INDENTURE, dated as of April 24, 1998, between
Computer Associates International, Inc., a Delaware
corporation (the Company), and The Chase Manhattan
Bank, a New York banking corporation, as trustee (the
Trustee).
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of
(i) Holders of the Companys 61/4% Senior Notes Due
2003 (the 2003 Initial Securities) and, if and when
issued in exchange for 2003 Initial Securities as
provided in the Registration Rights Agreement (as
hereinafter defined), the Companys Series B 61/4%
Senior Notes Due 2003 (the 2003 Exchange Securities)
and if and when issued pursuant to a private exchange
for 2003 Initial Securities, the Companys Series C
61/4% Senior Notes Due 2003 (the 2003 Private
Exchange Securities and, together with the 2003
Initial Securities and the 2003 Exchange Securities,
the 2003 Securities), (ii) Holders of the Companys
6 3/8% Senior Notes Due 2005 (the 2005 Initial
Securities) and, if and when issued in exchange for
2005 Initial Securities as provided in the
Registration Rights Agreement, the Companys Series B
6 3/8% Senior Notes Due 2005 (the 2005 Exchange
Securities) and, if and when issued pursuant to a
private exchange for 2005 Initial Securities, the
Companys Series C 6 3/8%
Senior Notes Due 2005(the 2005 Private Exchange
Securities and, together with the
2005 Initial Securities and the 2005 Exchange
Securities, the 2005 Securities) and (iii) Holders of
the Companys 61/2% Senior Notes Due 2008 (the 2008
Initial Securities) and, if and when issued in
exchange for 2008 Initial Securities as provided in
the Registration Rights Agreement, the Companys
Series B 61/2% Senior Notes Due 2008 (the 2008
Exchange Securities) and, if and when issued
pursuant to a private exchange for 2008 Initial
Securities, the Companys Series C 61/2% Senior Notes
Due 2008 (the 2008 Private Exchange Securities and,
together with the 2008 Initial Securities and the
2008 Exchange Securities, the 2008 Securities):
ARTICLE I
Definitions and Incorporation by Reference
SECTION I.1. Definitions.
Additional Interest shall have the meaning
assigned to such term in the Registration Rights
Agreement.
Board of Directors means, with respect to any
Person, the Board of Directors of such Person or any
committee thereof duly authorized to act on behalf of
such Board of Directors.
Business Day means a day which is not, in New
York City, a Saturday, Sunday, legal holiday or other
day on which banking institutions are authorized or
obligated by law to close.
Code means the Internal Revenue Code of 1986,
as amended.
2
Consolidated Net Assets means as of any
particular time the aggregate amount of assets at the
end of the most recently completed fiscal quarter
after deducting therefrom all current liabilities
except for (a) notes and loans payable, (b) current
maturities of long-term debt and (c) current
maturities of obligations under capital leases, all
as set forth on the most recent quarter end (which
may be year end) consolidated balance sheet of
the Company and its consolidated Subsidiaries and
computed in accordance with GAAP.
Default means any event which is, or after notice
or passage of time or both would be, an Event of
Default.
Exchange Act means the Securities Exchange Act
of 1934, as amended.
Exchange Securities means collectively the 2003
Exchange Securities, the 2005 Exchange Securities and
the 2008 Exchange Securities.
GAAP means generally accepted accounting
principles in the United States of America as in
effect as of the Issue Date.
Holder or Securityholder means the Person in
whose name a Security is registered on the
Registrar's books.
Indenture means this Indenture, as amended or
supplemented from time to time.
Initial Purchasers means Credit Suisse First
Boston Corporation, Bear, Stearns & Co. Inc.,
BancAmerica Robertson Stephens Inc., Chase Securities
Inc. and NationsBanc Montgomery Securities LLC.
Initial Securities means collectively the 2003
Initial Securities, the 2005 Initial Securities and
the 2008 Initial Securities.
Issue Date means the date on which the Initial
Securities are originally issued.
Nonrecourse Obligation means indebtedness or
other obligations substantially related to (i) the
acquisition of assets not previously owned by the
Company or any Restricted Subsidiary or (ii) the
financing of a project involving the development or
expansion of properties of the Company or any
Restricted Subsidiary, as to which the obligee with
respect to such indebtedness or obligation has no
recourse to the Company or any Restricted Subsidiary
or any assets of the Company or any Restricted
Subsidiary other than the assets which were acquired
with the proceeds of such transaction or the project
financed with the proceeds of such transaction (and
the proceeds thereof).
Officer means the Chairman of the Board, the
President, any Vice President, the Treasurer, any
assistant Treasurer, the Controller, any assistant
Controller, the Secretary or any Assistant Secretary
of the Company, as applicable.
Officers Certificate means a certificate signed by
any two Officers.
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Opinion of Counsel means a written opinion from
Howard, Darby & Levin or any other legal counsel to
the Company who is reasonably acceptable to the
Trustee. The counsel may be an employee of or
counsel to the Company.
Person means any individual, corporation,
partnership, limited liability company, joint
venture, association, joint-stock company, trust,
unincorporated organization or government or any
agency or political subdivision thereof.
Principal of a Security means the principal of the
Security plus the premium, if any, payable on the
Security which is due or overdue or is to become due
at the relevant time; provided, however, that for
purposes of calculating any such premium, the
term principal shall not include the premium with
respect to which such calculation is being made.
Principal Property shall mean the land, land
improvements, buildings and fixtures (to the extent
they constitute real property interests) (including
any leasehold interest therein)constituting the
principal corporate office, any manufacturing plant
or any manufacturing facility (whether now owned or
hereafter acquired) which: (a) is owned by the
Company or any Subsidiary; (b) is located within any
of the present 50 States of the United States of
America (or the District of Columbia); (c) has not
been determined in good faith by the Board of
Directors of the Company not to be materially
important to the total business conducted by
the Company and its Subsidiaries taken as a whole;
and (d) has a book value on the date as of which the
determination is being made in excess of 0.75% of
Consolidated Net Assets of the Company as most
recently determined on or prior to such date
(including for purposes of such calculation the land,
land improvements, buildings and such fixtures
comprising such office, plant or facility, as the
case may be).
Private Exchange Securities means collectively the
2003 Private Exchange Securities, the 2005 Private
Exchange Securities and the 2008 Private Exchange
Securities.
Registration Rights Agreement means the
Registration Rights Agreement dated as of April 21,
1998 among the Company and the Initial Purchasers.
Restricted Subsidiary shall mean any Subsidiary
which owns any Principal Property; provided, however,
that the term Restricted Subsidiary shall not include
(a) any Subsidiary which is principally engaged in
leasing or in financing receivables,or which is
principally engaged in financing the Companys
operations outside the United States of America; or
(b) any Subsidiary less than 80% of the voting stock
of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by
the Company and one or more other Subsidiaries
if the common stock of such Subsidiary is traded on
any national securities exchange or quoted on the
Nasdaq National Market or in the over-the-counter
market. For purposes of this definition, voting
stock has the meaning specified in the definition of
Subsidiary, below.
SEC means the U.S. Securities and Exchange
Commission, or any successor agency.
4
Securities means the Initial Securities, the
Exchange Securities and the Private Exchange
Securities issued or to be issued under this
Indenture.
Stated Maturity means, with respect to any
security, the date specified in such security as the
fixed date on which the payment of principal of such
security is due and payable,including pursuant to any
mandatory redemption provision (but excluding any
provision providing for the repurchase of such
security at the option of the holder thereof upon the
happening of any contingency beyond the control of
the Company unless such contingency has occurred).
Subsidiary means a Person (other than an
individual), a majority of the outstanding voting
stock, partnership interests, membership interests or
other equity interest, as the case may be, of which
is owned or controlled, directly or indirectly, by
the Company or by one or more other Subsidiaries of
the Company. For the purposes of this definition,
voting stock means stock having voting power for the
election of directors, trustees or managers, as the
case may be, whether at all times or only so long
as no senior class of stock has such voting power by
reason of any contingency.
TIA means the Trust Indenture Act of 1939 (15
U.S.C. 77aaa-77bbbb) as in effect on the date of
this Indenture; provided, however, that, in the event
the Trust Indenture Act of 1939 is amended after such
date, TIA means, to the extent required by any such
amendments, the Trust Indenture Act of 1939
as so amended.
Trustee means the party named as such in this
Indenture until a successor replaces it and,
thereafter, means such successor.
Trust Officer means, when used with respect to
the Trustee, any officer in the office of the Trustee
including any Senior Trust Officer, vice president,
assistant vice president,assistant secretary,
treasurer, assistant treasurer, or any other
officer of the Trustee who customarily performs
functions similar to those performed by the Persons
who at the time shall be such officers, respectively,
or to whom any corporate trust matter is
referred because of such officers knowledge of and
familiarity with the particular subject.
Uniform Commercial Code means the New York Uniform
Commercial Code as in effect from time to time.
U.S. Government Obligations means direct obliga-
tions (or certificates representing an ownership
interest in such obligations) of the United States of
America (including any agency or instrumentality
thereof) for the payment of which the full faith
and credit of the United States of America is pledged
and which are not callable or redeemable at the
issuers option.
5
SECTION I.2. Other Definitions.
Defined in
Term Section
Affiliate 10.6
Appendix 2.1
Attributable Debt 4.3
Authenticating Agent 2.2
Bankruptcy Law 6.1
covenant defeasance option 8.1(b)
Custodian 6.1
Event of Default 6.1
legal defeasance option 8.1(b)
Registrar 2.3
Sale and Lease-Back 4.3
Successor Company 5.1
SECTION I.3. Incorporation by Reference of Trust
Indenture Act. This Indenture is subject to the
mandatory provisions of the TIA which are
incorporated by reference in and made a part of this
Indenture. The following TIA terms have the
following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Holder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means
the Trustee.
obligor on the indenture securities means the
Company and any other obligor on the indenture
securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by the TIA reference to
another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION I.4. Rules of Construction. Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has
the meaning assigned to it in accordance with GAAP;
6
(3) or is not exclusive;
(4) including means including without limitation;
(5) words in the singular include the plural and
words in the plural include the singular;
(6) all references to the date the Securities were
originally issued shall refer to the date the Initial
Securities were originally issued.
SECTION I.5. One Class of Securities.
(a) The 2003 Initial Securities, the 2003 Private
Exchange Securities and the 2003 Exchange Securities
shall vote and consent together on all matters as one
class and none of the 2003 Initial Securities, the
2003 Private Exchange Securities or the 2003 Exchange
Securities shall have the right to vote or consent as
a separate class on any matter. The 2003 Initial
Securities, the 2003 Private Exchange Securities and
the 2003 Exchange Securities shall together be
deemed to be a separate series under this Indenture.
(b) The 2005 Initial Securities, the 2005 Private
Exchange Securities and the 2005 Exchange Securities
shall vote and consent together on all matters as one
class and none of the 2005 Initial Securities, the
2005 Private Exchange Securities or the 2005 Exchange
Securities shall have the right to vote or consent as
a separate class on any matter. The 2005 Initial
Securities, the 2005 Private Exchange Securities and
the 2005 Exchange Securities shall together be deemed
to be a separate series under this Indenture.
(c) The 2008 Initial Securities, the 2008 Private
Exchange Securities and the 2008 Exchange Securities
shall vote and consent together on all matters as one
class and none of the 2008 Initial Securities, the
2008 Private Exchange Securities or the 2008 Exchange
Securities shall have the right to vote or consent as
a separate class on any matter. The 2008 Initial
Securities, the 2008 Private Exchange Securities and
the 2008 Exchange Securities shall together be deemed
to be a separate series under this Indenture.
ARTICLE II
The Securities
SECTION II.1. Form and Dating. Certain
provisions relating to the Initial Securities, the
Private Exchange Securities and the Exchange
Securities are set forth in the Rule 144A/Regulation
S Appendix attached hereto (the Appendix), which is
hereby incorporated in and expressly made a part of
this Indenture. The Initial Securities and the
Trustees certificate of authentication shall be
substantially in the form of Exhibit 1 to the
Appendix, which is hereby incorporated in and
expressly made a part of this Indenture. The
Exchange Securities, the Private Exchange Securities
and the Trustees certificate of authentication
shall be substantially in the form of Exhibit A,
which is hereby incorporated by reference and
expressly made a part of this Indenture. The
Securities may have notations, legends or
7
endorsements required by law, rule of any securities
exchange or over the counter market on which such
Securities are then listed or quoted, or usage, which
shall be provided by the Company in writing in
addition to those set forth on the Appendix and
Exhibit A. The Company and the Trustee shall approve
the forms of the Securities and any notation,
endorsement or legend on them in writing and the
Company shall deliver to the Trustee in writing the
form of such notation, endorsement or legend. Each
Security shall be dated the date of its
authentication. The terms of the Securities
set forth in the Appendix and Exhibit A are part of
the terms of this Indenture and, to the extent
applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly
agree to be bound by such terms.
SECTION II.2. Execution and Authentication.
Two Officers shall sign the Securities for the
Company by manual or facsimile signature and may be
imprinted or otherwise reproduced.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee
authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized
signatory of the Trustee manually authenticates the
Security. The signature of the Trustee on a Security
shall be conclusive evidence that such Security has
been duly and validly authenticated and issued under
this Indenture.
The Trustee may appoint an agent (the Authenticating
Agent) reasonably acceptable to the Company to
authenticate the Securities. Unless limited by the
terms of such appointment, any such Authenticating
Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes
authentication by such agent.
SECTION II.3. Registrar and Paying Agent. The
Company shall maintain an office or agency where
Securities may be presented for registration of
transfer or for exchange (the Registrar) and an
office or agency where Securities may be
presented for payment (the Paying Agent). The
Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have
one or more additional paying agents. The term
Paying Agent includes any such additional paying
agent.
In the event the Company shall retain any Person not
a party to this Indenture as an agent hereunder, the
Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a
party to this Indenture, which shall incorporate
the terms of the TIA. The agreement shall implement
the provisions of this Indenture that relate to such
agent. The Company shall notify the Trustee of the
name and address of each such agent. If the Company
fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section
7.7. The Company shall be responsible for the fees
and compensations of all agents appointed or approved
by it. The Company or any of its domestically
incorporated wholly owned Subsidiaries may act as
Paying Agent.
<PAGE 8>
The Company initially appoints the Trustee as
Registrar and Paying Agent for the Securities.
SECTION II.4. Paying Agent To Hold Money in
Trust. By no later than 1:00 p.m. (New York City
time) on the date on which any Principal or interest
(including any Additional Interest) on any Security
is due and payable, the Company shall deposit with
the Paying Agent a sum sufficient to pay such
Principal or interest (including any Additional
Interest) when due. The Company shall require each
Paying Agent (other than the Trustee) to agree in
writing that such Paying Agent shall hold in trust
for the benefit of Securityholders or the Trustee all
money held by such Paying Agent for the payment of
Principal of or interest (including any Additional
Interest) on the Securities and shall notify the
Trustee of any default by the Company in making any
such payment. If the Company or a Subsidiary acts as
Paying Agent, it shall segregate the money held by it
as Paying Agent and hold it as a separate trust fund.
The Company at any time may require a Paying Agent
(other than the Trustee) to pay all money held by it
to the Trustee and to account for any funds disbursed
by such Paying Agent. Upon complying with this
Section, the Paying Agent (if other than the Company
or a Subsidiary) shall have no further liability for
the money delivered to the Trustee. Upon any
bankruptcy, reorganization or similar proceeding with
respect to the Company, the Trustee shall serve as
Paying Agent for the Securities.
SECTION II.5. Securityholder Lists. The Trustee
shall preserve in as current a form as is reasonably
practicable the most recent list available to it of
the names and addresses of Securityholders. If the
Trustee is not the Registrar, the Company shall cause
the Registrar to furnish to the Trustee, in writing
at least five Business Days before each interest
payment date and at such other times as the Trustee
may request in writing, a list in such form and as of
such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION II.6. Business Days. If a payment date is
on a date that is not a Business Day, payment shall
be made on the next succeeding day that is a Business
Day, and no interest shall accrue on such payment for
the intervening period. If a regular record date is
on a day that is not a Business Day, the record date
shall not be affected.
SECTION II.7. Replacement Securities.
If a mutilated Security is surrendered to the
Registrar or if the Holder of a Security shall
provide the Company and the Trustee with evidence to
their satisfaction that the Security has been lost,
destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a
replacement Security if the requirements of Section
8-405 of the Uniform Commercial Code are met and the
Holder satisfies any other reasonable requirements
of the Trustee. In addition, such Holder shall
furnish an indemnity bond sufficient in the judgment
of the Company and the Trustee to protect the
Company, the Trustee, the Paying Agent and the
Registrar from any loss which any of them may suffer
if a Security is replaced. The Company and the
Trustee may charge the Holder for their expenses in
replacing a Security, including reasonable fees
and expenses of counsel. Every replacement Security
is an additional obligation of the Company.
<PAGE 9>
SECTION II.8. Outstanding Securities. Securities
outstanding at any time are all Securities
authenticated by the Trustee except for those
canceled, those delivered for cancellation
and those described in this Section 2.8 as not
outstanding. A Security does not cease to be
outstanding because the Company or an Affiliate of
the Company holds the Security.
If a Security is replaced pursuant to Section 2.7, it
ceases to be outstanding unless the Trustee and the
Company receive proof satisfactory to them that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date
or maturity date money sufficient to pay all
Principal and interest payable on that date with
respect to the Securities (or portions thereof) to be
redeemed or maturing, as the case may be, then on and
after that date such Securities (or portions thereof)
cease to be outstanding and interest on them ceases
to accrue.
SECTION II.9. Temporary Securities. Until
definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary
Securities shall be substantially in the form of
definitive Securities but may have variations that
the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate
definitive Securities. After the preparation of
definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon
surrender of the temporary Securities at any office
or agency maintained by the Company for that purpose
and such exchange shall be without charge to the
Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Company shall
execute, and the Trustee shall authenticate and
deliver in exchange therefor, one or more definitive
Securities representing an equal principal amount of
Securities. Until so exchanged, the Holder of
temporary Securities shall in all respects
be entitled to the same benefits under this Indenture
as a Holder of definitive Securities.
SECTION II.10. Cancellation. The Company at
any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent
shall forward to the Trustee for cancellation any
Securities surrendered to them for registration of
transfer or exchange or payment. The Trustee and no
one else shall cancel and destroy (subject to the
record retention requirements of the Exchange Act)
all Securities surrendered for registration of
transfer or exchange, payment or cancellation and
deliver a certificate of such destruction to the
Company. The Company may not issue new Securities to
replace Securities it has redeemed, paid or delivered
to the Trustee for cancellation, which shall not
prohibit the Company from issuing Exchange Securities
or Private Exchange Securities in exchange for
Initial Securities.
SECTION II.11. Defaulted Interest. If the Company
defaults in a payment of interest on the Securities,
the Company shall pay defaulted interest plus
interest on such defaulted interest to the extent
lawful at the rate specified therefor in the
Securities in any lawful manner. The Company may pay
the defaulted interest to the Persons who are
Securityholders on a subsequent special record date.
The Company shall fix or cause to be fixed any such
special record date and payment date to the
reasonable satisfaction of the Trustee which
<PAGE 10>
specified record date shall not be less than 10 days
prior to the payment date for such defaulted interest
and shall promptly mail or cause to be mailed to
each Securityholder a notice that states the special
record date, the payment date and the amount of
defaulted interest to be paid. The Company shall
notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each
Security and the date of the proposed payment, and at
the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such
defaulted interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money
when so deposited to be held in trust for the benefit
of the Person entitled to such defaulted interest as
provided in this Section 2.11.
SECTION II.12. CUSIP Numbers. The Company in
issuing the Securities may use CUSIP numbers (if
then generally in use) and, if so, the Trustee shall
use CUSIP numbers in notices of redemption as a
convenience to Holders, provided, however, that any
such notice may state that no representation is
made as to the correctness of such numbers either as
printed on the Securities or as contained in any
notice of a redemption and that reliance may be
placed only on the other identification numbers
printed on the Securities, and any such redemption
shall not be affected by any defect in or omission of
such numbers.
ARTICLE III
Redemption
SECTION III.1. Notices to Trustee. If the
Company elects to redeem Securities pursuant to
Section 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the
principal amount of Securities to be redeemed.
The Company shall give each notice to the Trustee
provided for in this Section at least 60 days (45
days in the case of redemption of all the Securities
of any series) before the redemption date unless the
Trustee consents to a shorter period. Such notice
shall be accompanied by an Officers Certificate from
the Company to the effect that such redemption will
comply with the conditions herein. The record date
relating to such redemption shall be selected by the
Company and set forth in the related notice given to
the Trustee, which record date shall be not less than
15 days prior to the date selected for redemption by
the Company.
SECTION III.2. Selection of Securities To Be
Redeemed. If fewer than all the Securities of any
series then outstanding are to be redeemed, the
Trustee shall select the Securities of such series to
be redeemed by a method that complies with applicable
legal and securities exchange requirements, if any,
and that the Trustee considers to be fair and
appropriate in accordance with methods generally used
at the time of selection by fiduciaries in similar
circumstances. The Trustee shall make the
selection from outstanding Securities of such series
not previously called for redemption. The Trustee
may select for redemption portions of the principal
of Securities that have denominations larger than
$1,000. Securities and portions of them that the
Trustee selects shall be in amounts of $1,000 or a
<PAGE 11>
whole multiple of $1,000. Provisions of this
Indenture that apply to Securities called for
redemption also apply to portions of Securities
called for redemption. The Trustee shall notify the
Company of the Securities or portions of Securities
to be redeemed.
SECTION III.3. Notice of Redemption. At least 30
days but not more than 60 days before a date for
redemption of Securities, notice of redemption shall
be mailed by first-class mail to each Holder of
Securities to be redeemed.
The notice shall identify the Securities to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price (or the method of
calculating such price) and the amount of accrued
interest to be paid, if any;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price plus accrued and unpaid interest, if
any;
(5) if fewer than all the outstanding Securities of
any series are to be redeemed, the Bond No. (if
certificated) and principal amounts of the particular
Securities to be redeemed;
(6) that, unless the Company defaults in making
such redemption payment, interest on Securities (or
portion thereof) called for redemption ceases to
accrue on and after the redemption date;
(7) the CUSIP number, if any, printed on the
Securities being redeemed; and
(8) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Securities.
At the Companys request, the Trustee shall give the
notice of redemption in the Companys name and at the
Companys expense. In such event, the Company shall
provide the Trustee with the information required by
this Section 3.3.
SECTION III.4. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance
with Section 3.3, Securities called for redemption
shall become due and payable on the redemption date
and at the redemption price as stated in the
notice. Upon surrender to the Paying Agent on or
after the redemption date, such Securities shall be
paid at the redemption price stated in the notice,
plus accrued and unpaid interest to the redemption
date; provided that the Company shall have deposited
the redemption price with the Paying Agent or the
Trustee on or before 1:00 p.m. (New York City time)
on the date of redemption; provided, further, that if
the redemption date is after a regular record date
and on or prior to the interest payment date, the
accrued and unpaid interest shall be payable to the
<PAGE 12>
Securityholder of the redeemed Securities registered
on the relevant record date. Failure to give notice
or any defect in the notice to any Holder shall
not affect the validity of the notice to any other
Holder.
SECTION III.5. Deposit of Redemption Price. By
no later than 1:00 p.m. (New York City time) on the
date of redemption, the Company shall deposit with
the Paying Agent (or, if the Company or a Subsidiary
is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price
of and accrued and unpaid interest on all Securities
to be redeemed on that date other than Securities or
portions of Securities called for redemption which
are owned by the Company or a Subsidiary and
have been delivered by the Company or such Subsidiary
to the Trustee for cancellation.
Unless the Company defaults in the payment of such
redemption price, interest on the Securities to be
redeemed will cease to accrue on and after the
applicable redemption date, whether or not such
Securities are presented for payment.
SECTION III.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in
part, the Company shall execute and the Trustee shall
authenticate for the Holder thereof (at the Companys
expense) a new Security of the same series, equal in
a principal amount to the unredeemed portion of the
Security surrendered.
ARTICLE IV
Covenants
SECTION IV.1. Payment of Securities. The
Company shall promptly pay the Principal of and
interest (including Additional Interest) on the
Securities on the dates and in the manner provided in
the Securities and in this Indenture. Principal
and interest (including Additional Interest) shall be
considered paid on the date due if, on or before 1:00
p.m. (New York City time) on such date, the Trustee
or the Paying Agent (or, if the Company or a
Subsidiary is the Paying Agent, the segregated
account or separate trust fund maintained by the
Company or such Subsidiary pursuant to Section 2.4)
holds in accordance with this Indenture money
sufficient to pay all Principal and interest
(including Additional Interest) then due. If any
Additional Interest is due, the Company
shall deliver an Officers Certificate to the Trustee
setting forth the Additional Interest per $1,000
aggregate principal amount of Securities.
The Company shall pay interest on overdue principal
at the rate specified therefor in the Securities, and
it shall pay interest on overdue installments of
interest at the same rate to the extent lawful as
provided in Section 2.11.
Notwithstanding anything to the contrary contained
in this Indenture, the Company or the Paying Agent
may, to the extent it is required to do so by law,
deduct or withhold income or other similar taxes
imposed by the United States of America or
other domestic or foreign taxing authorities from
Principal or interest payments hereunder.
<PAGE 13>
SECTION IV.2. Limitations on Liens. (a) So long
as any Securities remain outstanding, the Company
will not, nor will it permit any Restricted
Subsidiary to, issue, incur, create, assume or
guarantee any debt for borrowed money(hereinafter in
this Article 4 referred to as Debt) secured by a
mortgage, security interest, pledge, lien, charge or
other encumbrance (mortgages, security interests,
pledges, liens, charges and other encumbrances
being hereinafter in this Article 4 referred to as
mortgage or mortgages) upon any Principal Property of
the Company or any Restricted Subsidiary or upon any
shares of stock or Debt of any Restricted Subsidiary
(whether such Principal Property, shares of
stock or Debt are now existing or owed or hereafter
created or acquired) without in any such case
effectively providing, concurrently with the
issuance, incurrence, creation, assumption or
guaranty of any such secured Debt, or the grant of a
mortgage with respect to any such Debt to be so
secured, that the Securities (together with, if the
Company shall so determine, any other indebtedness of
or guarantee by the Company or such Restricted
Subsidiary ranking equally with the Securities) shall
be secured equally and ratably with (or, at the
Companys option, prior to) such Debt to be so
secured; provided, however, that the foregoing
restrictions shall not apply to:
(1) mortgages on property, shares of stock
or indebtedness or other assets of any corporation
existing at the time such corporation becomes a
Restricted Subsidiary, provided that such mortgages
or liens are not incurred in anticipation of such
corporation becoming a Restricted Subsidiary;
(2) mortgages on property, shares of stock
or indebtedness existing at the time of acquisition
thereof by the Company or a Restricted Subsidiary
(which may include property previously leased by the
Company and leasehold interests thereon; provided
that the lease terminates prior to or upon the
acquisition) or mortgages thereon to secure the
payment of all or any part of the purchase price
thereof, or mortgages on property, shares of stock or
indebtedness to secure any Debt incurred prior to, at
the time of, or within 270 days after, the latest of
the acquisition thereof, or, in the case of property,
the completion of construction, the completion of
improvements or the commencement of substantial
commercial operation of such property for the
purpose of financing all or any part of the purchase
price thereof, such construction or the making of
such improvements;
(3) mortgages securing Debt owing to the Company or
to a Restricted Subsidiary;
(4) mortgages existing on the Issue Date;
(5) mortgages on property or other assets of
a corporation existing at the time such corporation
is merged into or consolidated with the Company or a
Restricted Subsidiary or at the time of a sale, lease
or other disposition of the properties of a
corporation as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary,
provided that such mortgage was not incurred in
anticipation of such merger or consolidation or
sale, lease or other disposition;
<PAGE 14>
(6) mortgages in favor of the United States
of America or any State, territory or possession
thereof (or the District of Columbia), or any
department, agency, instrumentality or political
subdivision of the United States of America or any
State, territory or possession thereof (or
the District of Columbia), to secure partial,
progress, advance or other payments pursuant to any
contract or statute or to secure any Debt incurred
for the purpose of financing all or any part of the
purchase price or the cost of construction or
improvement of the property subject to such
mortgages;
(7) mortgages created in connection with a
project financed with, and created to secure, a
Nonrecourse Obligation;
(8) mortgages securing all of the Securities; or
(9) any extension, renewal or replacement
(or successive extensions, renewals or replacements),
in whole or in part, of any mortgage referred to in
the foregoing clauses (1) to (8), inclusive, without
increase of the principal of the Debt secured
thereby; provided, however, that such extension,
renewal or replacement shall be limited to all or a
part of the property which secured the mortgage
extended, renewed or replaced (plus improvements on
such property).
(b) Notwithstanding the foregoing provisions of this
Section 4.2, the Company and any one or more
Restricted Subsidiaries may (without equally and
ratably securing the Securities) issue, incur,
create, assume or guarantee Debt secured by mortgages
which would otherwise be subject to the foregoing
restrictions (Exempted Secured Debt), in an
aggregate amount which, together with all other
outstanding Debt of the Company and its Restricted
Subsidiaries secured by mortgages which (if
originally issued, incurred, created, assumed or
guaranteed at such time) would otherwise be subject
to the foregoing restrictions (not including such
Debt which is permitted to be secured under any of
clauses (1) through (9) above), does not at the time
exceed the greater of $300,000,000 and 10% of
Consolidated Net Assets of the Company.
SECTION IV.3. Limitation on Sale and Lease-Back
Transactions. (a) So long as any Securities remain
outstanding the Company will not, nor will it permit
any Restricted Subsidiary to, enter into any direct
or indirect arrangement with any person that provides
for the leasing to the Company or any Restricted
Subsidiary of any Principal Property (except for such
transactions (i) entered into prior to the Issue
Date; (ii) between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries; (iii)
under which the rent payable pursuant to such
lease is to be reimbursed under a contract with the
United States Government or any instrumentality or
agency thereof; (iv) involving leases for no longer
than three years; or (v) in which the lease for
the property or asset is entered into within 270 days
after the later of the date of acquisition,
completion of construction or commencement of full
operations of such property or asset), which
<PAGE 15>
Principal Property has been or is to be sold or
transferred by the Company or such Restricted
Subsidiary to such person (subject to such exceptions
in the preceding clauses (i) through (v), such
arrangement being referred to as a "Sale and Lease-
Back"), unless:
(1) the Company or such Restricted
Subsidiary would be entitled, pursuant to the
provisions of Section 4.2, to issue, incur, create,
assume or guarantee Debt secured by a mortgage upon
such property at least equal in amount to the
Attributable Debt in respect of such Sale and Lease-
Back without equally and ratably securing the
Securities; or
(2) the proceeds of the sale of the Principal
Property to be leased are at least equal to their
fair market value and such proceeds are applied
within 180 days of the effective date of such Sale
and Lease-Back to the purchase, construction,
development or acquisition of assets or to the
repayment of indebtedness of the Company.
(b) For the purposes of this Section 4.3, the term
Attributable Debt with respect to a Sale and Lease-
Back involving a Principal Property means, at the
time of determination, the lesser of:
(1) the fair value of the property which is
the subject of such Sale and Lease-Back (as
determined in good faith by the Board of Directors of
the Company); or
(2) the present value of the total net amount
of rent required to be paid under such Sale and
Lease-Back during the remaining term thereof
(including any renewal term or period for which such
lease has been extended), discounted at the rate of
interest set forth or implicit in the terms of such
Sale and Lease-Back or, if not practicable to
determine such rate, the weighted average interest
rate per annum borne by the Securities of each series
outstanding pursuant to this Indenture compounded
semi-annually in either case as determined by the
principal accounting or financial officer of the
Company. For purposes of this definition, rent shall
not include amounts required to be paid by the
lessee, whether or not designated as rent or
additional rent, on account of or contingent upon
maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. In the
case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall
be the lesser of (i) the net amount determined
assuming termination upon the first date such lease
may be terminated (in which case the net amount
shall also include the amount of the penalty, but no
rent shall be considered as required to be paid under
such lease subsequent to the first date upon which it
may be so terminated) or (ii) the net amount
determined assuming no such termination.
SECTION IV.4. Compliance Certificate. The
Company shall deliver to the Trustee within 120 days
after the end of each fiscal year of the Company an
Officers Certificate signed by the chief executive
officer, the chief financial officer or the chief
accounting officer stating that in the course of the
performance by the signers of their duties as
<PAGE 16>
Officers of the Company they would normally have
knowledge of any Default or Event of Default and
whether or not the signers know of any Default or
Event of Default that occurred during such period.
If they do, the certificate shall describe the
Default or Event of Default, its status and what
action the Company is taking or proposes to take with
respect thereto. The Company also shall comply with
TIA 314(a)(4).
SECTION IV.5. Further Instruments and Acts.
Upon reasonable request of the Trustee, the Company
will execute and deliver such further instruments and
do such further acts as may be reasonably necessary
or proper to carry out more effectively the
purpose of this Indenture.
SECTION IV.6. Maintenance of Office or Agency.
The Company shall maintain the office or agency
required under Section 2.3. The Company shall give
prior written notice to the Trustee of the location,
and any change in the location, of such office or
agency. If at any time the Company shall fail to
maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands
may be made or served at the address of the
Trustee set forth in Section 10.2.
SECTION IV.7. Corporate Existence. Except as
otherwise permitted by Article V, the Company shall
do or cause to be done all things necessary to
preserve and keep in full force and effect its
corporate existence.
SECTION IV.8. SEC Reports. The Company will
comply with all the applicable provisions of TIA
314(a).
ARTICLE V
Successor Company
SECTION V.1. When the Company May Merge or
Transfer Assets. The Company will not consolidate
with or sell, lease or convey its assets as, or
substantially as, an entirety, to, or merge with or
into, in one transaction or a series of related
transactions, any other Person, unless:
(i) the Company shall be the continuing entity, or
the resulting, surviving or transferee Person (the
Successor) shall be a Person organized and existing
under the laws of the United States of America, any
State thereof or the District of Columbia and the
Successor (if not the Company) shall expressly
assume, by supplemental indenture, executed and
delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under the
Securities and this Indenture;
(ii) immediately after giving effect to such
transaction, no Default or Event of Default shall
have occurred and be continuing; and
<PAGE 17>
(iii) the Company shall have delivered to the Trustee
an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger
or transfer and such supplemental indenture (if any)
comply with this Indenture and that such supplemental
indenture constitutes the legal valid and binding
obligation of the Company subject to customary
exceptions.
Upon any consolidation or merger, or any sale or
lease of the assets of the Company as, or
substantially as, an entirety in accordance with the
provisions of this Indenture, the entity formed by
such consolidation or into which the Company
shall have been merged or to which such sale or lease
shall have been made shall succeed to and be
substituted for the Company with the same effect as
if it had been named in the Indenture as a
party thereto and thereafter from time to time such
successor entity may exercise each and every right
and power of the Company under the Indenture in the
name of the Company or in its own name; and
any act or proceeding by any provision of the
Indenture required or permitted to be done by the
Board of Directors or any Officer of the Company may
be done with like force and effect by the like
board (or other governing body) or officer (or
comparable authorized person) of any entity that
shall at the time be the successor of the Company
hereunder. In the event of the sale by
the Company of its assets as, or substantially as, an
entirety upon the terms and conditions of the
Indenture, the Company shall be released from all its
liabilities and obligations under the Indenture and
the Securities, but the predecessor Company in the
case of a lease of all its assets or substantially
all its assets will not be released from the
obligation to pay the Principal of and interest on
the Securities.
ARTICLE VI
Defaults and Remedies
SECTION VI.1. Events of Default. An Event of
Default occurs with respect to any series of
Securities if:
(1) the Company defaults in any payment of interest
on any Security of such series when the same becomes
due and payable, and such default continues for a
period of 30 days;
(2) the Company defaults in the payment of the
principal of any Security of such series when the
same becomes due and payable at its Stated Maturity,
upon optional redemption, upon declaration or
otherwise;
(3) the Company fails to comply with any of its
agreements in the Securities of such series or this
Indenture as it relates to such series (other than
those referred to in (1) or (2) above) and such
failure continues for 90 days after the notice
specified below;
(4) the Company fails to make any payment at
maturity, including any applicable grace period, in
respect of obligations (other than the Securities of
such series or non-recourse obligations) of the
Company for borrowed money or evidenced by bonds,
<PAGE 18>
debentures, notes or similar instruments
(Indebtedness) in an amount in excess of
$25,000,000 or the equivalent thereof in any other
currency or composite currency and such failure shall
have continued for 30 days after the notice specified
below;
(5) a default with respect to any Indebtedness,
which default results in the acceleration of
Indebtedness in an amount in excess of $25,000,000 or
the equivalent thereof in any other currency or
composite currency without such Indebtedness having
been discharged or such acceleration having been
cured, waived, rescinded or annulled for a period of
30 days after the notice specified below;
(6) the Company pursuant to or within the meaning
of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for
relief against it in an involuntary case in which it
is the debtor;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of
its creditors; or takes any comparable action under
any foreign laws relating to insolvency;
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case;
(B) appoints a Custodian of the Company or
for any substantial part of its property; or
(C) orders the winding up or liquidation of the
Company;(or any similar relief is granted under any
foreign laws) and the order, decree or relief remains
unstayed and in effect for 60 consecutive days;
The foregoing will constitute Events of Default
whatever the reason for any such Event of Default and
whether it is voluntary or involuntary or is effected
by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or
regulation of any administrative or governmental
body.
The term Bankruptcy Law means Title 11, United
States Code, or any similar Federal or state law for
the relief of debtors. The term Custodian means any
receiver, trustee,assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
<PAGE 19>
If any failure, default or acceleration referred to
in clauses (4) or (5) above shall cease or be cured,
waived, rescinded or annulled, then the Event of
Default hereunder by reason thereof shall be deemed
likewise to have been thereupon cured.
A Default with respect to any series of Securities
under clauses (3), (4) or (5) of this Section 6.1 is
not an Event of Default with respect to such series
until the Trustee (by notice to the Company) or the
Holders of at least 25% in aggregate principal
amount of the outstanding Securities of such series
(by notice to the Company and the Trustee) gives
notice of the Default and the Company does not cure
such Default within the time specified in said clause
(3), (4) or (5) after receipt of such notice. Such
notice must specify the Default, demand that it be
remedied and state that such notice is a Notice of
Default.
The Company shall deliver to the Trustee, within 30
days after the occurrence thereof, written notice in
the form of an Officers Certificate of any event
which with the giving of notice or the lapse of time
would become an Event of Default under clause
(3), (4) or (5) of this Section 6.1 and what action
the Company is taking or proposes to take with
respect thereto.
SECTION VI.2. Acceleration. If an Event of
Default with respect to any series of Securities
(other than an Event of Default specified in Section
6.1(6) or (7)) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least
25% in aggregate principal amount of the outstanding
Securities of such series by notice to the Company
and the Trustee, may declare the Principal of and
accrued but unpaid interest on all the Securities of
such series to be due and payable. Upon such a
declaration, such Principal and interest shall be due
and payable immediately. If an Event of Default
specified in Section 6.1(6) or (7) occurs and is
continuing, the Principal of and accrued interest
on all the Securities of such series shall ipso facto
become and be immediately due and payable without any
declaration or other act on the part of the Trustee
or any Holders. The Holders of a majority in
aggregate principal amount of the outstanding
Securities of such series by notice to the Trustee
may rescind an acceleration and its consequences if
the rescission would not conflict with any
judgment or decree (other than a judgment or decree
for the payment of Principal or interest or monies
due on the Securities) and if all existing Events of
Default have been cured or waived except nonpayment
of Principal or interest that has become due
solely because of such acceleration and the Trustee
has been paid all amounts due to it pursuant to
Section 7.7. No such rescission shall affect any
subsequent Default or impair any right consequent
thereto.
SECTION VI.3. Other Remedies. If an Event of
Default with respect to any series of Securities
occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of Principal
of or interest on the Securities of such series or to
enforce the performance of any provision of the
Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities of such series
or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any
Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or
<PAGE 20>
acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available
remedies are, to the extent permitted by law,
cumulative.
SECTION VI.4. Waiver of Past Defaults. The
Holders of a majority in aggregate principal amount
of the Securities of any series then outstanding by
notice to the Trustee may waive any past or existing
Default with respect to such series and its
consequences except (i) a Default in the payment of
the Principal of or interest on a Security of such
series or (ii) a Default in respect of a provision
that under Section 9.2 cannot be amended without the
consent of each Securityholder affected. When a
Default is waived, it is deemed cured, and any Event
of Default arising therefrom shall be deemed to have
been cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent
right.
SECTION VI.5. Control by Majority. Upon provision
of reasonable indemnity to the Trustee satisfactory
to the Trustee, the Holders of a majority in
aggregate principal amount of the Securities of any
series then outstanding may direct the time,
method and place of conducting any proceeding for any
remedy available to the Trustee with respect to such
series or of exercising any trust or power conferred
on the Trustee with respect to such series. However,
the Trustee, which may rely on opinions of counsel,
may refuse to follow any direction that conflicts
with law or this Indenture or, subject to Section
7.1, that the Trustee determines is unduly rejudicial
to the rights of other Securityholders of such series
or any other series or would involve the Trustee in
personal liability; provided, however,
that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with
such direction.
SECTION VI.6. Limitation on Suits. A Holder of
Securities of any series may not pursue any remedy
with respect to this Indenture or the Securities of
such series unless:
(i) the Holder gives to the Trustee previous
written notice stating that an Event of
Default with respect to such series is continuing;
(ii) the Holders of at least 25% in aggregate
principal amount of the Securities of such series
then outstanding make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer to the Trustee
reasonable security or indemnity against any loss,
liability or expense;
(iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the
offer of security or indemnity; and
(v) the Holders of a majority in aggregate principal
amount of the Securities of such series then
outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day
period.
<PAGE 21>
A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder or to
obtain a preference or priority over another
Securityholder.
SECTION VI.7. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this
Indenture, the right of any Holder to receive payment
of Principal of and interest on the Securities held
by such Holder, on or after the respective due dates
expressed in the Securities, or to bring suit for
the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION VI.8. Collection Suit by Trustee. If an
Event of Default specified in Section 6.1(1) or (2)
occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express
trust against the Company for the whole amount then
due and owing (together with interest on any unpaid
interest to the extent lawful) and the amounts
provided for in Section 7.7.
SECTION VI.9. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other
papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the
Securityholders allowed in any judicial proceedings
relative to the Company, its creditors or its
property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any
election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by
each Holder to make payments to the Trustee and, in
the event that the Trustee shall consent to the
making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel,
and any other amounts due the Trustee under Section
7.7.
SECTION VI.10. Priorities. If the Trustee collects
any money or property pursuant to this Article VI, it
shall pay out the money or property in the following
order:
FIRST: to the Trustee for amounts due under
Section 7.7;
SECOND: to Securityholders for amounts due and
unpaid on the Securities for Principal and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the
Securities for Principal and interest, respectively;
and
THIRD: to the Company.
The Trustee may fix a record date and payment date
for any payment to Securityholders pursuant to this
Section 6.10. At least 15 days before such record
date, the Company shall mail to each Securityholder
and the Trustee a notice that states the record
date, the payment date and amount to be paid.
<PAGE 22>
SECTION VI.11. Undertaking for Costs. In any
suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court
in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its
discretion may assess reasonable costs, including
reasonable attorneys fees and expenses, against any
party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made
by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.7 or a suit by Holders
of more than 10% in aggregate principal amount of the
outstanding Securities of any series.
SECTION VI.12. Waiver of Stay or Extension Laws.
The Company (to the extent it may lawfully do so)
shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and shall not
hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no
such law had been enacted.
ARTICLE VII
Trustee
SECTION VII.1. Duties of Trustee. (a) If an Event
of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested
in it by this Indenture and use the same degree of
care and skill in their exercise as a prudent
Person would exercise or use under the circumstances
in the conduct of such Persons own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth
in this Indenture and no implied covenants or
obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon Officers Certificates and
Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture.
However, in the case of any such Officers
Certificates and Opinions of Counsel which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine
such Officers Certificates and Opinions of Counsel to
determine whether or not they conform to the
requirements of this Indenture.
<PAGE 23>
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except
that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Trust
Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with
respect to any action it takes or omits to take in
good faith in accordance with a direction received by
it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs
(a), (b) and (c) of this Section.
(e) Money held in trust by the Trustee need not be
segregated from other funds except to the extent
required by law.
(f) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise
incur financial liability in the performance of any
of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable
grounds to believe that repayment of such funds or
adequate indemnity against such risk or liability is
not reasonably assured to it.
(g) Every provision of this Indenture relating to
the conduct or affecting the liability of or ffording
protection to the Trustee shall be subject to the
provisions of this Section 7.1 and to the provisions
of the TIA.
SECTION VII.2. Rights of Trustee. (a) The
Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any
fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers Certificate or an Opinion
of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in
reliance on the Officers Certificate or Opinion
of Counsel.
(c) The Trustee may act through agents and shall
not be responsible for the misconduct or negligence
of any agent appointed with due care.
(d) The Trustee shall not be liable for any action
it takes or omits to take in good faith which it
believes to be authorized or within its rights or
powers; provided, however, that the Trustees conduct
does not constitute wilful misconduct or negligence.
24
(e) The Trustee may consult with counsel
of its selection, and the advice or opinion of
counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and
complete authorization and protection from liability
in respect to any action taken, omitted or suffered
by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and
liabilities which might be incurred by it in
compliance with such request or direction.
(g) The Trustee shall not be charged with
knowledge of any Default or Event of Default with
respect to the Securities unless either (1) a Trust
Officer shall have actual knowledge of such Default
or Event of Default or (2)written notice of such
Default or Event of Default shall have been given to
a Trust Officer of the Trustee by the Company or any
other obligor on the Securities or by any Holder of
the Securities.
SECTION VII.3. Individual Rights of Trustee. The
Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may
otherwise deal with the Company with the same rights
it would have if it were not Trustee. Any Paying
Agent, Registrar or co-paying agent may do the same
with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
SECTION VII.4. Trustees Disclaimer. The
Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this
Indenture or the Securities or any offering document,
it shall not be accountable for the Companys use of
the proceeds from the Securities, and it shall not be
responsible for any statement of the Company in this
Indenture or in any document issued in connection
with the sale of the Securities or in the Securities
other than the Trustees certificate of
authentication.
SECTION VII.5. Notice of Defaults. If a Default
or an Event of Default occurs with respect to any
series of Securities and is continuing and if it is
known to the Trustee, the Trustee shall mail to each
Securityholder of such series notice of the Default
within 90 days after it is known to a Trust Officer
or written notice of it is received by a Trust
Officer of the Trustee. Except in the case of a
Default in payment of Principal of or interest
on any Security, the Trustee may withhold the notice
if and so long as a committee of its Trust Officers
in good faith determines that withholding the notice
is not opposed to the interests of Securityholders.
SECTION VII.6. Reports by Trustee to Holders. If
required and as promptly as practicable after each
May 15 beginning with the May 15 following the date
of this Indenture, and in any event prior to July 15
in each year, the Trustee shall mail to each
Securityholder a brief report dated as of such May 15
that complies with TIA 313(a). The Trustee also
shall comply with TIA 313(b). The Trustee shall
promptly deliver to the Company a copy of any report
it delivers to Holders pursuant to this Section 7.6.
25
A copy of each report at the time of its mailing to
Securityholders shall be filed by the Trustee with
the SEC and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify
promptly the Trustee whenever the Securities become
listed on any stock exchange and of any delisting
thereof.
SECTION VII.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to
time such compensation for its services as the
Company and the Trustee shall from time to time agree
in writing. The Trustees compensation shall not be
limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the
Trustee upon request for all reasonable out of pocket
expenses incurred or made by it in accordance with
the provisions of this Indenture, including costs of
collection, in addition to such compensation for its
services, except any such expense, disbursement or
advance as may arise from its negligence, wilful
misconduct or bad faith. Such expenses shall include
the reasonable compensation and expenses,
disbursements and advances of the Trustees agents
and counsel. The Trustee shall provide the Company
reasonable notice of any expenditure not in the
ordinary course of business; provided that
prior approval by the Company of any such expenditure
shall not be a requirement for the making of such
expenditure nor for reimbursement by the Company
thereof. The Company shall indemnify each of the
Trustee, its officers, directors, employees and
any predecessor Trustees against any and all loss,
damage, claim, liability or expense (including
reasonable attorneys fees and expenses) (other than
taxes applicable to the Trustees compensation
hereunder) incurred by it in connection with the
acceptance or administration of this trust and the
performance of its duties hereunder. The Trustee
shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the
Trustee so to notify the Company shall not relieve
the Company of its obligations hereunder. The
Company shall defend the claim and, if (in the
opinion of counsel to the Trustee) the facts and/or
issues surrounding the claim are reasonably likely to
create a conflict with the Company, the Company shall
pay the reasonable fees and expenses of separate
counsel to the Trustee. The Company need
not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee
through the Trustees own wilful misconduct,
negligence or bad faith.
To secure the Companys payment obligations in this
Section 7.7, the Trustee shall have a lien prior to
the Securities on all money or property held or
collected by the Trustee other than money or property
held in trust to pay Principal of and interest on
particular Securities.
The Companys payment obligations pursuant to this
Section 7.7 shall survive the resignation or removal
of the Trustee and any discharge of this Indenture
including any discharge under any bankruptcy law.
When the Trustee incurs expenses after the occurrence
of a Default specified in Section 6.1(6) or (7) with
respect to the Company, the expenses are intended to
constitute expenses of administration under the
Bankruptcy Law.
SECTION VII.8. Replacement of Trustee. The
Trustee may resign at any time with 30 days notice to
the Company. The Holders of a majority in principal
amount of the Securities of any series then
outstanding, may remove the Trustee with respect to
such series with 30 days notice to the Trustee and
26
may appoint a successor Trustee. The Company shall
remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes
Charge of the Trustee or its property; or
(iv) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns, is removed by the Company
or by the Holders of a majority in principal amount
of the Securities of any series and such Holders do
not reasonably promptly appoint a successor Trustee
with respect to such series, or if a vacancy
exists in the office of Trustee for any reason (the
Trustee in such event being referred to herein as the
retiring Trustee), the Company shall promptly appoint
a successor Trustee.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee
and to the Company and the Company shall pay all
amounts due and owing to the Trustee under Section
7.7 of the Indenture. Thereupon the resignation or
removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under
this Indenture. The successor Trustee shall mail a
notice of its succession to Securityholders of
any series affected by such resignation or removal.
The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section
7.7.
If a successor Trustee does not take office with
respect to any series of Securities within 30 days
after the retiring Trustee resigns or is removed, the
retiring Trustee or the Holders of 10% in principal
amount of the Securities of such series may
petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee
pursuant to this Section 7.8, the Companys
obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION VII.9. Successor Trustee by Merger. If
the Trustee consolidates with, merges or converts
into, or transfers all or substantially all its
corporate trust business or assets to, another
corporation or banking association, the resulting,
surviving or transferee corporation without any
further act shall be the successor Trustee, provided
that such corporation shall be eligible under this
Article Seven and TIA Section 3.10(a).
27
In case at the time such successor or successors by
merger, conversion or consolidation to the Trustee
shall succeed to the trusts created by this Indenture
any of the Securities shall have been authenticated
but not delivered, any such successor to the
Trustee may adopt the certificate of authentication
of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time
any of the Securities shall not have been
authenticated, any successor to the Trustee may
authenticate such Securities either in the name of
any predecessor hereunder or in the name of the
successor to the Trustee; and in all such
cases such certificates shall have the full force
which it is anywhere in the Securities or in this
Indenture provided that the certificate of the
Trustee shall have.
SECTION VII.10. Eligibility; Disqualification. The
Trustee shall at all times satisfy the requirements
of TIA 310(a). The Trustee shall have a combined
capital and surplus of at least $250,000,000 as set
forth in its most recent published annual report
of condition. The Trustee shall comply with TIA
310(b); provided, however, that there shall be
excluded from the operation of TIA 310(b)(1), with
respect to any series, this Indenture with respect to
any other series of Securities and any indenture or
indentures under which other securities or
certificates of interest or participation in other
securities of the Company are outstanding if
the requirements for such exclusion set forth in TIA
310(b)(1) are met.
SECTION VII.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA
311(a), excluding any creditor relationship listed in
TIA 311(b). A Trustee who has resigned or been
removed shall be subject to TIA 311(a) to the extent
indicated.
ARTICLE VIII
Discharge of Indenture; Defeasance
SECTION VIII.1. Discharge of Liability on
Securities; Defeasance. With respect to any series
of Securities, (a) when (i) the Company delivers to
the Trustee all outstanding Securities of such series
(other than Securities replaced pursuant to
Section 2.7) for cancellation or (ii) all outstanding
Securities of such series have become due and
payable, whether at maturity or as a result of the
mailing of a notice of redemption pursuant to Article
3 hereof or the Securities of such series will become
due and payable at their Stated Maturity within one
year, or the Securities of such series are to be
called for redemption within one year under
arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and, in
each case of this clause (ii), the Company
irrevocably deposits or causes to be deposited with
the Trustee funds sufficient to pay at maturity or
upon redemption all outstanding Securities of such
series, including interest thereon to maturity or
such redemption date (other than Securities replaced
pursuant to Section 2.7), and if in either case the
Company pays all other sums payable hereunder by the
Company, then this Indenture shall, subject to
Section 8.1(c), cease to be of further effect with
respect to such series. The Trustee shall
acknowledge satisfaction and discharge of this
Indenture with respect to such series on demand of
the Company accompanied by an Officers Certificate
and an Opinion of Counsel from the Company that all
conditions precedent provided herein for relating to
satisfaction and discharge of this Indenture have
28
been complied with and at the cost and expense of the
Company.
(b) Subject to Sections 8.1(c) and 8.2, the Company
at any time may terminate (i) all of its obligations
under the Securities of any series and this Indenture
with respect to such series (legal defeasance option)
or (ii) its obligations under Sections 4.2 and 4.3
and the operation of Sections 6.1(3) (other
than any obligations under Article V hereof), 6.1(4)
and 6.1(5) with respect to such series (covenant
defeasance option). The Company may exercise its
legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option
with respect to any series of Securities, payment of
the Securities of such series may not be accelerated
because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of
the Securities of such series may not be accelerated
because of an Event of Default specified in Section
6.1(3) (except with respect to obligations under
Article V hereof), 6.1(4) or 6.1(5).
Upon satisfaction of the conditions set forth herein
and upon request of the Company, the Trustee shall
acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b)
above, the Companys obligations in Sections 2.3, 2.4,
2.5, 2.7, 4.1, 4.6, 4.7,7.7, 7.8, 8.4, 8.5 and 8.6
and Section 2.3 of the Appendix with respect to such
series shall survive until the Securities of such
series have been paid in full. Thereafter, the
Companys and the Trustees obligations in Sections
7.7, 8.4 and 8.5 shall survive.
SECTION VIII.2. Conditions to Defeasance. The
Company may exercise its legal defeasance option or
its covenant defeasance option with respect to any
series of Securities only if:
(i) the Company irrevocably deposits or
causes to be deposited in trust with the Trustee
money or U.S. Government Obligations which through
the scheduled payment of Principal and interest in
respect thereof in accordance with their terms will
provide cash at such times and in such amounts as
will be sufficient to pay Principal and interest when
due on all outstanding Securities of such series
(except Securities replaced pursuant to Section 2.7)
to maturity or redemption, as the case may be;
(ii) the Company delivers to the Trustee a
certificate from a nationally recognized firm of
independent accountants expressing their opinion that
the payments of Principal and interest when due and
without reinvestment on the deposited U.S. Government
Obligations plus any deposited money without
investment will provide cash at such times and in
such amounts as will be sufficient to pay Principal
and interest when due on all outstanding Securities
of such series (except Securities replaced pursuant
to Section 2.7) to maturity or redemption, as the
case may be;
29
(iii) 91 days pass after the deposit is made and
during the 91-day period no Default specified in
Section 6.1(6) or (7) occurs which is continuing at
the end of the period;
(iv) the deposit does not constitute a default under
any other material agreement binding on the Company;
(v) the Company delivers to the Trustee an Opinion
of Counsel to the effect that the trust resulting
from the deposit does not constitute, or is qualified
as, a regulated investment company under the
Investment Company Act of 1940;
(vi) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Company has
received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the
date of this Indenture there has been a change in the
applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Securityholders will
not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the
same times as would have been the case if such
deposit and defeasance had not occurred;
(vii) in the case of the covenant defeasance option,
the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the
Securityholders of such series will not recognize
income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance and will
be subject to federal income tax on the same amounts,
in the same manner and at the same times as would
have been the case if such deposit and defeasance had
not occurred; and
(viii) the Company delivers to the Trustee
an Officers Certificate and an Opinion of Counsel,
each stating that all conditions precedent to the
defeasance and discharge of the Securities of such
series as contemplated by this Article 8 have been
complied with.
Before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the
redemption of Securities at a future date in
accordance with Article 3.
SECTION VIII.3. Application of Trust Money. The
Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to this
Article 8. It shall apply the deposited money and
the money from U.S. Government Obligations either
directly or through the Paying Agent as the
Trustee may determine and in accordance with this
Indenture to the payment of Principal of and interest
on the Securities.
SECTION VIII.4. Repayment to Company. The Trustee
and the Paying Agent shall promptly turn over to the
Company upon request any excess money or securities
held by them at any time.
30
Subject to any applicable abandoned property law,
the Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them
for the payment of Principal or interest that remains
unclaimed for two years after the date of payment of
such Principal and interest, and, thereafter,
Securityholders entitled to the money must look to
the Company for payment as general creditors.
SECTION VIII.5. Indemnity for Government
Obligations. The Company shall pay and shall
indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest
received on such U.S. Government Obligations other
than any such tax, fee or other charge which by law
is for the account of the Holders of the defeased
Securities; provided that the Trustee shall be
entitled to charge any such tax, fee or other charge
to such Holders account.
SECTION VIII.6. Reinstatement. If the Trustee or
Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by
reason of any order or judgment of any court or
governmental authority enjoining, restraining or
otherwise prohibiting such application, the Companys
obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit
had occurred pursuant to this Article 8 until such
time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations
in accordance with this Article 8; provided, however,
that, (a) if the Company has made any payment of
interest on or Principal of any Securities following
the reinstatement of their obligations, the Company
shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the
money or U.S. Government Obligations held by the
Trustee or Paying Agent and (b) unless otherwise
required by any legal proceeding or any order or
judgment of any court or governmental authority, the
Trustee or Paying Agent shall return all such money
and U.S. Government Obligations to the Company
promptly after receiving a written request therefor
at any time, if such reinstatement of the Companys
obligations has occurred and continues to be in
effect.
ARTICLE IX
Amendments
SECTION IX.1. Without Consent of Holders. The
Company and the Trustee may amend this Indenture or
the Securities without notice to or consent of any
Securityholder:
(i) to cure any ambiguity, omission, defect or
inconsistency;
(ii) to comply with Article 5;
(iii) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
provided, however, that the uncertificated Securities
are issued in registered form for purposes of Section
<PAGE 30>
163(f) of the Code or in a manner such that the
uncertificated Securities are as described in Section
163(f)(2)(B) of the Code;
(iv) to add guarantees with respect to the
Securities of all or any series;
(v) to add security for the Securities of all or
any series;
(vi) to add to the covenants of the Company for the
benefit of the Holders of all or any series
of Securities or to surrender any right or power
herein conferred upon the Company;
(vii) to make any change that does not adversely
affect the rights of any Securityholder; and
(viii)to comply with any requirements of the SEC in
connection with qualifying this Indenture under
the TIA.
After an amendment under this Section 9.1 becomes
effective, the Company shall mail to Securityholders
of the applicable series a notice briefly describing
such amendment. The failure to give such notice to
all Securityholders of such series, or any defect
therein, shall not impair or affect the validity of
an amendment under this Section 9.1.
SECTION IX.2. With Consent of Holders. The
Company and the Trustee may amend this Indenture or
the Securities without notice to any Securityholder
but with the written consent of the Holders of at
least a majority in principal amount of the
Securities then outstanding of each series
affected thereby (including consents obtained in
connection with a tender offer or exchange for
Securities). However, without the consent of each
Securityholder affected, an amendment may not:
(i) reduce the amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
(ii) reduce the rate of or extend the time for
payment of interest on any Security;
(iii) reduce the principal of or extend the Stated
Maturity of any Security;
(iv) reduce the premium payable upon the redemption
of any Security or change the time at which any
Security may be redeemed in accordance with Article
3;
(v) make any Security payable in money other than
that stated in the Security;
(vi) impair the right of any Holder to receive
payment of Principal of and interest on such
Holders Securities on or after the due dates
therefor or to institute suit for the enforcement of
any payment on or with respect to such Holders
Securities;
32
(vii) make any changes that would affect the ranking
for the Securities in a manner adverse to the
Holders; or
(viii) make any change in the second sentence of this
Section 9.2.
It shall not be necessary for the consent of the
Holders under this Section 9.2 to approve the
particular form of any proposed amendment, but it
shall be sufficient if such consent approves the
substance thereof.
After an amendment under this Section 9.2
becomes effective, the Company shall mail to
Securityholders of the applicable series a notice
briefly describing such amendment. The failure to
give such notice to all Securityholders of such
series, or any defect therein, shall not impair or
affect the validity of an amendment under this
Section 9.2.
SECTION IX.3. Compliance with Trust Indenture
Act. Every amendment to this Indenture or the
Securities shall comply with the TIA as then in
effect.
SECTION IX.4. Revocation and Effect of Consents
and Waivers. A consent to an amendment or a waiver
by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion
of the Security that evidences the same debt as the
consenting Holder's Security, even if notation of the
consent or waiver is not made on the Security. After
an amendment or waiver becomes effective with respect
any series of Securities, it shall bind every
Securityholder of such series.
The Company may, but shall not be obligated to, fix
a record date for the purpose of determining the
Securityholders entitled to give their consent or
take any other action described above or required or
permitted to be taken pursuant to this Indenture. If
a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who
were Securityholders at such record date (or their
duly designated proxies), and only those Persons,
shall be entitled to give such consent or to revoke
any consent previously given or to take any
such action, whether or not such Persons continue to
be Holders after such record date.
SECTION IX.5. Notation on or Exchange of Securities.
If an amendment changes the terms of a Security, the
Trustee may require the Holder of the Security to
deliver it to the Trustee. The Company shall provide
in writing to the Trustee an appropriate notation to
be placed on the Security regarding the changed terms
and return it to the Holder. Alternatively, if the
Company or the Trustee so determine, the Company in
exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect
the validity of such amendment.
33
SECTION IX.6. Trustee To Sign Amendments.
The Trustee shall sign any amendment authorized
pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee
may but need not sign it. In signing such amendment
the Trustee shall be entitled to receive indemnity
reasonably satisfactory to it and to receive, and
(subject to Section 7.1) shall be fully protected in
relying upon, in addition to the documents
required by Section 10.4, an Officers Certificate
and an Opinion of Counsel stating that such amendment
complies with the provisions of this Article 9 and
that such supplemental indenture constitutes the
legal valid and binding obligation of the Company
in accordance with its terms subject to customary
exceptions.
SECTION IX.7. Payment for Consent. Neither the
Company nor any affiliate of the Company shall,
directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or
otherwise, to any Holder of a Security of any
series for, or as an inducement to any consent,
waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such
consideration is offered to be paid to all
Holders of a Securities of such series that so
consent, waive or agree to amend in the time frame
set forth in solicitation documents relating to such
consent, waiver or agreement.
ARTICLE X
Miscellaneous
SECTION X.1. Trust Indenture Act Controls. If
any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to
be included in this Indenture by the TIA, the
provision required by the TIA shall control.
SECTION X.2. Notices. Any notice or communication
shall be in writing and delivered in person or mailed
by first-class mail addressed as follows:
if to the Company:
Computer Associates International, Inc.
One Computer Associates Plaza
Islandia, New York 11788
Facsimile Number: (516) 342-4854
Attention: Treasurer
34
if to the Trustee:
The Chase Manhattan Bank
450 W. 33rd Street
15th Floor
New York, New York 10001
Facsimile Number: (212) 946-8159
Attention: Corporate Trustee
Any notices between the Company and the Trustee
may be by facsimile, with telephone confirmation of
receipt and the original to follow by guaranteed
overnight courier. The Company or the Trustee by
notice to the others may designate additional or
different addresses for subsequent notices or
communications.
Any notice or communication mailed to a
Securityholder shall be mailed to the Securityholder
at the Securityholders address as it appears on the
registration books of the Registrar and shall be
sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication
to a Securityholder or any defect in it shall not
affect its sufficiency with respect to other
Securityholders. If a notice or communication is
mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION X.3. Communication by Holders with other
Holders. Securityholders may communicate pursuant to
TIA 312(b) with other Securityholders with respect
to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA
312(c).
SECTION X.4. Certificate and Opinion as to
Conditions Precedent. Upon any request or
application by the Company to the Trustee to take or
refrain from taking any action under this Indenture,
the Company shall furnish to the Trustee:
(i) an Officers Certificate in form and
substance reasonably satisfactory to the Trustee
stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been
complied with; and
(ii) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee stating that,
in the opinion of such counsel, all such conditions
precedent have been complied with.
35
SECTION X.5. Statements Required in Certificate
or Opinion. Each certificate or opinion with respect
to compliance with a covenant or condition provided
for in this Indenture shall include:
(i) a statement that the individual making such
certificate or opinion has read such covenant or
condition;
(ii) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate
or opinion are based;
(iii) a statement that, in the opinion of such
individual, he has made such examination or
investigation as is necessary to enable him to
express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the
opinion of such individual, such covenant or
condition has been complied with.
SECTION X.6. When Securities Disregarded. In
determining whether the Holders of the required
principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the
Company or by any Person directly or indirectly
controlling or controlled by or under direct or
indirect common control with the Company (an
Affiliate)shall be disregarded and deemed not to be
outstanding, except that, for the purpose of
determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent,
only Securities which a Trust Officer of the Trustee
knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding
at the time shall be considered in any such
determination.
SECTION X.7. Rules by Trustee, Paying Agent
and Registrar. The Trustee may make reasonable rules
for action by or a meeting of Securityholders. The
Registrar and the Paying Agent may make reasonable
rules for their functions.
SECTION X.8. Governing Law. This Indenture and the
Securities shall be governed by, and construed in
accordance with, the laws of the State of New York
but without giving effect to applicable principles of
conflicts of law to the extent that the application
of the laws of another jurisdiction would be required
thereby.
SECTION X.9. No Recourse Against Others. A
director, officer, employee or stockholder, as such,
of the Company shall not have any liability for any
obligations of the Company under the Securities or
this Indenture or for any claim based on, in
respect of or by reason of such obligations or their
creation. By accepting a Security, each
securityholder shall waive and release all
such liability. The waiver and release shall be part
of the consideration for the issue of the Securities.
36
SECTION X.10. Successors. All agreements of the
Company in this Indenture and the Securities shall
bind its successors. All agreements of the Trustee
in this Indenture shall bind its successors.
SECTION X.11. Multiple Originals. The parties
may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of
them together represent the same agreement. One
signed copy is enough to prove this Indenture.
SECTION X.12. Variable Provisions. The Company
initially appoints the Trustee as Paying Agent and
Registrar and custodian with respect to any Global
Securities (as defined in the Appendix hereto).
SECTION X.13. Qualification of Indenture. The
Company shall qualify this Indenture under the TIA in
accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys
fees for the Company, the Trustee and the Holders)
incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of
this Indenture and the Securities and printing this
Indenture and the Securities. The Trustee shall be
entitled to receive from the Company any such
Officers Certificates, Opinions of Counsel or other
documentation as it may reasonably request in
connection with any such qualification of this
Indenture under the TIA.
SECTION X.14. Table of Contents; Headings. The
table of contents, cross-reference sheet and headings
of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are
not intended to be considered a part hereof
and shall not modify or restrict any of the terms or
provisions hereof.
37
IN WITNESS WHEREOF, the parties have caused
this Indenture to be duly executed as of the date
first written above.
COMPUTER ASSOCIATES
INTERNATIONAL, INC.
By:
Name:
Title:
THE CHASE
MANHATTAN BANK as
Trustee
By:
Name:
Title:
38
RULE 144A/REGULATION S APPENDIX
FOR OFFERINGS TO QUALIFIED INSTITUTIONAL BUYERS
PURSUANT TO RULE 144A AND TO CERTAIN PERSONS IN
OFFSHORE TRANSACTIONS IN RELIANCE ON REGULATION S.
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES AND EXCHANGE SECURITIES
1. Definitions.
1.1 Definitions.
For the purposes of this Appendix the
following terms shall have the meanings indicated
below:
Depositary means The Depository Trust Company, its
nominees and their respective successors and assigns.
Exchange Securities means the Series B 61/4%
Senior Notes Due 2003, Series B 6 3/8% Senior Notes Due
2005 and Series B 61/2% Senior Notes Due 2008 to be
issued pursuant to this Indenture in connection with
a Registered Exchange Offer pursuant to the
Registration Rights Agreement.
Indenture means the Indenture dated as of April
24, 1998 between the Company and the Trustee, of
which this Appendix is incorporated therein and forms
a part thereof.
Initial Purchasers means Credit Suisse First
Boston Corporation, Bear, Stearns & Co. Inc.,
BancAmerica Robertson Stephens Inc., Chase Securities
Inc. and NationsBanc Montgomery Securities LLC.
Initial Securities means the 61/4% Senior Notes
Due 2003, 6 3/8% Senior Notes Due 2005 and 61/2% Senior
Notes Due 2008, issued under this Indenture on the
date hereof.
Private Exchange means the offer by the Company,
pursuant to the Registration Rights Agreement, to the
Initial Purchasers to issue and deliver to each
Initial Purchaser, in exchange for the Initial
Securities held by the Initial Purchaser as
part of its initial distribution, a like aggregate
principal amount of Private Exchange Securities.
Private Exchange Securities means the Series C
61/4% Senior Notes Due 2003, Series C 6 3/8% Senior
Notes Due 2005 and Series C 61/2% Senior Notes Due
2008, if any, to be issued pursuant to this Indenture
to the Initial Purchasers in a Private Exchange.
Purchase Agreement means the Purchase Agreement dated
April 21, 1998, among the Company and the Initial
Purchasers.
39
QIB means a qualified institutional buyer as defined
in Rule 144A.
Registered Exchange Offer means the offer by the
Company, pursuant to the Registration Rights
Agreement, to certain Holders of Initial Securities,
to issue and deliver to such Holders, in exchange for
the Initial Securities, a like aggregate principal
amount of Exchange Securities registered under the
Securities Act.
Registration Rights Agreement means the Registration
Rights Agreement dated as of April 21, 1998 among
the Company and the Initial Purchasers.
SEC means the U.S. Securities and Exchange
Commission, or any successor agency.
Securities means the Initial Securities, the
Exchange Securities and the Private Exchange
Securities.
Securities Act means the Securities Act of 1933,
as amended.
Securities Custodian means the custodian with
respect to a Global Security (as appointed by the
Depositary), or any successor person thereto and
shall initially be the Trustee.
Shelf Registration Statement means the
registration statement issued by the Company, in
connection with the offer and sale of Initial
Securities or Private Exchange Securities, pursuant
to the Registration Rights Agreement.
Transfer Restricted Securities means Securities
that bear or are required to bear the legend set
forth in Section 2.3(b) hereto.
1.2 Other Definitions
Defined in
Term Section:
Agent Members 2.1(b)
Global Security 2.1(a)
Regulation S 2.1(a)
Rule 144A 2.1(a)
Other terms used and not defined in this Appendix are
used as defined in the Indenture.
40
2. The Securities.
2.1 Form and Dating.
The Initial Securities are being offered and sold by
the Company pursuant to the Purchase Agreement.
(a) Global Securities. Initial Securities offered
and sold to a QIB in reliance on Rule 144A under the
Securities Act (Rule 144A) or in reliance on
Regulation S under the Securities Act (Regulation S),
in each case as provided in the Purchase Agreement,
shall be issued initially in the form of a unified
permanent global Security for both Rule 144A and
Regulation S purchases, in definitive, fully
registered form without interest coupons with the
global securities legend and restricted securities
legend set forth in Exhibit 1 hereto (each, a Global
Security), which shall be deposited on behalf of the
purchasers of the Initial Securities represented
thereby with the Trustee as custodian for the
Depositary (or with such other custodian as the
Depositary may direct), and registered in the name of
the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the
Trustee as hereinafter provided. Upon the issuance
of the Exchange Securities, the aggregate principal
amount of the Global Securities may from time to time
be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its
nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 2.1(b)
shall apply only to a Global Security deposited with
or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(b), authenticate and
deliver initially one or more Global Securities that
(a) shall be registered in the name of the Depositary
for such Global Securities or the nominee of such
Depositary and (b) shall be delivered by the
Trustee to such Depositary or pursuant to such
Depositarys instructions or held by the Trustee as
custodian for the Depositary.
Members of, or participants in, the Depositary (Agent
Members) shall have no rights under this Indenture
with respect to any Global Security held on their
behalf by the Depositary or by the Trustee as the
custodian of the Depositary or under such Global
Security, and the Depositary may be treated by the
Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of such
Global Security 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 Depositary or shall impair, as
between the Depositary and its Agent Members, the
operation of customary practices of such Depositary
governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.
(c) Certificated Securities. Except as
provided in this Section 2.1 or Section 2.3 or 2.4,
owners of beneficial interests in Global Securities
will not be entitled to receive physical delivery of
certificated Securities.
41
2.2 Authentication. The Trustee shall authenticate
and deliver: (1) Initial Securities for original
issue in an aggregate principal amount of U.S. $575
million with respect to the 2003 Initial Securities,
U.S. $825 million with respect to the 2005 Initial
Securities and U.S. $350 million with respect to the
2008 Initial Securities and (2) Exchange Securities
or Private Exchange Securities for issue only in a
Registered Exchange Offer or a Private Exchange,
respectively, pursuant to the Registration
Rights Agreement, for a like principal amount of
Initial Securities, in each case upon a written order
of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an
Assistant Secretary of the Company. Such order shall
specify the series of Securities to be authenticated,
amount of the Securities to be authenticated and the
date on which the original issue of Securities is to
be authenticated and whether the Securities are to
be Initial Securities, Exchange Securities or Private
Exchange Securities. In the case of the issuance of
Exchange Securities, the Company shall also provide
an Officers Certificate stating that all conditions
precedent to the Registered Exchange Offer have been
complied with and the related Registration Statement
has been declared effective by the SEC. The
aggregate principal amount of Securities outstanding
at any time under the Indenture may not exceed U.S.
$575 million with respect to the 2003 Securities,
U.S. $825 million with respect to the 2005 Securities
and U.S. $350 million with respect to the 2008
Securities except as provided in Section 2.7 of this
Indenture.
2.3 Transfer and Exchange. (a) Transfer and
Exchange of Global Securities. (i) The transfer and
exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in
accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any)
and the procedures of the Depositary therefor. A
transferor of a beneficial interest in a Global
Security shall deliver to the Registrar a written
order given in accordance with the Depositarys
procedures containing information regarding the
participant account of the Depositary to be credited
with a beneficial interest in the Global Security.
The Registrar shall, in accordance with such
instructions instruct the Depositary to credit to the
account of the Person specified in such instructions
a beneficial interest in the Global Security and to
debit the account of the Person making the transfer
the beneficial interest in the Global Security being
transferred.
(ii) Notwithstanding any other provisions of this
Appendix (other than the provisions set forth in
Section 2.4), a Global Security may not be
transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee
of such successor Depositary.
(iii) In the event that a Global Security is
exchanged for Securities in definitive registered
form pursuant to Section 2.4 of this Appendix or
Section 2.9 of this Indenture, prior to the
consummation of a Registered Exchange Offer or the
effectiveness of a Shelf Registration Statement with
respect to such Securities, such Securities may be
exchanged only in accordance with such procedures
as are substantially consistent with the provisions
of this Section 2.3 (including the certification
requirements set forth on the reverse of the Initial
Securities intended to ensure that such transfers
comply with Rule 144A or Regulation S, as the case
may be) and such other procedures as may from time to
time be adopted by the Company.
42
(b) Legend.
(i) Except as permitted by the following paragraphs
(ii), (iii) and (iv), each Security certificate
evidencing the Global Securities (and all Securities
issued in exchange therefor or in substitution
thereof) shall bear a legend in substantially the
following form:
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED
IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE SECURITIES
ACT), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT
THE SELLER OF THIS NOTE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE
ISSUER THAT (A) THIS NOTE MAY BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (i) INSIDE THE
UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,
(ii) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE) OR (iv) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (i) THROUGH (iv) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
(ii) Upon any sale or transfer of a Transfer
Restricted Security (including any Transfer
Restricted Security represented by a Global Security)
pursuant to Rule 144 under the Securities Act, in the
case of any Transfer Restricted Security that is
represented by a Global Security, the Trustee shall
permit the Holder thereof to exchange such Transfer
Restricted Security for a certificated Security
that does not bear the legend set forth above and
rescind any restriction on the transfer of such
Transfer Restricted Security, if the Holder certifies
in writing to the Trustee that its request for such
exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the
reverse of the Security).
43
(iii) After a transfer of any Initial Securities or
Private Exchange Securities during the period of the
effectiveness of a Shelf Registration Statement with
respect to such Initial Securities or Private
Exchange
Securities, as the case may be, which transfer
complies with the plan of distribution set forth in
such Shelf Registration Statement, all requirements
pertaining to legends on such Initial Securities or
such Private Exchange Securities will cease to
apply, but the requirements requiring such Initial
Securities or such Private Exchange Securities issued
to certain Holders be issued in global form will
continue to apply, and Initial Securities or Private
Exchange Securities in global form without legends
will be available to the transferee of the Holder of
such Initial Securities or Private Exchange
Securities upon exchange of such transferring Holders
Initial Securities or Private Exchange Securities or
directions to transfer such Holder's interest in the
Global Security, as applicable.
(iv) Upon the consummation of a Registered Exchange
Offer with respect to the Initial Securities
pursuant to which Holders of such Initial Securities
are offered Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to
such Initial Securities that Initial Securities
issued to certain Holders be issued in global form
will continue to apply and Initial Securities in
global form with the restricted securities legend
set forth in Exhibit 1 hereto will be available to
Holders of such Initial Securities that do not
exchange their Initial Securities, and Exchange
Securities in global form will be available to
Holders that exchange such Initial Securities in such
Registered Exchange Offer.
(v) Upon the consummation of a Private Exchange
with respect to the Initial Securities pursuant to
which Holders of such Initial Securities are offered
Private Exchange Securities in exchange for their
Initial Securities, all requirements pertaining to
such Initial Securities that Initial Securities
issued to certain Holders be issued in global form
will still apply, and Private Exchange Securities in
global form with the Restricted Securities Legend set
forth in Exhibit 1 hereto will be available to
Holders that
exchange such Initial Securities in such Private
Exchange.
(c) Cancellation or Adjustment of Global Security.
At such time as all beneficial interests in a Global
Security have either been exchanged for certificated
Securities, redeemed, repurchased or canceled, such
Global Security shall be returned to the Depositary
for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Security is
exchanged for certificated Securities, redeemed,
repurchased or canceled, the principal amount of
Securities represented by such Global Security shall
be reduced and an adjustment shall be made on the
books and records of the Trustee (if it is then the
Securities Custodian for such Global Security) with
respect to such Global Security, by the Trustee or
the Securities Custodian, to reflect such reduction.
44
(d) Obligations with Respect to Transfers and
Exchanges of Securities.
(i) To permit registrations of transfers and
exchanges, the Company shall execute and the Trustee
shall authenticate certificated Securities and Global
Securities at the Registrars request in accordance
with the terms of the Indenture (including this
Appendix).
(ii) No service charge shall be made for any
registration of transfer or exchange, but the Company
or the Registrar may require a Holder to furnish
appropriate endorsements and transfer documents and
payment of a sum sufficient to cover any transfer
tax, assessments, or similar governmental charge
payable in connection therewith (other than any such
transfer taxes, assessments or similar governmental
charge payable upon exchange or transfer pursuant to
Sections 3.6 and 9.5 of this Indenture).
(iii) The Registrar shall not be required to
register
the transfer of or exchange of any Securities
selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the
Security not to be redeemed) for a period beginning
15 days before a selection of Securities to be
redeemed and ending on the date of such selection.
(iv) Prior to the due presentation for registration
of transfer of any Certificated Security, the
Company,
the Trustee, the Paying Agent and the Registrar may
deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for
the purpose of receiving payment of Principal of and
interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue
and notwithstanding any notation of ownership or
other writing on such Security made by anyone other
than the Company or the Registrar, and none of the
Company, the Trustee, the Paying Agent or the
Registrar shall be affected by notice to the
contrary.
(v) All Securities 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
Securities surrendered upon such transfer or
exchange. No such transfer shall be effected until,
and such transferee shall succeed to the rights of a
Holder only upon, final acceptance and registration
of
the transfer by the Registrar.
(e) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or
obligation to any beneficial owner of a Global
Security, a member of, or a participant in the
Depositary or other Person with respect to the
accuracy of the records of the Depositary or its
nominee or of any participant or member thereof, with
respect to any ownership interest in the
Securities or with respect to the delivery to any
participant, member, beneficial owner or other Person
(other than the Depositary) of any notice (including
45
any notice of redemption) or the payment of any
amount, under or with respect to such Securities.
All notices and communications to be given to the
Holders and all payments to be made to Holders under
the Securities shall be given or made only to or upon
the order of the registered Holders (which shall be
the Depositary or its nominee in the case of a Global
Security). The rights of beneficial owners in any
Global Security shall be exercised only through the
Depositary subject to the applicable rules and
procedures of the Depositary. The Trustee may rely
and shall be fully protected in relying upon
information furnished by the Depositary 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 Security (including
any transfers between or among Depositary
participants, members or beneficial owners in any
Global Security) other than with respect to
certificated Securities 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 on
the form provided herein.
2.4 Certificated Securities.
(a) A Global Security deposited with the
Depositary or with the Trustee as custodian for the
Depositary pursuant to Section 2.1 shall be
transferred to the beneficial owners thereof in the
form of certificated Securities in an aggregate
principal amount equal to the principal amount of
such Global Security, in exchange for such Global
Security, only if such transfer complies with Section
2.3 and (i) the Depositary notifies the Company that
it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such
Depositary ceases to be a clearing agency registered
under the Exchange Act and a successor depositary is
not appointed by the Company within 90 days of such
notice, or (ii) an Event of Default has occurred and
is continuing or (iii) the Company, in its sole
discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated
Securities under this Indenture or (iv) pursuant to
Section 2.3(b)(ii).
(b) Any Global Security that is transferable to
the beneficial owners thereof pursuant to this
Section shall be surrendered by the Depositary to the
Trustee, to be so transferred, in whole or from time
to time in part, without charge, and the
Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Security, an
equal aggregate principal amount of certificated
Securities of authorized denominations. Any
portion of a Global Security transferred pursuant to
this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such
names as the Depositary shall direct. Any
certificated Security delivered in exchange for an
interest in the
Global Security shall, except as otherwise provided
by Section 2.3(b), bear the restricted securities
legend set forth in Exhibit 1 hereto.
(c) Subject to the provisions of Section 2.1(b),
the registered Holder of a Global Security 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 Securities.
46
(d) In the event of the occurrence of any of the
events specified in Section 2.4(a), the Company will
promptly make available to the Trustee a reasonable
supply of certificated Securities in definitive,
fully registered form without interest coupons.
<PAGE? 47
EXHIBIT 1
TO RULE 144A/REGULATION S
APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION (DTC), NEW YORK, NEW YORK, 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 SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT
IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THIS INDENTURE REFERRED TO ON THE REVERSE
HEREOF.
[Restricted Securities Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE SECURITIES ACT), AND
THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THIS NOTE IS
HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE
MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT
OF THE ISSUER THAT (A) THIS NOTE MAY BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (i)
INSIDE THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (ii)
OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (iii) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE)
48
OR (iv) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (i) THROUGH (iv) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
49
COMPUTER ASSOCIATES INTERNATIONAL, INC.
No. __ Principal Amount$ __
CUSIP NO. _________
ISIN NO. _________
[6 1/4% Senior Notes Due 2003]
[6 3/8% Senior Notes Due 2005]
[6 1/2% Senior Notes Due 2008]
Computer Associates International, Inc., a Delaware
corporation, for value received, promises to pay to
_, or registered assigns, the principal sum of
________________________ Dollars on _________ __,
[2003] [2005] [2008].
Interest Payment Dates: April 15 and October 15,
commencing October 15, 1998.
Record Dates: April 1 and October 1.
50
Additional provisions of this Security
are set forth on the other side of this Security.
Dated: April 24, 1998
COMPUTER ASSOCIATES INTERNATIONAL,INC.
by
by
TRUSTEES CERTIFICATE OF Dated: April 24, 1998
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
51
[FORM OF REVERSE SIDE OF INITIAL SECURITY]
(Reverse of Security)
[6 1/4% Senior Notes Due 2003]
[6 3/8% Senior Notes Due 2005]
[6 1/2% Senior Notes Due 2008]
1. Interest
Computer Associates International, Inc., a Delaware
corporation (such corporation, and its successors and
assigns under the Indenture hereinafter referred to,
being herein called the Company), promises to pay
interest on the principal amount of this Security at
the rate per annum shown above; provided, however,
that if a Registration Default (as defined in the
Registration Rights Agreement) occurs, additional
cash interest will accrue on this Security at a rate
of 0.50% per annum from and including the date on
which any such Registration Default shall
occur to but excluding the date on which all
Registration Defaults have been cured, calculated on
the principal amount of this Security as of the date
on which such interest is payable. Such additional
cash interest of 0.50% per annum is payable in
addition to any other interest payable from time to
time with respect to this Security. The Trustee will
not be deemed to have notice of a Registration
Default until it shall have received actual notice of
such Registration Default.
The Company will pay interest semiannually on
April 15 and October 15 of each year (each such date,
an Interest Payment Date), commencing October 15,
1998. Interest on the Securities will accrue from
April 24, 1998, or from the most recent date to which
interest has been paid on the Securities. Interest
will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By no later than 1:00 p.m. (New York City time) on
the date on which any Principal of or interest on any
Security is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying
Agent money sufficient to pay such Principal
and/or interest. The Company will pay interest
(except defaulted interest) to the Persons who are
registered Holders of Securities at the close of
business on the April 1 or October 1 next preceding
the interest payment date even if Securities are
cancelled, repurchased or redeemed after the record
date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent
to collect principal payments. The Company will pay
Principal and interest in money of the United States
that at the time of payment is legal tender for
payment of public and private debts.
However, the Company may pay Principal and interest
by check payable in such money. It may mail an
interest check to a Holders registered address.
52
3. Paying Agent and Registrar
Initially, The Chase Manhattan Bank, a New York
banking corporation (the Trustee), will act as
Paying Agent and Registrar. The Company may appoint
and change any Paying Agent or Registrar without
notice to any Securityholder. The Company or any of
its domestically incorporated wholly owned
Subsidiaries may act as Paying Agent.
4. Indenture
The Company issued the Securities under an
Indenture dated as of April 24, 1998 (as it may be
amended or supplemented from time to time in
accordance with the terms thereof, the Indenture),
between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture
and those made part of the Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. 77aaa-
77bbbb) as in effect on the date of the Indenture
(the Act). Capitalized terms used herein
and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred
to the Indenture and the Act for a statement of those
terms.
The Securities are senior obligations of the
Company limited to $[575,000,000] [825,000,000]
[350,000,000] aggregate principal amount (subject to
Section 2.7 of the Indenture). The Security is one
of the [2003][2005][2008] Initial Securities referred
to in the Indenture. The Securities include the
[2003][2005][2008] Initial Securities and any
[2003][2005][2008] Private Exchange Securities and
[2003][2005][2008] Exchange Securities issued in
exchange for the [2003][2005][2008] Initial
Securities pursuant to the Indenture and the
Registration Rights
Agreement. The [2003][2005][2008] Initial
Securities, [2003][2005][2008] the Private Exchange
Securities and the [2003][2005][2008] Exchange
Securities are treated as a single class of
securities under the Indenture. The Indenture
imposes
certain limitations on the ability of the Company to
create liens, enter into sale and leaseback
transactions and enter into mergers and
consolidations.
5. Optional Redemption
The Securities are redeemable, in whole or in part,
at any time and from time to time, at the option of
the Company, at a redemption price equal to the
greater of (i) 100% of the principal
amount of such Securities and (ii) the sum of the
present values of the Remaining Scheduled Payments,
discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate [plus
[12.5] [15] basis points,] plus accrued interest
thereon to the date of redemption.
Treasury Rate means, with respect to any redemption
date for the Securities, the rate per annum equal to
the semiannual equivalent yield to maturity (computed
as of the second business day immediately preceding
such redemption date) of the Comparable Treasury
Issue, assuming 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.
53
Comparable Treasury Issue means the United States
Treasury security selected by an Independent
Investment Banker 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 the Securities to be
redeemed. Independent Investment Banker means one of
the Reference Treasury Dealers appointed by the
Company.
Comparable Treasury Price means, with respect to
any redemption date for the Securities, (i) the
average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as
a percentage of its principal amount) on the third
business day preceding such redemption date, as set
forth in the
daily statistical release (or any successor release)
published by the Federal Reserve Bank of New York and
designated Composite 3:30 p.m. Quotations for U.S.
Government Securities or (ii) if such release (or any
successor release) is not published or does not
contain such prices on such business day, (a) the
average of the Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest
and lowest of such Reference Treasury
Dealer Quotations, or (b) if the Trustee obtains
fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations.
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 as of 3:30 p.m., New York time, on the third
business day preceding such redemption date.
Reference Treasury Dealer means each of Credit
Suisse First Boston Corporation (and its successors)
and three other nationally recognized investment
banking firms that are Primary Treasury Dealers
specified from time to time by the Company; provided,
however, that if any of the foregoing shall
cease to be a primary U.S. Government securities
dealer in New York City (a Primary Treasury Dealer),
the Company shall substitute therefor another
nationally recognized investment banking firm that is
a Primary Treasury Dealer.
Remaining Scheduled Payments means, with
respect to each Security to be redeemed, the
remaining scheduled payments of the Principal thereof
and interest thereon that would be due after the
related redemption date but for such redemption;
provided, however, that, if such redemption date is
not an Interest Payment Date with respect to such
Security, the amount of the next succeeding scheduled
interest payment thereon will be reduced by
the amount of interest accrued thereon to such
redemption date.
Except as set forth above, the Securities
will not be redeemable by the Company prior to
maturity and will not be entitled to the benefit of
any sinking fund.
54
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date
by first class mail to each Holder of Securities to
be redeemed at his registered address. Securities in
denominations of principal amount larger than $1,000
may be redeemed in part but only in whole multiples
of
$1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all
Securities (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying
Agent on or before the redemption date and certain
other conditions are satisfied, on and after such
date
interest ceases to accrue on such Securities (or such
portions thereof) called for redemption.
7. Registration Rights
The Company is party to a Registration Rights
Agreement, dated as of April 21, 1998, among the
Company, Credit Suisse First Boston Corporation,
Bear, Stearns & Co. Inc., BancAmerica Robertson
Stephens Inc., Chase Securities Inc. and NationsBanc
Montgomery Securities LLC pursuant to which it is
obligated to pay Additional Interest (as defined
therein) upon the
occurrence of certain Registration Defaults (as
defined therein).
8. Denominations; Transfer; Exchange
The Securities are in registered form without
coupons in denominations of principal amount of
$1,000 and whole multiples of $1,000. A Holder may
register, transfer or exchange Securities in
accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to
pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected
for
redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to
be redeemed)for a period beginning 15 days before a
selection of Securities to be redeemed
and ending on the date of such selection.
9. Persons Deemed Owners
The registered holder of this Security may be treated
as the owner of it for all purposes.
10. Unclaimed Money
If money for the payment of Principal or interest
remains unclaimed for two years after the date of
payment of Principal and interest, the Trustee or
Paying Agent shall pay the money back to the Company
at its request unless an abandoned property law
designates another Person. After any such payment,
Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
55
11. Defeasance
Subject to certain conditions set forth in the
Indenture, the Company at any time may terminate some
or all of its obligations under the Securities of
this series and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations
for the payment of Principal of and interest on the
Securities of this series to redemption or maturity,
as the case may be.
12. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities of
this series may be amended with the written consent
of the Holders of at least a majority in principal
amount of the outstanding Securities of this series
and (ii) with respect to this series, any default or
noncompliance with any provision of the Indenture or
the Securities of this series may be waived with the
written consent of the Holders of a majority in
principal amount of the outstanding Securities of
this series. Subject to certain exceptions set forth
in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend
the Indenture or the Securities to cure any
ambiguity, omission, defect or inconsistency, or to
comply with
Article 5 of the Indenture, or to provide for
uncertificated Securities of this series in addition
to or in place of certificated Securities of this
series, or to add guarantees with respect to the
Securities of this series or to add security for the
Securities of this series, or to add additional
covenants of or surrender rights and powers conferred
on the Company, or to comply with any request
of the SEC in connection with qualifying the
Indenture under the Act, or to make any change that
does not adversely affect the rights of any
Securityholder of this series.
13. Defaults and Remedies
Under the Indenture, Events of Default with respect
to this series include (i) default for 30 days in
payment of interest on the Securities of this series;
(ii) default in payment of Principal on the
Securities of this series at maturity, upon
redemption
pursuant to paragraph 5 of the Securities of this
series, upon declaration or otherwise; (iii) failure
by the Company to comply with other agreements in the
Indenture or the Securities of this series, subject
to notice and lapse of time; (iv) a failure to pay
within any grace period after final maturity other
indebtedness of the Company in an amount in excess of
$25 million; (v) certain accelerations of other
indebtedness of the Company if the amount
accelerated exceeds $25 million; and (vi) certain
events of bankruptcy or insolvency involving the
Company.
If an Event of Default with respect to this series
occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of the
Securities of this series may declare all the
56
Securities of this series to be due and payable
immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in
the Securities of this series being due and payable
immediately upon the occurrence of such Events of
Default.
Securityholders may not enforce the Indenture or
the Securities of this series except as provided in
the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities of this series unless it
receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority
in principal amount of the Securities of this series
may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from
Securityholders of this series notice of any
continuing Default or
Event of Default (except a Default or Event of
Default in payment of Principal or interest) if it
determines that withholding notice is not opposed to
their interest.
14. Trustee Dealings with the Company
Subject to certain limitations set forth in this
Indenture, the Trustee under the Indenture, in its
individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal
with and collect obligations owed to it by the
Company and may otherwise deal with the Company with
the same rights it would have if it were not Trustee.
15. No Recourse Against Others
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for
any obligations of the Company under the Securities
or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their
creation. By accepting a Security, each
Securityholder waives
and releases all such liability. The waiver and
release are part of the consideration for the issue
of the Securities.
16. Authentication
This Security shall not be valid until an
authorized officer of the Trustee (or an
authenticating agent acting on its behalf) manually
signs the certificate of authentication on the other
side of this Security.
17. Abbreviations
Customary abbreviations may be used in
the name of a Securityholder or an assignee, such as
TEN COM (=tenants in common), TEN ENT (=tenants by
the entirety), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common),
CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
57
18. CUSIP Numbers
Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification
Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption
as a convenience to Securityholders. No
representation is made as to the accuracy of such
numbers either as
printed on the Securities or as contained in any
notice of redemption and reliance may be placed only
on the other identification numbers placed thereon.
19. Governing Law
This Security shall be governed by, and
construed in accordance with, the laws of the State
of New York but without giving effect to applicable
principles of conflicts of law to the extent
that the application of the laws of another
jurisdiction would be required thereby.
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security 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 Security on the books of the Company.
The agent may substitute another to act for him.
Date: Your Signature:
Signature Guarantee:
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or
other signature guarantor program reasonably
acceptable to the Trustee)
Sign exactly as your name appears on the other side
of this Security.
In connection with any transfer or exchange of any of
the certificated Securities evidenced by this
certificate occurring prior to the date that is two
years after the later of the date of original
issuance of such Securities and the last date, if
any, on which such Securities were owned by the
Company or any Affiliate of the Company, the
undersigned confirms that such Securities are being
transferred:
CHECK ONE BOX BELOW:
(1) to the Company; or
(2) pursuant to an effective registration
statement under the Securities Act of
1933; or
(3) inside the United States to a qualified
institutional buyer (as defined in Rule
144A under the Securities Act 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; or
58
(5) pursuant to the 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 certificated Securities
evidenced by this certificate in the name of any
Person other than the registered holder thereof;
provided, however, that if box (4) or (5) is checked,
the Trustee may require, prior to registering any
such transfer of the Securities, 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, such as
the exemption provided by Rule 144 under such Act.
Signature
Signature Guarantee:
Signature
(Signature must be guaranteed by a
participant in a recognized Signature
Guarantee Medallion Program or other
signature guarantor program reasonably
acceptable to the Trustee)
59
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS
CHECKED.
The undersigned represents and warrants
that it is purchasing this certificated Security 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, 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 undersigneds
foregoing representations in order to claim
the exemption from registration provided by Rule
144A.
Dated:
______________________________
NOTICE: To be executed by
an executive
officer
Signature Guarantee:
Signature
(Signature must be guaranteed by a
participant in a recognized Signature
Guarantee Medallion Program or other
signature guarantor program reasonably
acceptable to the Trustee)
60
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global
Security have been made:
Date of
Exchange
Amount of decrease
in Principal Amount
of this Global Security
Amount of increase in Principal
Amount of this Global Security
Principal Amount of this Global
Security following such decrease
or increase
Signature of authorized officer of
Trustee or Securities Custodian
61
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY [OR PRIVATE
EXCHANGE SECURITY]]
COMPUTER ASSOCIATES INTERNATIONAL, INC.
No. Principal Amount $
CUSIP NO.
ISIN NO.
[Series [B][C] 61/4% Senior Notes Due 2003]
[Series [B][C] 63/8% Senior Notes Due 2005]
[Series [B][C] 61/2% Senior Notes Due 2008]
Computer Associates International, Inc., a Delaware
corporation, for value received, promises to pay to
__________, or registered assigns, the principal sum
of ___________________________ Dollars on ________
__,[2003] [2005] [2008].
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Security
are set forth on the other side of this Security.
Dated: __________ COMPUTER ASSOCIATES
INTERNATIONAL,INC.
by
by
TRUSTEES CERTIFICATE OF Dated:
AUTHENTICATION
This is one of the Securities
of the series designated therein
referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
by
Authorized Officer
62
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY [OR
PRIVATE EXCHANGE SECURITY]]
[Series [B][C] 61/4% Senior Notes Due 2003]
[Series [B][C] 63/8% Senior Notes Due 2005]
[Series [B][C] 61/2% Senior Notes Due 2008]
1. Interest
Computer Associates International, Inc., a Delaware
corporation (such corporation, and its successors and
assigns under this Indenture hereinafter referred to,
being herein called the Company), promises to pay
interest on the principal amount of this Security at
the rate per annum shown above.
The Company will pay interest semiannually on
April 15 and October 15 of each year (each such date,
an Interest Payment Date), commencing October 15,
1998 Interest on the Securities will accrue from
April 24, 1998, or from the most recent date to which
interest has been paid on the Securities. Interest
will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment
By no later than 1:00 p.m. (New York City time) on
the date on which any Principal of or interest on any
Security is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying
Agent money sufficient to pay such Principal
and/or interest. The Company will pay interest
(except defaulted interest) to the Persons who are
registered Holders of Securities at the close of
business on the April 1 or October 1 next preceding
the Interest Payment Date even if Securities are
cancelled, repurchased or redeemed after the record
date and on or before the Interest Payment Date.
Holders must surrender Securities to a Paying
Agent to collect principal payments. The Company
will pay Principal and interest in money of the
United States that at the time of payment is legal
tender for payment of public and private debts.
However, the Company may pay Principal and interest
by check payable in such money. It may mail an
interest check to a Holders registered address.
3. Paying Agent and Registrar
Initially, The Chase Manhattan Bank, a New York
banking corporation (the Trustee), will act as
Paying Agent and Registrar. The Company may appoint
and change any Paying Agent or Registrar without
notice to any Securityholder. The Company or any of
its domestically incorporated wholly owned
Subsidiaries may act as Paying Agent.
63
4. Indenture
The Company issued the Securities under
an Indenture dated as of April 24, 1998 (as it may be
amended or supplemented from time to time in
accordance with the terms thereof, the Indenture),
between the Company and the Trustee. The terms of
the Securities include those stated in this Indenture
and those made part of this Indenture by reference to
the Trust Indenture Act of 1939 (15 U.S.C. 77aaa-
77bbbb) as in effect on the date of this Indenture
(the Act). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in
this Indenture. The Securities are subject to all
such terms, and Securityholders are referred to this
Indenture and the Act for a statement of those terms.
The Securities are senior obligations of the
Company limited to $[575,000,000] [825,000,000]
[350,000,000] aggregate principal amount (subject to
Section 2.7 of the Indenture). The Security is one
of the [2003][2005][2008] [Private] Exchange
Securities referred to in the Indenture. The
Securities include the [2003][2005][2008] Initial
Securities and any [2003][2005][2008] Private
Exchange Securities and [2003][2005][2008] Exchange
Securities issued in exchange for the
[2003][2005][2008] Initial Securities pursuant to the
Indenture and the Registration Rights Agreement. The
[2003][2005][2008] Initial Securities, the
[2003][2005][2008] Private Exchange Securities and
the [2003][2005][2008] Exchange Securities are
treated as a single class of securities under the
Indenture. The Indenture imposes certain limitations
on the ability of the Company to create liens,
enter into sale and leaseback transactions and enter
into mergers and consolidations.
5. Optional Redemption
The Securities are redeemable, in whole
or in part, at any time and from time to time, at the
option of the Company, at a redemption price equal to
the greater of (i) 100% of the principal
amount of such Securities and (ii) the sum of the
present values of the Remaining Scheduled Payments of
Principal, discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate [plus
[12.5] [15] basis points,] plus accrued interest
thereon to the date of redemption.
Treasury Rate means, with respect to any redemption
date for the Securities, the rate per annum equal to
the semiannual equivalent yield to maturity (computed
as of the second business day immediately preceding
such redemption date) of the Comparable Treasury
Issue, assuming 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.
Comparable Treasury Issue means the United States
Treasury security selected by an Independent
Investment Banker 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 the Securities to be
redeemed. Independent Investment Banker means one of
the Reference Treasury Dealers appointed by the
Company.
64
Comparable Treasury Price means, with respect to
any redemption date for the Securities, (i) the
average of the bid and asked prices for the
Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) on
the third business day preceding such redemption
date, as set forth in the daily statistical release
(or any successor release)published by the
Federal Reserve Bank of New York and designated
Composite 3:30 p.m. Quotations for U.S. Government
Securities or (ii) if such release (or any successor
release) is not published or does not contain such
prices on such business day, (a) the average of the
Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations,
or (b) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the
average of all such Quotations. 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 as of 3:30 p.m.,
New York time, on the third business day preceding
such redemption date.
Reference Treasury Dealer means each of Credit
Suisse First Boston Corporation (and its successors)
and three other nationally recognized investment
banking firms that are Primary Treasury Dealers
specified from time to time by the Company; provided,
however, that if any of the foregoing shall
cease to be a primary U.S. Government securities
dealer in New York City (a Primary Treasury Dealer),
the Company shall substitute therefor another
nationally recognized investment banking firm that is
a Primary Treasury Dealer.
Remaining Scheduled Payments means, with
respect to each Security to be redeemed, the
remaining scheduled payments of the Principal thereof
and interest thereon that would be
due after the related redemption date but for such
redemption; provided, however, that, if such
redemption date is not an Interest
Payment Date with respect to such Security, the
amount of the next succeeding scheduled interest
payment thereon will be reduced by the amount of
interest accrued thereon to such redemption date.
Except as set forth above, the Securities will not be
redeemable by the Company prior to maturity and will
not be entitled to the benefit of any sinking fund.
6. Notice of Redemption
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date
by first-class mail to each Holder of Securities to
be redeemed at his registered address. Securities in
denominations of principal amount larger than $1,000
may be redeemed in part but only in whole multiples
of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all
Securities (or portions thereof)
65
to be redeemed on the redemption date is deposited
with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on
and after such date interest ceases to accrue on such
Securities (or such portions thereof) called for
redemption.
7. Denominations; Transfer; Exchange
The Securities are in registered form without
coupons in denominations of principal amount of
$1,000 and whole multiples of $1,000. A Holder may
register transfer or exchange Securities in
accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish
appropriate endorsements or transfer documents and to
pay any taxes and fees required by law or permitted
by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected
for redemption (except, in the case of a Security to
be redeemed in part, the portion of the Security not
to be redeemed)for a period beginning 15 days before
a selection of Securities to be redeemed
and ending on the date of such selection.
8. Persons Deemed Owners
The registered holder of this Security may be treated
as the owner of it for all purposes.
9. Unclaimed Money
If money for the payment of Principal or interest
remains unclaimed for two years after the date of
payment of Principal and interest, the Trustee or
Paying Agent shall pay the money back to the Company
at its request unless an abandoned property law
designates another Person. After any such payment,
Holders entitled to the money must look only to the
Company and not to the Trustee for payment.
10. Defeasance
Subject to certain conditions set forth in the
Indenture, the Company at any time may terminate some
or all of its obligations under the Securities of
this series and the Indenture if the Company deposits
with the Trustee money or U.S. Government Obligations
for the payment of Principal of and interest on the
Securities of this series to redemption or maturity,
as the case may be.
11. Amendment, Waiver
Subject to certain exceptions set forth in the
Indenture, (i) the Indenture or the Securities of
this series may be amended with the written consent
of the Holders of at least a majority in principal
66
amount of the outstanding Securities of this
series and (ii) with respect to this series, any
default or noncompliance with any provision of the
Indenture or the Securities of this series may be
waived with the written consent of the Holders
of a majority in principal amount of the outstanding
Securities of this series. Subject to certain
exceptions set forth in the Indenture, without the
consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to
cure any ambiguity, omission, defect or nconsistency,
or to comply with Article 5 of the Indenture, or to
provide for uncertificated Securities of this series
in addition to or in place of certificated
Securities of this series, or to add guarantees with
respect to the Securities of this series or to add
security for the Securities of this series, or to add
additional covenants of or surrender rights and
powers conferred on the Company, or to comply with
any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change
that does not adversely affect the rights
of any Securityholder of this series.
12. Defaults and Remedies
Under the Indenture, Events of Default with respect
to this series include (i) default for 30 days in
payment of interest on the Securities of this series;
(ii) default in payment of principal on the
Securities of this series at maturity, upon
redemption pursuant to paragraph 5 of the Securities
of this series, upon declaration or otherwise; (iii)
failure by the Company to comply with other
agreements in the Indenture or the Securities of this
series, subject to notice and lapse of time; (iv)
failure to pay within any grace period after final
maturity other indebtedness of the Company in an
amount in excess of $25 million; (v) certain
accelerations of other indebtedness of the Company if
the amount accelerated exceeds $25 million; or (vi)
certain events of bankruptcy or insolvency with
respect to the Company.
If an Event of Default with respect to this series
occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of the
Securities of this series may declare all the
Securities to be due and payable immediately.
Certain events of bankruptcy or insolvency are Events
of Default which will result in the Securities of
this series being due and payable immediately upon
the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or
the Securities of this series except as provided in
the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities of this series unless it
receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority
in principal amount of the Securities of this series
may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from
Securityholders notice of any continuing Default or
Event of Default (except a Default or Event of
Default in payment of Principal or interest) if it
determines that withholding notice is not opposed to
their interest.
67
13. Trustee Dealings with the Company
Subject to certain limitations set forth in this
Indenture, the Trustee under the Indenture, in its
individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal
with and collect obligations owed to it by the
Company and may otherwise deal with the Company with
the same rights it would have if it were not Trustee.
14. No Recourse Against Others
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for
any obligations of the Company under the Securities
or this Indenture or for any claim based on, in
respect of or by reason of such obligations or
their creation. By accepting a Security, each
Securityholder waives and releases all such
liability. The waiver and release are part of the
consideration for the issue of the Securities.
15. Authentication
This Security shall not be valid until an authorized
officer of the Trustee (or an authenticating agent
acting on its behalf) manually signs the certificate
of authentication on the other side of this Security.
16. Abbreviations
Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as TEN COM
(=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of
survivorship and not as tenants in common),
CUST (=custodian) and U/G/M/A (=Uniform Gift to
Minors Act).
17. CUSIP Numbers
Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification
Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the
Trustee to use CUSIP numbers in notices of redemption
as a convenience to Securityholders. No
representation is made as to the accuracy of such
numbers either as printed on the Securities or as
contained in any notice of redemption and reliance
may be placed only on the other identification
numbers placed thereon.
<PAGE? 68
18. Governing Law
This Security shall be governed by, and construed in
accordance with, the laws of the State of New York
but without giving effect to applicable principles of
conflicts of law to the extent that the application
of the laws of another jurisdiction would be required
thereby.
69
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignees name, address and zip
code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to
transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Date: ____________________ Your Signature:
___________________
Signature Guarantee: ______________________________
(Signature must be guaranteed by a participant in a
recognized Signature Guarantee Medallion Program or
other signature guarantor program reasonably
acceptable to the Trustee)
Sign exactly as your name appears on the other side
of this Security.
COMPUTER ASSOCIATES INTERNATIONAL, INC.
Issuer
6 1/4% Senior Notes Due 2003
6 3/8% Senior Notes Due 2005
6 1/2% Senior Notes Due 2008
INDENTURE
Dated as of April 24, 1998
THE CHASE MANHATTAN BANK,
Trustee
70
CROSS-REFERENCE TABLE
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the Trust
Indenture Act of 1939:
TIA Indenture
Section Section
310(a)(1) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(b) 7.8; 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 2.5
(b) 10.3
(c) 10.3
313(a) 7.6
(b)(1) N.A.
(b)(2) 7.6
(c) 7.6
(d) 7.6
314(a) 4.8
4.4; 10.2
(b) N.A.
(c)(1) 10.4
(c)(2) 10.4
(c)(3) N.A.
(d) N.A.
(e) 10.5
(f) 4.8
315(a) 7.1
(b) 7.5
(c) 7.1
(d) 7.1
(e) 6.11
316(a)(last sentence) 10.6
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) N.A.
(b) 6.7
317(a)(1) 6.8
(a)(2) 6.9
(b) 2.4
318(a) 10.1
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be part of this Indenture.
71
TABLE OF CONTENTS
ARTICLE I
Definitions and Incorporation by Reference 1
SECTION 1.1. Definitions 1
SECTION 1.2. Other Definitions 5
SECTION 1.3. Incorporation by Reference of
Trust Indenture Act 5
SECTION 1.4. Rules of Construction 5
SECTION 1.5. One Class of Securities 6
ARTICLE II
The Securities 6
SECTION 2.1. Form and Dating 6
SECTION 2.2. Execution and Authentication 7
SECTION 2.3. Registrar and Paying Agent 7
SECTION 2.4. Paying Agent To Hold Money in
Trust 8
SECTION 2.5. Securityholder Lists 8
SECTION 2.6. Business Days 8
SECTION 2.7. Replacement Securities 8
SECTION 2.8. Outstanding Securities 9
SECTION 2.9. Temporary Securities 9
SECTION 2.10. Cancellation 9
SECTION 2.11. Defaulted Interest 9
SECTION 2.12. CUSIP Numbers 10
ARTICLE III
Redemption 10
SECTION 3.1. Notices to Trustee 10
SECTION 3.2. Selection of Securities To Be
Redeemed 10
SECTION 3.3. Notice of Redemption 11
SECTION 3.4. Effect of Notice of Redemption 11
SECTION 3.5. Deposit of Redemption Price 12
SECTION 3.6. Securities Redeemed in Part 12
ARTICLE IV
Covenants 12
SECTION 4.1. Payment of Securities 12
SECTION 4.2. Limitations on Liens. 13
SECTION 4.3. Limitation on Sale and Lease-Back
Transactions. 14
SECTION 4.4. Compliance Certificate 15
SECTION 4.5. Further Instruments and Acts 16
72
SECTION 4.6. Maintenance of Office or Agency 16
SECTION 4.7. Corporate Existence 16
SECTION 4.8. SEC Reports 16
ARTICLE V
Successor Company 16
SECTION 5.1. When the Company May Merge or
Transfer Assets 16
ARTICLE VI
Defaults and Remedies 17
SECTION 6.1. Events of Default 17
SECTION 6.2. Acceleration 19
SECTION 6.3. Other Remedies 19
SECTION 6.4. Waiver of Past Defaults 20
SECTION 6.5. Control by Majority 20
SECTION 6.6. Limitation on Suits 20
SECTION 6.7. Rights of Holders To Receive
Payment 21
SECTION 6.8. Collection Suit by Trustee 21
SECTION 6.9. Trustee May File Proofs
of Claim 21
SECTION 6.10. Priorities 21
SECTION 6.11. Undertaking for Costs 22
SECTION 6.12. Waiver of Stay or
Extension Laws 22
ARTICLE VII
Trustee 22
SECTION 7.1. Duties of Trustee 22
SECTION 7.2. Rights of Trustee 23
SECTION 7.3. Individual Rights of Trustee 24
SECTION 7.4. Trustee's Disclaimer 24
SECTION 7.5. Notice of Defaults 24
SECTION 7.6. Reports by Trustee to Holders 24
SECTION 7.7. Compensation and Indemnity 25
SECTION 7.8. Replacement of Trustee 25
SECTION 7.9. Successor Trustee by Merger 26
SECTION 7.10. Eligibility; Disqualification 27
SECTION 7.11. Preferential Collection of
Claims Against Company 27
ARTICLE VIII
Discharge of Indenture; Defeasance 27
SECTION 8.1. Discharge of Liability on
Securities; Defeasance 27
SECTION 8.2. Conditions to Defeasance 28
<PAGE? 73
SECTION 8.3. Application of Trust Money 29
SECTION 8.4. Repayment to Company 29
SECTION 8.5. Indemnity for Government
Obligations 30
SECTION 8.6. Reinstatement 30
ARTICLE IX
Amendments 30
SECTION 9.1. Without Consent of Holders 30
SECTION 9.2. With Consent of Holders 31
SECTION 9.3. Compliance with Trust Indenture
Act 32
SECTION 9.4. Revocation and Effect of
Consents and Waivers 32
SECTION 9.5. Notation on or Exchange of
Securities 32
SECTION 9.6. Trustee To Sign Amendments 33
SECTION 9.7. Payment for Consent 33
ARTICLE X
Miscellaneous 33
SECTION 10.1. Trust Indenture Act Controls 33
SECTION 10.2. Notices 33
SECTION 10.3. Communication by Holders with
other Holders 34
SECTION 10.4. Certificate and Opinion as to
Conditions Precedent 34
SECTION 10.5. Statements Required in
Certificate or Opinion 35
SECTION 10.6. When Securities Disregarded 35
SECTION 10.7. Rules by Trustee, Paying Agent
and Registrar 35
SECTION 10.8. Governing Law 35
SECTION 10.9. No Recourse Against Others 35
SECTION 10.10. Successors 36
SECTION 10.11. Multiple Originals 36
SECTION 10.12. Variable Provisions 36
SECTION 10.13. Qualification of Indenture 36
SECTION 10.14. Table of Contents; Headings 36
Rule 144A/Regulation S Appendix
Exhibit 1 to Appendix - Form of Initial Security
Exhibit A - Form of Exchange Security and Private
Exchange Security
*/ [If the Security is to be issued in global form
add the Global Securities
Legend from Exhibit 1 to Appendix A and the
attachment from such
Exhibit 1 captioned "[TO BE ATTACHED TO GLOBAL
SECURITIES] - SCHEDULE OF INCREASES OR DECREASES IN
GLOBAL SECURITY".]
**/ [If the Security is a Private Exchange Security
issued in a Private
Exchange to an Initial Purchaser holding an unsold
portion of its
initial allotment, add the Restricted Securities
Legend from Exhibit 1
to Appendix A and replace the Assignment Form with
the Assignment
Form included in such Exhibit 1.]
(..continued)
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