and, to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchases of the
Securities by the holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all holders of the Securities of each series as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used in this Indenture that are defined in the Trust Indenture Act of 1939
or the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939, including terms defined therein by reference to the
Securities Act of 1933 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force at
the date of this Indenture. All accounting terms used herein and not expressly
defined shall have the
<PAGE> 9
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
The words "herein", "hereof" and "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
other subdivision. The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular.
"Affiliate" of any specified person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling " and "controlled" have meanings correlative to the
foregoing.
"Attributable Value" means, as to any lease under which any Person is at
the time liable, other than a Capital Lease Obligation, and at any date of which
the amount thereof is to be determined, the total net amount of rent required to
be paid by such Person under such lease during the remaining term thereof as
determined in accordance with generally accepted accounting principles,
discounted from the last date of such term to the date of determination at a
rate per annum equal to the discount rate that would be applicable to a Capital
Lease Obligation with like term in accordance with generally accepted accounting
principles. The net amount of rent required to be paid under any such lease for
any such period will be the aggregate amount of the rent payable by the lessee
with respect to such period after excluding amounts required to be paid on
account of insurance, taxes, assessments, utility, operating and labor costs and
similar charges. In the case of any lease that is terminable by the lessee upon
the payment of a penalty, such net amount will also include the amount of such
penalty, but no rent will be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated. "Attributable
Value" means, as to a Capital Lease Obligation under which any Person is at the
time liable and at any date as of which the amount thereof is to be determined,
the capitalized amount thereof that would appear on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means a copy of one or more resolutions, certified by
the secretary or an assistant secretary of the Issuer to have been duly adopted
by
2
<PAGE> 10
the Board of Directors and to be in full force and effect, and delivered to the
Trustee.
"Business Day" means, with respect to any Security, a day that is not a
day on which banking institutions or trust companies are authorized or required
by law or regulation to be closed in the City of New York.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a lease of (or other Debt arrangements conveying
the right to use) real or personal property of such Person that is required to
be classified and accounted for as a capital lease or a liability on the face of
a balance sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation will be deemed to be the date
of the last payment of rent or any other amount due under such lease prior to
the first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution and delivery of this Indenture such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Consolidated Net Worth" means, at any date of determination, the net
worth of the Issuer and its Subsidiaries on a consolidated basis in accordance
with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office of The Chase Manhattan Bank at the date
of the execution of this Indenture is located at 450 West 33rd Street, 15th
Floor, New York, New York 10001-2697.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person, (i) every
obligation of such Person for money borrowed, (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses, (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person, (iv) every Capital Lease Obligation of such
Person and (v) every obligation of the type referred to in clauses (i) through
(iv) of another Person, the payment of which such Person has Guaranteed.
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"default" has the meaning stated in Section 5.11; provided, however, that
for purposes of Section 6.12 only, "default" shall have the meaning provided in
Section 6.12(c)(1).
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Global Securities, the Person designated as
Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
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.
"Dollar" means the coin or currency of the United States of America as at
the time of payment is legal tender for the payment of public and private debts.
"Event of Default" shall have the meaning set forth in Section 5.01.
"Global Security" means a Security evidencing all or a part of a series of
Securities, issued to the Depositary for such series in accordance with Section
2.05, and bearing the legend prescribed in Section 2.05.
"Guarantee" by any Person means any obligation, contingent or otherwise,
of such Person guaranteeing any Debt of any other Person (the "primary obligor")
in any manner, whether directly or indirectly, and including any obligation of
such Person, (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Debt, (ii) to purchase property, securities or services for
the purpose of assuring the holder of such Debt of the payment of such Debt, or
(iii) to maintain working capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Debt (and "Guaranteed", "Guaranteeing" and "Guarantor" shall
have meanings correlative to the foregoing); provided, however, that the
Guarantee by any Person shall not include endorsements by such Person for
collection or deposit, in either case, in the ordinary course of business.
"Holder", "holder of Securities" or other similar terms mean the person in
whose name such Security is registered in the security register kept by or on
behalf of the Issuer for that purpose in accordance with the terms hereof.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, and shall include the forms and terms of particular series of Securities
established as contemplated hereunder.
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"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any Security, means the
stated maturity of an installment of interest on such Security.
"Issuer" means Science Applications International Corporation and, subject
to Article 9, its successors and assigns.
"Lien" means any mortgage, pledge or lien securing any Debt.
"Net Available Proceeds" from any Sale Transaction by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any consideration received in the form of assumption of Debt or other
obligations by others or received in any other noncash form) therefrom by such
Person, net of (i) all legal, title and recording tax expenses, commissions and
other fees and expenses incurred and all federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of such Sale
Transaction, (ii) all payments made by such Person or its Subsidiaries on any
Debt that is secured by a Lien on the property or assets so disposed of in
accordance with the terms of such Lien or that must, by terms of such Lien, or
in order to obtain a necessary consent to such Sale Transaction, or by
applicable law, be repaid out of the proceeds from such Sale Transaction and
(iii) all distributions and other payments made to third parties (other than
Subsidiaries) in respect of minority or joint venture interests as a result of
such Sale Transaction.
"Officers' Certificate" means a certificate signed by the chairman of the
Board of Directors, any vice chairman of the Board of Directors, the chief
executive officer, the president or any vice president and by the treasurer or
the secretary or any assistant secretary of the Issuer and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 11.05.
"Opinion of Counsel" means an opinion in writing signed by the general
corporate counsel or such other legal counsel who may be an employee of or
counsel to the Issuer, and which counsel shall be reasonably acceptable to the
Trustee. Each such opinion shall include the statements provided for in Section
11.05, if and to the extent required thereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
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"Original Issue Discount Security" means any 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 5.01.
"Outstanding", when used with reference to Securities, shall, subject to
the provisions of Section 7.04, mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this Indenture, except
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption
of which moneys or government obligations (as provided for in Section
10.02) in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Issuer) or shall have
been set aside, segregated and held in trust by the Issuer for the holders
of such Securities (if the Issuer shall act as its own Paying Agent),
provided that if such Securities, or portions thereof, are to be redeemed
prior to the maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee shall
have been made for giving such notice;
(c) Securities as to which defeasance has been effected pursuant to
Section 10.01; and
(d) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.10 (except with respect to any such Security as
to which proof satisfactory to the Trustee and the Issuer is presented
that such Security is held by a person in whose hands such Security is a
legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 5.01.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of or interest on any Securities on behalf of the Issuer.
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"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Principal", whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 2.03.
"Responsible Officer" when used with respect to the Trustee means any
officer within the Corporate Trust Office including any Vice President, Managing
Director, Assistant Vice President, Secretary, Assistant Secretary, Senior Trust
Officer and Trust Officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also, with respect to a particular matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Restricted Subsidiary" means, at any time, any Subsidiary of the Issuer
at least 50% of whose consolidated assets are located, or at least 50% of whose
consolidated revenues during the then-latest four fiscal quarters were derived
from operations conducted, in the United States and its territories and
possessions. For this purpose, the consolidated assets or revenues of a
Subsidiary will be deemed to be the assets or revenues of such Subsidiary and
its Subsidiaries, determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or assets of such Person which
has been or is being sold, conveyed, transferred or otherwise disposed of by
such Person more than 270 days after the acquisition thereof or the completion
of construction or commencement of operation thereof to such lender or investor
or to any person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or assets. The stated maturity of such
arrangement will be deemed to be the date of the last payment of rent or any
other amount due under such arrangement prior to the first date on which such
arrangement may be terminated by the lessee without payment of a penalty.
"Sale Transaction" means any sale, conveyance, transfer or other
disposition of the kind referred to in the first sentence of the definition of
"Sale and Leaseback Transaction".
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"Security", "Securities" or "Debt Securities" has the meaning stated in
the first recital of this Indenture, or, as the case may be, Securities that
have been authenticated and delivered under this Indenture.
"Significant Subsidiary" means, at any time, any Subsidiary of the Issuer
that qualifies at such time as a "significant subsidiary" of the Issuer within
the meaning of Regulation S-X promulgated by the Commission (as in effect at
such time).
"Subsidiary" means a corporation a majority of the outstanding voting
stock of which is owned, directly or indirectly, by the Issuer or by one or more
subsidiaries of the Issuer, or by the Issuer and one or more subsidiaries of the
Issuer. For the purposes of this definition, "voting stock" means stock which
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.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is the Trustee hereunder, and if at any time there is
more than one such Person, Trustee as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" (except as otherwise provided in Sections 8.01 and
8.02) means the Trust Indenture Act of 1939, as amended, as in force at the date
as of which this Indenture was originally executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Person" means a citizen, national or resident of the United States,
a corporation, partnership or other entity created or organized in or under the
laws of the United States or any political subdivision thereof, or an estate or
trust, the income of which is subject to United States federal income taxation
regardless of its source.
"Vice President", when used with respect to the Issuer or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title of "vice president".
"Yield to Maturity" means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the
most
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recent redetermination of interest on such series, and calculated in accordance
with accepted financial practice.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding voting stock or other ownership interests of which (other
than directors' qualifying shares) shall at the time be owned by such Person or
by one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
ARTICLE 2
SECURITIES
SECTION 2.01. Form Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in such Board Resolution, an Officers' Certificate detailing such establishment)
or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange, all as determined by the officers executing
such Securities as evidenced by their execution of such Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
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This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
Dated: [ ]
As Trustee
By:
----------------------------
Authorized Officer
SECTION 2.03. Amount Unlimited; Issuable in Series.
(a) The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued in
one or more series.
(b) The following matters shall be established with respect to each series
of Securities issued hereunder (i) by a Board Resolution, (ii) by action taken
pursuant to a Board Resolution and (subject to Section 11.05) set forth, or
determined in the manner provided, in an Officers' Certificate or (iii) in one
or more indentures supplemental hereto:
(1) the title of the Securities of the series (which title shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (which limit shall not pertain to Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the series or portions thereof pursuant to Section
2.09, 2.10, 2.12, 8.05 or 12.03);
(3) the date or dates on which the principal of the Securities of
the series is payable or the method of determination thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable, the right, if
any, of the Issuer to defer or extend any Interest Payment Date and the
Regular Record Date, if any, for the interest payable on any Security on
any Interest Payment
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Date, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of and interest, if any,
on Securities of the series shall be payable (if other than as provided in
Section 3.02) and the place or places where any Securities of the series
may be surrendered for registration of transfer or exchange, if other than
the Corporate Trust Office, where notices and demands to or upon the
Issuer in respect of the Securities of the series and this Indenture may
be served if other than as provided in Section 11.04 and where notices to
Holders pursuant to Section 11.04 will be published;
(6) any periods within which, prices at which, and any other terms
and conditions upon which, Securities of the series may be redeemed, in
whole or in part, at the option of the Issuer and, if other than as
provided in Section 12.02, the manner in which the particular Securities
of such series (if less than all Securities of such series are to be
redeemed) are to be selected for redemption;
(7) any obligation of the Issuer to redeem or purchase Securities of
the series pursuant to any mandatory redemption, sinking fund or analogous
provisions or upon the happening of a specified event or at the option of
a Holder thereof and any periods within which, prices at which, and any
other terms and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) if the amount of any payment of principal or interest, if any,
on the Securities of the series shall be determined with reference to an
index, formula or other method, the index, formula or other method by
which such amounts shall be determined and any special voting, defeasance
or other provisions in connection therewith;
(10) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series which shall be payable
upon declaration of acceleration thereof pursuant to Section 5.01 or the
method by which such portion shall be determined;
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(11) if other than as provided in Section 2.08, the Person to whom
any interest on any Security of the series shall be payable;
(12) any provisions granting special rights to the holders of
Securities of the series upon the occurrence of such events as may be
specified;
(13) any deletions from, modifications of or additions to the Events
of Default set forth in Section 5.01 or the covenants of the Issuer set
forth in Article 3 pertaining to the Securities of the series;
(14) under what circumstances, if any, and with what procedures and
documentation the Issuer will pay additional amounts on the Securities of
the series held by a Person who is not a U.S. Person (including any
modification of the definition of such term) in respect of taxes,
assessments or similar charges withheld or deducted and, if so, whether
the Issuer will have the option to redeem such Securities rather than pay
such additional amounts (and the terms of any such option);
(15) if other than the date of original issue of the first Security
of the series to be issued, the date as of which any temporary Global
Security representing Outstanding Securities of the series shall be dated;
(16) the applicability, if any, to the Securities of the series of
Sections 10.01 and 10.02, or such other means of defeasance or covenant
defeasance as may be specified for the Securities of the series;
(17) if other than the Trustee, the identity of the Person to act as
security registrar and any Paying Agent for the Securities of the series;
(18) if the Securities of the series shall be issued in whole or in
part in global form, (i) the identity of any Depositary for such Global
Securities other than the Depository Trust Company and (ii) if other than
as provided in Section 2.09, the circumstances under which any exchange of
interests in any Securities of the series in global form for certificated
Securities of such series may occur;
(19) any restrictions on the registration, transfer or exchange of
the Securities of the series in addition to, in modification of or
deletion from those contained in Section 2.09;
(20) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security
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of such series or otherwise), or any installment of principal or interest
is payable, only upon receipt of certain certificates or other documents
or satisfaction of other conditions in addition to those specified in this
Indenture, the form and terms of such certificates, documents or
conditions;
(21) subject to Article 3, the relative degree to which the
Securities of the series shall be senior to or be subordinated to other
Indebtedness of the Issuer in right of payment; and
(22) any other terms of the Securities of the series (which terms
shall not be inconsistent with the provisions of this Indenture) including
any terms which may be required by or advisable under United States laws
or regulations or advisable (as determined by the Issuer) in connection
with the marketing of the Securities of the series.
(c) All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided (i) in a Board
Resolution, (ii) by action taken pursuant to a Board Resolution and (subject to
Section 11.05) set forth, or determined in the manner provided, in the related
Officers' Certificate or (iii) in an indenture supplemental hereto. Unless
otherwise provided, all Securities of any one series need not be issued at the
same time and a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
(d) If any of the terms of the Securities of any series are established by
action taken pursuant to a Board Resolution, a copy of such Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the Securities of such series, and an appropriate record of any action taken
pursuant thereto in connection with the issuance of any Securities of such
series shall be delivered to the Trustee prior to the authentication and
delivery thereof.
SECTION 2.04. Denominations. Unless otherwise provided as
contemplated by Section 2.03, any Securities of a series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.05. Authentication and Delivery of Securities. At any time and
from time to time after the execution and delivery of this Indenture, the Issuer
may deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the order of the Issuer, signed by both (a) the Chairman
of its Board of
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Directors, or any vice chairman of its Board of Directors, or its chief
executive officer, its president or any vice president of the Issuer and (b) by
its treasurer or any assistant treasurer of the Issuer, without any further
action by the Issuer. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities
the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in acting or refraining from acting in conclusively relying
upon:
(a) a certified copy of any resolution or resolutions of the Board
of Directors authorizing the action taken pursuant to the resolution or
resolutions delivered under clause 2.05(b) reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(b) a copy of any Board Resolution relating to such series, in each
case certified by the Secretary or an Assistant Secretary of the Issuer
reasonably believed by the Trustee to be genuine and to have been signed
or presented by the proper party or parties;
(c) an executed supplemental indenture, if any;
(d) an Officers' Certificate setting forth the form and terms of the
Securities as required pursuant to Section 2.01 and 2.03, respectively and
prepared in accordance with Section 11.05;
(e) an Opinion of Counsel, prepared in accordance with Section
11.05, to the effect that
(i) the form or forms and terms of such Securities have been
established by or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 2.01 and 2.03 in
conformity with the provisions of this Indenture;
(ii) such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel and this Indenture,
will constitute valid and binding obligations of the Issuer;
(iii) all laws and requirements in respect of the execution
and delivery by the Issuer of the Securities have been complied
with; and
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(iv) covering such other matters as the Trustee may reasonably
request.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders.
If the Issuer shall establish pursuant to Section 2.03 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Issuer shall execute and the Trustee shall, in accordance with this Section,
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 issued and not yet canceled, (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: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.03 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation.
SECTION 2.06. Execution of Securities. The Securities shall be signed on
behalf of the Issuer by both (a) the chairman of its Board of Directors, any
vice chairman of its Board of Directors, its chief executive officer, its
president or any vice president and (b) by its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate seal
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. The seal of the
Issuer may be (but need not be) impressed, affixed, imprinted or otherwise
reproduced on the Securities and may be a facsimile thereof. Typographical and
other minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
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In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.07. Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized officers, shall be entitled to the benefits of this Indenture or
be valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence, and the only
evidence, that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
SECTION 2.08. Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as registered securities without
coupons and in denominations as shall be specified as contemplated by Section
2.04. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the officers of
the Issuer executing the same may determine with the approval of the Trustee as
evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear
interest, if any, from the date and shall be payable on the dates, in each case,
which shall be specified as contemplated by Section 2.03.
The person in whose name any Security or any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such Interest
Payment Date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding
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such subsequent record date. The term "record date" as used with respect to any
Interest Payment Date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Securities of such series established as contemplated by Section 2.03, or,
if no such date is so specified, if such interest payment date is the first day
of a calendar month, the fifteenth day of the next preceding calendar month or,
if such interest payment date is the fifteenth day of a calendar month, the
first day of such calendar month, whether or not such record date is a Business
Day.
SECTION 2.09. Registration, Transfer and Exchange. The Issuer will keep or
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.02 for each series of Securities a register or registers
in which, subject to such reasonable regulations as it may prescribe, it will
register, and will register the transfer of, Securities as in this Article
provided. Such register shall be in written form in the English language or in
any other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open for
inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of the same series, maturity date, interest rate and Original Issue
Date in authorized denominations for a like aggregate principal amount.
At the option of the Holder thereof, Securities of any series (except a
Global Security) may be exchanged for a Security or Securities of the same
series, maturity date, interest rate and Original Issue Date in other authorized
denominations, in an equal aggregate principal amount, upon surrender of such
Securities to be exchanged at the agency of the Issuer which shall be maintained
for such purpose in accordance with Section 3.02 and upon payment, if the Issuer
shall so require, of the charges hereinafter provided. Whenever any Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive bearing numbers not contemporaneously outstanding.
All Securities proferred for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the registrar duly executed by,
the holder or his attorney duly authorized in writing.
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The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service change shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed or
(b) any Securities selected, called or being called for redemption, in whole or
in part, except, in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.09, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, 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 any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series represented
by one or more Global Securities notifies the Issuer 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 Section 2.05,
the Issuer shall appoint a successor Depositary with respect to such Securities.
If a successor Depositary for such Securities is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
ineligibility (and in any event before the Depositary surrenders such Global
Security for exchange), the Issuer's election pursuant to Section 2.03 that such
Securities be represented by one or more Global Securities shall no longer be
effective and the Issuer shall execute, and the Trustee, upon receipt of an
Officers' Certificate 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.
The Issuer may at any time and 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 Issuer will execute, and the Trustee, upon receipt of an Officers'
Certificate for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver, Securities of such series in definitive
registered form, in
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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.
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 Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee 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 denomination 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 2.09(i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form, in authorized denominations, such Global Security shall be
canceled by the Trustee. Securities in definitive registered form issued in
exchange for a Global Security pursuant to this Section 2.09 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 in writing. The Trustee
shall deliver such Securities to or as directed by the Persons in whose names
such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.10. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer, in its discretion, may execute, and
upon the written request of any two officers (as in Section 2.05) of the Issuer,
the Trustee shall authenticate and deliver, a new Security of the same series,
maturity date, interest rate and Original Issue Date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and
substitution for the
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mutilated or defaced Security, or in lieu of and substitution for the Security
so destroyed, lost or stolen. In every case the applicant for a substitute
Security shall furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith. In case any Security which has
matured or is about to mature or has been called for redemption in full shall
become mutilated or defaced or be destroyed, lost or stolen, the Issuer may
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
of negotiable instruments or other securities without their surrender.
SECTION 2.11. Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be
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cancelled by it; and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy cancelled Securities held by it and deliver a certificate of
destruction to the Issuer unless by a written request signed by two officers of
the Issuer, the Issuer shall direct that cancelled Securities be returned to it.
If the Issuer shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.12. Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and, upon the written request
signed by two officers of the Issuer, the Trustee shall authenticate and deliver
temporary Securities for such series (printed, lithographed, typewritten or
otherwise reproduced, in each case in form satisfactory to the Trustee).
Temporary Securities of any series shall be issuable as Securities, of any
authorized denomination, and substantially in the form of the definitive
Securities of such series but with such omissions, insertions and variations as
may be appropriate for temporary Securities of such series, all as may be
determined by the Issuer as evidenced by the execution thereof. Temporary
Securities may contain such reference to any provisions of this Indenture as may
be appropriate. Every temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without
unreasonable delay the Issuer shall execute and shall furnish definitive
Securities of such series and thereupon temporary Securities of such series may
be surrendered in exchange therefor without charge at each office or agency to
be maintained by the Issuer for the purpose pursuant to Section 3.02, and the
Trustee shall authenticate and deliver in exchange for such temporary Securities
of such series a like aggregate principal amount of definitive Securities of the
same series of authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as would be definitive Securities of such series, unless otherwise
established pursuant to Section 2.03.
ARTICLE 3
COVENANTS OF THE ISSUER
SECTION 3.01. Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities that it will duly and
punctually pay or cause to be paid the principal of, and interest on, each of
the Securities of such series (together with any additional amounts payable
pursuant
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to the terms of such Securities) at the place or places, at the respective times
and in the manner provided in such Securities and in this Indenture. The
interest on Securities (together with any additional amounts payable pursuant to
the terms of such Securities) shall be payable only to or upon the written order
of each Holder thereof and at the option of the Issuer may be paid (i) by
mailing checks to or upon the written order of each such Holder at such Holder's
last address as it appears on the registry books of the Issuer or (ii) by wire
transfer to a bank account maintained by each such Holder.
Notwithstanding any provisions of this Indenture and of the Securities of
any series to the contrary, if the Issuer and a holder of any Security so agree
or if expressly provided pursuant to Section 2.03, payments of interest on, and
any portion of the principal of, such Holder's Security (other than interest
payable at maturity or on any redemption or repayment date or the final payment
of principal on such Security) shall be made by the Paying Agent, upon receipt
from the Issuer of the immediately available funds by 11:00 a.m., New York City
time (or such other time as may be agreed to between the Issuer and the Paying
Agent), directly to the holder of such Security (by Federal funds wire transfer
or otherwise) if the Holder has delivered written instructions to the Trustee 15
days prior to such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in the
case of payments of principal, surrenders the same to the Trustee in exchange
for a Security or Securities aggregating the same principal amount as the
unredeemed principal amount of the Securities surrendered. The Trustee shall be
entitled to rely on the last instruction delivered by the Holder pursuant to
this Section 3.01 unless a new instruction is delivered 15 days prior to a
payment date. The Issuer will indemnify and hold each of the Trustee and any
Paying Agent harmless against any loss, liability or expense (including
reasonable attorney's fees) resulting from any act or omission to act on the
part of the Issuer or any such Holder in connection with any such agreement or
from making any payment in accordance with any such agreement.
SECTION 3.02. Offices for Payments, Etc. The Issuer will maintain or cause
to be maintained in The City of New York, an agency where the Securities of each
series may be presented for payment, an agency where the Securities of each
series may be presented for exchange as is provided in this Indenture and, if
applicable, pursuant to Section 2.09, an agency where the Securities of each
series may be presented for registration of transfer as provided in this
Indenture.
The Issuer will maintain or cause to be maintained in The City of New
York, an agency where notices and demands to or upon the Issuer in respect of
the Securities of any series or this Indenture may be served. The Issuer will
give to the Trustee prompt written notice of the location of each such agency
and of any
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change of location thereof. Unless otherwise specified in accordance with
Section 2.03, the issuer hereby initially designates the Corporate Trust Office
of The Chase Manhattan Bank as the office to be maintained by it for each such
purpose.
In case the Issuer shall fail to maintain such agency in The City of New
York, or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office of the Trustee and the Issuer hereby
appoints the Trustee its agent to receive all such presentations, surrenders,
notices and demands.
The Issuer may from time to time designate one or more agencies where the
Securities of a series may be presented for payment, where the Securities of
that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.03 and where the Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in the immediately preceding paragraphs of this
Section 3.02. The Issuer will give to the Trustee prompt written notice of any
such designation or rescission thereof.
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.09, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.04. Paying Agents. Whenever the Issuer shall appoint a Paying
Agent other than the Trustee with respect to the Securities of any series, it
will cause such Paying Agent 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,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any
other obligor on the Securities of such series) in trust for the benefit
of the holders of the Securities of such series, or of the Trustee acting
on behalf of the holders of the Securities of such series;
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make
any
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payment of the principal of or interest, if any, on the Securities of such
series when the same shall be due and payable; and
(c) that it will forthwith pay any such sums so held in trust by it
to the Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in clause 3.04(b) above.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the Paying Agent a sum
sufficient to pay such principal or interest so becoming due, and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of any
failure to take such action.
If the Issuer shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest 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 or interest so becoming due until such sums
shall be paid to such holders of the Securities or otherwise disposed of as
herein provided. The Issuer will promptly notify the Trustee of any failure to
take such action.
Anything in this Section to the contrary notwithstanding, the Issuer may
at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay by a written request signed by two officers of the Issuer directing
any Paying Agent to pay to the Trustee all sums held in trust for any such
series by the Issuer or any Paying Agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.04 and 10.05.
SECTION 3.05. Written Statement to Trustee. The Issuer will deliver to the
Trustee on or before May 30 in each year (commencing in 1998) a written
statement which need not comply with Section 11.05, signed by the principal
executive, financial or accounting officer of the Issuer as to his or her
knowledge of the Issuer's compliance with all conditions and covenants under the
Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under the Indenture), all in accordance
with Section 314 of the Trust Indenture Act.
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SECTION 3.06. Limitation on Liens. The Issuer will not, and will not
permit any Restricted Subsidiary to, incur any Lien (except as provided in the
next paragraph of this Section 3.06) on property or assets owned on or acquired
after the date of the Indenture by the Issuer or any Restricted Subsidiary to
secure Debt without making, or causing such Restricted Subsidiary to make,
effective provision for securing the Debt Securities (and, if the Issuer may so
determine, any other Debt of the Issuer or such Restricted Subsidiary that is
not subordinated in right of payment to the Debt Securities) (x) equally and
ratably with such Debt as to such property or assets for as long as such Debt
will be so secured or (y) in the event such Debt is subordinated in right of
payment to the Debt Securities, prior to such Debt as to such property for as
long as such Debt will be so secured.
The foregoing restrictions will not apply to Liens existing on the date of
the Indenture or to: (i) Liens securing only the Debt Securities; (ii) Liens in
favor of only the Issuer or a Restricted Subsidiary of the Issuer; (iii) any
Lien on property of a Person existing immediately prior to the time such Person
is merged with or into or consolidated with the Issuer or any Subsidiary of the
Issuer or otherwise becomes a Subsidiary of the Issuer (provided that such Lien
is not incurred in anticipation of such transaction and does not extend beyond
the property subject thereto, or secure any Debt that is not secured thereby,
immediately prior to such transaction); (iv) any Lien on property existing
immediately prior to the time of acquisition thereof (provided that such Lien is
not incurred in anticipation of such acquisition and does not extend beyond the
property subject thereto, or secure any Debt that is not secured thereby,
immediately prior to such acquisition); (v) any Lien on property securing all or
any portion of the purchase price thereof or securing all or any portion of the
cost of construction or alteration of or improvement on any property created or
assumed contemporaneously with, or within 270 days after, such acquisition or
completion of such construction or improvement (provided that such Lien does not
extend to any other property and secures Debt in an amount that does not exceed
such purchase price or cost of construction, alteration or improvement); (vi)
Liens for taxes or assessments or other governmental charges or levies that are
not delinquent, remain payable without penalty or are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted
and for which such reserve or other appropriate provision, if any, as may be
required in accordance with generally accepted accounting principles has been
made; (vii) Liens to secure obligations under workmen's compensation laws or
similar legislation; (viii) Liens incurred to secure the performance of
statutory obligations or bids, surety or appeal bonds, performance or
return-of-money bonds or other obligations of a like nature incurred in the
ordinary course of business; (ix) any Lien securing Debt owing by the Issuer to
a Wholly Owned Subsidiary (provided that, for purposes of this covenant and the
covenant described in Section 3.07 upon either (a) the transfer or other
disposition of any Debt secured by such Lien
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to a Person other than another Wholly Owned Subsidiary of the Issuer or (b) the
issuance (other than directors' qualifying shares), sale, lease, transfer or
other disposition of capital stock of or any other ownership interest in such
Wholly Owned Subsidiary to which such secured Debt is owed to a Person other
than the Issuer or another Wholly Owned Subsidiary of the Issuer, the provisions
described in this clause (ix) will no longer be applicable to such Lien and such
Lien will be subject (if otherwise subject) to the requirements of the preceding
paragraph of this Section 3.06 without regard to this clause (ix)); (x) any Lien
arising in the ordinary course of business in favor of a customer, which Liens
are inherent in the government contracting process; (xi) any Liens on assets
identified as "Restricted Cash" on the Issuer's balance sheet which are payable
to third parties; (xii) any Lien associated with a sale or discount of accounts
receivable of the Issuer or its Subsidiaries provided that such Lien (a) does
not involve the creation of a Lien or negative pledge on any accounts receivable
not so sold or discounted and (b) does not involve in the aggregate the sale or
discount of accounts receivable having a book value exceeding $100,000,000;
(xiii) Liens securing obligations not exceeding $100,000,000 in the aggregate on
(a) the assets of single purpose Subsidiaries and (b) assets of the Issuer or
any of its Subsidiaries incurred in connection with and related solely to the
toll collection business; (xiv) any Lien in favor of the Trustee in respect of
expenses incurred or services rendered pursuant to the Indenture; (xv)
extensions, renewals or replacements (or successive extensions, renewals, or
replacements), as a whole or in part, of any Lien referred to in the foregoing
clauses (iii), (iv) and (v) so long as such Lien does not extend to any other
property and the Debt so secured is not increased and (xvi) any Lien to secure
Debt if, after giving effect thereto the sum of: (i) the amount of all Debt
secured by all Liens incurred on or after the date of the Indenture and
otherwise prohibited by Section 3.06 and (ii) the Attributable Value of Sale and
Leaseback Transactions entered into on or after the date of the Indenture and
otherwise prohibited by Section 3.07 does not exceed 15% of the Consolidated Net
Worth.
SECTION 3.07. Limitations on Sale and Leaseback Transactions. The Issuer
will not, and will not permit any Restricted Subsidiary to, enter into any Sale
and Leaseback Transaction (except for a period not exceeding 36 months) unless
(i) the Issuer or such Restricted Subsidiary would be entitled to enter into
such Sale and Leaseback Transaction pursuant to the provisions described in the
second paragraph of Section 3.06 or, if after giving effect to such Sale and
Leaseback Transaction, the sum of: (a) the amount of all Debt secured by all
Liens incurred on or after the date of the Indenture and otherwise prohibited by
Section 3.06 and (b) the Attributable Value of Sale and Leaseback Transactions
entered into on or after the date of the Indenture and otherwise prohibited by
Section 3.07 does not exceed 15% of the Consolidated Net Worth without equally
and ratably securing the Debt Securities or (ii) the Issuer or a Subsidiary of
the Issuer applies, within 90 days after the related Sale Transaction, an amount
equal
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to the Net Available Proceeds of such Sale Transaction (a) to the redemption of
Debt Securities or, to the extent Debt Securities are not then redeemable, to
the retirement of Debt Securities, of other Issuer Debt that is pari passu with
the Debt Securities or of Subsidiary Debt or, to the extent there is no such
Issuer Debt or Subsidiary Debt, other Issuer Debt or (b) to the purchase of
property, securities, or other assets (other than cash or cash equivalents)
having a fair market value, determined at the time of such purchase, at least
equal to the Net Available Proceeds of such sale and which will be used (or, in
the case of any securities, are capital stock issued by a company engaged) in
the business of the Issuer and its Restricted Subsidiaries as then being
conducted. Debt Securities redeemed or otherwise retired pursuant to the
provision described above may not be used as credits against any sinking fund
obligations.
SECTION 3.08. Existence. Subject to Article 9, the Issuer will do or cause
to be done all things necessary to preserve and keep in full force and effect
its existence, rights (charter and statutory) and franchises; provided, however,
that the Issuer shall not be required to preserve any such right or franchise if
the Board of Directors (or, in the case only of a franchise, an officer of the
Issuer) shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Issuer and that the loss thereof is not
disadvantageous in any material respect to the Holders.
ARTICLE 4
LISTS OF HOLDERS OF SECURITIES AND REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.01. Lists of Holders of Securities. If and so long as the
Trustee shall not be the Security registrar for the Securities of any series,
the Issuer will furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and addresses of the
holders of the Securities of each series pursuant to Section 312 of the Trust
Indenture Act:
(a) semi-annually and not more than 15 days after each record date for the
payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.03 for
non-interest bearing securities in each year, and
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(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer of any such request as of a date not more than
15 days prior to the time such information is furnished.
SECTION 4.02. Preservation and Disclosure of Lists of Holders of
Securities.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities received by it either in its capacity as Trustee or
Security registrar. The Trustee may destroy any list furnished to it as provided
in Section 4.01 upon receipt of a new list so furnished.
(b) In case three or more holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security 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 a particular series (in which case the applicants must all hold
Securities of such series) or with holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
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
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection
4.02(a) of this Section, or
(ii) inform such applicants as to the approximate number of holders
of Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection 4.02(a) of this
Section, and as to the approximate cost of mailing to such holders of
Securities the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each holder of Securities of such series or all Securities, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection 4.02(a) of this
Section a copy of the form of proxy or other communication which is specified in
such
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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; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of the Issuer or the Trustee shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
holders of Securities in accordance with the provisions of Section 4.01 or this
Section, regardless of the source from which such information was derived, and
that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made in compliance with subsection 4.02(b) of this
Section.
SECTION 4.03. Reports by the Issuer. The Issuer covenants to file with the
Trustee, within 15 days after the Issuer is required to file the same with the
Commission, copies of the annual reports and of the information, documents, and
other reports which the Issuer may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.
SECTION 4.04. Reports by the Trustee. Any Trustee's report required under
Section 313(a) of the Trust Indenture Act shall be transmitted to the holders of
Securities to which such report pertains on or before July 15 in each year
following the date hereof, so long as any such Securities are Outstanding
hereunder, and shall be dated as of a date convenient to the Trustee no more
than 60 nor less than 45 days prior thereto. The Trustee also shall comply with
Section 313(b) of the Trust Indenture Act. The Trustee shall also transmit all
reports as required by Section 313(c) of the Trust Indenture Act. A copy of each
such report shall, at the time of such transmission to holders of Securities, be
furnished to the Issuer and be filed by the Trustee with each stock exchange
upon which the Securities of any applicable series are listed and also with the
Commission. The Issuer agrees to notify the Trustee with respect to any series
when and as the Securities of such series become admitted to trading on any
national securities exchange.
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ARTICLE 5
REMEDIES OF THE TRUSTEE AND HOLDERS OF SECURITIES ON EVENT OF DEFAULT
SECTION 5.01. Event of Default Defined; Acceleration of Maturity; Waiver
of Default. "Event of Default" with respect of Securities of any series wherever
used herein, means each one of the following events which shall have occurred
and be continuing (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) failure to pay principal of any Security of that series when due;
(b) failure to pay any interest on any Securities of that series when due,
continued for 30 days;
(c) failure to deposit any sinking fund payment, when due, in respect of
any Security of that series;
(d) failure to perform any other covenant of the Issuer in this Indenture
(other than a covenant included in this Indenture solely for the benefit of a
series other than that series), continued for 90 days after written notice has
been given by the Trustee, or the Holders of at least 25% in principal amount of
the Outstanding Securities of that series, as provided in this Indenture;
(e) a default or defaults under any note(s) or other evidence(s) of Debt
(including Securities of another series), or any agreement(s) or instrument(s)
(including this Indenture) under which there may be issued or by which there may
be secured or evidenced any Debt of the Issuer or any Subsidiary having a
principal amount outstanding, individually or in the aggregate, of at least
$50,000,000, and whether existing on or created after the date of this
Indenture, which default or defaults (i) constitute a failure to pay any portion
of the principal of such Debt when due (after the expiration of any applicable
grace period) or (ii) have resulted in acceleration of any portion of such Debt
having an aggregate principal amount equal to or in excess of $50,000,000,
without the overdue or accelerated portion of such Debt having been discharged,
or without such acceleration having been rescinded or annulled by the holders of
such Debt, within 30 days after written notice has been given by the Trustee or
the Holders of at least 25% in principal amount of the Outstanding Securities of
such series, as provided in this Indenture;
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(f) a final judgment or final judgments for the payment of money are
entered against the Issuer or any Subsidiary of the Issuer in an aggregate
amount in excess of $50,000,000 by a court or courts of competent jurisdiction,
unless such judgments are fully discharged, bonded or stayed within 60 days
after the right to appeal such judgments has expired;
(g) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Issuer or a Significant Subsidiary
in an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Issuer or a Significant Subsidiary a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Issuer or a Significant
Subsidiary under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Issuer or of a Significant Subsidiary 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 for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days;
(h) the commencement by the Issuer or a Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Issuer or a
Significant Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
the commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable Federal or State law, or the consent by it to the
filing of such petition or the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer or of a Significant Subsidiary 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
Issuer or a Significant Subsidiary in furtherance of any such action; and
(i) other or different Events of Default with respect to Securities of a
particular series if so established pursuant to Section 2.03.
If an Event of Default (other than an Event of Default specified in
Section 5.01(g) or (h)) with respect to Securities of any series at the time
Outstanding
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occurs and is continuing, then in every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal amount of
all the Securities of that series and the interest accrued thereon, if any, (or,
if any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the
terms thereof) to be due and payable immediately, by a notice in writing to the
Issuer (and to the Trustee if given by Holders), and upon any such declaration
the same shall become immediately due and payable. If an Event of Default
specified in Section 5.01(g) or (h) with respect to Securities of any series at
the time Outstanding occurs, the principal amount of all the Securities of that
series and the interest accrued thereon, if any, (or, if any Securities of that
series are original Issue Discount Securities, such portion of the principal
amount of such Securities as may be specified by the terms thereof) shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
The foregoing provisions, however, are subject to the condition that, if,
at any time after the principal (or, if the Securities are Original Issue
Discount Securities such portion of the principal as may be specified in the
terms thereof) of the Securities of any series shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series and the
principal of any or all Securities of such series which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series, to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agent, and counsel, and all other reasonable expenses and
liabilities incurred, and all reasonable advances made by, and all amounts due
the Trustee under Section 6.06 herein except as a result of its negligence or
bad faith, and if any and all Events of Default under the Indenture, other than
the non-payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein -- then and in every such case the Holders of a majority in aggregate
principal amount of all the Securities of such series, such series voting as a
separate class, then Outstanding, by written notice to the Issuer and to the
Trustee, may waive all defaults with respect to such series and rescind and
annul such declaration and its consequences, but no such waiver or rescission
and
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annulment shall extend to or shall affect any subsequent default or shall impair
any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon, and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Issuer covenants that in case (a) default shall be made in the payment
of any installment of interest on any of the Securities of any series when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) default shall be made in the payment of
all or any part of the principal of any of the Securities of any series when the
same shall have become due and payable, whether upon maturity of the Securities
of such series or upon any redemption or by declaration or otherwise, then in
either such case, upon demand of the Trustee, the Issuer will pay to the Trustee
for the benefit of the holders of the Securities of such series the whole amount
that then shall have become due and payable on all Securities of such series for
principal or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest as the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of the
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents and counsel,
and any reasonable expenses and liabilities incurred by, and all advances made
by, and all amounts due, the Trustee and each predecessor Trustee under Section
6.06 herein except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the registered holders,
whether or not the principal of and interest on the Securities of such series
are overdue.
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In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any
other obligor upon the Securities under Chapter 11 of the United States Code or
any other applicable Federal or state bankruptcy, insolvency or similar law, or
in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal
and interest (or, if the Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Securities of any
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents and counsel, and for reimbursement of all reasonable expenses
and liabilities incurred, all reasonable advances made, by the Trustee and each
predecessor Trustee, and all amounts due the Trustee under Section 6.06 herein,
except as a result of its negligence or bad faith), and of the holders of the
Securities allowed in any judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf
of the holders of the Securities of any series in any election of a trustee or a
standby trustee in arrangement, reorganization, liquidation or other bankruptcy
or insolvency proceedings or person performing similar functions in comparable
proceedings, and
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(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the holders of the Securities and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the holders of the Securities
to make payments to the Trustee, and, in the event that the Trustee shall
consent to the making of payments directly to the holders of the Securities, to
pay to the Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their respective
agents and counsel, and all reasonable expenses and liabilities incurred, and
all reasonable advances made, by the Trustee and each predecessor Trustee except
as a result of negligence or bad faith and all other amounts due to the Trustee
or any predecessor Trustee pursuant to Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any holder
of the Securities any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
holder of the Securities in any such proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series, may be enforced by the Trustee
without the possession of any of the Securities of such series or the production
thereof on any trial or other proceedings relative thereto, and any such action
or proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of reasonable expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the holders of the Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 5.03. Application of Proceeds. Any moneys collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal or interest, upon
presentation
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of the several Securities in respect of which monies have been collected and
stamping (or otherwise noting) thereon the payment, or issuing Securities of
such series in reduced principal amounts in exchange for the presented
Securities of like series if only partially paid, or upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all reasonable expenses and
liabilities incurred, and all reasonable advances made, by the Trustee and
each predecessor Trustee, and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.06, except as a result of
negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest on the Securities of such
series in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, 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 in
respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and
unpaid upon all the Securities of such series for principal and interest,
with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the
Securities of such series; 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 interest or Yield
to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or
of any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid interest
or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer.
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SECTION 5.04. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion (but shall not be obligated to) 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 in equity or in bankruptcy or otherwise, whether for the
specific enforcement or 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 5.05. Restoration of Rights on Abandonment of Proceedings. In case
the Trustee shall have proceeded to enforce any right under this Indenture and
such proceedings shall have been discontinued or abandoned for any reason, or
shall have been determined adversely to the Trustee, then and in every such case
the Issuer and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the holders of Securities shall continue as though no
such proceedings had been taken.
SECTION 5.06. Limitations on Suits by Holders of Securities. No holder of
any Security of any series shall have any right by virtue or by availing of any
provisions of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
holders of not less than 25% in aggregate principal amount of the Securities of
such series then Outstanding shall have made written request upon the Trustee to
institute such action or proceedings in respect of such Event of Default in its
own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceeding and no direction inconsistent with such
written request shall have been given to the Trustee during such 60 day period
pursuant to Section 5.09; it being understood and intended, and being expressly
covenanted by the holder of every Security with every other Holder and the
Trustee, that no one or more holders of Securities of any series shall have any
right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such holder of
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,
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ratable and common benefit of all holders of Securities of the applicable
series. For the protection and enforcement of the provisions of this Section,
each and every holder of Securities and the Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 5.07. Unconditional Right of Holders of Securities to Institute
Certain Suits. Notwithstanding any other provision in this Indenture and any
provision of any Security, the right of any holder of any Security to receive
payment of the principal of and interest on such Security on or after the
respective due dates expressed in such Security, 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 5.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as otherwise provided in Section 5.06 and with respect to the
replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities in the last sentence of Section 2.10, no right or remedy herein
conferred upon or reserved to the Trustee or to the holders of Securities is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any holder of Securities to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.06, every power and remedy given by this
Indenture or by law to the Trustee or to the holders of Securities may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the holders of Securities, as the case may be.
SECTION 5.09. Control by Holders of Securities. The Holders of a majority
in aggregate principal amount of the Securities of each series affected (with
each series voting as a separate class) 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 the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 6.01), the Trustee shall have the right to decline to
follow any such
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direction if the Trustee, being advised by counsel, shall determine that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors, the executive committee, or a trust
committee of directors or responsible officers of the Trustee shall determine
that the action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions or
forebearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.01) the Trustee shall have no duty to ascertain whether or
not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by holders of Securities.
SECTION 5.10. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding may, on behalf of the holders of all Securities of such series,
waive compliance by the Issuer with any covenant described in Article 3 or any
covenant in a supplemental indenture, other than covenants which cannot be
modified or amended without the consent of the holder of each Security affected.
Prior to the declaration of the acceleration of the maturity of the Securities
of any series as provided in Section 5.01, the Holders of a majority in
aggregate principal amount of the Securities of such series at the time
Outstanding (each such series voting as a separate class) with respect to which
an Event of Default shall have occurred and be continuing may, on behalf of the
holders of all the Securities of such series, waive any past default or Event of
Default described Section 5.01 (or any other Event of Default specified in a
supplemental indenture or resolution of the Board of Directors), and its
consequences except a default in the payment of principal or interest and in
respect of a covenant or provisions hereof which cannot be modified or amended
without the consent of the holder of each Security affected. In the case of any
such waiver, the Issuer, 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.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
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SECTION 5.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within 90 days after the occurrence of
a default with respect to the Securities of any series, give notice of all
defaults with respect to that series actually known to a Responsible Officer of
the Trustee to all Holders of then Outstanding Securities of that series, by
mailing such notice to such Holders at their addresses as they shall appear in
the registry books, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "default" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest on any of the Securities of such series, or in the
payment of any sinking or purchase fund installment with respect to the
Securities of such series, 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 or trustees and/or responsible officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the holders of Securities of such series.
SECTION 5.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties of this Indenture agree, and each holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion 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 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any holder of Securities or group of holders
of Securities of any series holding in the aggregate more than 10% in aggregate
principal amount of the Securities Outstanding of such series or to any suit
instituted by any holder of Securities for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
SECTION 5.13. Actual Knowledge of Trustee. The Trustee shall not be deemed
to have knowledge of any default or Event of Default except (i) a default under
Section 5.01(a) or (b) so long as the Trustee is Paying Agent or (ii) any
default or Event of Default of which the Trustee shall have received written
notification or a Responsible Officer charged with the administration of this
Indenture shall have obtained actual knowledge, and such notification shall not
be deemed to include receipt of information obtained in any report or other
documents furnished under Section 3.05 of this Indenture.
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SECTION 5.14. Waiver of Usury, Stay or Extension Laws. The Issuer
covenants (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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may effect the covenants or the
performance of this Indenture; and the Issuer (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 6
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series 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 actually known to a
Responsible Officer of the Trustee with respect to the Securities of a series
shall have occurred (which has not been cured or waived) the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, 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
(a) 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 with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any Series 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
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in this Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) 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 only to examine the same on
their face to determine whether or not they conform to the requirements of
this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders pursuant to Section 5.09 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, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk funds or otherwise incur financial liability in the
performance of any of its duties or in the exercise of any of its rights or
powers hereunder, if, in its opinion, there shall be a reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
The provisions of this Section 6.01 are in furtherance of and subject to
Sections 315 and 316 of the Trust Indenture Act.
SECTION 6.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act, and subject to Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, security or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
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(b) any request, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in request thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the holders of Securities pursuant to the provisions of this Indenture,
unless such holders of Securities shall have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and reasonably believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, the Trustee shall not be bound to
make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, security, or other paper or
document unless requested in writing so to do by the holders of not less than a
majority in aggregate principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
making such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the Issuer or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon
demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
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SECTION 6.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Issuer of any of the
Securities or of the proceeds thereof.
SECTION 6.04. Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Issuer and receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the Trustee or such
agent.
SECTION 6.05. Moneys Held by Trustee. Subject to the provisions of Section
10.05 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
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.06. Compensation and Indemnification of Trustee and Its Prior
Lien. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a Trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
connection with this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except to the extent any such expense, disbursement
or advance may arise from its negligence or bad faith. The Issuer also covenants
to indemnify the Trustee and each predecessor Trustee for, and to hold it,
harmless against, any loss, liability or expense, incurred without negligence or
bad faith, arising out of or in connection with the acceptance or administration
of this Indenture or the trusts hereunder and its duties hereunder, including
the costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer under this Section to
compensate and indemnify the Trustee and each predecessor Trustee and to pay or
reimburse the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall
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constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a prior
lien to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Securities, and the Securities are hereby subordinated to such
prior lien.
SECTION 6.07. Right of Trustee to Rely on Officers' Certificates, etc.
Subject to Sections 6.01 and 6.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.08. Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation having a
combined capital and surplus of at least $50,000,000, and which is eligible in
accordance with the provisions of Section 310(a) of the Trust Indenture Act. If
such corporation or Person publishes reports of condition at least annually,
pursuant to law or to the requirements of a Federal, State or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation or Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.09. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any Trustee or Trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving 60 days
advance written notice of resignation to the Issuer and, in accordance with
Section 4.04 herein, to the Holders. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor Trustee or Trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor Trustee or
Trustees. If no successor Trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction
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for the appointment of a successor Trustee, or any holder of Securities who has
been a bona fide holder of a Security or Securities of the applicable series for
at least six months may, subject to the provisions of Section 5.12, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor Trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor Trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act with respect to any series of Securities
after written request therefor by the Issuer or by any holder of
Securities who has been a bona fide holder of a Security or Securities of
such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Issuer or by any holder of
Securities; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor Trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to Section 315(e) of
the Trust Indenture Act, any holder of Securities who has been a bona fide
holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
Trustee
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with respect to the Securities of such series by delivering to the Trustee so
removed, to the successor Trustee so appointed and to the Issuer the evidence
provided for in Section 7.01 of the action in that regard taken by the holders
of Securities of such series.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor Trustee with respect to such series pursuant
to any of the provisions of this Section 6.09 shall become effective upon
acceptance of appointment by the successor Trustee as provided in Section 6.10.
SECTION 6.10. Acceptance of Appointment by Successor Trustee. Any
successor Trustee appointed as provided in Section 6.09 shall execute and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as Trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor Trustee, upon payment of its
charges then unpaid, the Trustee ceasing to act shall, subject to Section 10.05,
assign, transfer and deliver to the successor Trustee all moneys at the time
held by it hereunder and shall execute and deliver an instrument transferring to
such successor Trustee all such rights, powers, duties and obligations. Upon
request of any such successor Trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a prior lien upon all property or funds held or
collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.06.
If a successor Trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-Trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts under separate
indentures.
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Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.10, the Issuer shall mail notice thereof by first class mail to
the holders of Securities of each series affected, by mailing such notice to
such Holders at their last addresses as they shall appear on the registry books.
Each notice shall include the name of the successor Trustee and the address of
its principal corporate trust office. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.09. If the Issuer fails to mail such notice within ten days after acceptance
of appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Issuer.
SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business
of Trustee. 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 all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee and all other
appointments hereunder; provided, that such corporation shall be eligible under
the provisions of Section 6.08, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered by the Trustee ceasing to act, 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 any series shall not have been
authenticated by the Trustee ceasing to act, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it has anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12. Preferential Collection of Claims Against the Issuer. (a)
Subject to the provisions of subsection (b) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Issuer within three months prior to a default, as defined in
subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall
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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 this Section):
(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 Issuer
and its other creditors, except any such reduction resulting from the receipt or
disposition of any property described in subsection (a)(2) of this Section, 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 Issuer 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 Issuer 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 Issuer) who is liable thereon, (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 Issuer 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 received the Trustee had no reasonable
cause to believe that a default as defined in subsection (c) of this Section
would occur within three months; or
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(D) to receive payment on 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 of 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 of Securities and the holders of other indenture
securities in such manner that the Trustee, such holders of Securities 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 Issuer 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 Issuer of the funds and
property in such special account and before crediting to the respective claims
of the Trustee, such holders of Securities and the holders of other indenture
securities dividends on claims filed against the Issuer 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, such holders of Securities 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
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made to the Trustee, such holders of Securities 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 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 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 advances and of the circumstances surrounding the making thereof is given
to the holders of Securities at the time and in the manner provided in this
Indenture;
(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;
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(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)(3) of this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act, as
amended, which is directly or indirectly a creditor of the Issuer; or
(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)(4) of this
Section.
(c) As used in this Section:
(1) the term "default" shall mean any failure to make payment in full of
the principal of or interest upon any of the Securities 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 Issuer is an obligor (as defined in the Trust Indenture Act) outstanding
under any other indenture (i) under which the Trustee is also Trustee, (ii)
which contains provisions substantially similar to the provisions of subsection
(a) of this Section, and (iii) under which a default existing 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 Issuer 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 a 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 Issuer arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance or
obligation; and
(5) the term "Issuer" shall mean any obliger upon the Securities.
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ARTICLE 7
CONCERNING THE HOLDERS OF SECURITIES
SECTION 7.01. Evidence of Action Taken by Holders of Securities. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the holders of Securities of any or all series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of holders of Securities in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.01 and 6.02) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.01 and 6.02, the execution of any instrument
by a holder of Securities or his agent or proxy may be proved in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be reasonably satisfactory to the Trustee. The holding of
Securities shall be proved by the Security register or by a certificate of the
registrar thereof. The Issuer may set a record date for purposes of determining
the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 7.01, which record date may be set at
anytime or from time to time by notice to the Trustee, for any date or dates (in
the case of any adjournment or reconsideration) not more than 60 days nor less
than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only holders of
Securities of such series of record on such record date shall be entitled to so
vote or give such consent or revoke such vote or consent.
SECTION 7.03. Holders to Be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on such Security and for
all other purposes; and neither the Issuer nor the Trustee nor any agent of the
Issuer or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such Person, or upon his order, shall be valid, and, to
the extent of
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the sum or sums to be paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 7.04. Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Affiliate of the Issuer or of such other obligor shall
be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows or has reason to know are so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Issuer or any
other obligor upon the Securities or any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities by delivering to the Trustee an
Officers' Certificate and Opinion of Counsel to such effect. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, and the
aggregate principal amount of such securities known by the Issuer to be owned or
held by or for the account of any of the above-described persons; and, subject
to Sections 6.01 and 6.02, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made
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upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the holders of all the
Securities affected by such action.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders of
Securities. The Issuer, 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 convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets subject
to and in compliance with the terms herein;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer herein and in the
Securities;
(c) 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 6.10;
(d) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as its Board of Directors shall consider
to be for the protection of the holders of Securities, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision 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 an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of
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a majority in aggregate principal amount of the Securities of such series to
waive such an Event of Default;
(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; or to make such other provisions in regard to matters or questions
arising under this Indenture or under any supplemental indenture; provided, such
other provisions shall not adversely affect the interests of the holders of the
Securities in any material respect in the opinion of the Board of Directors; and
(f) to establish the form or terms of Securities of any series as
permitted by Section 2.01 and 2.03.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such 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
may be executed without the consent of the holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures with Consent of Holders of
Securities. With the consent (evidenced as provided in Article 7) of the Holders
of not less than a majority in aggregate principal amount of the Securities at
the time Outstanding of each series affected by any supplemental indenture (each
such series voting as a separate class), the Issuer, 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 the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Securities of each such
series; provided, that no such supplemental indenture shall without the consent
of the holders of each Security so affected (a) extend the stated maturity or
reduce the principal amount of any Security or any portion thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any amount
payable on redemption thereof or change the currency in which the Security is
payable, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to
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Section 5.01 or the amount thereof provable in bankruptcy pursuant to Section
5.02, or impair or affect the right of any holder of Securities to institute
suit for the payment thereof, (b) reduce the aforesaid percentage of Securities
of any series, the consent of the Holders of which is required for any such
supplemental indenture or (c) modify any of the provisions of this Section 8.02
or Section 5.10, except to increase any such percentage referred to in such
provisions or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section 8.02, or the
deletion of this proviso, in accordance with the requirements of Sections 6.10
and 8.01(c).
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors certified by the secretary or an assistant secretary of
the Issuer authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of holders of
Securities as aforesaid and other documents, if any, required by Section 7.01,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture adversely 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 consent of the holders of Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.02, the
Issuer shall mail a notice thereof to the holders of then Outstanding Securities
of each series affected thereby, by mailing a notice thereof by first-class mail
to such Holders at their addresses as they shall then appear on the Security
register. Any failure of the Issuer to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 8.03. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms
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and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 8.04. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.01 and 6.02, shall be entitled to receive and shall
be fully protected in relying upon an Officers' Certificate and an Opinion of
Counsel stating that any supplemental indenture executed pursuant to this
Article 8 complies with the applicable provisions of this Indenture.
SECTION 8.05. Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered by the Trustee in exchange for the Securities of such
series then Outstanding.
ARTICLE 9
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.01. Issuer May Consolidate, Etc., on Certain Terms. With respect
to the Securities of any series, the Issuer shall not consolidate with or merge
into, or convey, transfer or lease its properties and assets substantially as an
entirety to, any Person (a "successor Person"), and may not permit any Person to
merge into, or convey, transfer or lease its properties and assets substantially
as an entirety to, the Issuer, unless (i) the successor Person (if any) is a
corporation, partnership, trust, limited liability company or other entity
organized and validly existing under the laws of any domestic jurisdiction and
expressly assumes by a supplemental indenture hereto executed and delivered to
the Trustee in form reasonably satisfactory to the Trustee, the Issuer's
obligations on the Securities of such series and under the Indenture with
respect thereto, (ii) immediately after giving effect to the transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, with respect to the Securities of such series
shall have occurred and be continuing and (iii) if, as a result of the
transaction, property of the Issuer or any Restricted Subsidiary would become
subject to a Lien the incurrence of which would not be permitted under Section
3.06, the Issuer takes such steps as necessary to cause the Securities of
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such series to be secured ratably with (or prior to) the Debt secured by such
Lien as provided in Section 3.06.
SECTION 9.02. Successor Issuer Substituted. In case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein.
Such successor corporation may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder, which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities, which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities, which such successor corporation thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of 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 case of any such consolidation, merger, sale, lease or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Issuer or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Securities and
may be liquidated and dissolved.
SECTION 9.03. Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.01 and 6.02, shall receive an Opinion of Counsel and an
Officers' Certificate, prepared in accordance with Section 11.05, to the effect
that any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture, and such opinion will be conclusive
evidence of such compliance.
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ARTICLE 10
DEFEASANCE; SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONEYS
SECTION 10.01. Defeasance Upon Deposit of Funds or Government Obligations.
At the Issuer's option, either (a) the Issuer shall be deemed to have been
Discharged (as defined below) from its obligations with respect to any series of
Securities after the applicable conditions set forth below have been satisfied
or (b) the Issuer shall cease to be under any obligation to comply with any
term, provision or condition set forth in Sections 3.06 and 3.07 (and any other
Sections applicable to such Securities that are determined pursuant to Section
2.03 to be subject to this provision) with respect to any series of Securities
at any time after the applicable conditions set forth below have been satisfied:
(a) the Issuer 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) the equivalent in securities of the United
States government or securities issued by agencies of the United States
government backed by the full faith and credit of the United States government,
which through the payment of interest thereon and principal in respect thereof
in accordance with their terms will provide money in an amount sufficient to pay
all of the principal of and interest, if any, on, and repurchase obligations, if
any, with respect to Securities of such series on the dates such payments are
due in accordance with the terms of such Securities or (iii) a combination of
(i) and (ii), 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 each installment of principal
(including mandatory sinking fund payments) and interest, if any, on, and any
repurchase obligations, if any, with respect to the Outstanding Securities of
such series on the dates such installments of interest or principal or
repurchase obligations are due;
(b) 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;
(c) the Issuer shall have delivered to the Trustee an Opinion of Counsel,
from independent tax counsel (which may be outside general counsel to the
Issuer, 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 Issuer's exercise of its option under this Section 10.01 and will be subject
to Federal income tax on the same amount and in the same manner and at the same
times as
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would have been the case if such option had not been exercised, and, in the case
of Securities being Discharged, such opinion shall be based on (i) a ruling by
the Internal Revenue Service or (ii) a change in applicable U.S. federal income
tax law occurring after the issue date of the Securities being Discharged;
(d) such defeasance pursuant to Section 10.01 shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder; and
(e) the Issuer shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent with
respect to such defeasance pursuant to Section 10.01 have been complied with.
The term "Discharged" means that the Issuer shall be deemed to have paid
and discharged the entire indebtedness represented by, and obligations under,
the Securities of such series and to have satisfied all the obligations under
this Indenture relating to the Securities of such series (and the Trustee, at
the expense of the Issuer, shall execute proper instruments acknowledging the
same), except (i) the rights of holders of Securities to receive, from the trust
fund described in Subsection (a) above, payment of the principal and any premium
of and any interest on such Securities when such payments are due; (ii) the
Issuer's obligations with respect to such under Sections 2.09, 2.10, 3.02, 3.04,
6.06 and 10.03 and (iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder (including, without limitation, its rights under Section
6.06 hereunder).
SECTION 10.02. Satisfaction and Discharge of Indenture. If at any time (a)
the Issuer shall have paid or caused to be paid the principal and interest on
all the Securities of any series Outstanding hereunder (other than Securities of
such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.10) as and when the same shall have
become due and payable, or (b) the Issuer shall have delivered to the Trustee
for cancellation all Securities of any series theretofore authenticated (other
than any Securities of such series which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as provided in Section 2.10)
or (c) (i) all the Securities of such series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption, and (ii) the Issuer shall have irrevocably
deposited or caused to be deposited with the Trustee as trust funds the entire
amount in cash (other than moneys repaid by the Trustee or any Paying Agent to
the Issuer in accordance with Section 10.05) sufficient to pay at maturity or
upon redemption all Securities of such series (other than any
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Securities of such series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.10) not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due on or prior to such date of maturity as the case
may be, and if, in any such case, the Issuer shall also pay or cause to be paid
all other sums payable hereunder by the Issuer with respect to Securities of
such series, then this Indenture shall cease to be of further effect with
respect to Securities of such series (except as to (i) rights of registration of
transfer and exchange of Securities of such series, and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of holders to receive payments of
principal thereof and interest thereon, and remaining rights of the holders to
receive mandatory sinking fund payments, if any, (iv) the rights, obligations
and immunities of the Trustee thereunder 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 the Trustee,
on demand of the Issuer accompanied by an Officers' Certificate and an Opinion
of Counsel and at the cost and expense of the Issuer, shall execute proper
instruments acknowledging such satisfaction of and discharging this Indenture
with respect to such series; provided, that the rights of holders of the
Securities to receive amounts in respect of principal of and interest on the
Securities held by them shall not be delayed longer than required by
then-applicable mandatory rules or policies of any securities exchange upon
which the Securities are listed. The Issuer agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.
SECTION 10.03. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.05, all moneys deposited with the Trustee
pursuant to Sections 10.01 and 10.02 shall be held in trust and applied by it to
the payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent), to the holders of the particular Securities of
such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due to become due thereon for principal
and interest; but such money need not be segregated from other funds except to
the extent required by law.
SECTION 10.04. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any Paying Agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such
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Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 10.05. Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Three Years. Any moneys deposited with or paid to the Trustee or any Paying
Agent for the payment of the principal of or interest on any Security of any
series and not applied but remaining unclaimed for three years after the date
upon which such principal or interest shall have become due and payable, shall,
upon the written request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law (as advised by counsel, pursuant to Section 6.02), be repaid to the Issuer
by the Trustee for such series or such Paying Agent, and the holders of the
Security of such series shall, unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holders may be entitled to
collect, and all liability of the Trustee or any Paying Agent with respect to
such moneys shall thereupon cease.
SECTION 10.06. Reinstatement. If (a) the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article with respect to any
Securities by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application; (b)
the funds, securities and funds derived from the payment of principal of, and
interest on, such securities (or any combination in the aggregate thereof)
deposited pursuant to Section 10.01 or 10.02 are insufficient to satisfy the
obligations of the Issuer under Section 10.01 or 10.02, as the case may be; or
(c) the trust created, and deposit of cash and/or securities made, pursuant to
Section 10.01 or 10.02 is determined to be ineffective or invalid, then the
obligations under this Indenture and such Securities from which the Issuer has
been discharged or released pursuant to Section 10.01 or 10.02, as the case may
be, shall be revived and reinstated as though no deposit had occurred pursuant
to this Article with respect to such Securities, until such time as the Trustee
or Paying Agent is permitted to apply all money held in trust pursuant to
Section 10.03 with respect to such Securities in accordance with this Article
and the Issuer has cured any defect in the defeasance or any noncompliance with
its obligations under Section 10.01 or 10.02, as the case may be; provided,
however, that if the Issuer makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Issuer shall be subrogated to the rights (if any) of the holders of such
Securities to receive such payment from the money so held in trust.
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ARTICLE 11
MISCELLANEOUS PROVISIONS
SECTION 11.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any Debt evidenced thereby, shall be had against any
incorporator, as such, or against any past, present or future stockholder,
officer or director, as such, of the Issuer or of any successor, either directly
or through the Issuer or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders thereof and as
part of the consideration for the issue of the Securities.
SECTION 11.02. Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person other than the
parties hereto and their successors and the holders of the Securities any legal
or equitable right, remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the holders of
the Securities.
SECTION 11.03. Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.04. Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the holders of
Securities to or on the Issuer may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of the Issuer is filed by the Issuer with the
Trustee) to Science Applications International Corporation 10260 Campus Point
Drive, MS F-3, San Diego, California 92121, Attention: General Counsel. Any
notice, direction, request or demand by the Issuer or any holder of Securities
to or upon the Trustee shall be deemed to have been sufficiently given or made
for all purposes upon receipt at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last
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address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Issuer
shall be deemed to be a sufficient giving of such notice.
SECTION 11.05. Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, the
Issuer shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto, (b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based, (c) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
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<PAGE> 73
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, on information which is in the possession of the Issuer,
upon the certificate, statement or opinion of or representations by an officer
or officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with the Trustee shall contain a statement that such firm is independent.
SECTION 11.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest, if any, on or principal of the Securities of any
series or the date fixed for redemption or repayment of any such Security shall
not be a Business Day, then payment of interest or principal need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity or the date fixed for
redemption, and no interest shall accrue for the period after such date.
SECTION 11.07. Conflict of Any Provision of Indenture with Trust Indenture
Act; Trust Indenture Act Controls. If and to the extent that any provision of
this Indenture limits, qualifies or conflicts with another provision included in
this Indenture which is required to be included herein by any of Sections 310 to
317, inclusive, of the Trust Indenture Act, such required provision shall
control. If any provision of this Indenture specifically modifies or expressly
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
SECTION 11.08. New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
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<PAGE> 74
York, and for all purposes shall be governed by and construed and interpreted in
accordance with the internal laws of such state, except as may otherwise be
required by mandatory provisions of law.
SECTION 11.09. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforeceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.10. Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
SECTION 11.11. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE 12
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 12.02. Notice of Full and Partial Redemption; Partial Redemptions.
Notice of redemption to the holders of Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such holders
of Securities of such series at their last addresses as they shall appear upon
the registry books. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify (i) the
principal amount of each Security of such series held by such Holder to be
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<PAGE> 75
redeemed, (ii) the date fixed for redemption, (iii) the redemption price (and
premium, if any), (iv) the place or places of payment, (v) that payment will be
made upon presentation and surrender of such Securities, (vi) that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, (vii) that interest accrued to the date fixed for redemption
will be paid as specified in such notice and (viii) that on and after said date
interest thereon or on the portions thereof to be redeemed will cease to accrue.
In case any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the redemption date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more Paying Agents (or, if the Issuer is acting
as its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 3.04) an amount of money sufficient to redeem on the redemption date all
the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the Outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 45 days (or such
shorter period as shall be acceptable to the Trustee for its convenience) prior
to the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed and the date of redemption.
If less than all the Securities of a series are to be redeemed, the
Trustee shall, subject to Section 12.04, select Securities of such series to be
redeemed in whole or in part by such method as the Trustee shall deem equitable
and reasonable. Securities may be redeemed in part in multiples equal to the
minimum authorized denomination for Securities of such series or any multiple
thereof. The Trustee shall promptly notify the Issuer in writing of the
Securities of such series selected for redemption and, in the case of any
Securities of such series selected for partial redemption, the principal amount
thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
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<PAGE> 76
SECTION 12.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price (and
premium, if any), together with interest, if any, accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue, and except as provided in Sections
6.05 and 10.05, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except the
right to receive the redemption price thereof and unpaid interest to the date
fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
redemption price, together with interest, if any, accrued thereon to the date
fixed for redemption; provided that any semiannual payment of interest, if any,
becoming due on or prior to the date fixed for redemption shall be payable to
the holders of Securities registered as such on the relevant record date subject
to the terms and provisions of Section 2.03 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
the Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 12.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Issuer and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Issuer or (b) an entity specifically
identified in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
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SECTION 12.05. Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Securities of any
series is herein referred to as an "optional sinking fund payment". The date on
which a sinking fund payment is to be made is herein referred to as the "sinking
fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, the Issuer will deliver to the Trustee a written statement
(which need not contain the statements required by Section 11.05) signed by an
authorized officer of the Issuer (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash and the portion to be
satisfied by credit of Securities of such series, (b) stating that none of the
Securities of such series has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.11 to the Trustee with such written statement
(or reasonably promptly thereafter if acceptable to the Trustee). Such written
statement shall be irrevocable and upon its receipt by the Trustee the Issuer
shall become unconditionally obligated to make all the cash payments or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before
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<PAGE> 78
any such sixtieth day, to deliver such written statement and Securities
specified in this paragraph, if any, shall not constitute a default but shall
constitute, on and as of such date, the irrevocable election of the Issuer (i)
that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect thereof and
(ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or a lesser sum if the Issuer shall so request) with respect to the Securities
of any particular series, such cash shall be applied on the next succeeding
sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed
for redemption. If such amount shall be $50,000 or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $50,000 is
available. The Trustee shall select, in the manner provided in Section 12.02,
for redemption on such sinking fund payment date a specified principal amount of
Securities of such series then outstanding to absorb said cash, as nearly as may
be, and shall (if requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions thereof) so
selected. Securities of any series which are (a) owned by the Issuer or an
entity known by the Trustee to be directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, as
shown by the Security register, and not known to the Trustee to have been
pledged or hypothecated by the Issuer or any such entity; or (b) identified in
an Officers' Certificate at least 60 days prior to the sinking fund payment date
as being beneficially owned by, and not pledged or hypothecated by, the Issuer
or an entity directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer shall be excluded from Securities of
such series eligible for selection for redemption. The Trustee, in the name and
at the expense of the Issuer (or the Issuer, if it shall so request the Trustee
in writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 12.02 (and with the
effect provided in Section 12.03) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series and,
together with such payment, shall be applied in accordance with the provisions
of this Section. Any and all sinking fund moneys held on the stated maturity
date of the Securities of any particular series (or earlier, if such maturity is
accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if
necessary, sufficient for the
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<PAGE> 79
purpose, to the payment of the principal of, and interest on, the Securities of
such series at maturity.
At least one Business Day before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued to the date fixed for redemption on Securities
to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or mail any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article 5 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.10 or
the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
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<PAGE> 80
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of November __, 1997.
SCIENCE APPLICATIONS INTERNATIONAL
CORPORATION
By:
---------------------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
---------------------------------------
Name:
Title:
Attest:
By:
------------------------------
Name:
Title:
73
<PAGE> 81
STATE OF [ ])
) ss.:
COUNTY OF [ ])
On this ___ day of _____ before me personally came ____________ to me
personally known, who, being by me duly sworn, did depose and say that he
resides at ___________ that he is a ___________ of Science Applications
International Corporation, one of the corporations described in and which
executed the above instrument; that he knows the corporate seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
------------------------
Notary Public
<PAGE> 82
STATE OF [ ])
) ss.:
COUNTY OF [ ])
On this ___ day of _____ before me personally came ____________ to me
personally known, who, being by me duly sworn, did depose and say that he
resides at ___________ that he is a ___________ of The Chase Manhattan Bank, one
of the corporations described in and which executed the above instrument; that
he knows the corporate seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
[NOTARIAL SEAL]
------------------------
Notary Public
<PAGE> 83
FORM OF DEBT SECURITY
$_______________________
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
____% Note Due ____
SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, a Delaware corporation
(the "Issuer", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, at the office or agency of the Issuer maintained
therefor, the principal sum of ___________ Dollars on _____________, in the coin
or currency of the United States, and to pay interest, semi-annually on ________
and ________ of each year, commencing ________________, on said principal sum at
said office or agency, in like coin or currency, at the rate per annum specified
in the title of this Note, from the ________ or the ________, as the case may
be, next preceding the date to which interest has been paid or duly provided
for, unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or unless no interest
has been paid or duly provided for on this Note, in which case from ___________,
until payment of said principal sum has been made or duly provided for;
provided, that payment of interest may be made at the option of the Issuer by
check mailed to the address of the person entitled thereto as such address shall
appear on the Security register or by wire transfer as provided in the
Indenture. Notwithstanding the foregoing, if the date hereof is after the __ day
of _____ or _____, as the case may be, and before the following ________ or
________, this Note shall bear interest from such ________ or ________;
provided, that if the Issuer shall default in the payment of interest due on
such ________ or ________, then this Note shall bear interest from the next
preceding ________ or ________, to which interest has been paid or duly provided
<PAGE> 84
for or, if no interest has been paid or duly provided for on this Note, from
________. 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 Note is registered at the close of
business on the ________ or _____, as the case may be, next preceding such
________ or ________, whether or not such day is a Business Day.
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture referred to on the reverse hereof.
2
<PAGE> 85
IN WITNESS WHEREOF, SCIENCE APPLICATIONS INTERNATIONAL CORPORATION has
caused this instrument to be signed manually or by facsimile by its duly
authorized officer.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
By:________________________________
Name:
Title:
Attest:
________________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: THE CHASE MANHATTAN BANK
as Trustee
By:________________________________
Authorized Signatory
3
<PAGE> 86
REVERSE OF NOTE
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION
___% Note Due ____
This Note is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of _____, 1997 (herein called the
"Indenture"), duly executed and delivered by the Issuer to The Chase Manhattan
Bank, as Trustee (herein 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 Issuer and the holders of the Securities. The Securities may
be issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any) and may otherwise vary as in the Indenture provided.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Issuer shall pay interest on overdue principal and, to the extent
lawful, on overdue installments of interest at the rate per annum borne by this
Note. If a payment date is not a Business Day, payment may be made at the place
of payment on the next succeeding day that is a Business Day, and no interest
shall accrue for the intervening period.
In case an Event of Default, as defined in the Indenture, with respect to
the ___% Notes Due ____ shall have occurred and be continuing, the principal
hereof and the interest accrued hereon, if any, 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 contains provisions which permit the Issuer and the Trustee,
with the written consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of each series
affected thereby (each such series voting as a separate class), to supplement
the Indenture or any supplemental indenture or modify the rights of the holders
of the Securities of such series; provided, that no such supplemental indenture
shall without the consent of the holders of each Security so affected: (i)
extend the stated maturity or reduce the principal amount of any Security or any
portion thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on
4
<PAGE> 87
redemption thereof, or make the principal thereof (including any amount in
respect of original issue discount), or interest or premium thereon payable in
any coin or currency other than that provided in the Securities or in accordance
with the terms thereof, or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration of
the maturity thereof or the amount thereof provable in bankruptcy, or impair or
affect the right of any holder of Securities to institute suit for the payment
thereof 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 each Security so affected.
It is also provided in the Indenture that an existing default or
Event of Default with respect to the Securities of any series, and its
consequences, may be waived in the manner and subject to the conditions set
forth in the Indenture, except a default in the payment of principal of or
interest on any Security or in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the holder
of each Outstanding Security affected. Upon any such waiver, such default shall
cease to exist and be deemed to have been cured and not to have occurred, and
any Event of Default arising therefrom shall be deemed to have been cured and
not to have occurred, for every purpose of the Indenture; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereto.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium, if any, and
interest on this Note in the manner, at the place, at the respective times, at
the rate and in the coin or currency herein prescribed.
The Notes are issuable initially only in registered form without coupons
in denominations of $1,000 or any integral multiple thereof and in the manner
and subject to the limitations provided in the Indenture.
[This Note will not be redeemable at the option of either the Company or
the Holders prior to maturity.][This note is redeemable prior to
maturity...][This debenture is entitled to the benefits of a mandatory sinking
fund as follows...]
Upon due presentment for registration of transfer of this Note at the
office or agency of the Issuer maintained therefor, a new Note or Notes of
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
5
<PAGE> 88
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
deem and treat the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment of, or
on account of, the principal hereof and, subject to the provisions hereof,
interest hereon, and for all other purposes, and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or any indenture supplemental thereto or in any Note or because
of any indebtedness evidenced thereby, shall be had against any incorporator as
such, or against any past, present or future stockholder, officer, director or
employee, as such, of the Issuer or of any successor, either directly or through
the Issuer or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
The laws of the State of New York (without regard to conflicts of laws
principles thereof) shall govern this Note.
6
<PAGE> 89
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
___________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Issuer, with full power of substitution in the premises.
__________________________ Dated:_______________________
Signature of
Seller/Assigor/Transferor
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
Signature guarantee: ________________________
7
