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Exhibit 4(f)
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TRW INC.
And
THE CHASE MANHATTAN BANK, as Trustee
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Fifth Supplemental Indenture
Dated as of June 2, 1999
Relating to the 7 3/4% Debentures Due 2029
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FIFTH SUPPLEMENTAL INDENTURE (this "Fifth 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, the Fourth Supplemental Indenture dated as
of June 2, 1999, and the Fifth 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 Fifth 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 3/4%
Debentures Due 2029 limited in aggregate principal amount to $550,000,000 (the
"Debentures"). The Debentures shall consist of the Initial Debentures and the
Exchange Debentures (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 Fifth Supplemental Indenture and have certified that all
requirements necessary to make this Fifth Supplemental Indenture a valid
instrument in accordance with its terms have been satisfied, and that the
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execution and delivery of this Fifth Supplemental Indenture has been duly
authorized in all respects.
NOW THEREFORE, the Company and the Trustee hereby agree that
the following sections of this Fifth Supplemental Indenture supplement and amend
the Indenture with respect to that series of Securities which consists of the
Debentures:
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
Debentures, to add the following definitions:
"Agent Members" has the meaning provided in Section 2.06.
"Debentures" means the series of Securities issued pursuant to
this Indenture designated as the 7 3/4% Debentures Due 2029 and limited in
aggregate principal amount to $550,000,000.
"Debentures Closing Date" means June 2, 1999.
"Depository" means The Depository Trust Company, its nominees
and their respective successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Debentures" means any Debentures if and when issued
pursuant to this Indenture in connection with an Exchange Offer for a like
principal amount of the Initial Debentures.
"Exchange Offer" has the meaning provided in the Registration
Rights Agreement.
"Foreign Holder" means a holder of a Debenture 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 Debentures" has the meaning provided in Section 2.02.
"Initial Debentures" means a series of Securities issued
pursuant to the Indenture and designated as the 7 3/4%
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Debentures Due 2029 limited in aggregate principal amount to $550,000,000.
"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.
"Non-U.S. Person" means a Person who is not a "U.S. person"
(as defined in Regulation S).
"Physical Debentures" has the meaning provided in Section
2.02.
"Private Placement Legend" means the legend initially set
forth on the Debentures in the form set forth in Section 2.05(a).
"Purchase Agreement" means with respect to the Initial
Debentures, 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
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"Transfer Restricted Debentures" means Debentures that bear or
are required to bear the legend set forth in Section 2.05(a) hereto.
"United States Holder" means a holder of a Debenture 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 3/4% Debentures Due 2029" limited in aggregate
principal amount to $550,000,000. The Debentures shall include the Initial
Debentures and the Exchange Debentures, which together shall constitute one
series of Securities for purposes of the Indenture.
SECTION 3. AMENDMENTS TO ARTICLE TWO. (a) The Initial
Debentures 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
Debentures, by adding thereto at the end thereof the following:
"The Debentures shall be substantially in the form annexed
hereto as Exhibit A. The terms and provisions contained in the form of the
Debentures 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.
Debentures 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 Debentures
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 DEBENTURE"), which shall
be deposited on behalf of the purchasers of the Initial Debentures represented
thereby with the Trustee, at its
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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
Debentures may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depository or its nominee, as hereinafter
provided.
Debentures 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 Debentures 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 DEBENTURES"). Debentures issued pursuant to Section 2.06 in
exchange for interests in the Global Debentures shall be Physical Debentures.
(b) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Debentures, 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 Debenture certificate
(and all Debentures issued in exchange therefor or in substitution thereof)
shall bear a legend in substantially the following form:
"THIS DEBENTURE (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
DEBENTURE 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 DEBENTURES, RESELL OR OTHERWISE
TRANSFER THIS DEBENTURE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE
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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 DEBENTURE
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
DEBENTURES 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 DEBENTURE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS DEBENTURE WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE DEBENTURES, THE HOLDER
MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF
RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS DEBENTURE 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 DEBENTURE IN VIOLATION OF THE FOREGOING RESTRICTIONS."
(ii) Upon any sale or transfer of a Transfer Restricted
Debenture (including any Transfer Restricted Debenture represented by a
Global Debenture) pursuant to Rule 144 under the Securities Act, the
Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Debenture for a Debenture that does not bear the legend set
forth above and rescind any restriction on the transfer of such
Transfer Restricted Debenture, 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
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Registrar shall issue an Initial Debenture 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 Debenture.
(iii) After a transfer of any Initial Debentures during the
period of the effectiveness of a Shelf Registration Statement with
respect to such Initial Debentures all requirements pertaining to
legends on such Initial Debenture will cease to apply, and an Initial
Debenture without legends will be available to the transferee of the
Holder of such Initial Debentures upon exchange of such transferring
Holder's Initial Debenture in the form of a Physical Debentures or
directions to transfer such Holder's interest in the Global Debenture,
as applicable.
(iv) Upon the consummation of an Exchange Offer with respect
to the Initial Debentures pursuant to which Holders of such Initial
Debentures are offered Exchange Debentures in exchange for their
Initial Debentures, Initial Debentures with the restricted securities
legend set forth in Section 2.05(a) will be available to Holders of
such Initial Debentures that do not exchange their Initial Debentures,
and Exchange Debentures in certificated or global form without the
restricted securities legend will be available to Holders that
exchange such Initial Debentures 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 Debentures for Exchange Debentures in the
form of Physical Debentures, PROVIDED that such Physical Debentures
shall bear the legend set forth in paragraph (a)(i) of this Section and
shall constitute Transfer Restricted Debentures.
(b) Each Global Debenture, Initial Debenture and Exchange
Debenture (other than Physical Debentures), shall also bear the following legend
on the face thereof:
"UNLESS THIS DEBENTURE 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
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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 DEBENTURE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL DEBENTURE 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
DEBENTURES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Physical
Debentures and Global Debentures 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 Debentures 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 Debenture during a
period of 15 days preceding the selection of Debentures for redemption,
or (B) register the transfer of or exchange of any Physical Debenture
selected for redemption in whole or in part pursuant to Article 3 of
this Indenture, except in the case of any Physical Debenture to be
redeemed in part, the portion thereof not to be redeemed.
(iv) Prior to the due presentation for registration of
transfer of any Debenture, the Company, the Trustee, the Paying Agent,
the Registrar may deem and treat the person in whose name a Debenture
is registered as the absolute owner of such Debenture for the purpose
of receiving payment of principal of and interest on such Debenture and
for all other purposes
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whatsoever, whether or not such Debenture 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 Debentures 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
Debentures surrendered upon such transfer or exchange.
(d) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of a Global Debenture, 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 Debentures 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 Debentures. All notices and
communications to be given to the Holders and all payments to be made
to Holders under the Debentures 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 Debenture). The rights of
beneficial owners in any Global Debenture 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 Debenture (including any transfers
between or among Depository participants, members or beneficial owners
in any Global Debenture) 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."
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(c) Article Two of the Indenture is hereby supplemented and
amended, solely with respect to that series of Securities which consists of
Debentures, by adding thereto at the end thereof the following new Section 2.06:
"Section 2.06. BOOK-ENTRY PROVISIONS FOR GLOBAL DEBENTURES.
(a) This Section 2.06(a) shall apply only to a Global Debenture 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 Debentures that (i) shall be registered in the name of the
Depository for such Global Debenture or Global Debentures 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
Debenture held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Debenture 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 Debenture 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
Debenture.
(b) Transfers of a Global Debenture shall be limited to
transfers of such Global Debenture in whole, but not in part, to the Depository,
its successor or their respective nominees. Interests of beneficial owners in a
Global Debenture may be transferred in accordance with the rules and procedures
of the Depository and the provisions of Section 2.07. In addition, Physical
Debentures shall be transferred to all beneficial owners in exchange for their
beneficial interests in the Global Debentures 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 Debentures 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 Debentures (in whole but not in part)
should be exchanged for Physical Debentures.
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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 Debentures. Such Physical Debentures 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 Debenture to beneficial owners pursuant to
paragraph (b) of this Section, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Debentures
in an amount equal to the principal amount of the beneficial interest in such
Global Debentures to be transferred, and the Company shall execute, and the
Trustee shall authenticate and deliver, one or more Physical Debentures of like
tenor and amount.
(d) In connection with the transfer of the entire Global
Debenture to beneficial owners pursuant to clauses (i) or (ii) of paragraph (b)
of this Section, the Global Debenture 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 Debenture an equal
aggregate principal amount of Physical Debentures of authorized denominations.
(e) Any Physical Debenture delivered in exchange for an
interest in the Global Debenture 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
Debenture set forth in Section 2.05.
(f) The registered holder of a Global Debenture 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 Debentures.
(g) Beneficial owners of interests in a Global Debenture may
receive Physical Debentures (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
Debentures, the Registrar shall reflect on its books and records a decrease in
the principal amount of the Global Debenture equal to the principal amount of
such Physical Debentures and the Company shall execute and the
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Trustee shall authenticate and deliver one or more Physical Debentures having
an equal aggregate principal amount.
(i) CANCELLATION OR ADJUSTMENT OF GLOBAL DEBENTURE. At such
time as all beneficial interests in a Global Debenture have either been
exchanged for Physical Debentures, redeemed, repurchased or canceled, such
Global Debenture 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 Debenture is exchanged for Physical
Debentures, redeemed, repurchased or canceled, the principal amount of
Debentures represented by such Global Debenture shall be reduced and an
adjustment shall be made on the books and records of the Trustee with respect to
such Global Debenture, 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
Debentures, 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 DEBENTURES. (i) The transfer and exchange of Global
Debentures 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 Debenture 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
Debenture. 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 Debenture and to debit the
account of the Person making the transfer the beneficial interest in the Global
Debenture being transferred.
(ii) Notwithstanding any other provisions of this Supplemental
Indenture (other than the provisions set forth in Section 2.06(b)), a
Global Debenture 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.
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(iii) In the event that a Global Debenture is exchanged for
Physical Debentures 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 Debentures, such Debentures
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 Debentures 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.
(b) GENERAL. By its acceptance of any Debenture bearing the
Private Placement Legend, each Holder of such a Debenture acknowledges the
restrictions on transfer of such Debenture set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Debenture
only as provided in this Indenture. The Registrar shall not register a transfer
of any Debenture unless such transfer complies with the restrictions on transfer
of such Debenture set forth in this Indenture. In connection with any transfer
of Debentures, each Holder agrees by its acceptance of the Debentures 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
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that series of Securities which consists of Debentures, 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 Debentures for Exchange Debentures),
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 Debentures for
Exchange Debentures shall occur until a Registration Statement shall
have been declared effective by the Commission (confirmed in an
Officers' Certificate delivered to the Trustee) and that any Initial
Debentures that are exchanged for Exchange Debentures 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 Debentures, 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 Debentures 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 Debentures 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 Debentures 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:
14
16
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 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
Debentures, 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 Debentures, 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;
15
17
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 Debentures, 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 Debentures 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 Debentures,
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
16
18
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 Debentures 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
Debentures. 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 Debentures pursuant to their
terms."
SECTION 6. THIS FIFTH SUPPLEMENTAL INDENTURE. This Fifth
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 FIFTH SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
SECTION 8. COUNTERPARTS. This Fifth 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 Fifth 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 Fifth Supplemental Indenture.
17
19
SECTION 11. SEVERABILITY. In case any one or more of the
provisions contained in this Fifth 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 Fifth Supplemental Indenture or of the Securities, but
this Fifth Supplemental Indenture and the Securities shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
18
20
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
TRW Inc.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President,
General Counsel and Secretary
THE CHASE MANHATTAN BANK, as Trustee,
by
/s/ ▇. ▇. ▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇▇
Title: Second Vice President
21
EXHIBIT A
[FORM OF FACE OF INITIAL DEBENTURE]
[INSERT APPROPRIATE LEGEND]
TRW INC.
7 3/4% Debenture Due 2029
[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, 2029.
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
Debenture 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,
the Fourth Supplemental Indenture dated as of June 2, 1999, and the Fifth
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 Debenture is one of the
series of Securities of the Company issued pursuant to the Indenture and is
designated as the 7 3/4% Debentures Due 2029 (hereinafter referred to as the
"Debentures"), limited in aggregate principal amount to $550,000,000.
22
IN WITNESS WHEREOF, the Company has caused this Debenture 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:______________________________
Authorized Officer
23
[FORM OF REVERSE SIDE OF INITIAL DEBENTURE]
TRW INC.
7 3/4% Debenture Due 2029
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, 2029, and to pay interest on the Principal Amount at the rate of [ ]%
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 Debenture at a rate of .25% per annum (the
"Additional Interest") from and including the date on which such Registration
Default ahall 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 Debentures 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
Debentures 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 Debenture. The amount of Additional Interest due on this Debenture will be
determined by multiplying the applicable Additional Interest rate by
24
the outstanding principal amount of this Debenture, 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
Debentures, 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 Debentures (except
defaulted interest) to the Persons in whose names the Debentures 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 Debentures are canceled after
such record date and on or before the Interest Payment Date. Holders must
surrender Debentures 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 Debenture. 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 Debenture is one of the duly authorized issue of senior
debentures, 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
25
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 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 Debenture is one of the series of Securities of the
Company issued pursuant to the Indenture and is designated as the 7 3/4%
Debentures Due 2029, limited in aggregate principal amount to $550,000,000. The
terms of the Debentures 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 Debentures 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 Debentures have the meanings
ascribed to them in the Indenture.
4. REDEMPTION AT THE OPTION OF THE COMPANY.
No sinking fund is provided for the Debentures. The Debentures
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 Debentures 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 25 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
26
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 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 Debentures 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 Debentures. "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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
27
"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 Debentures 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 Debentures 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 Debentures 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
28
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 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
Debentures, 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 Debentures, 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;
29
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 Debentures, 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 Debentures 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 Debentures 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 Debentures. 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
30
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 Debentures pursuant to their terms.
7. REDEMPTION PROCEDURE.
If the Company wishes to redeem the Debentures 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 Debentures are issuable in registered form without
coupons, in denominations of $1,000 and integral multiples thereof. Debentures
may be exchanged for a like aggregate principal amount of Debentures 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
Debenture at the office or agency of the Company in the Borough of Manhattan,
The City of New York, a new Debenture or Debentures 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.
31
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.
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 Debenture is registered as the owner hereof for all purposes,
whether or not this Debenture 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 Debentures shall
have occurred and be continuing, the Principal Amount of the Debentures and all
accrued and
32
unpaid interest thereon may be declared due and payable in the manner and with
the effect provided in the Indenture.
12. AUTHENTICATION.
Unless the certificate of authentication on any Debentures has
been manually executed by or on behalf of the Trustee under the Indenture, such
Debentures 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 Debentures other than (x) Exchange
Debentures and (y) Debentures 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 Debentures identical in all material respects to the Debentures (the
"Exchange Debentures") and, upon becoming effective, to offer the Holders of the
Debentures the opportunity to exchange their Debentures for the Exchange
Debentures (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 Debentures (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 Debentures 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 Debentures a copy of the prospectus and
notify each such Holder when the Shelf Registration Statement has become
effective. A Holder that sells Debentures 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
Debentures will be issued (i) under the Indenture or (ii) under an indenture
substantially similar to the
33
Indenture, which, in either event, will provide that the Exchange Debentures
will not be subject to the transfer restrictions described in the Indenture.
If the Company effects the Exchange Offer, the Company will be
entitled to close the Exchange Offer provided that the Company has accepted all
Debentures theretofore validly tendered in accordance with the terms of the
Exchange Offer. Any Additional Interest on the Initial Debentures accrued but
not paid prior to the Exchange Offer shall be payable on the Exchange
Debentures. Debentures not tendered in the Exchange Offer shall bear interest at
the same rates in effect at the time of issuance of the Debentures.
14. OBLIGATION TO PAY INTEREST ABSOLUTE.
No reference herein to the Indenture and no provision of this
Debenture 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 Debentures 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 Debenture, 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 DEBENTURE 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).
34
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.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention of Secretary.
35
[FORM OF TRANSFER NOTICE]
____________________________________________________________________
To assign this Debenture, fill in the form below:
I or we assign and transfer this Debenture 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
Debenture 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 Debenture.
In connection with any transfer of any of the Debentures 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 Debentures and the last date, if any, on which such Debentures were
owned by the Company or any Affiliate of the Company, the undersigned confirms
that without utilizing any general solicitation or general advertising such
Debentures 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
36
of 1933) that purchases for its own account 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 Debentures 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 Debentures, 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
------------------------------------------------------------
37
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Debenture 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 Debenture 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 Debenture 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 Debenture 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
experience in financial and business
38
matters a to be capable of evaluating the merits and risks of its investment in
the Debentures 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
39
[FORM OF FACE OF EXCHANGE DEBENTURE]
[INSERT APPROPRIATE LEGEND]
TRW INC.
7 3/4% Debenture Due 2029
[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, 2029.
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 Debenture 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,
the Fourth Supplemental Indenture dated as of June 2, 1999, and the Fifth
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 Debenture is one
of the series of Securities of the Company issued pursuant to the Indenture and
is designated as the 7 3/4% Exchange Debentures Due 2029 (hereinafter referred
to as the "Exchange Debentures"), limited in aggregate principal amount to
$550,000,000.
40
IN WITNESS WHEREOF, the Company has caused this Exchange
Debenture 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: ________________________
Authorized Officer
41
[FORM OF REVERSE SIDE OF EXCHANGE DEBENTURE]
TRW INC.
7 3/4% Exchange Debenture Due 2029
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, 2029, and to pay interest on the Principal Amount at the rate of 7 3/4%
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 Debenture 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 have were cured if such Additional Interest was not paid
prior to the date on which the Initial Debenture was exchanged for this
Exchange Debenture.(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 Debentures 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 Debentures 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
--------
(1) Insert if at the time of issuance of the Exchange Debenture Additional
Interest has accrued on the Initial Debenture but has not been paid prior to the
date the Initial Debenture was Exchange for the Exchange Debenture.
42
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.
If the Company defaults in a payment of interest on the
Exchange Debentures, 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 Debentures
(except defaulted interest) to the Persons in whose names the Exchange
Debentures 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
Debentures are canceled after such record date and on or before the Interest
Payment Date. Holders must surrender Exchange Debentures 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 Debenture. 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 Debenture is one of the duly authorized issue of
senior debentures, notes, bonds or other evidences of indebtedness of the
Company, of the series herein specified, all issued or to be issued under and
43
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 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 Debenture is one of the series of
Securities of the Company issued pursuant to the Indenture and is designated as
the 7 3/4% Exchange Debentures Due 2029, limited in aggregate principal amount
to $550,000,000. The terms of the Exchange Debentures 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 Debentures 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 Debentures 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 Debentures. The
Exchange Debentures 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
Debentures 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 25 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
44
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 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 Debentures 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 Debentures.
"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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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
45
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 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 Debentures 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 Debentures 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 Debentures 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;
46
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 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
Debentures, 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 Debentures, 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;
47
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 Debentures, 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 Debentures 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 Debentures 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 Debentures. No redemption pursuant to (b) above may be
made unless the Company shall have received an opinion of independent
48
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 Debentures
pursuant to their terms.
7. REDEMPTION PROCEDURE.
If the Company wishes to redeem the Exchange Debentures 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 Debentures are issuable in registered form
without coupons, in denominations of $1,000 and integral multiples thereof.
Exchange Debentures may be exchanged for a like aggregate principal amount of
Exchange Debentures 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 Debenture at the office or agency of the Company in the Borough of
Manhattan, The City of New York, a new Exchange Debenture or Exchange Debentures
of authorized
49
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.
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 Debenture is registered as the owner hereof for all
purposes, whether or not this Exchange Debenture 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.
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If an Event of Default with respect to the Exchange Debentures
shall have occurred and be continuing, the Principal Amount of the Exchange
Debentures and all accrued and unpaid interest thereon may be declared due and
payable in the manner and with the effect provided in the Indenture.
12. AUTHENTICATION.
Unless the certificate of authentication on any Exchange
Debentures has been manually executed by or on behalf of the Trustee under the
Indenture, such Exchange Debentures 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 Debenture 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 Debentures 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 Debenture, 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 DEBENTURE 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 (=
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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.,
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention of Secretary.
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[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 Debenture and all rights thereunder, hereby irrevocably
constituting and appointing___________________ attorney to transfer said
Exchange Debenture on the books of the Company with full power of substitution
in the premises.
____________________________________
Signature
Date:_______________