EXHIBIT 3
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SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JUNE __, 2001
BETWEEN
ELECTRONIC DATA SYSTEMS CORPORATION
AS ISSUER
AND
CHASE BANK OF TEXAS NATIONAL ASSOCIATION
AS TRUSTEE
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SECOND SUPPLEMENTAL INDENTURE, dated as of June __, 2001 (the "Second
Supplemental Indenture"), between Electronic Data Systems Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and Chase Bank of Texas National Association (formerly Texas
Commerce Bank National Association), as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the Indenture dated as of
August 12, 1996 (the "Base Indenture") to the Trustee to provide for the
issuance of the Company's debentures, notes, bonds or other evidence of
indebtedness (the "Securities"), to be issued from time to time in one or more
series as might be determined by the Company under the Base Indenture; and
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its Senior Notes due 2006 (the "Notes"), the form and terms of such
Notes and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this Second Supplemental Indenture (together,
the "Indenture"); and
WHEREAS, the Company has requested that the Trustee execute and
deliver this Second Supplemental Indenture and all requirements necessary to
make this Second Supplemental Indenture a valid, binding and enforceable
instrument in accordance with its terms, and to make the Notes, when executed,
authenticated and delivered by the Company, the valid, binding and enforceable
obligations of the Company, have been done and performed, and the execution and
delivery of this Second Supplemental Indenture has been duly authorized in all
respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Base Indenture, the form and terms of the Notes, the Company covenants
and agrees with the Company as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definition of Terms
Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when
used in this Second Supplemental Indenture;
(b) a term defined anywhere in this Second Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Purchase Contract Agreement (i) Applicable Principal Amount, (ii)
Authorized Newspaper; (iii) Cash Settlement; (iv) Clearing Agency; (v)
Clearing Agency Participant; (vi) Growth PRIDES; (vii) Income PRIDES;
(viii) Initial Remarketing; (ix) Initial Remarketing Date; (x) Purchase
Contract Agent; (xi) Quotation Agent; (xii) Redemption Price; (xiii) Reset
Agent; (xiv) Reset Announcement Date; (xv) Reset Rate; (xvi) Reset Spread;
(xvii) Secondary Remarketing; (xviii) Secondary Remarketing Date; (xix) Tax
Event; (xx) Treasury Portfolio; (xxi) Treasury Portfolio Purchase Price;
(xxii) Two-Year Benchmark Treasury; (xxiii) Two and One-Quarter Year
Benchmark Treasury; and (xxiv) Underwriting Agreement;
(f) the following terms have the meanings given to them in this
Section 1.1(f):
"Custodial Rate" shall have the meaning set forth in Section 2.5.
"Custodial Agent" shall have the meaning set forth in the Pledge
Agreement.
"Notes" shall have the meaning specified in Section 2.1.
"Note Repayment Price'" shall have the meaning set forth in
Section 3.4.
"Failed Initial Remarketing" shall have the meaning set forth in
Section 9.1(g).
"Failed Secondary Remarketing" shall have the meaning set forth
in Section 9.2(h).
"Global Notes" shall have the meaning set forth in Section 2.4.
"Maturity Date" shall have the meaning specified in Section 2.2.
"Pledge Agreement" means the Pledge Agreement dated as of June
__, 2001 among the Company, __________________________, as collateral
agent (the "Collateral Agent"), custodial agent and securities
intermediary and ______________________________, as purchase contract
agent and attorney-in-fact.
"Purchase Contract" shall have the meaning set forth in the
Purchase Contract Agreement.
"Purchase Contract Agreement" means the Purchase Contract
Agreement dated as of June __, 2001, among the Company and The Chase
Manhattan Bank, as purchase contract agent.
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"Purchase Contract Settlement Date" means August 17, 2004.
"Put Option" shall have the meaning set forth in Section 3.4.
"Put Option Exercise Date" shall have the meaning set forth in
Section 3.4.
"Regular Record Date" means, with respect to any Interest Payment
Date for the Notes, the close of business on the first day of the
month in which such Interest Payment Date falls.
"Remarketing Agent" means _________________________________ or
any successor thereto or replacement Remarketing Agent under the
Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement, dated as
of June __, 2001, between the Company, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ &
▇▇▇▇▇ Incorporated, as remarketing agent and The Chase Manhattan Bank
as purchase contract agent and attorney-in-fact.
"Reset Effective Date" means (i) May 17, 2004 in case the
interest rate is reset on the Initial Remarketing Date, or (ii) the
Purchase Contract Settlement Date, in case the interest rate is reset
on the Secondary Remarketing Date.
The terms "Indenture," "Base Indenture," and "Notes" shall have the
respective meanings set forth in the recitals to this Second Supplemental
Indenture and the paragraph preceding such recitals.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1 Designation and Principal Amount.
There is hereby authorized a series of Securities designated the
Senior Notes due 2006, (the "Notes") limited (except as otherwise provided in
Article II of the Indenture) in aggregate principal amount to $1,400,000,000
(or, $1,600,000,000, if the Underwriters' over-allotment option is exercised in
full). The Notes may be issued from time to time upon written order of the
Company for the authentication and delivery of Notes pursuant to Section 2.2 of
the Base Indenture.
Section 2.2 Maturity.
The date upon which the Notes shall become due and payable at final
maturity, together with any accrued and unpaid interest, is August 17, 2006 (the
"Maturity Date").
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Section 2.3 Form, Payment and Appointment.
Except as provided in Section 2.4, the Notes shall be issued in fully
registered, certificated form, bearing identical terms. Principal of and
premium, if any, and interest on the Notes will be payable, the transfer of such
Notes will be registrable and such Notes will be exchangeable for Notes bearing
identical terms and provisions at the office or agency of the Company maintained
for such purpose as described below; provided, however, that payment of interest
may be made at the option of the Company by check mailed to the Holder at such
address as shall appear in the Securities Register or by wire transfer to an
account appropriately designated by the Holder entitled to payment.
The Company hereby designates the Borough of Manhattan, The City of
New York as the place of payment ("Place of Payment") for the Notes, and the
office or agency maintained by the Company in such Place of Payment for the
purposes contemplated by this Section 2.3 shall initially be the Corporate Trust
Office of the Trustee in c/o ___________________________________________.
The Security Registrar, transfer agent and Paying Agent for the Notes
shall be ____________________________.
The Notes shall be issuable in denominations of $50 and integral
multiples of $50 in excess thereof.
The Notes may be issued, in whole or in part, in permanent global form
and, if issued in permanent global form, the U.S. Depositary shall be The
Depository Trust Company or such other depositary as any officer of the Company
may from time to time designate.
Section 2.4 Global Notes.
(a) Unless and until it is exchanged for the Notes in registered
form, one or more global Notes in principal amount equal to the aggregate
principal amount of all outstanding Notes ("Global Notes") may be transferred,
in whole but not in part, only to the Clearing Agency or a nominee of the
Clearing Agency, or to a successor Clearing Agency selected or approved by the
Company or to a nominee of such successor Clearing Agency.
(b) If at any (i) time the Clearing Agency notifies the Company that
it is unwilling or unable to continue as a Clearing Agency for the Global Notes
and no successor Clearing Agency shall have been appointed within 90 days after
such notification, (ii) the Clearing Agency at any time ceases to be a clearing
agency registered under the Securities Exchange Act of 1934 at any time the
Clearing Agency is required to be so registered to act as such Clearing Agency
and no successor Clearing Agency shall have been appointed within 90 days after
the Company becoming aware of the Clearing Agency's ceasing to be so registered,
(iii) the Company, in its sole discretion, determines that the Global Notes
shall be so exchangeable or (iv) there shall have occurred and be continuing an
Event of Default, the Company will execute, and subject to Article II of the
Base Indenture, the Trustee, upon written notice from the Company, will
authenticate and deliver the Notes in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Note in exchange for such Global Note.
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Upon exchange of the Global Note for such Notes in definitive
registered form without coupons, in authorized denominations, the Global Note
shall be cancelled by the Trustee. Such Notes in definitive registered form
issued in exchange for the Global Note shall be registered in such names and in
such authorized denominations as the Clearing Agency, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the Clearing Agency for
delivery to the Persons in whose names such Securities are so registered.
Section 2.5 Interest.
(a) The Note will bear interest initially at the rate of ___% per
year (the "Coupon Rate") from the original date of issuance through and
including the day immediately preceding the Reset Effective Date and at the
Reset Rate thereafter until the principal thereof is paid or duly made available
for payment and shall bear interest, to the extent permitted by law, compounded
quarterly, on any overdue principal and premium, if any, and on any overdue
installment of interest at the Coupon Rate through and including the day
immediately preceding the Reset Effective Date and at the Reset Rate thereafter,
payable quarterly in arrears on February 17, May 17, August 17 and November 17
of each year (each, an "Interest Payment Date") commencing on August 17, 2001,
to the Person in whose name such Note, or any predecessor Note, is registered at
the close of business on the Regular Record Date for such interest installment.
(b) The interest rate on the Notes will be reset on the Initial
Remarketing Date to the applicable Reset Rate (which Reset Rate will be
effective on and after May 17, 2004) except in the event of a Failed Initial
Remarketing. In the event of a Failed Initial Remarketing, the interest rate on
the Notes will be reset on the Secondary Remarketing Date to the applicable
Reset Rate (which Reset Rate will be effective on and after the Purchase
Contract Settlement Date). On the applicable Reset Announcement Date, the
applicable Reset Spread and the Two-Year Benchmark Treasury or Two and One-
Quarter Year Benchmark Treasury, as applicable, will be announced by the
Company. On the Business Day immediately following such Reset Announcement Date,
the Holders of Notes will be notified of such Reset Spread and Two-Year
Benchmark Treasury or Two and One-Quarter Year Benchmark Treasury, as
applicable, by the Company. Such notice shall be sufficiently given to such
Holders of Notes if published in an Authorized Newspaper.
(c) Not later than seven calendar days nor more than 15 calendar days
immediately preceding the applicable Reset Announcement Date, the Company will
request that the Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee) notify the Holders of Notes of such Reset Announcement
Date and, in the case of a Secondary Remarketing, the procedures to be followed
by such holders of Notes wishing to settle the related Purchase Contracts with
separate cash on the Business Day immediately preceding the Purchase Contract
Settlement Date.
(d) The amount of interest payable for any period will be computed on
the basis of a 360-day year consisting of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period other than a full quarterly period for which interest is computed, will
be computed on the basis of the actual number of days elapsed
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in such a 90-day period. In the event that any date on which interest is payable
on the Notes is not a Business Day, then payment of interest payable on such
date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date.
ARTICLE III
REDEMPTION OF THE NOTES
Section 3.1 Tax Event Redemption.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Notes in whole (but not in part) at any time at a price per
Note equal to the Redemption Price. Installments of interest on Notes which are
due and payable on or prior to the date of redemption (the "Tax Event Redemption
Date") will be payable to the Holders of the Notes registered as such at the
close of business on the Regular Record Date. If, following the occurrence of a
Tax Event prior to the Purchase Contract Settlement Date, the Company exercises
its option to redeem the Notes, the Company shall appoint the Quotation Agent to
assemble the Treasury Portfolio in consultation with the Company. Notice of any
redemption will be mailed at least 30 days but not more than 60 days before the
Tax Event Redemption Date to each registered Holder of the Notes to be repaid at
its registered address. Unless the Company defaults in payment of the
Redemption Price, on and after the Tax Event Redemption Date interest shall
cease to accrue on the Notes.
Section 3.2 Redemption Procedures for Notes.
Payment of the Redemption Price to each Holder of Notes shall be made
by the Company, no later than 12:00 noon, New York City time, on the Tax Event
Redemption Date, by check or wire transfer in immediately available funds at
such place and to such account as may be designated by each such Holder of
Notes, including the Trustee or the Collateral Agent, as the case maybe. If the
Trustee holds immediately available funds sufficient to pay the Redemption Price
of the Notes, then, on such Tax Event Redemption Date, such Notes will cease to
be outstanding and interest thereon will cease to accrue, whether or not such
Notes have been received by the Company, and all other rights of the Holder in
respect of the Notes shall terminate and lapse (other than the right to receive
the Redemption Price upon delivery of such Notes but without interest on such
Redemption Price).
Section 3.3 No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
Section 3.4 Option to Put Notes upon Failed Secondary Remarketing.
If a Failed Secondary Remarketing (as described in Section 5.4(b) of
the Purchase Contract Agreement and incorporated herein by reference) has
occurred, holders of Notes who hold such Notes following the Purchase Contract
Settlement Date shall have the right (the "Put
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Option") to put such Notes to the Company on September 30, 2004 (the "Put Option
Exercise Date"), upon at least three Business Days prior notice, at a repayment
price equal to the principal amount of such Notes plus an amount equal to the
accrued and unpaid interest thereon to the date of payment (the "Note Repayment
Price").
Section 3.5 Repurchase Procedure for Notes.
(a) In order for the Notes to be repurchased on the Put Option
Exercise Date, the Trustee must receive on or prior to 5:00 p.m. New York City
time on the third Business Day immediately preceding the Put Option Exercise
Date, at its Corporate Trust Office or at an office or agency maintained by the
Company in the Borough of Manhattan, The City of New York as contemplated by
Section 2.3 hereof, the Notes to be repurchased with the form entitled "Option
to Elect Repayment" on the reverse of or otherwise accompanying such Notes duly
completed. Any such notice received by the Trustee shall be irrevocable. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of the Notes for repayment shall be determined by the Company, whose
determination shall be final and binding.
(b) Payment of the Note Repayment Price shall be made through the
Trustee, subject to the Trustee's receipt of payment from the Company in
accordance with the terms of the Indenture, no later than 12:00 noon, New York
City time, on the Put Option Exercise Date, and to such account as may be
designated. If the Trustee holds immediately available funds sufficient to pay
the Note Repayment Price of Notes presented for repayment, then, immediately
prior to the close of business on the Put Option Exercise Date, such Notes will
cease to be outstanding and Interest thereon will cease to accrue, whether or
not such Notes have been received by the Company, and all other rights of the
Holder in respect of the Notes, including the Holder's right to require the
Company to repay such Notes, shall terminate and lapse (other than the right to
receive the Note Repayment Price upon delivery of such Notes but without
interest on such Note Repayment Price). Neither the Trustee nor the Company will
be required to register or cause to be registered the transfer of any Note for
which repayment has been elected.
ARTICLE IV
EXPENSES
Section 4.1 Payment of Expenses.
In connection with the offering, sale and issuance of the Notes to the
Holders, the Company, in its capacity as borrower with respect to the Notes
shall pay all costs and expenses relating to the offering, sale and issuance of
the Notes, including commissions to the underwriters payable pursuant to the
Underwriting Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 5.6 of the Base Indenture.
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ARTICLE V
NOTICE
Section 5.1 Notice by the Company.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company that would prohibit the making
of any payment of monies to or by the Trustee in respect of the Notes.
Notwithstanding any of the provisions of the Base Indenture and this Second
Supplemental Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Notes; provided, however, that if the
Trustee shall not have received the notice provided for in this Article V at
least two Business Days prior to the date upon which by the terms hereof any
money may become payable for any purpose (including, without limitation, the
payment of the principal of (or premium, if any) or interest on any Note), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purposes for which they were received, and shall not be affected by any notice
to the contrary that may be received by it within two Business Days prior to
such date.
ARTICLE VI
FORM OF NOTE
Section 6.1 Form of Note.
The Notes and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms, with such
changes therein as the officers of the Company executing the Notes (by manual or
facsimile signature) may approve, such approval to be conclusively evidenced by
their execution thereof:
(FORM OF FACE OF NOTE)
IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - THIS NOTE IS A GLOBAL NOTE WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE OF THE DEPOSITORY TRUST
COMPANY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITORY TRUST COMPANY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TRUST COMPANY TO A
NOMINEE OF THE DEPOSITORY TRUST COMPANY OR BY A NOMINEE OF THE DEPOSITORY TRUST
COMPANY TO THE DEPOSITORY TRUST COMPANY OR ANOTHER NOMINEE OF THE DEPOSITORY
TRUST COMPANY OR TO A SUCCESSOR CLEARING AGENCY OR TO A NOMINEE OF SUCH
SUCCESSOR) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
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UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF TIE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
CUSIP No.________________
$________________________
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ELECTRONIC DATA SYSTEMS CORPORATION
___% SENIOR NOTE
DUE 2006
ELECTRONIC DATA SYSTEMS CORPORATION, a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to The Bank
of New York, or registered assigns, the principal sum of_________________
Dollars ($___________) on August 17, 2006 (such date is hereinafter referred to
as the "Maturity Date"), and to pay interest on said principal sum from June __,
2001 or from the next recent date to which interest has been paid or duly
provided for, quarterly in arrears on February 17, May 17, August 17 and
November 17 of each year (each such date, an "Interest Payment Date"),
commencing on August 17, 2001 initially at the rate of ___% per year through and
including the day immediately preceding the Reset Effective Date and at the
Reset Rate thereafter until the principal hereof shall have been paid or duly
made available for payment and, to the extent permitted by law, to pay interest,
compounded quarterly, on any overdue principal and premium, if any, and on any
overdue installment of interest at the rate per year of ___% through and
including the day immediately preceding the Reset Effective Date and at the
Reset Rate thereafter. The amount of interest payable on any Interest Payment
Date shall be computed on the basis of a 360-day year consisting of twelve 30-
day months and, except as provided in the Indenture (as defined below), the
amount of interest payable for any period shorter than a full quarterly period
for which interest is computed will be computed on the basis of the actual
number of days elapsed in such 90-day period. In the event that any date on
which interest is payable on this Note is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such Interest Payment
Date. The interest installment so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be paid to
the person in whose name this Note (or one or more predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
installment which shall be the close of business on the first day of the month
in which such Interest Payment Date falls. Any such interest installment not
punctually paid or duly provided for on any Interest Payment Date shall
forthwith cease to be payable to the registered Holders at the close of business
on such Regular Record Date and may be paid to the Person in whose name this
Note (or one or more predecessor Securities) is registered at the close of
business on a special record date to be fixed by the Trustee for the payment of
such defaulted interest, notice whereof shall be given to the registered Holders
of this series of Notes not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Notes may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in the Indenture. The principal of (and premium, if any) and the interest on
this Note shall be payable at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of interest may be made at the option of the Company by check mailed to the
registered Holder at such address
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as shall appear in the Security Register or by wire transfer to an account
appropriately designated by the Holder entitled thereto.
The indebtedness evidenced by this Note is, to the extent provided in
the Indenture, senior and unsecured and will rank equal in right of payment to
all other senior unsecured obligations of the Company.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to or be valid or obligatory for any purpose until the
Certificate of Authentication shall have been signed by or on behalf of the
Trustee.
The provisions of this Note are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: June __, 2001
ELECTRONIC DATA SYSTEMS CORPORATION,
as Issuer
By:
-------------------------------
Name:
Title:
Attest:
By:
-------------------------
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series of Notes described in the within-
mentioned Indenture.
Dated
----------------------------------
CHASE BANK OF TEXAS NATIONAL ASSOCIATION,
as Trustee
By
-------------------------------------
Authorized Signatory
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(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Notes"), issued and to be issued
in one or more series under and pursuant to an Indenture dated as of August 12,
1996 (the "Base Indenture") between the Company and Chase Bank of Texas National
Association, as Trustee (the "Trustee," which term includes any successor
trustee under the Indenture), as supplemented by a Second Supplemental
Indenture, dated as of June __, 2001 (the "Second Supplemental Indenture")
between the Company and the Trustee (the Base Indenture as so supplemented, the
"Indenture"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Notes. By the terms of the Indenture, the Securities are
issuable in series that may vary as to amount, date of maturity, rate of
interest and in other respects as provided in the Indenture. This series of
Securities is limited in aggregate principal amount as specified in said Second
Supplemental Indenture.
If a Tax Event shall occur and be continuing, the Company may, at its
option, redeem the Notes in whole (but not in part) at any time at a price per
Note equal to the Redemption Price. The Redemption Price shall be paid to each
Holder of the Notes by the Company, no later than 12:00 noon, New York City
time, on the Tax Event Redemption Date, by check or wire transfer in immediately
available funds, at such place and to such account as may be designated by each
such Holder.
The Notes are not entitled to the benefit of any sinking fund.
If a Failed Secondary Remarketing (as described in Section 5.4(b) of
the Purchase Contract Agreement and incorporated herein by reference) has
occurred, each holder of Notes who holds such Notes on the day immediately
following the Purchase Contract Settlement Date shall have the right (the "Put
Option") on the Business Day immediately following the Purchase Contract
Settlement Date, to put such Notes to the Company, on September 30, 2004 (the
"Put Option Exercise Date"), upon at least three Business Days prior notice), at
a repayment price equal to the principal amount of this Note plus an amount
equal to the accrued and unpaid interest thereon to the date of payment (the
"Note Repayment Price").
In order for the Notes to be so repurchased, the Trustee must receive,
on or prior to 5:00 p.m. New York City Time on the third Business Day
immediately preceding the Put Option Exercise Date, at its Corporate Trust
Office, or at an office or agency maintained by the Company in the Borough of
Manhattan, The City of New York as contemplated by Section 2.3 of the Second
Supplemental Indenture, the Notes to be repurchased with the form entitled
"Option to Elect Repayment" on the reverse of or otherwise accompanying such
Notes duly completed. Any such notice received by the Trustee shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of the Notes for repayment shall be determined by the
Company, whose determination shall be final and binding. The payment of the
Note Repayment Price in respect of such Notes shall be made no later than 12:00
noon, New York City time, on the Put Option Exercise Date.
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In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable (or, in certain
circumstances shall ipso facto become due and payable), in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting, with certain exceptions
therein provided, the Company and the Trustee, with the consent of the Holders
of not less than a majority in aggregate principal amount of the Outstanding
Securities of each series affected to execute supplemental indentures for the
purpose of, among other things, adding any provisions to or changing or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying the rights of the Holders of the Securities. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Securities of any series at the time
Outstanding, on behalf of all of the Holders of all Securities of such series,
to waive a Default or Event of Default with respect to such series and its
consequences, except a Default or Event of Default in the payment of the
principal of or premium, if any, or interest on any of the Securities of such
series or in respect of a covenant or other provision which, under the terms of
the Indenture, cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected. Any such consent or
waiver by the registered Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued in exchange for or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered Holder hereof on
the Security Register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, The City of New York, accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such transfer, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee, any Paying Agent and the Security Registrar may deem
and treat the registered Holder hereof as the absolute owner hereof (whether or
not this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the purpose
of receiving payment of or on account of the principal hereof and premium, if
any, and interest due hereon and for all other purposes, and neither the Company
15
nor the Trustee nor any Paying Agent nor any Security Registrar shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
shareholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Indenture imposes certain limitations on the ability of the
Company to, among other things, merge or consolidate with any other Person or
sell, assign, transfer or lease all or substantially all of its properties or
assets, and requires that the Company comply with certain further covenants.
All such covenants and limitations are subject to a number of important
qualifications and exceptions. The Company must report periodically to the
Trustee on compliance with the covenants in the Indenture.
The Notes of this series are issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
The Notes are subject to the covenants set forth in the Indenture.
This Note shall be governed by and construed in accordance with the
law of the State of New York.
16
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay $____ principal amount of the within Note, pursuant to its terms, on
the "Put Option Exercise Date," together with any interest thereon accrued but
unpaid to the date of repayment, to the undersigned at:
(Please print or type name and address of the undersigned)
and to issue to the undersigned, pursuant to the terms of the Indenture, a new
Note or Notes representing the remaining aggregate principal amount of this
Note.
For this Option to Elect Repayment to be effective, this Note with the Option to
Elect Repayment duly completed must be received by the Trustee at c/o
_______________________________________________, no later than 5:00 p.m. on the
third Business Day immediately preceding September 30, 2004.
Dated: Signature:
-------------------- -----------------------------
Signature Guarantee:
-------------------
Note: The signature to this Option to Elect Repayment must correspond with the
name as written upon the face of the within Note without alteration or
enlargement or any change whatsoever.
17
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
18
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him or her.
Date:
-----------------------
Signature:
Signature
------------------------------
Guarantee:
-----------------------------
(Sign exactly as your name appears on the other side of this Note)
19
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
20
ARTICLE VII
ORIGINAL ISSUE OF NOTES
Section 7.1 Original Issue of Notes.
Notes in the aggregate principal amount of $1,400,000,000 (or,
$1,600,000,000, if the Underwriters' over-allotment option is exercised in full)
may from time to time, upon execution of this Second Supplemental Indenture, be
executed by the Company and delivered to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes to or upon the
written order of the Company pursuant to Section 2.2 of the Base Indenture
without any further action by the Company.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Notes as of the end of the year and (ii) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Ratification of Indenture.
The Indenture as supplemented by this Second Supplemental Indenture,
is in all respects ratified and confirmed, and this Second Supplemental
Indenture shall be deemed part of the Indenture in the manner and to the extent
herein and therein provided.
Section 8.2 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 makes no representation as to the validity or sufficiency of this
Second Supplemental Indenture.
Section 8.3 New York Law to Govern.
THIS SECOND SUPPLEMENTAL INDENTURE, EACH NOTE AND EACH COUPON SHALL BE
DEEMED TO BE NEW YORK CONTRACTS, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE (WITHOUT REFERENCE TO PRINCIPLES OF
CONFLICTS OF LAW).
Section 8.4 Separability.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Notes shall for any reason be held to be
invalid, illegal or unenforceable in any respect, then, to the extent permitted
by law, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Second Supplemental Indenture or of the Notes, but
21
this Second Supplemental Indenture and the Notes shall be construed as if such
invalid or illegal or unenforceable provision had never been contained herein or
therein.
Section 8.5 Counterparts.
This Second Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 8.6 Provisions of Base Indenture Not Applicable.
The provisions of Article XI of the Base Indenture shall not apply to
the Notes.
ARTICLE IX
REMARKETING
Section 9.1 Initial Remarketing Procedures.
(a) The Company will request, not later than seven nor more than 15
calendar days prior to the Initial Remarketing Date that the Clearing Agency
notify the Holders of the Notes and the Holders of Income PRIDES and Growth
PRIDES of the Initial Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the second
Business Day immediately preceding the Initial Remarketing Date, each Holder of
the Notes not constituting components of Income PRIDES may elect to have Notes
held by such Holder remarketed. Holders of Notes that are not a component of
Income PRIDES shall give notice of their election to have such Notes remarketed
to the Collateral Agent pursuant to the Pledge Agreement. Any such notice shall
be irrevocable after 5:00 P.M., New York City time, on the second Business Day
immediately preceding the Initial Remarketing Date and may not be conditioned
upon the level at which the Reset Rate is established. Promptly after 5:30 P.M.,
New York City time, on such second Business Day, the Trustee, based on the
notices received by it prior to such time (including notices from the Purchase
Contract Agent as to Purchase Contracts for which Cash Settlement has been
elected), shall notify the Company and the Remarketing Agent of the number of
Notes to be tendered for remarketing. Under Section 5.4 of the Purchase Contract
Agreement, Notes that constitute components of Income PRIDES will be remarketed
as provided therein and in this Section 9.1. The Notes constituting components
of Income PRIDES shall be deemed tendered, notwithstanding any failure by the
Holder of such Income PRIDES to deliver or properly deliver such Notes to the
Remarketing Agent for purchase.
(c) The right of each Holder to have Notes tendered for purchase
shall be limited to the extent that (i) the Remarketing Agent conducts a
remarketing pursuant to the terms of the Remarketing Agreement, (ii) Notes
tendered have not been called for redemption, (iii) the Remarketing Agent is
able to find a purchaser or purchasers for tendered Notes at a price per Note
such that the aggregate price for the Applicable Principal Amount of Notes is
not less than 100% of the Treasury Portfolio Purchase Price, and (iv) such
purchaser or purchasers deliver the purchase price therefor to the Remarketing
Agent as and when required.
22
(d) On the Initial Remarketing Date, the Remarketing Agent shall use
reasonable efforts to remarket, at a price per Note such that the aggregate
price for the Applicable Principal Amount of Notes is equal to approximately
100.5% of the Treasury Portfolio Purchase Price, Notes tendered or deemed
tendered for purchase.
(e) If there are no Income PRIDES outstanding and none of the Holders
elect to have Notes held by them remarketed, the Reset Rate shall be the rate
determined by the Reset Agent, subject to the terms of the Remarketing
Agreement, as the rate that would have been established had a remarketing been
held on the Initial Remarketing Date.
(f) If the Remarketing Agent has determined that it will be able to
remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New York City
time, on the Initial Remarketing Date, the Reset Agent, subject to the terms of
the Remarketing Agreement, shall determine the Reset Rate.
(g) If, by 4:00 P.M., New York City time, on the Initial Remarketing
Date, the Remarketing Agent is unable to remarket all Notes tendered or deemed
tendered for purchase or if the Initial Remarketing shall not have occurred
because a condition precedent to the Remarketing shall not have been fulfilled,
a failed remarketing ("Failed Initial Remarketing") shall be deemed to have
occurred and the Remarketing Agent shall so advise by telephone the Collateral
Agent, Company, Trustee, and Clearing Agency.
(h) By approximately 4:30 P.M., New York City time, on the Initial
Remarketing Date, provided that there has not been a Failed Initial Remarketing,
the Remarketing Agent shall advise, by telephone (i) the Collateral Agent, the
Company, Trustee, and Clearing Agency of the Reset Rate determined in the
Initial Remarketing and the aggregate principal amount of Notes sold in the
Initial Remarketing, (ii) each purchaser (or the Clearing Agency Participant
thereof) of the Reset Rate and the aggregate principal amount of Notes such
purchaser is to purchase and (iii) each purchaser to give instructions to its
Clearing Agency Participant to pay the purchase price on May 17, 2004 in same
day funds against delivery of the Notes purchased through the facilities of the
Clearing Agency.
(i) In accordance with the Clearing Agency's normal procedures, on
May 17, 2004, the transactions described above with respect to each Note
tendered for purchase and sold in the Initial Remarketing shall be executed
through the Clearing Agency, and the accounts of the respective Clearing Agency
Participants shall be debited and credited and such Notes delivered by book
entry as necessary to effect purchases and sales of such Notes. The Clearing
Agency shall make payment in accordance with its normal procedures.
(j) If any Holder selling Notes in the Initial Remarketing fails to
deliver such Notes, the Clearing Agency Participant of such selling Holder and
of any other Person that was to have purchased Notes in the Initial Remarketing
may deliver to any such other Person an aggregate principal amount of Notes that
is less than the aggregate principal amount of Notes that otherwise was to be
purchased by such Person. In such event, the aggregate principal amount of Notes
to be so delivered shall be determined by such Clearing Agency Participant, and
delivery of such lesser aggregate principal amount of Notes shall constitute
good delivery.
23
(k) The Remarketing Agent is not obligated to purchase any Notes in
the Initial Remarketing or otherwise. Neither the Trust, any Trustee, the
Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Notes for remarketing.
(l) The tender and settlement procedures set forth in this Section
9.1, including provisions for payment by purchasers of Notes in the Initial
Remarketing, shall be subject to modification, notwithstanding any provision to
the contrary set forth herein, to the extent required by the Clearing Agency or
if the book-entry system is no longer available for the Notes at the time of the
Initial Remarketing, to facilitate the tendering and remarketing of Notes in
certificated form. In addition, the Remarketing Agent may, notwithstanding any
provision to the contrary set forth herein, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
(m) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent shall have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes and they shall rely
solely upon written notice from the Company (which the Company agrees to provide
prior to the 10th Business Day before May 17, 2004) as to whether or not there
is any such limitation and, if so, the maximum permissible Reset Rate.
Section 9.2 Secondary Remarketing Procedures.
(a) If a Failed Initial Remarketing has occurred, the Company will
request, not later than seven nor more than 15 calendar days prior to the
Secondary Remarketing Date that the Clearing Agency notify the Holders of the
Notes and the Holders of Income PRIDES and Treasury Units of the Secondary
Remarketing and of the procedures that must be followed if a Holder of Notes
wishes to exercise such Holder's rights with respect to the Put Option if there
is a Failed Secondary Remarketing.
(b) Not later than 5:00 P.M., New York City time, on the second
Business Day immediately preceding the Secondary Remarketing Date, each Holder
of the Notes may elect to have Notes held by such Holder remarketed. Under
Section 5.5 of the Purchase Contract Agreement, Holders of Income PRIDES that do
not give notice of intention to make a Cash Settlement of their related Purchase
Contracts shall be deemed to have consented to the disposition of the Notes
constituting a component of such Income PRIDES. Holders of Notes that are not a
component of Income PRIDES shall give notice of their election to have such
Notes remarketed to the Custodial Agent pursuant to the Pledge Agreement. Any
such notice shall be irrevocable after 5:00 P.M., New York City time, on the
second Business Day immediately preceding the Secondary Remarketing Date and may
not be conditioned upon the level at which the Reset Rate is established.
Promptly after 5:30 P.M., New York City time, on such second Business Day, the
Trustee, based on the notices received by it prior to such time (including
notices from the Purchase Contract Agent as to Purchase Contracts for which Cash
Settlement has been elected), shall notify the Company and the Remarketing Agent
of the number of Notes to be tendered for remarketing.
24
(c) If any Holder of Income PRIDES does not give a notice of its
intention to make a Cash Settlement or gives a notice of election to tender
Notes as described in Section 9.2(b), the Notes of such Holder shall be deemed
tendered, notwithstanding any failure by such Holder to deliver or properly
deliver such Notes to the Remarketing Agent for purchase.
(d) The right of each Holder to have Notes tendered for purchase
shall be limited to the extent that (i) the Remarketing Agent conducts a
remarketing pursuant to the terms of the Remarketing Agreement, (ii) Notes
tendered have not been called for redemption, (iii) the Remarketing Agent is
able to find a purchaser or purchasers for tendered Notes at a price of not less
than 100% of the principal amount thereof, and (iv) such purchaser or purchasers
deliver the purchase price therefor to the Remarketing Agent as and when
required.
(e) If a Failed Initial Remarketing has occurred, on the Secondary
Remarketing Date, the Remarketing Agent shall use reasonable efforts to
remarket, at a price equal to approximately 100.5% of the aggregate principal
amount thereof, Notes tendered or deemed tendered for purchase.
(f) If none of the Holders elect or are deemed to have elected to
have Notes held by them remarketed, the Reset Rate shall be the rate determined
by the Reset Agent, subject to the terms of the Remarketing Agreement, as the
rate that would have been established had a remarketing been held on the
Secondary Remarketing Date.
(g) If the Remarketing Agent has determined that it will be able to
remarket all Notes tendered or deemed tendered prior to 4:00 P.M., New York City
time, on the Secondary Remarketing Date, the Reset Agent shall, subject to the
terms of the Remarketing Agreement, determine the Reset Rate.
(h) If, by 4:00 P.M., New York City time, on the Secondary
Remarketing Date, the Remarketing Agent is unable to remarket all Notes tendered
or deemed tendered for purchase or if the Secondary Remarketing shall not have
occurred because a condition precedent to the Secondary Remarketing shall not
have been fulfilled, a failed remarketing ("Failed Secondary Remarketing") shall
be deemed to have occurred and the Remarketing Agent shall so advise by
telephone the Collateral Agent, Company, Trustee, and Clearing Agency.
(i) By approximately 4:30 P.M., New York City time, on the Secondary
Remarketing Date, provided that there has not been a Failed Secondary
Remarketing, the Remarketing Agent shall advise, by telephone (i) the Collateral
Agent, the Company, Trustee, and Clearing Agency of the Reset Rate determined in
the Secondary Remarketing and the aggregate principal amount of Notes sold in
the Secondary Remarketing, (ii) each purchaser (or the Clearing Agency
Participant thereof) of the Reset Rate and the aggregate principal amount of
Notes such purchaser is to purchase and (iii) each purchaser to give
instructions to its Clearing Agency Participant to pay the purchase price on the
Purchase Contract Settlement Date in same day funds against delivery of the
Notes purchased through the facilities of the Clearing Agency.
(j) In accordance with the Clearing Agency's normal procedures, on
the Purchase Contract Settlement Date, the transactions described above with
respect to each Note tendered for purchase and sold in the Secondary Remarketing
shall be executed through the
25
Clearing Agency, and the accounts of the respective Clearing Agency Participants
shall be debited and credited and such Notes delivered by book entry as
necessary to effect purchases and sales of such Notes. The Clearing Agency shall
make payment in accordance with its normal procedures.
(k) If any Holder selling Notes in the Secondary Remarketing fails to
deliver such Notes, the Clearing Agency Participant of such selling Holder and
of any other Person that was to have purchased Notes in the Secondary
Remarketing may deliver to any such other Person an aggregate principal amount
of Notes that is less than the aggregate principal amount of Notes that
otherwise was to be purchased by such Person. In such event, the aggregate
principal amount of Notes to be so delivered shall be determined by such
Clearing Agency Participant, and delivery of such lesser aggregate principal
amount of Notes shall constitute good delivery.
(l) The Remarketing Agent is not obligated to purchase any Notes in
the Secondary Remarketing or otherwise. Neither the Trust, any Trustee, the
Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Notes for remarketing.
(m) The tender and settlement procedures set in this Section 9.2,
including provisions for payment by purchasers of Notes in the Secondary
Remarketing, shall be subject to modification, notwithstanding any provision to
the contrary set forth herein, to the extent required by the Clearing Agency or
if the book-entry system is no longer available for the Notes at the time of the
Secondary Remarketing, to facilitate the tendering and remarketing of Notes in
certificated form. In addition, the Remarketing Agent may, notwithstanding any
provision to the contrary set forth herein, modify the settlement procedures set
forth herein in order to facilitate the settlement process.
(n) Anything herein to the contrary notwithstanding, the Reset Rate
shall in no event exceed the maximum rate permitted by applicable law and, as
provided in the Remarketing Agreement, neither the Remarketing Agent nor the
Reset Agent shall have any obligation to determine whether there is any
limitation under applicable law on the Reset Rate or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes and they shall rely
solely upon written notice from the Company (which the Company agrees to provide
prior to the 10th Business Day before the Purchase Contract Settlement Date) as
to whether or not there is any such limitation and, if so, the maximum
permissible Reset Rate.
26
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed by their respective officers
thereunto duly authorized, on the date or dates indicated in the acknowledgments
and as of the day and year first above written.
ELECTRONIC DATA SYSTEMS CORPORATION,
as Issuer
By:
-------------------------------
Name:
Title:
Attest:
By:
-----------------------
Name:
Title:
-----------------------------------,
as Trustee
By:
-------------------------------
Name:
Title:
Attest:
By:
-----------------------
Name:
Title: