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Exhibit 4(e)
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TRW INC.
And
THE CHASE MANHATTAN BANK, as Trustee
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Fourth Supplemental Indenture
Dated as of June 2, 1999
Relating to the 7 1/8% Notes Due 2009
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FOURTH SUPPLEMENTAL INDENTURE (this "Fourth Supplemental
Indenture") dated as of June 2, 1999, among TRW Inc., an Ohio
corporation (the "Company"), and THE CHASE MANHATTAN BANK, a New York
banking corporation, as successor trustee (the "Trustee") to Mellon
Bank, N.A.
WHEREAS the Company has executed and delivered to the Trustee
an Indenture dated as of May 1, 1986 (the "Original Indenture"), as amended by
the First Supplemental Indenture dated as of August 24, 1989, the Second
Supplemental Indenture dated as of June 2, 1999, the Third Supplemental
Indenture dated as of June 2, 1999, and the Fourth Supplemental Indenture dated
as of June 2, 1999, between the Company and the Trustee (collectively, the
"Supplemental Indentures"; the Original Indenture, as amended by the
Supplemental Indentures is herein called the "Indenture") providing for the
issuance and sale by the Company from time to time of its senior debt securities
(the "Securities");
WHEREAS Section 11.01(f) of the Indenture permits the Company,
when authorized by a resolution of the Board of Directors of the Company, and
the Trustee, at any time and from time to time, to enter into one or more
indentures supplemental to the Indenture, in form satisfactory to the Trustee,
for the purpose of establishing any form of Security, as provided in Section
2.02 of the Indenture, providing for the issuance of any additional series of
Securities as provided in Section 3.01 of the Indenture and to set forth the
terms thereof;
WHEREAS the Company proposes in and by this Fourth
Supplemental Indenture to supplement and amend the Indenture in certain respects
to establish a series of Securities issued pursuant to the Indenture designated
as the 7 1/8% Notes Due 2009 limited in aggregate principal amount to
$750,000,000 (the "Notes"). The Notes shall consist of the Initial Notes and the
Exchange Notes (both as defined herein), which together shall constitute one
series of Securities for purposes of the Indenture; and
WHEREAS the Company has requested that the Trustee execute and
deliver this Fourth Supplemental Indenture and have certified that all
requirements necessary to make this Fourth Supplemental Indenture a valid
instrument in accordance with its terms have been satisfied, and that the
execution and delivery of this Fourth Supplemental Indenture has been duly
authorized in all respects.
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NOW THEREFORE, the Company and the Trustee hereby agree that
the following sections of this Fourth Supplemental Indenture supplement and
amend the Indenture with respect to that series of Securities which consists of
the Notes:
SECTION 1. DEFINITIONS. (a) Capitalized terms used herein and
not defined herein have the meanings ascribed to such terms in the Indenture.
(b) Section 1.01 of Article One of the Indenture is hereby
supplemented, solely with respect to that series of Securities which consists of
Notes, to add the following definitions:
"Agent Members" has the meaning provided in Section 2.06.
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means any Notes if and when issued pursuant
to this Indenture in connection with an Exchange Offer for a like principal
amount of the Initial Notes.
"Exchange Offer" has the meaning provided in the Registration
Rights Agreement.
"Foreign Holder" means a holder of a Note that is, for United
States Federal income tax purposes (a) a non-resident alien individual, (b) a
foreign corporation or (c) an estate or trust that is not a United States
Holder.
"Global Notes" has the meaning provided in Section 2.02.
"Initial Notes" means a series of Securities issued pursuant
to the Indenture and designated as the 7 1/8% Notes Due 2009 limited in
aggregate principal amount to $750,000,000.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
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"Non-U.S. Person" means a Person who is not a "U.S. person"
(as defined in Regulation S).
"Notes Closing Date" means June 2, 1999.
"Notes" means the series of Securities issued pursuant to this
Indenture designated as the 7 1/8% Notes Due 2009 and limited in aggregate
principal amount to $750,000,000.
"Physical Notes" has the meaning provided in Section 2.02.
"Private Placement Legend" means the legend initially set
forth on the Notes in the form set forth in Section 2.05(a).
"Purchase Agreement" means with respect to the Initial Notes,
the Purchase Agreement dated May 26, 1999, among the Company and the
representatives of the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement dated May 26, 1999, among the Company, and Xxxxxx Xxxxxxx & Co.
Incorporated, X.X. Xxxxxx Securities Inc. and Xxxxxxx Xxxxx Xxxxxx Inc. as the
representatives of the Initial Purchasers (as defined in the Registration Rights
Agreement).
"Registration Statement" means the Registration Statement as
defined and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Rule 144A" means rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" has the meaning provided in the
Registration Rights Agreement.
"Transfer Restricted Notes" means Notes that bear or are
required to bear the legend set forth in Section 2.05(a) hereto.
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"United States Holder" means a holder of a Note that is, for
United States Federal income tax purposes,
(1) a citizen or resident of the United States;
(2) a corporation or other entity taxable as a
corporation created or organized under United States
law (Federal or state); or
(3) an estate or trust whose world-wide income is subject
to United States Federal income tax.
SECTION 2. CREATION OF SERIES OF SECURITIES. Pursuant to
Section 3.01 of the Indenture, there is hereby created a new series of
Securities designated as the "7 1/8% Notes Due 2009" limited in aggregate
principal amount to $750,000,000. The Notes shall include the Initial Notes and
the Exchange Notes, which together shall constitute one series of Securities for
purposes of the Indenture.
SECTION 3. AMENDMENTS TO ARTICLE TWO. (a) The Initial Notes
are being offered and sold by the Company pursuant to the Purchase Agreement.
Section 2.02 of Article Two of the Indenture is hereby supplemented and amended,
solely with respect to that series of Securities which consists of Notes, by
adding thereto at the end thereof the following:
"The Notes shall be substantially in the form annexed hereto
as Exhibit A. The terms and provisions contained in the form of the Notes
annexed hereto as Exhibit A shall constitute, and are hereby expressly made, a
part of this Indenture. To the extent applicable, the Company and the Trustee,
by their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A or in reliance
on Regulation S, in each case as provided in the Purchase Agreement shall be
issued initially in the form of one or more permanent global Notes in
definitive, fully registered form without interest coupons with the global
securities legend set forth in Section 2.05(b) and the restricted securities
legend set forth in Section 2.05(a), (each, a "GLOBAL NOTE"), which shall be
deposited on behalf of the purchasers of the Initial Notes represented thereby
with the Trustee, at its New York Office, as custodian for the Depository (or
such other custodian as the Depository may direct), duly executed by the Company
and authenticated by the Trustee as herein provided. The aggregate principal
amount of the Global Notes may from time to time be increased or decreased by
adjustments made on the records of
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the Trustee and the Depository or its nominee, as hereinafter provided.
Notes initially offered and sold to Institutional Accredited
Investors in transactions exempt from the registration requirements of the
Securities Act shall be issued in the form of certificated Notes in definitive,
fully registered form without interest coupons with the securities legend and
the restricted securities legend set forth in Section 2.05(a) hereto (the
"PHYSICAL NOTES"). Notes issued pursuant to Section 2.06 in exchange for
interests in the Global Notes shall be Physical Notes.
(b) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Notes, by adding thereto at the end thereof the following new Section 2.05:
"Section 2.05. RESTRICTIVE LEGENDS. (a)(i) Except as permitted
by the following paragraphs (ii), (iii) and (iv), each Note certificate (and all
Notes issued in exchange therefor or in substitution thereof) shall bear a
legend in substantially the following form:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT, WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THE NOTES, RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF SUCH TRANSFER IS
IN RESPECT OF
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AN AGGREGATE PRINCIPAL AMOUNT OF NOTES AT THE TIME OF TRANSFER OF LESS
THAN $100,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (D) OUTSIDE
THE UNITED STATES IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE
904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS
NOTE WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES, THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS NOTE TO THE
TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted Note
(including any Transfer Restricted Note represented by a Global Note)
pursuant to Rule 144 under the Securities Act, the Registrar shall
permit the Holder thereof to exchange such Transfer Restricted Note for
a Note that does not bear the legend set forth above and rescind any
restriction on the transfer of such Transfer Restricted Note, if the
Holder certifies in writing to the Registrar that its request for such
exchange was made in reliance on Rule 144; PROVIDED, HOWEVER, that (1)
if such exchange occurs prior to an Exchange Offer the Registrar shall
issue an Initial Note that does not bear the legend set forth above and
(2) if such exchange occurs after an Exchange Offer, the Registrar
shall issue an Exchange Note.
(iii) After a transfer of any Initial Notes during the period
of the effectiveness of a Shelf Registration Statement with respect to
such Initial Notes all
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requirements pertaining to legends on such Initial Note will cease to
apply, and an Initial Note without legends will be available to
the transferee of the Holder of such Initial Notes upon exchange of
such transferring Holder's Initial Notes in the form of a Physical
Notes or directions to transfer such Holder's interest in the Global
Note, as applicable.
(iv) Upon the consummation of an Exchange Offer with respect
to the Initial Notes pursuant to which Holders of such Initial Notes
are offered Exchange Notes in exchange for their Initial Notes,
Initial Notes with the restricted securities legend set forth in
Section 2.05(a) will be available to Holders of such Initial Notes
that do not exchange their Initial Notes, and Exchange Notes in
certificated or global form without the restricted securities
legend will be available to Holders that exchange such Initial Notes
in such Exchange Offer.
(v) Upon the consummation of an Exchange Offer, holders who
are not entitled to participate in the Exchange Offer shall be entitled
to exchange their Initial Notes for Exchange Notes in the form of
Physical Notes, PROVIDED that such Physical Notes shall bear the legend
set forth in paragraph (a)(i) of this Section and shall constitute
Transfer Restricted Notes.
(b) Each Global Note, Initial Note and Exchange Note (other
than Physical Notes), shall also bear the following legend on the face thereof:
"UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF
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CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.07 OF THE INDENTURE."
(c) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF
NOTES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Physical Notes
and Global Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of Notes other than exchanges pursuant to Sections 3.04, 4.07
or 11.04 not involving any transfer.
(iii) The Company shall not be required to (A) to issue,
register, register the transfer of or exchange any Note during a period
of 15 days preceding the selection of Notes for redemption, or (B)
register the transfer of or exchange of any Physical Note selected for
redemption in whole or in part pursuant to Article 3 of this Indenture,
except in the case of any Physical Note to be redeemed in part, the
portion thereof not to be redeemed.
(iv) Prior to the due presentation for registration of
transfer of any Note, the Company, the Trustee, the Paying Agent, the
Registrar may deem and treat the person in whose name a Note is
registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Note and for all
other purposes whatsoever, whether or not such Note is overdue, and
none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(v) All Notes issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Notes
surrendered upon such transfer or exchange.
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(d) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Note, a member of, or a participant in
the Depository or other Person with respect to the accuracy of the
records of the Depository or its nominee or of any participant or
member thereof, with respect to any ownership interest in the Notes or
with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount,
under or with respect to such Notes. All notices and communications to
be given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to or upon the order of the
registered Holders (which shall be the Depository or its nominee in the
case of a Global Note). The rights of beneficial owners in any Global
Note shall be exercised only through the Depository subject to the
applicable rules and procedures of the Depository. The Trustee may rely
and shall be fully protected in relying upon information furnished by
the Depository with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Note (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and
to do so if and when expressly required by, the terms of this
Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof."
(c) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Notes, by adding thereto at the end thereof the following new Section 2.06:
"Section 2.06. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES. (a)
This Section 2.06(a) shall apply only to a Global Note deposited with or on
behalf of the Depository. The Company shall execute and the Trustee shall, in
accordance with this Section 2.06, authenticate and deliver initially one or
more Global Notes that (i) shall be
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registered in the name of the Depository for such Global Note or Global Notes
or the nominee of such Depository, (ii) shall be delivered by the Trustee to
such Depository or pursuant to such Depository's instructions or held by the
Trustee as custodian for the Depository and (iii) bear legends as set forth
in Section 2.05(b).
Members of, or participants in, the Depository (the "AGENT
MEMBERS") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depository, or the Trustee as its custodian, or
under the Global Note and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by the Depository or impair, as between the
Depository and its Agent Members, the operation of customary practices governing
the exercise of the rights of a Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers
of such Global Note in whole, but not in part, to the Depository, its successor
or their respective nominees. Interests of beneficial owners in a Global Note
may be transferred in accordance with the rules and procedures of the Depository
and the provisions of Section 2.07. In addition, Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests
in the Global Notes if (i) the Depository notifies the Company in writing that
it (or its nominee) is unwilling or unable to continue to act as Depository for
the Global Notes under the Exchange Act and a successor depository registered as
a clearing agency under the Exchange Act is not appointed by the Company within
90 days of such notice or (ii) at any time if the Company determines that the
Global Notes (in whole but not in part) should be exchanged for Physical Notes.
In addition to the foregoing, during the continuance of an Event of Default
holders of book-entry interests will be entitled to request and receive
Physical Notes. Such Physical Notes will be issued to and registered in the
name of, or as directed by, that person only upon the request in writing made
through a Depository participant.
(c) In connection with any transfer of a portion of the
beneficial interests in a Global Note to beneficial owners pursuant to paragraph
(b) of this Section, the Registrar shall reflect on its books and records the
date
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and a decrease in the principal amount of the Global Notes in an amount equal
to the principal amount of the beneficial interest in such Global Notes to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Notes of like tenor and amount.
(d) In connection with the transfer of the entire Global Note
to beneficial owners pursuant to clauses (i) or (ii) of paragraph (b) of this
Section, the Global Note shall be deemed to be surrendered to the Trustee for
cancelation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depository in exchange
for its beneficial interest in the Global Note an equal aggregate principal
amount of Physical Notes of authorized denominations.
(e) Any Physical Note delivered in exchange for an interest in
the Global Note pursuant to paragraph (b) or (d) of this Section shall, except
as otherwise provided by paragraph (a) of Section 2.05, bear the legend
regarding transfer restrictions applicable to the Physical Note set forth in
Section 2.05.
(f) The registered holder of a Global Note may grant proxies
and otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
(g) Beneficial owners of interests in a Global Note may
receive Physical Notes (which shall bear the Private Placement Legend if
required by Section 2.05) in accordance with the procedures of the Depository.
In connection with the execution, authentication and delivery of such Physical
Notes, the Registrar shall reflect on its books and records a decrease in the
principal amount of the Global Note equal to the principal amount of such
Physical Notes and the Company shall execute and the Trustee shall authenticate
and deliver one or more Physical Notes having an equal aggregate principal
amount.
(i) CANCELLATION OR ADJUSTMENT OF GLOBAL NOTE. At such time as
all beneficial interests in a Global Note have either been exchanged for
Physical Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in a
Global Note is exchanged for Physical Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Note
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shall be reduced and an adjustment shall be made on the books and records of the
Trustee with respect to such Global Note, by the Trustee to reflect such
reduction."
(d) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Notes, by adding thereto at the end thereof the following new Section 2.07:
"Section 2.07. TRANSFER AND EXCHANGE. (a) TRANSFER AND
EXCHANGE OF GLOBAL NOTES. (i) The transfer and exchange of Global Notes or
beneficial interests therein shall be effected through the Depository, in
accordance with this Indenture (including applicable restrictions on transfer
set forth herein, if any) and the procedures of the Depository therefor. A
transferor of a beneficial interest in a Global Note shall deliver to the
Registrar a written order given in accordance with the Depository's procedures
containing information regarding the participant account of the Depository to
credited with a beneficial interest in the Global Note. The Registrar shall, in
accordance with such instructions, instruct the Depository to credit to the
account of the Person specified in such instructions a beneficial interest in
the Global Note and to debit the account of the Person making the transfer the
beneficial interest in the Global Note being transferred.
(ii) Notwithstanding any other provisions of this Supplemental
Indenture (other than the provisions set forth in Section 2.06(b)), a
Global Note may not be transferred as a whole except by the Depository
to a nominee of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such
successor Depository.
(iii) In the event that a Global Note is exchanged for
Physical Notes pursuant to Section 2.06(b), prior to the consummation
of an Exchange Offer or the effectiveness of a Shelf Registration
Statement with respect to such Notes, such Notes may be exchanged only
in accordance with such procedures as are substantially consistent with
the provisions of this Section 2.07 (including the certification
requirements set forth on the reverse of the Initial Notes intended to
ensure that such transfers comply with Rule 144A, Regulation D or
Regulation S, as the case may be) and such other procedures as may from
time to time be adopted by the Company.
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(b) GENERAL. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture. The Registrar shall not register a transfer of any Note unless such
transfer complies with the restrictions on transfer of such Note set forth in
this Indenture. In connection with any transfer of Notes, each Holder agrees by
its acceptance of the Notes to furnish the Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Registrar shall not be required to
determine (but may conclusively rely on a determination made by the Company with
respect to) the sufficiency of any such certifications, legal opinions or other
information.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.05 or this Section
2.07 in accordance with its customary procedures. The Company shall have the
right to inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Registrar."
SECTION 4. AMENDMENT TO ARTICLE THREE. The third paragraph of
Section 3.05 of Article Three of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Notes, to read in its entirety as follows:
"Subject to Sections 2.06 and 2.07, at the option of the
Holder, Securities of any series may be exchanged for other Securities
of such series of any authorized denominations, of a like aggregate
principal amount and Stated Maturity and of like tenor and terms
(including an exchange of Initial Notes for Exchange Notes), upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Securityholder making the exchange is entitled to
receive; PROVIDED, that no exchanges of Initial Notes for Exchange
Notes shall occur until a Registration Statement shall have been
declared effective by the Commission (confirmed in an Officers'
Certificate delivered to the Trustee) and
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that any Initial Notes that are exchanged for Exchange Notes shall
be canceled by the Trustee."
SECTION 5. AMENDMENTS TO ARTICLE FOUR. (a) Article Four of the
Indenture is hereby supplemented and amended, solely with respect to that series
of Securities which consists of Notes, by adding thereto at the end thereof the
following new Section 4.09:
"Section 4.09. PAYMENT OF ADDITIONAL AMOUNTS. The Company
will, subject to the exceptions and limitations set forth below, pay as
additional interest on the Notes such additional amounts as are necessary in
order that the net payment by the Company or a paying agent of the principal of
and interest on the Notes to a Foreign Holder, after deduction or withholding
for any present or future tax, assessment or governmental charge of the United
States or a political subdivision or taxing authority thereof or therein,
imposed by withholding with respect to the payment, will not be less than the
amount provided in the Notes to be then due and payable; PROVIDED, HOWEVER,
that the foregoing obligation to pay additional amounts shall not apply:
1. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder if
the Holder is an estate, trust, partnership or corporation, or
a person holding a power over an estate or trust administered
by a fiduciary holder, considered as:
a. being or having been present or engaged in a trade or
business in the United States or having or having had
a permanent establishment in the United States;
b. having a current or former relationship with the
United States, including a relationship as a citizen
or resident thereof;
c. being or having been a foreign or domestic personal
holding company, a passive foreign investment company
or a controlled foreign corporation with respect to
the United States or a corporation that has
accumulated earnings to avoid United States federal
income tax; or
d. being or having been a "10-percent shareholder" of
the Company as defined in
14
16
section 871(h)(3) of the United States Internal Revenue
Code of 1986, as amended, (the "Code") or any successor
provision;
2. to any Holder that is not the sole beneficial owner of the
Notes, or a portion thereof, or that is a fiduciary or
partnership, but only to the extent that a beneficiary or
settlor with respect to the fiduciary or a beneficial owner or
member of the partnership would not have been entitled to the
payment of an additional amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or
distributive share of the payment;
3. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the Holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States of
the Holder or beneficial owner of such Notes, if compliance
is required by statute, by regulation of the United States
Treasury Department or by an applicable income tax treaty to
which the United States is a party as a precondition to
exemption from, or reduction of, such tax, assessment or
other governmental charge;
4. to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Company or a paying agent
from the payment;
5. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later;
6. to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment
or governmental charge;
7. to any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of
principal of or interest on any Notes, if such payment can be
made without such withholding by any other paying agent; or
15
17
8. in the case of any combination of items "1." - "7."
The Notes are subject in all cases to any tax, fiscal or other
law or regulation or administrative or judicial interpretation applicable
thereto. Except as specifically provided under this Section 4.09, the Company
shall not be required to make any payment with respect to any tax, assessment or
governmental charge imposed by any government or a political subdivision or
taxing authority thereof or therein."
(b) Article Four of the Indenture is hereby supplemented and amended,
solely with respect to that series of Securities which consists of Notes, by
adding thereto at the end thereof the following new Section 4.10:
"SECTION 4.10. REDEMPTION. If (a) as a result of any change
in, or amendment to, the laws (or any regulations or rulings promulgated
thereunder) of the United States (or any political subdivision or taxing
authority thereof or therein), or any change in, or amendments to, the official
position regarding the application or interpretation of such laws, regulations
or rulings, which change or amendment is announced or becomes effective on or
after May 26, 1999, the Company becomes or will become obligated to pay
additional amounts as described under Section 4.09 above, or (b) any act is
taken by a taxing authority of the United States on or after May 26, 1999,
whether or not such act is taken with respect to the Company or any affiliate,
that results in a substantial probability that the Company will or may be
required to pay such additional amounts, then the Company may, at its option,
redeem, as a whole, but not in part, the Notes on not less than 30 nor more
than 60 days' prior notice, at a redemption price equal to 100% of their
principal amount, together with interest accrued but unpaid thereon to the date
fixed for redemption; provided that the Company determines, in its business
judgment, that the obligation to pay such additional amounts cannot be avoided
by the use of reasonable measures available to it, not including substitution
of the obligor under the Notes. No redemption pursuant to (b) above may be
made unless the Company shall have received an opinion of independent counsel
to the effect that an act taken by a taxing authority of the United States
results in a substantial probability that it will or may be required to pay the
additional amounts described in Section 4.09 and the Company shall have
delivered to the Trustee a certificate, signed by a duly authorized officer,
stating that based on such opinion, the Company is entitled to redeem the Notes
pursuant to their terms."
16
18
SECTION 6. THIS FOURTH SUPPLEMENTAL INDENTURE. This Fourth
Supplemental Indenture and the Exhibits hereto shall be construed as
supplemental to the Indenture and shall form a part of it, and the Indenture is
hereby incorporated by reference herein and each is hereby ratified, approved
and confirmed.
SECTION 7. GOVERNING LAW. THIS FOURTH SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 8. COUNTERPARTS. This Fourth Supplemental Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 9. HEADINGS. The headings of this Fourth Supplemental
Indenture are for reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 10. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals
herein contained are made by the Company, and not by the Trustee, and the
Trustee assumes no responsibility for the correctness thereof. The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Fourth Supplemental Indenture.
SECTION 11. SEVERABILITY. In case any one or more of the
provisions contained in this Fourth Supplemental Indenture or in the Securities
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of the Fourth Supplemental Indenture or of the Securities, but
this Fourth Supplemental Indenture and the Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
17
19
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
TRW Inc.,
by
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President,
General Counsel and Secretary
THE CHASE MANHATTAN BANK, as Trustee,
by
/s/ X.X. Xxxxxxxx
--------------------------------------
Name: X.X. Xxxxxxxx
Title: Second Vice President
18
20
EXHIBIT A
---------
[FORM OF FACE OF INITIAL NOTE]
[INSERT APPROPRIATE LEGEND]
TRW INC.
7 1/8% Notes Due 2009
[CUSIP] [ISIN] [COMMON CODE]
No. $[ ]
TRW INC., an Ohio corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to [ ], or its registered assigns, the principal sum
of [ ] Dollars ($[ ]) on June 1, 2009.
Interest Payment Dates: June 1 and December 1, commencing
December 1, 1999.
Regular Record Dates: May 15 and November 15.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture dated as of May 1, 1986 (the
"Original Indenture"), as supplemented and amended by the First Supplemental
Indenture, dated as of August 24, 1989, the Second Supplemental Indenture dated
as of June 2, 1999, the Third Supplemental Indenture dated as of June 2, 1999,
and the Fourth Supplemental Indenture dated as of June 2, 1999 (collectively,
the "Supplemental Indentures"; the Original Indenture, as amended by the
Supplemental Indentures is hereinafter referred to as the "Indenture"). This
Note is one of the series of Securities of the Company issued pursuant to the
Indenture and is designated as the 7 1/8% Notes Due 2009 (hereinafter referred
to as the "Notes"), limited in aggregate principal amount to $750,000,000.
21
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers under its
corporate seal.
Date: TRW INC.
By:
--------------------------
[SEAL]
Attest:
-----------------------------
Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
22
[FORM OF REVERSE SIDE OF INITIAL NOTE]
TRW INC.
7 1/8% Notes Due 2009
1. PRINCIPAL AND INTEREST.
TRW Inc., a corporation duly organized and existing under the
laws of the State of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture herein after referred to), for value
received, hereby promises to pay __________, or its registered assigns, the
principal sum of $ Dollars [($ )] (the "Principal Amount"), on June 1,
2009, and to pay interest on the Principal Amount at the rate of 7 1/8% per
annum (the "Specified Rate"); provided, however, that if a Registration Default
(as defined in the Registration Rights Agreement) occurs, additional interest
will accrue on this Note at a rate of .25% per annum (the "Additional
Interest") from and including the date on which such Registration Default shall
occur to but excluding the date on which all Registration Defaults have been
cured. The Company will pay interest semiannually in arrears on December 1 and
June 1 of each year (each an "Interest Payment Date") commencing on December 1,
1999. Interest on the Notes shall accrue from June 2, 1999, or the most recent
date to which interest has been paid. Interest shall be computed on the basis
of a 360-day year of twelve 30-day months. The interest payment at the Stated
Maturity of the Principal Amount will include interest accrued to but excluding
the date of such Stated Maturity and will be payable to the person to whom
principal is payable.
If the Principal Amount of, and any accrued interest on, the
Notes is declared due and payable as provided in Section 9, the Company shall
pay interest on the overdue Principal Amount at a rate per annum equal to the
Specified Rate, and it shall pay interest on overdue installments of interest at
the same rate (to the extent that payment of such interest shall be legally
enforceable). Such interest shall accrue from the date such overdue amount was
due to the date payment of such amount, including interest thereon, has been
made or duly provided for.
Any amounts of Additional Interest due hereunder will be
payable in cash, on the same original payment dates as other interest due on
this Note. The amount of Additional Interest due on this Note will be determined
by multiplying the applicable Additional Interest rate by the
23
outstanding principal amount of this Note, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest, plus (to the extent that the payment of
such interest shall be legally enforceable), any interest payable on the
defaulted interest, to the persons who are Holders on a subsequent Special
Record Date. Such date shall be at least ten (10), and no more than fifteen (15)
days before the payment date. The Company shall fix or cause to be fixed the
Special Record Date and the payment date. At least ten (10) calendar days before
the special record date, the Company shall mail or cause to be mailed to each
Holder a notice that states the Special Record Date, the payment date and the
amount of defaulted interest to be paid.
The Company shall pay interest on the Notes (except defaulted
interest) to the Persons in whose names the Notes are registered at the close of
business on the May 15 or November 15 next preceding the Interest Payment Date
(the "Regular Record Date") on the register kept by or on behalf of the Company
for that purpose, even if Notes are canceled after such record date and on or
before the Interest Payment Date. Holders must surrender Notes to the Trustee
(or as otherwise specified in the applicable Company Notice (as defined in
Paragraph 7)) to collect principal payments.
2. PAYING AGENT AND REGISTRAR.
Initially, the Trustee will be the Paying Agent and the
Registrar with respect to this Note. The Company reserves the right at any time
to vary or terminate the appointment of any Paying Agent or Registrar, to
appoint additional or other Paying Agents and other Registrars and to approve
any change in the office through which any Paying Agent or Registrar acts;
PROVIDED that there will at all times be a Paying Agent in The City of New York.
3. INDENTURE; LIMITATIONS.
This Note is one of the duly authorized issue of senior Notes,
notes, bonds or other evidences of indebtedness of the Company, of the series
herein specified, all issued or to be issued under and pursuant to the
Indenture, to which reference is hereby made for a statement of the rights,
limitations of rights, obligations, duties
24
and immunities thereunder of the Trustee and any agent of the Trustee, any
Paying Agent, the Company and the Holders of the Securities and the terms upon
which the Securities are issued and are to be authenticated and delivered.
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
have different conversion prices or exchange provisions (if any), may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), may be subject to different
covenants and Events of Default and may otherwise vary as provided or permitted
in the Indenture. This Note is one of the series of Securities of the Company
issued pursuant to the Indenture and is designated as the 7 1/8% Notes Due
2009, limited in aggregate principal amount to $750,000,000. The terms of the
Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended, and the
Securities Act of 1933, as amended. The Notes are subject to all such terms and
Holders are referred to the Indenture and the Trust Indenture Act of 1939, as
amended, for a statement of those terms. Capitalized terms used but not defined
in the Notes have the meanings ascribed to them in the Indenture.
4. REDEMPTION AT THE OPTION OF THE COMPANY.
No sinking fund is provided for the Notes. The Notes will be
redeemable as a whole at any time or in part from time to time, at the option of
the Company, (a "Redemption Date"), at a redemption price equal to the greater
of (i) 100% of the principal amount of the Notes and (ii) the sum of the present
values of the remaining scheduled payments of principal and interest thereon
from the redemption date to the maturity date (exclusive of accrued interest)
discounted, in each case, to the redemption date on a semiannual basis (assuming
a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as
defined herein) plus 20 basis points, plus any interest accrued but not paid to
the date of redemption (the "Redemption Price").
"Treasury Rate" means, with respect to any redemption date,
the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively
25
traded United States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities," for the maturity corresponding to
the Comparable Treasury Issue (if no maturity is within three months before or
after the maturity date, yields for the two published maturities most closely
corresponding to the Comparable Treasury Issue shall be determined and the
Treasury Rate shall be interpolated or extrapolated from such yields on a
straight line basis, rounding to the nearest month) or (ii) if that release (or
any successor release) is not published during the week preceding the
calculation date or does not contain such yields, the rate per annum equal to
the semi-annual equivalent yield to maturity of the Comparable Treasury Issue,
calculated using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date. The Treasury Rate shall be calculated on the third
Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Notes to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes. "Independent Investment Banker"
means one of the Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of four Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Xxxxxx Xxxxxxx & Co.
Incorporated, X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and one
other primary U.S. Government Securities dealer in New York City (each, a
"Primary Treasury Dealer"), appointed by the Trustee in consultation with TRW,
provided, however, that if any of the foregoing shall cease to be a Primary
Treasury Dealer, the Company may substitute therefor another Primary Treasury
Dealer.
26
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third business day preceding such redemption date.
Unless the Company defaults in payment of the redemption
price, on and after the redemption date interest will cease to accrue on the
Securities or portions thereof called for redemption.
5. PAYMENT OF ADDITIONAL AMOUNTS.
The Company will, subject to the exceptions and limitations
set forth below, pay as additional interest on the Notes such additional amounts
as are necessary in order that the net payment by the Company or a paying agent
of the principal of and interest on the Notes to a Foreign Holder, after
deduction or withholding for any present or future tax, assessment or
governmental charge of the United States or a political subdivision or taxing
authority thereof or therein, imposed by withholding with respect to the
payment, will not be less than the amount provided in the Notes to be then due
and payable; PROVIDED, HOWEVER, that the foregoing obligation to pay additional
amounts shall not apply:
1. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder if
the Holder is an estate, trust, partnership or corporation, or
a person holding a power over an estate or trust
administered by a fiduciary holder, considered as:
a. being or having been present or engaged in a trade or
business in the United States or having or having had
a permanent establishment in the United States;
b. having a current or former relationship with the
United States, including a relationship as a citizen
or resident thereof;
c. being or having been a foreign or domestic personal
holding company, a passive foreign investment company
or a controlled foreign corporation with respect to
the United States
27
or a corporation that has accumulated earnings to
avoid United States federal income tax; or
d. being or having been a "10-percent shareholder" of
the Company as defined in section 871(h)(3) of the
United States Internal Revenue Code of 1986, as
amended, (the "Code") or any successor provision;
2. to any Holder that is not the sole beneficial owner of the
Notes, or a portion thereof, or that is a fiduciary or
partnership, but only to the extent that a beneficiary or
settlor with respect to the fiduciary or a beneficial owner or
member of the partnership would not have been entitled to the
payment of an additional amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or
distributive share of the payment;
3. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the Holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States of
the Holder or beneficial owner of such Notes, if compliance is
required by statute, by regulation of the United States
Treasury Department or by an applicable income tax treaty to
which the United States is a party as a precondition to
exemption from, or reduction of, such tax, assessment or other
governmental charge;
4. to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Company or a paying agent
from the payment;
5. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later;
6. to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment
or governmental charge;
28
7. to any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of
principal of or interest on any Notes, if such payment can be
made without such withholding by any other paying agent; or
8. in the case of any combination of items "1." - "7."
The Notes are subject in all cases to any tax, fiscal or other
law or regulation or administrative or judicial interpretation applicable
thereto. Except as specifically provided above, the Company shall not be
required to make any payment with respect to any tax, assessment or governmental
charge imposed by any government or a political subdivision or taxing authority
thereof or therein.
6. REDEMPTION FOR TAXES.
If (a) as a result of any change in, or amendment to, the laws
(or any regulations or rulings promulgated thereunder) of the United States (or
any political subdivision or taxing authority thereof or therein), or any change
in, or amendments to, the official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after May 26, 1999, the Company becomes
or will become obligated to pay additional amounts as described above, or (b)
any act is taken by a taxing authority of the United States on or after May 26,
1999, whether or not such act is taken with respect to the Company or any
affiliate, that results in a substantial probability that the Company will or
may be required to pay such additional amounts, then the Company may, at its
option, redeem, as a whole, but not in part, the Notes on not less than 30 nor
more than 60 days' prior notice, at a redemption price equal to 100% of their
principal amount, together with interest accrued but unpaid thereon to the date
fixed for redemption; provided that the Company determines, in its business
judgment, that the obligation to pay such additional amounts cannot be avoided
by the use of reasonable measures available to it, not including substitution of
the obligor under the Notes. No redemption pursuant to (b) above may be made
unless the Company shall have received an opinion of independent counsel to the
effect that an act taken by a taxing authority of the United States results in a
substantial probability that it will or may be required to pay the additional
amounts described above and the Company shall have delivered to the Trustee a
certificate, signed by a duly authorized officer, stating
29
that based on such opinion, the Company is entitled to redeem the Notes
pursuant to their terms.
7. REDEMPTION PROCEDURE.
If the Company wishes to redeem the Notes in whole or in part,
then the Company shall give notice in the manner provided in the Indenture that
is not less than thirty (30) nor more than sixty (60) days prior to the
Redemption Date (the "Company Notice") which includes the following information:
(i) the Redemption Date; (ii) the Redemption Price; (iii) if less than all
Outstanding Securities of any series are to be redeemed, the identification
(and, in the case of partial redemption, the respective principal amounts) of
the Securities to be redeemed from the Holder to whom the notice is given; (iv)
that on the Redemption Date the Redemption Price will become due and payable
upon each such Security (including applicable interest thereon, if any), and
that interest, if any, thereon shall cease to accrue on said date; (v) the place
where such Securities and coupons, if any, are to be surrendered for payment of
the Redemption Price, which shall be the office or agency of the Company in the
Place of Payment; and (vi) that the redemption is on account of a sinking fund,
if that be the case.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, on Company Order, by the Trustee in the name and at the
expense of the Company.
8. DENOMINATIONS; TRANSFER; EXCHANGE.
The Notes are issuable in registered form without coupons, in
denominations of $1,000 and integral multiples thereof. Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized denominations
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, and in the manner and subject to the limitations provided in the
Indenture.
Upon due presentment for registration of transfer of this Note
at the office or agency of the Company in the Borough of Manhattan, The City of
New York, a new Note or Notes of authorized denominations for a like aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture.
No service charge shall be made for any such transfer or
exchange, but the Company may require payment of
30
a sum sufficient to cover any tax, assessment or other governmental charge
payable in connection therewith.
Subject to the provisions of the Indenture, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Note is registered as the owner hereof for all purposes,
whether or not this Note is overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
9. DEFEASANCE.
As provided in the Indenture and subject to the satisfaction
of certain conditions set forth therein, at the Company's option, either (i) the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by, and the obligations under, the Securities of any series and to
have satisfied all the obligations (with certain exceptions) under the Indenture
relating to the Securities of such series or (ii) the Company shall cease to be
under any obligation to comply with any term, provision or condition of certain
restrictive covenants under the Indenture or of any provisions set forth, with
respect to the Securities of such series, in any additions or changes to or
deletions from the covenants and Events of Default under the Indenture in the
Board Resolutions or supplemental indenture with respect to the Securities of
such series.
10. AMENDMENT; SUPPLEMENT; WAIVER.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee to enter into supplemental indentures to
the Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of modifying in
any manner the rights of the Holders of the Securities of each series under the
Indenture with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Securities at the time Outstanding of each series to be
affected thereby on behalf of the Holders of all Securities of such series.
11. DEFAULTS AND REMEDIES.
If an Event of Default with respect to the Notes shall have
occurred and be continuing, the Principal Amount of the Notes and all accrued
and unpaid interest thereon may be declared due and payable in the manner and
with the effect provided in the Indenture.
31
12. AUTHENTICATION.
Unless the certificate of authentication on any Notes has been
manually executed by or on behalf of the Trustee under the Indenture, such Notes
shall not be entitled to any benefits under the Indenture or be valid or
obligatory for any purpose.
13. EXCHANGE OFFER; REGISTRATION RIGHTS.
[To be included in Notes other than (x) Exchange Notes and (y)
Notes sold pursuant to a Shelf Registration Statement.]
Pursuant to a Registration Rights Agreement among the Company
and the Initial Purchasers (as defined in the Purchase Agreement), the Company
has agreed that it will file with the Securities and Exchange Commission (the
"Commission") and use its reasonable best efforts to cause to become effective a
registration statement (the "Registration Statement") with respect to an issue
of Notes identical in all material respects to the Notes (the "Exchange Notes")
and, upon becoming effective, to offer the Holders of the Notes the opportunity
to exchange their Notes for the Exchange Notes (the "Exchange Offer"). In the
event that due to a change in current interpretations by the Commission, the
Company is not permitted to effect such Exchange Offer, the Company will instead
file a registration statement covering resales by the holders of Notes (a "Shelf
Registration Statement") and will use its reasonable best efforts to cause such
Shelf Registration Statement to become effective and to keep such Shelf
Registration Statement effective for two years from the Notes Closing Date;
provided that TRW will under certain circumstances be entitled to suspend the
availability of the Shelf Registration Statement. The Company shall, in the
event a Shelf Registration Statement is filed, provide to each Holder of the
Notes a copy of the prospectus and notify each such Holder when the Shelf
Registration Statement has become effective. A Holder that sells Notes pursuant
to a Shelf Registration Statement generally will be required to be named as a
selling security holder in the related prospectus and to deliver a current
prospectus to purchasers, and will be subject to certain of the civil liability
provisions under the Securities Act of 1933, as amended in connection with such
sales. The Exchange Notes will be issued (i) under the Indenture or (ii) under
an indenture substantially similar to the Indenture, which, in either event,
will provide that the Exchange Notes will not be subject to the transfer
restrictions described in the Indenture.
32
If the Company effects the Exchange Offer, the Company will be
entitled to close the Exchange Offer provided that the Company has accepted all
Notes theretofore validly tendered in accordance with the terms of the Exchange
Offer. Any Additional Interest on the Initial Notes accrued but not paid prior
to the Exchange Offer shall be payable on the Exchange Notes. Notes not tendered
in the Exchange Offer shall bear interest at the same rates in effect at the
time of issuance of the Notes.
14. OBLIGATION TO PAY INTEREST ABSOLUTE.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the Principal Amount and any premium
of and any interest on the Notes at the place, rate and respective times and in
the coin or currency prescribed herein and in the Indenture.
15. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT.
Each Holder of a Note, by acceptance thereof, acknowledges and
agrees to the provisions of the Registration Rights Agreement, including,
without limitation, the obligations of the Holders with respect to a
registration and the indemnification of the Company to the extent provided
therein.
16. GOVERNING LAW.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to TRW Inc.,
0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000, Attention of Secretary.
33
[FORM OF TRANSFER NOTICE]
--------------------------------------------------------------------------------
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
--------------------------------------------------------------
(Print or type assignee's name, address and zip code)
--------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books
of the Company. The agent may substitute another to act for him.
--------------------------------------------------------------------------------
Date: Your Signature:
---------------- ---------------------
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer of any of the Notes evidenced by this
certificate occurring prior to the expiration of the period referred to in Rule
144(k) under the Securities Act after the later of the date of original issuance
of such Notes and the last date, if any, on which such Notes were owned by the
Company or any Affiliate of the Company, the undersigned confirms that without
utilizing any general solicitation or general advertising such Notes are being
transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) - to the Company; or
(2) - pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) - to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act of 1933) that
purchases for its own account
34
or for the account of a qualified institutional buyer
to whom notice is given that such transfer is being
made in reliance on Rule 144A, in each case
pursuant to and in compliance with Rule 144A under
the Securities Act of 1933; or
(4) - outside the United States in an offshore transaction
within the meaning of Regulation S under the
Securities Act in compliance with Rule 904 under the
Securities Act of 1933;
(5) - inside the United States to an institutional
"accredited investor" (as defined in Rule 501(a)(i),
(2), (3) or (7) of Regulation D under the Securities
Act) that purchases for its own account or for one or
more accounts (each of which is an institutional
"accredited investor") as to each of which it
exercises sole investment discretion; or
(6) - pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof; PROVIDED, HOWEVER, that if box (4), (5) or (6) is
checked, the Trustee may require, prior to registering any such transfer of the
Notes, such legal opinions, certifications and other information as the Company
has reasonably requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
--------------------------------
Signature
--------------------------------
Signature
--------------------------------------------------------------------------------
35
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
----------------- -----------------------------------
NOTICE: To be executed by
an executive officer
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and/or any such account falls within the
definition of the term non-U.S. person set forth in Regulation S of the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Regulation S. The undersigned further represents and
warrants that the transfer of this Note was made in an offshore transaction
within the meaning of Regulation S.
Dated:
----------------- -----------------------------------
NOTICE: To be executed by
an executive officer
TO BE COMPLETED BY PURCHASER IF (5) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is an institutional
"accredited investor" within the meaning of Rule 501(a)(i), (2), (3) or (7) of
Regulation D under the Securities Act of 1933, as amended, and is aware that the
sale to it is being made in reliance on the safe harbor provision set forth in
Regulation D and acknowledges that it has such knowledge and
36
experience in financial and business matters a to be capable of evaluating the
merits and risks of its investment in the Notes and any accounts for which it
is acting are each able to bear the economic risk of its or their investment
and that it is aware that the transfer or is relying upon the undersigned's
foregoing representations.
Dated:
----------------- -----------------------------------
NOTICE: To be executed by
an executive officer
37
[FORM OF FACE OF EXCHANGE NOTE]
[INSERT APPROPRIATE LEGEND]
TRW INC.
7 1/8% Notes Due 2009
[CUSIP] [ISIN] [COMMON CODE]
No. $[ ]
TRW INC., an Ohio corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to [ ], or its registered assigns, the principal sum
of [ ] Dollars ($[ ]) on June 1, 2009.
Interest Payment Dates: June 1 and December 1, commencing
December 1, 1999.
Regular Record Dates: May 15 and November 15.
Reference is hereby made to the further provisions of this
Exchange Note set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
Capitalized terms used herein and not defined herein have the
meanings ascribed thereto in the Indenture dated as of May 1, 1986 (the
"Original Indenture"), as supplemented and amended by the First Supplemental
Indenture, dated as of August 24, 1989, the Second Supplemental Indenture dated
as of June 2, 1999, the Third Supplemental Indenture dated as of June 2, 1999,
and the Fourth Supplemental Indenture dated as of June 2, 1999 (collectively,
the "Supplemental Indentures"; the Original Indenture, as amended by the
Supplemental Indentures is hereinafter referred to as the "Indenture"). This
Exchange Note is one of the series of Securities of the Company issued pursuant
to the Indenture and is designated as the 7 1/8% Exchange Notes Due 2009
(hereinafter referred to as the "Exchange Notes"), limited in aggregate
principal amount to $750,000,000.
38
IN WITNESS WHEREOF, the Company has caused this Exchange Note
to be signed manually or by facsimile by its duly authorized officers under its
corporate seal.
Date: TRW INC.
By:
---------------------------
[SEAL]
Attest:
-----------------------------
Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
------------------------------
39
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
TRW INC.
7 1/8% Notes Due 2009
1. PRINCIPAL AND INTEREST.
TRW Inc., a corporation duly organized and existing under the
laws of the State of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture herein after referred to), for value
received, hereby promises to pay _____________, or its registered assigns, the
principal sum of $ Dollars [($ )] (the "Principal Amount"), on June 1,
2009, and to pay interest on the Principal Amount at the rate of 7 1/8% per
annum (the "Specified Rate"); [provided, however, that if a Registration
Default (as defined in the Registration Rights Agreement) has occurred,
additional interest will be payable on this Note at a rate of .25% per annum
(the "Additional Interest") from and including the date on which such
Registration Default occurred to but excluding the date on which all
Registration Defaults were cured if such Additional Interest was not paid prior
to the date on which the Initial Note was exchanged for this Exchange Note.1]
The Company will pay interest semiannually in arrears on December 1 and June 1
of each year (each an "Interest Payment Date") commencing on December 1, 1999.
Interest on the Exchange Notes shall accrue from June 2, 1999, or the most
recent date to which interest has been paid. Interest shall be computed on the
basis of a 360-day year of twelve 30-day months. The interest payment at
the Stated Maturity of the Principal Amount will include interest accrued to
but excluding the date of such Stated Maturity and will be payable to the
person to whom principal is payable.
If the Principal Amount of, and any accrued interest on, the
Exchange Notes is declared due and payable as provided in Section 9, the Company
shall pay interest on the overdue Principal Amount at a rate per annum equal to
the Specified Rate, and it shall pay interest on overdue installments of
interest at the same rate (to the extent that payment of such interest shall be
legally enforceable).
-----------------
1 Insert if at the time of issuance of the Exchange Note Additional Interest
has accrued on the Initial Note but has not been paid prior to the date the
Initial Note was exchanged for the Exchange Note.
40
Such interest shall accrue from the date such overdue amount was due to the
date payment of such amount, including interest thereon, has been made or duly
provided for.
If the Company defaults in a payment of interest on the
Exchange Notes, it shall pay the defaulted interest, plus (to the extent that
the payment of such interest shall be legally enforceable), any interest payable
on the defaulted interest, to the persons who are Holders on a subsequent
Special Record Date. Such date shall be at least ten (10), and no more than
fifteen (15) days before the payment date. The Company shall fix or cause to be
fixed the Special Record Date and the payment date. At least ten (10) calendar
days before the special record date, the Company shall mail or cause to be
mailed to each Holder a notice that states the Special Record Date, the payment
date and the amount of defaulted interest to be paid.
The Company shall pay interest on the Exchange Notes (except
defaulted interest) to the Persons in whose names the Exchange Notes are
registered at the close of business on the May 15 or November 15 next preceding
the Interest Payment Date (the "Regular Record Date") on the register kept by or
on behalf of the Company for that purpose, even if Exchange Notes are canceled
after such record date and on or before the Interest Payment Date. Holders must
surrender Exchange Notes to the Trustee (or as otherwise specified in the
applicable Company Notice (as defined in Paragraph 7)) to collect principal
payments.
2. PAYING AGENT AND REGISTRAR.
Initially, the Trustee will be the Paying Agent and the
Registrar with respect to this Exchange Note. The Company reserves the right at
any time to vary or terminate the appointment of any Paying Agent or Registrar,
to appoint additional or other Paying Agents and other Registrars and to approve
any change in the office through which any Paying Agent or Registrar acts;
PROVIDED that there will at all times be a Paying Agent in The City of New York.
3. INDENTURE; LIMITATIONS.
This Exchange Note is one of the duly authorized issue of
senior Notes, notes, bonds or other evidences of indebtedness of the Company, of
the series herein specified, all issued or to be issued under and pursuant to
the Indenture, to which reference is hereby made for a statement of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee and any agent of the Trustee, any Paying Agent, the Company and the
Holders
41
of the Securities and the terms upon which the Securities are issued and
are to be authenticated and delivered.
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
have different conversion prices or exchange provisions (if any), may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), may be subject to different
covenants and Events of Default and may otherwise vary as provided or
permitted in the Indenture. This Exchange Note is one of the series of
Securities of the Company issued pursuant to the Indenture and is designated as
the 7 1/8% Notes Due 2009, limited in aggregate principal amount to
$750,000,000. The terms of the Exchange Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended, and the Securities Act of 1933, as amended.
The Exchange Notes are subject to all such terms and Holders are referred to
the Indenture and the Trust Indenture Act of 1939, as amended, for a statement
of those terms. Capitalized terms used but not defined in the Exchange Notes
have the meanings ascribed to them in the Indenture.
4. REDEMPTION AT THE OPTION OF THE COMPANY.
No sinking fund is provided for the Exchange Notes. The
Exchange Notes will be redeemable as a whole at any time or in part from time to
time, at the option of the Company(a "Redemption Date"), at a redemption price
equal to the greater of (i) 100% of the principal amount of the Exchange Notes
and (ii) the sum of the present values of the remaining scheduled payments of
principal and interest thereon from the redemption date to the maturity date
(exclusive of accrued interest) discounted, in each case, to the redemption date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as defined herein) plus 20 basis points, plus
accrued interest thereon to the date of redemption (the "Redemption Price").
"Treasury Rate" means, with respect to any redemption date,
the yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to
42
constant maturity under the caption "Treasury Constant Maturities," for the
maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the maturity date, yields for the two
published maturities most closely corresponding to the Comparable Treasury
Issue shall be determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight line basis, rounding to the nearest
month) or (ii) if that release (or any successor release) is not published
during the week preceding the calculation date or does not contain such yields,
the rate per annum equal to the semi-annual equivalent to yield maturity of the
Comparable Treasury Issue, calculated using a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date. The Treasury Rate shall be
calculated on the third Business Day preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Exchange Notes to be redeemed that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Exchange Notes. "Independent Investment
Banker" means one of the Reference Treasury Dealers appointed by the Trustee
after consultation with the Company.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of four Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer" means each of Xxxxxx Xxxxxxx & Co.
Incorporated, X.X. Xxxxxx Securities Inc., Xxxxxxx Xxxxx Xxxxxx Inc. and one
other primary U.S. Government Securities dealer in New York City (each, a
"Primary Treasury Dealer"), appointed by the Trustee in consultation with TRW,
provided, however, that if any of the foregoing shall cease to be a Primary
Treasury Dealer, the Company may substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption
43
date, the average, as determined by the Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third business day
preceding such redemption date.
Unless the Company defaults in payment of the redemption
price, on and after the redemption date interest will cease to accrue on the
Securities or portions thereof called for redemption.
5. PAYMENT OF ADDITIONAL AMOUNTS.
The Company will, subject to the exceptions and limitations
set forth below, pay as additional interest on the Notes such additional amounts
as are necessary in order that the net payment by the Company or a paying agent
of the principal of and interest on the Notes to a Foreign Holder, after
deduction or withholding for any present or future tax, assessment or
governmental charge of the United States or a political subdivision or taxing
authority thereof or therein, imposed by withholding with respect to the
payment, will not be less than the amount provided in the Notes to be then due
and payable; PROVIDED, HOWEVER, that the foregoing obligation to pay additional
amounts shall not apply:
1. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder if
the Holder is an estate, trust, partnership or corporation, or
a person holding a power over an estate or trust administered
by a fiduciary holder, considered as:
a. being or having been present or engaged in a trade or
business in the United States or having or having had
a permanent establishment in the United States;
b. having a current or former relationship with the
United States, including a relationship as a citizen
or resident thereof;
c. being or having been a foreign or domestic personal
holding company, a passive foreign investment company
or a controlled foreign corporation with respect to
the United States or a corporation that has
accumulated
44
earnings to avoid United States federal income tax;
or
d. being or having been a "10-percent shareholder" of
the Company as defined in section 871(h)(3) of the
United States Internal Revenue Code of 1986, as
amended, (the "Code") or any successor provision;
2. to any Holder that is not the sole beneficial owner of the
Notes, or a portion thereof, or that is a fiduciary or
partnership, but only to the extent that a beneficiary or
settlor with respect to the fiduciary or a beneficial owner or
member of the partnership would not have been entitled to the
payment of an additional amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or
distributive share of the payment;
3. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of the failure of the Holder or any
other person to comply with certification, identification or
information reporting requirements concerning the nationality,
residence, identity or connection with the United States of
the Holder or beneficial owner of such Notes, if compliance is
required by statute, by regulation of the United States
Treasury Department or by an applicable income tax treaty to
which the United States is a party as a precondition to
exemption from, or reduction of, such tax, assessment or other
governmental charge;
4. to a tax, assessment or governmental charge that is imposed
otherwise than by withholding by the Company or a paying agent
from the payment;
5. to a tax, assessment or governmental charge that is imposed or
withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes
effective more than 15 days after the payment becomes due or
is duly provided for, whichever occurs later;
6. to an estate, inheritance, gift, sales, excise, transfer,
wealth or personal property tax or a similar tax, assessment
or governmental charge;
7. to any tax, assessment or other governmental charge required
to be withheld by any paying agent
45
from any payment of principal of or interest on any Notes, if
such payment can be made without such withholding by any
other paying agent; or
8. in the case of any combination of items "1." - "7."
The Notes are subject in all cases to any tax, fiscal or other
law or regulation or administrative or judicial interpretation applicable
thereto. Except as specifically provided above, the Company shall not be
required to make any payment with respect to any tax, assessment or governmental
charge imposed by any government or a political subdivision or taxing authority
thereof or therein.
6. REDEMPTION FOR TAXES.
If (a) as a result of any change in, or amendment to, the laws
(or any regulations or rulings promulgated thereunder) of the United States (or
any political subdivision or taxing authority thereof or therein), or any change
in, or amendments to, the official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes effective on or after May 26, 1999, the Company becomes
or will become obligated to pay additional amounts as described above, or (b)
any act is taken by a taxing authority of the United States on or after May 26,
1999, whether or not such act is taken with respect to the Company or any
affiliate, that results in a substantial probability that the Company will or
may be required to pay such additional amounts, then the Company may, at its
option, redeem, as a whole, but not in part, the Notes on not less than 30 nor
more than 60 days' prior notice, at a redemption price equal to 100% of their
principal amount, together with interest accrued but unpaid thereon to the date
fixed for redemption; provided that the Company determines, in its business
judgment, that the obligation to pay such additional amounts cannot be avoided
by the use of reasonable measures available to it, not including substitution of
the obligor under the Notes. No redemption pursuant to (b) above may be made
unless the Company shall have received an opinion of independent counsel to
the effect that an act taken by a taxing authority of the United States results
in a substantial probability that it will or may be required to pay the
additional amounts described above and the Company shall have delivered to the
Trustee a certificate, signed by a duly authorized officer, stating that based
on such opinion, the Company is entitled to redeem the Notes pursuant to their
terms.
46
7. REDEMPTION PROCEDURE.
If the Company wishes to redeem the Exchange Notes in whole or
in part, then the Company shall give notice in the manner provided in the
Indenture that is not less than thirty (30) nor more than sixty (60) days prior
to the Redemption Date (the "Company Notice") which includes the following
information: (i) the Redemption Date; (ii) the Redemption Price; (iii) if less
than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal
amounts) of the Securities to be redeemed from the Holder to whom the notice is
given; (iv) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security (including applicable interest thereon, if any),
and that interest, if any, thereon shall cease to accrue on said date; (v) the
place where such Securities and coupons, if any, are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of the
Company in the Place of Payment; and (vi) that the redemption is on account of a
sinking fund, if that be the case.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, on Company Order, by the Trustee in the name and at the
expense of the Company.
8. DENOMINATIONS; TRANSFER; EXCHANGE.
The Exchange Notes are issuable in registered form without
coupons, in denominations of $1,000 and integral multiples thereof. Exchange
Notes may be exchanged for a like aggregate principal amount of Exchange Notes
of other authorized denominations at the office or agency of the Company in the
Borough of Manhattan, The City of New York, and in the manner and subject to the
limitations provided in the Indenture.
Upon due presentment for registration of transfer of this
Exchange Note at the office or agency of the Company in the Borough of
Manhattan, The City of New York, a new Exchange Note or Exchange Notes of
authorized denominations for a like aggregate principal amount will be issued to
the transferee in exchange therefor, subject to the limitations provided in the
Indenture.
No service charge shall be made for any such transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any tax, assessment or other governmental charge payable in connection
therewith.
47
Subject to the provisions of the Indenture, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Exchange Note is registered as the owner hereof for all
purposes, whether or not this Exchange Note is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
9. DEFEASANCE.
As provided in the Indenture and subject to the satisfaction
of certain conditions set forth therein, at the Company's option, either (i) the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by, and the obligations under, the Securities of any series and to
have satisfied all the obligations (with certain exceptions) under the Indenture
relating to the Securities of such series or (ii) the Company shall cease to be
under any obligation to comply with any term, provision or condition of certain
restrictive covenants under the Indenture or of any provisions set forth, with
respect to the Securities of such series, in any additions or changes to or
deletions from the covenants and Events of Default under the Indenture in the
Board Resolutions or supplemental indenture with respect to the Securities of
such series.
10. AMENDMENT; SUPPLEMENT; WAIVER.
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee to enter into supplemental indentures to
the Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of modifying in
any manner the rights of the Holders of the Securities of each series under the
Indenture with the consent of the Holders of not less than 66 2/3% in aggregate
principal amount of the Securities at the time Outstanding of each series to be
affected thereby on behalf of the Holders of all Securities of such series.
11. DEFAULTS AND REMEDIES.
If an Event of Default with respect to the Exchange Notes
shall have occurred and be continuing, the Principal Amount of the Exchange
Notes and all accrued and unpaid interest thereon may be declared due and
payable in the manner and with the effect provided in the Indenture.
48
12. AUTHENTICATION.
Unless the certificate of authentication on any Exchange Notes
has been manually executed by or on behalf of the Trustee under the Indenture,
such Exchange Notes shall not be entitled to any benefits under the Indenture or
be valid or obligatory for any purpose.
13. EXCHANGE OFFER; REGISTRATION RIGHTS.
Reserved.
14. OBLIGATION TO PAY INTEREST ABSOLUTE.
No reference herein to the Indenture and no provision of this
Exchange Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the Principal Amount and
any premium of and any interest on the Exchange Notes at the place, rate and
respective times and in the coin or currency prescribed herein and in the
Indenture.
15. HOLDERS' COMPLIANCE WITH REGISTRATION RIGHTS AGREEMENT.
Each Holder of an Exchange Note, by acceptance thereof,
acknowledges and agrees to the provisions of the Registration Rights Agreement,
including, without limitation, the obligations of the Holders with respect to a
registration and the indemnification of the Company to the extent provided
therein.
16. GOVERNING LAW.
THIS EXCHANGE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
17. ABBREVIATIONS.
Customary abbreviations may be used in the name of a Holder or
an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture.
49
Requests may be made to TRW Inc., 0000 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx 00000,
Attention of Secretary.
50
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
--------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
--------------------------------------------------------------------------------
(Insert assignee's Soc. Sec. or Tax I.D. No.)
this Exchange Note and all rights thereunder, hereby irrevocably constituting
and appointing _________________ attorney to transfer said Exchange Note on the
books of the Company with full power of substitution in the premises.
-----------------------------------
Signature
Date:
-----------------
