Exhibit 4.2
GENERAL DYNAMICS CORPORATION,
THE GUARANTORS,
AND
THE BANK OF NEW YORK, AS TRUSTEE
--------------------
First Supplemental Indenture
Dated as of August 27, 2001
to
Indenture
Dated as of August 27, 2001
--------------------
Providing for the issuance of
Floating Rate Notes due September 1, 2004
TABLE OF CONTENTS
Article I DEFINITIONS.....................................................................................2
SECTION 1.01. Definition of Terms...............................................................2
Article II GENERAL TERMS AND CONDITIONS OF THE NOTES......................................................3
SECTION 2.01. Designation and Principal Amount..................................................3
SECTION 2.02. Maturity..........................................................................3
SECTION 2.03. Form; Denomination................................................................3
SECTION 2.04. Restrictive Legends...............................................................4
SECTION 2.05. Special Transfer Provisions.......................................................7
SECTION 2.06. Interest and Interest Rate........................................................8
SECTION 2.07. Place of Payment.................................................................11
Article III REDEMPTION OF THE NOTES......................................................................12
SECTION 3.01. Optional Redemption by Company...................................................12
SECTION 3.02. No Sinking Fund..................................................................12
Article IV FORM OF NOTE..................................................................................12
SECTION 4.01. Form of Note.....................................................................12
Article V ORIGINAL ISSUE OF NOTES........................................................................24
SECTION 5.01. Original Issue of Notes; Further Issuances.......................................24
Article VI MISCELLANEOUS.................................................................................25
SECTION 6.01. Execution, Authentication and Delivery and Dating................................25
SECTION 6.02. Ratification of Indenture........................................................25
SECTION 6.03. Trustee Not Responsible for Recitals.............................................25
SECTION 6.04. Governing Law....................................................................25
SECTION 6.05. Severability.....................................................................25
SECTION 6.06. Counterparts.....................................................................25
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of August 27, 2001
(the "First Supplemental Indenture"), is entered into by and among General
Dynamics Corporation, a Delaware corporation (the "Company"), the Guarantors (as
defined in the Indenture) and The Bank of New York, as trustee (the "Trustee"),
under the Indenture dated as of August 27, 2001, by and among the Company, the
Guarantors and the Trustee (the "Indenture").
WHEREAS, the Company and the Guarantors executed and delivered
the Indenture to the Trustee to provide, among other things, for the future
issuance of the Company's unsecured Securities to be issued from time to time in
one or more series as might be determined by the Company under the Indenture, in
an unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, Article 9 of the Indenture provides for various matters
with respect to any series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture;
WHEREAS, Section 9.01(5) of the Indenture permits the Company,
when authorized by a Board Resolution, and the Trustee, at any time or from time
to time, to enter into one or more indentures supplemental to the Indenture, in
form satisfactory to the Trustee, for the purpose of establishing any form of
Security, as provided in Article 2 of the Indenture or providing for the
issuance of any series of Securities as provided in Article 3 of the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to be
known as its Floating Rate Notes due September 1, 2004, the form and substance
of such Notes and the terms, provisions and conditions thereof to be set forth
as provided in the Indenture and this First Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and
deliver this First Supplemental Indenture and all requirements necessary to make
(i) this First Supplemental Indenture a valid instrument in accordance with its
terms, and (ii) the Notes, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance
of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Notes and the terms,
provisions and conditions thereof, the Company and the Guarantors covenant and
agree with the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definition of Terms. Unless the context otherwise
requires:
(a) Capitalized terms used herein, but not otherwise
defined shall have the meanings ascribed to them in the Indenture.
(b) The following terms have the meanings given to
them in this Section 1.01(b):
"Additional Interest" shall have the meaning set forth in
Section 2.06(e).
"Calculation Agent" shall have the meaning set forth in Section
2.06(b).
"Exchange Notes" means the debt securities of the Company to be
offered to Holders in exchange for Initial Notes pursuant to the Registered
Exchange Offer or otherwise pursuant to a registration of debt securities
containing terms identical in all material respects to the Notes for which they
are exchanged.
"Global Note" shall have the meaning set forth in Section
2.03(a).
"Indenture" means the Indenture dated as of August 27, 2001, by
and among the Company, the Guarantors and the Trustee, as supplemented or
amended from time to time.
"Interest Amount" shall have the meaning set forth in Section
2.06(b)(iv).
"Interest Determination Date" shall have the meaning set forth
in Section 2.06(b)(i).
"Initial Interest Rate" shall have the meaning set forth in
Section 2.06(a).
"Initial Notes" means the Notes issued under this First
Supplemental Indenture which are not Exchange Notes.
"Interest Payment Date" shall have the meaning set forth in
Section 2.06(a).
"Interest Period" shall have the meaning set forth in Section
2.06(b)(i).
"Note" or "Notes" means any Security or Securities, as the case
may be, authenticated and delivered under this First Supplemental Indenture. For
all purposes of this First Supplemental Indenture, the term "Notes" shall
include the Initial Notes and any Exchange Notes to be issued and exchanged for
any Initial Notes pursuant to the Registration Rights Agreement and this First
Supplemental Indenture and, for purposes of this First Supplemental Indenture,
all Initial Notes and Exchange Notes shall vote together as one series of Notes
under the Indenture.
"Optional Redemption" shall have the meaning set forth in
Section 3.01.
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"Optional Redemption Price" shall have the meaning set forth in
Section 3.01.
"Private Placement Legend" means the legend initially set forth
on the Rule 144A Notes in the form set forth in Section 2.04(a) or the legend
initially set forth on the Regulation S Notes in the form set forth in Section
2.04(b), as the case may be.
"Rate of Interest" has the meaning set forth in Section 2.06(b).
"Reference Banks" shall have the meaning set forth in Section
2.06(b)(ii).
"Registered Exchange Offer" means the exchange offer by the
Company of Exchange Notes for Initial Notes pursuant to the Registration Rights
Agreement.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of August 22, 2001, among the Company, the Guarantors and
the Initial Purchaser (as defined in the Registration Rights Agreement) and
certain permitted assigns specified therein.
"Regulation S Notes" means the Initial Notes offered and sold
outside the United States in reliance on Regulation S under the Securities Act.
"Reserve Interest Rate" shall have the meaning set forth in
Section 2.06(b)(iii).
"Restricted Legend" means the legends set forth in Sections
2.04(a), (b) and (c) hereof.
"Rule 144A Notes" means the Initial Notes offered and sold to
"qualified institutional buyers" in the United States in reliance on Rule 144A
under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount. There is hereby
authorized a series of Securities designated the "Floating Rate Notes due 2004"
initially offered in an aggregate principal amount equal to $500,000,000 which
amount shall be as set forth in any written order of the Company for the
authentication and delivery of Notes pursuant to Section 3.03 of the Indenture.
SECTION 2.02. Maturity. The Notes will mature on September 1,
2004.
SECTION 2.03. Form; Denomination.
(a) The Notes shall be issued initially in the form
of one or more global Notes in registered form, substantially in the
form herein (the "Global Notes") including the applicable Restricted
Legend (the "Initial Notes"), deposited with the
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Trustee, as custodian for the Depository, duly executed by the Trustee
and authenticated by the Trustee as herein provided.
(b) The aggregate principal amount of the Global
Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository or
its nominee, as hereinafter provided.
(c) The Notes shall be issuable in denominations
provided for in the form of Note recited below. The Notes shall be
numbered, lettered, or otherwise distinguished in such manner or in
accordance with such plans as the officers of the Company executing the
same may determine with the approval of the Trustee.
SECTION 2.04. Restrictive Legends.
(a) Except as otherwise provided in paragraph (d),
each Rule 144A Note shall bear the following legend on the face thereof:
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT
AMONG THE COMPANY, THE GUARANTORS NAMED THEREIN AND THE INITIAL
PURCHASER (AS DEFINED THEREIN), DATED AUGUST 22, 2001 (THE "REGISTRATION
RIGHTS AGREEMENT"). GENERAL DYNAMICS CORPORATION WILL PROVIDE A COPY OF
THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT
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PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE l44A, (D) IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S, THE
GUARANTORS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY
TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
If individual Rule 144A Notes are issued, each individual Rule
144A Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(b) Except as otherwise provided in paragraph (d),
each Regulation S Note shall bear the following legend on the face thereof:
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT
AMONG THE COMPANY, THE GUARANTORS NAMED THEREIN AND THE INITIAL
PURCHASER (AS DEFINED THEREIN), DATED AUGUST 22, 2001 (THE "REGISTRATION
RIGHTS AGREEMENT"). GENERAL DYNAMICS CORPORATION WILL PROVIDE A COPY OF
THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION AND ACCEPTANCE HEREOF, THE HOLDER (1) REPRESENTS THAT
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A
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REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S, THE GUARANTORS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER 40 CONSECUTIVE DAYS BEGINNING ON
AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE SECURITIES ARE
OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S)
AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
If individual Regulation S Notes are issued, each individual
Regulation S Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
(c) Each Global Note shall also bear the following
legend on the face thereof:
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 IN 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
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INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR
A NOMINEE THEREOF. 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 THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
(d) (i) If the Company determines (upon the
advice of counsel and such other certifications as the Company
may reasonably require) that any Note is eligible for resale
pursuant to Rule 144(k) under the Securities Act (or a successor
provision) and that the Private Placement Legend is no longer
necessary or appropriate in order to ensure that subsequent
transfers of such Note (or a beneficial interest therein) are
effected in compliance with the Securities Act, or
(ii) after an Initial Note is (x) sold
pursuant to an effective registration statement under the
Securities Act, pursuant to the Registration Rights Agreement or
otherwise, or (y) exchanged for an Exchange Note,
the Company may instruct the Trustee to cancel such Note and issue to the Holder
thereof (or to its transferee) a new Note of like tenor and amount, registered
in the name of the Holder thereof (or its transferee), that does not bear the
Private Placement Legends and the Trustee will comply with such instruction.
SECTION 2.05. Special Transfer Provisions. Unless and until an
Initial Note is exchanged for an Exchange Note in connection with an effective
registration pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) The transfer or exchange of any Note (or a
beneficial interest therein) that bears the Restricted Legend may only
be made in compliance with the provisions of the Restricted Legend.
(b) The Trustee will retain copies of all
certificates, opinions and other documents received in connection with
the transfer or exchange of a Note (or a beneficial interest therein),
and the Company will have the right to inspect and make copies thereof
at any reasonable time upon written notice to the Trustee.
(c) By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this First
Supplemental Indenture and in the Private Placement Legend and agrees
that it will transfer such Note only as provided in this First
Supplemental Indenture. The Security Registrar shall not register a
transfer of any Note unless such transfer complies with the restrictions
on transfer of such Note set forth in this First
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Supplemental Indenture. In connection with any transfer of Notes, each
Holder agrees by its acceptance of the Notes to furnish the Security
Registrar or the Company such certifications, legal opinions or other
information as either of them may reasonably require to confirm that
such transfer is being made pursuant to an exemption from, or a
transaction not subject to, the registration requirements of the
Securities Act; provided that the Security Registrar shall not be
required to determine (but may rely on a determination made by the
Company with respect to) the sufficiency of any such certifications,
legal opinions or other information.
The Security Registrar shall retain copies of all
letters, notices and other written communications received pursuant to
Section 3.05 of the Indenture or this Section 2.05. The Company shall
have the right to inspect and make copies of all such letters, notices
or other written communications at any reasonable time upon the giving
of reasonable written notice to the Security Registrar.
Each Holder of a Note agrees to indemnify the Company,
the Guarantors and the Trustee against any liability that may result
from the transfer, exchange or assignment of such Holder's Note in
violation of any provision of this First Supplemental Indenture or
applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this First Supplemental Indenture or under applicable law
with respect to any transfer of any interest in any Note (including any
transfers between or among members of, or participants in, the
Depository or beneficial owners of interests in any Global Note) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this First Supplemental Indenture,
and to examine the same to determine substantial compliance as to form
with the express requirements hereof.
SECTION 2.06. Interest and Interest Rate.
(a) Each Note shall bear interest from August 27,
2001 to, but excluding, December 1, 2001 at a rate per annum equal to
3.7325% (the "Initial Interest Rate"). Thereafter, interest will be
payable with respect to each Interest Period at a rate per annum equal
to the Rate of Interest for such Interest Period. Interest on the Notes
shall be payable quarterly in arrears on December 1, March 1, June 1 and
September 1 of each year beginning on December 1, 2001 (each, an
"Interest Payment Date"); provided, however, that if an Interest Payment
Date would otherwise be a day that is not a Business Day, such Interest
Payment Date shall be the next succeeding Business Day, and no
additional interest shall be paid in respect of such intervening period.
The interest payable on each Interest Payment Date shall
be the amount of interest accrued from August 27, 2001 or from the most
recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, to but excluding such Interest Payment
Date (whether or not such Interest Payment Date is a Business
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Day) or the date on which the principal amount of the Notes has been
paid or duly provided for.
The interest payable on any Note which is punctually
paid or duly provided for on any Interest Payment Date shall be paid to
the Person in whose name such Note is registered at the close of
business on November 15, February 15, May 15 or August 15 (in each case,
whether or not a Business Day), respectively, immediately preceding such
Interest Payment Date (and each such date shall constitute a Regular
Record Date under the Indenture). Interest payable on any Note which is
not punctually paid or duly provided for on any Interest Payment Date
therefor shall be paid in the manner specified in the Indenture.
(b) The rate of interest on the Notes shall be
determined in accordance with the following provisions (the rate of
interest so determined being referred to in this First Supplemental
Indenture as the "Rate of Interest"):
(i) At approximately 11:00 a.m. (London
time) on the second day on which commercial banks are open for
business, including dealings in deposits in U.S. dollars in
London (or, for purposes of paragraph (iii) below, New York),
prior to the commencement of the Interest Period (as defined
below) for which such rate will apply (each such day an
"Interest Determination Date"), commencing with respect to the
Interest Period that starts on December 1, 2001, The Bank of New
York or its successor in this capacity, as calculation agent
(the "Calculation Agent") will calculate the Rate of Interest
for such Interest Period at, subject to the provisions described
below, the rate per annum equal to 0.22% above the rate
appearing on the Bridge's Telerate Page 3750 (or such other page
as may replace that page on the Bridge's Telerate Service or, if
such service is not available, such other service as may be
selected by the Calculation Agent as the information vendor for
the purpose of displaying the official British Bankers
Association LIBOR Fixing) for three-month U.S. dollar deposits
in the London inter-bank market on such Interest Determination
Date. The period beginning on, and including, August 27, 2001,
and ending on, but excluding, December 1, 2001 and each
successive period beginning on, and including, an Interest
Payment Date and ending on, but excluding, the next succeeding
Interest Payment Date is herein called an "Interest Period." All
percentages resulting from any calculation on the Notes shall be
rounded to the nearest one-hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded
upwards. All dollar amounts used in or resulting from such
calculation on the Notes shall be rounded to the nearest cent,
with one-half cent being rounded upward.
(ii) If on any Interest Determination Date an
appropriate rate cannot be determined from the Bridge's Telerate
Service or such other service as specified in (i) above, the
Rate of Interest for the next Interest Period shall, subject to
the provisions described below, be the rate per annum that the
Calculation Agent certifies to be 0.22% per annum above the
arithmetic mean of the offered quotations, as communicated to
and at the request of the Calculation Agent by not less than two
major banks in London, after requesting such
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quotations from not less than four major banks in London,
selected by the Calculation Agent (the "Reference Banks," which
term shall include any successors nominated by the Calculation
Agent), to leading banks in London by the principal London
offices of the Reference Banks for three-month U.S. dollar
deposits, in amounts of not less than $1,000,000, in the London
inter-bank market as of 11:00 a.m. (London time) on such
Interest Determination Date.
(iii) If on any Interest Determination Date
fewer than two of such offered rates are available, the Rate of
Interest for the next Interest Period shall be the Reserve
Interest Rate. The "Reserve Interest Rate" refers to the rate
per annum which the Calculation Agent determines to be 0.22% per
annum above either:
(1) The arithmetic mean of the U.S.
dollar offered rates which at least two New York City
banks selected by the Calculation Agent are or were
quoting, on the relevant Interest Determination Date,
for three-month deposits in amounts of not less than
$1,000,000 to the Reference Banks or those of them
(being at least two in number) to which such quotations
are or were, in the opinion of the Calculation Agent,
being so made; or
(2) In the event that the
Calculation Agent can determine no such arithmetic mean,
the arithmetic mean of the U.S. dollar offered rates
which at least two New York City banks selected by the
Calculation Agent are or were quoting on such Interest
Determination Date to leading European banks for a
period of three months in amounts of not less than
$1,000,000;
provided, however, that if the banks selected as aforesaid by
the Calculation Agent are not quoting as mentioned above, the
Rate of Interest shall be the Rate of Interest in effect for the
last preceding Interest Period to which (i) or (ii) above shall
have applied or, if applicable, the Initial Interest Rate.
(iv) The Calculation Agent shall, as soon as
practicable after 11:00 a.m. (London time) on each Interest
Determination Date, determine the Rate of Interest and calculate
the amount of interest payable in respect of the following
Interest Period (the "Interest Amount"). The Interest Amount
shall be calculated by applying the Rate of Interest to the
principal amount of each Note outstanding at the commencement of
the Interest Period, multiplying each such amount by the actual
number of days in the Interest Period concerned (which actual
number of days shall include the first day but exclude the last
day of such Interest Period) divided by 360 and rounding the
resultant figure upwards to the nearest cent. The determination
of the Rate of Interest and the Interest Amount by the
Calculation Agent shall (in the absence of willful misconduct,
bad faith or gross negligence) be final and binding on all
parties. Notwithstanding anything herein to the contrary, the
rate of interest on the Notes shall in no event be higher
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than the maximum rate permitted by New York law, as the same may
be modified by United States law of general application.
(c) The Company shall provide that, so long as any
of the Notes remain outstanding, there shall at all times be a
Calculation Agent for the purpose of the Notes. In the event of the
Calculation Agent being unable or unwilling to continue to act as the
Calculation Agent or in the case of the Calculation Agent failing duly
to establish the Rate of Interest for any Interest Period, the Company
shall appoint another leading bank engaged in the London inter-bank
market to act as such in its place. The Calculation Agent may not resign
its duties without a successor having been appointed as aforesaid. If a
successor has not been appointed 30 days after the Calculation Agent has
given to the Company written notice of its desire to resign, the
Calculation Agent may at the sole cost of the Company petition a court
of competent jurisdiction to appoint a successor.
(d) All certificates, communications, opinions,
determinations, calculations, quotations and decisions given, expressed,
made or obtained for the purposes of the provisions relating to the
payment and calculation of interest on the Notes, whether by the
Reference Banks (or any of them) or the Calculation Agent, shall (in the
absence of willful misconduct, bad faith or gross negligence) be binding
on the Company, the Calculation Agent and all of the Holders and no
liability shall (in the absence of willful misconduct, bad faith or
gross negligence) attach to the Calculation Agent in connection with the
exercise or non-exercise by it of its powers, duties and discretions.
(e) In the event that a Registration Default (as
defined in the Registration Rights Agreement) occurs, the Company shall
pay additional interest (in addition to the interest otherwise due
herein) ("Additional Interest") to the Holder for the first 90-day
period immediately following the occurrence of a Registration Default at
a per annum rate equal to 0.125%, and such per annum rate will increase
by an additional 0.125% with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum
additional interest rate of 0.25%. The Company shall pay such Additional
Interest on each Interest Payment Date, and payment of Additional
Interest shall be subject to the terms and conditions of the
Registration Rights Agreement.
There shall also be payable in respect of the Note all
Additional Interest that may have accrued on such Note for which the
Note was exchanged (as defined in such Note) pursuant to the Registered
Exchange Offer, such Additional Interest to be calculated in accordance
with the terms of such Note and payable at the same time and in the same
manner as periodic interest on such Note.
SECTION 2.07. Place of Payment. Payments of any amounts owing in
respect of the Global Notes will be made through one or more Paying Agents
appointed under the Indenture to the Depository as the holder of the Global
Notes. Initially, the Paying Agent for the Global Notes will be the Trustee. The
Company may change the Paying Agent or Security Registrar for the Notes without
prior notice to the Holders of the Notes, and the Company may act as Paying
Agent or Security Registrar for the Notes. Payments of principal or any premium
11
owing in respect of individual Notes will be made at the Maturity of each Note
in immediately available funds upon presentation of the Note at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, The City of New York,
or at any other place as the Company may designate (the "Place of Payment").
Payment of interest due on the individual Notes at Maturity will be made to the
Person to whom payment of the principal of the individual Note will be made.
Payment of interest due on the individual Notes other than at Maturity will be
made at the Place of Payment or, at the Company's option, may be made by check
mailed to the address of the Person entitled to receive payment as the address
appears in the Security Register for the Notes, except that a Holder of
$1,000,000 or more in aggregate principal amount of Notes in individual Note
registered form may, at the Company's option, be entitled to receive interest
payments on any Interest Payment Date other than at Maturity by wire transfer of
immediately available funds if appropriate wire transfer instructions have been
received in writing by the Trustee at least 15 days prior to the Interest
Payment Date. Any wire transfer instructions received by the Trustee will remain
in effect until revoked by the Holder.
ARTICLE III
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company. Subject to the
provisions of Article 11 of the Indenture, the Company shall have the right but
not the obligation to redeem the Notes, without premium or penalty, in whole or
in part (an "Optional Redemption"), beginning after September 1, 2002, at a
redemption price equal to the accrued and unpaid interest on the Notes so
redeemed to the date fixed for such Optional Redemption, plus 100% of the
principal amount thereof (the "Optional Redemption Price").
Any redemption pursuant to this Section 3.01 will be made upon
not less than 30 nor more than 60 days' prior notice before the Redemption Date
to each Holder of the Notes, at the Optional Redemption Price. If the Notes are
only partially redeemed pursuant to this Section 3.01, the Notes will be
redeemed pro rata or by lot or by any other fair method utilized by the Trustee;
provided, that if at the time of redemption the Notes are registered as Global
Notes, the Depository shall determine, in accordance with its procedures, the
principal amount of such Notes held by each Holder of Notes to be redeemed. The
Optional Redemption Price shall be paid prior to 12:00 noon, New York time, on
the Redemption Date or at such earlier time as the Company determines, provided
that the Company shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price by 10:00 a.m., New York time, on the date such
Optional Redemption Price is to be paid.
SECTION 3.02. No Sinking Fund. The Notes are not entitled to the
benefit of any sinking fund.
ARTICLE IV
FORM OF NOTE
SECTION 4.01. Form of Note. The Notes and the Trustee's
Certificate of Authentication to be endorsed thereon are to be substantially in
the following forms:
12
(FORM OF FACE OF NOTE)
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
AGREED TO BE BOUND BY THE PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT
AMONG THE COMPANY, THE GUARANTORS NAMED THEREIN AND THE INITIAL
PURCHASER (AS DEFINED THEREIN), DATED AUGUST 22, 2001 (THE "REGISTRATION
RIGHTS AGREEMENT"). GENERAL DYNAMICS CORPORATION WILL PROVIDE A COPY OF
THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE UPON
WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS.
In the case of a Rule 144A Note, the following legend shall be
inserted:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE l44A, (D) IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S, THE GUARANTORS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
13
In the case of a Regulation S Note, the following legend shall
be inserted:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION AND ACCEPTANCE HEREOF, THE HOLDER (1) REPRESENTS THAT
IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION AND (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO
A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO
A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE
COMPANY'S, THE GUARANTORS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER 40 CONSECUTIVE DAYS BEGINNING ON
AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE SECURITIES ARE
OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S)
AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
If individual Notes are issued, each individual Note shall bear
the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE TRUSTEE
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
14
If the Note is to be a Global Note, the following legend shall
be inserted:
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 IN 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.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR
A NOMINEE THEREOF. 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 THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
No. _____________________________________ CUSIP No. _________________________
GENERAL DYNAMICS CORPORATION FLOATING RATE
NOTE DUE SEPTEMBER 1, 2004
GENERAL DYNAMICS CORPORATION, a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co. or registered assigns, the principal sum of ___________ Dollars ($
___________) on September 1, 2004 (the "Stated Maturity Date"), and to pay
interest on said principal sum from August 27, 2001 to, but excluding, December
1, 2001 at a rate per annum equal to 3.7325% (the "Initial Interest Rate") and
thereafter with respect to each Interest Period at a rate per annum equal to the
Rate of Interest for such Interest Period. Interest on the Notes shall be
payable quarterly in arrears on December 1, March 1, June 1 and September 1,
commencing on December 1, 2001 (each, an "Interest Payment Date"); provided,
however, that if an Interest Payment Date would otherwise be a day that is not a
Business Day, such Interest Payment Date shall be the next succeeding Business
Day but no additional interest shall be paid in respect of such intervening
period).
The interest payable on each Interest Payment Date shall be the
amount of interest accrued from August 27, 2001 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the case
may be, to but excluding such Interest Payment
15
Date (whether or not such Interest Payment Date is a Business Day) or the date
on which the principal amount of the Notes has been paid or duly provided for.
The interest payable on any Note which is punctually paid or
duly provided for on any Interest Payment Date shall be paid to the Person in
whose name such Note is registered at the close of business on November 15,
February 15, May 15 or August 15 (in each case, whether or not a Business Day),
respectively, immediately preceding such Interest Payment Date. Interest payable
on any Note which is not punctually paid or duly provided for on any Interest
Payment Date therefor shall be paid in the manner specified in the Indenture.
The rate of interest shall be determined in accordance with the
following provisions (the rate of interest so determined being referred to in
this Note as the "Rate of Interest"):
(a) At approximately 11:00 a.m. (London time) on the
second day on which commercial banks are open for business, including
dealings in deposits in U.S. dollars in London (or, for purposes of
paragraph (c) below, New York), prior to the commencement of the
Interest Period (as defined below) for which such rate will apply (each
such day an "Interest Determination Date"), commencing with respect to
the Interest Period that starts on December 1, 2001, The Bank of New
York, as the calculation agent, or its successors in this capacity (the
"Calculation Agent") will calculate the Rate of Interest for such
Interest Period at, subject to the provisions described below, the rate
per annum equal to 0.22% above the rate appearing on the Bridge's
Telerate Page 3750 (or such other page as may replace that page on the
Bridge's Telerate Service or, if such service is not available, such
other service as may be selected by the Calculation Agent as the
information vendor for the purpose of displaying the official British
Bankers Association LIBOR Fixing) for three-month U.S. dollar deposits
in the London inter-bank market on such Interest Determination Date. The
period beginning on, and including, August 27, 2001, and ending on, but
excluding, December 1, 2001 and each successive period beginning on, and
including, an Interest Payment Date and ending on, but excluding, the
next succeeding Interest Payment Date is herein called an "Interest
Period." All percentages resulting from any calculation on the Notes
shall be rounded to the nearest one-hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upwards.
All dollar amounts used in or resulting from such calculation on the
Notes shall be rounded to the nearest cent, with one-half cent being
rounded upward.
(b) If on any Interest Determination Date an
appropriate rate cannot be determined from the Bridge's Telerate Service
or such other service as specified in (a) above, the Rate of Interest
for the next Interest Period shall, subject to the provisions described
below, be the rate per annum that the Calculation Agent certifies to be
0.22% per annum above the arithmetic mean of the offered quotations, as
communicated to and at the request of the Calculation Agent by not less
than two major banks in London, after requesting such quotations from
not less than four major banks in London, selected by the Calculation
Agent (the "Reference Banks," which term shall include any successors
nominated by the Calculation Agent), to leading banks in London by the
principal London offices of the Reference Banks for three-month U.S.
dollar deposits, in amounts
16
of not less than $1,000,000, in the London inter-bank market as of 11:00
a.m. (London time) on such Interest Determination Date.
(c) If on any Interest Determination Date fewer than
two of such offered rates are available, the Rate of Interest for the
next Interest Period shall be the Reserve Interest Rate. The "Reserve
Interest Rate" refers to the rate per annum which the Calculation Agent
determines to be 0.22% per annum above either:
(i) The arithmetic mean of the U.S. dollar
offered rates which at least two New York City banks selected by
the Calculation Agent are or were quoting, on the relevant
Interest Determination Date, for three-month deposits in amounts
of not less than $1,000,000 to the Reference Banks or those of
them (being at least two in number) to which such quotations are
or were, in the opinion of the Calculation Agent, being so made;
or
(ii) In the event that the Calculation Agent
can determine no such arithmetic mean, the arithmetic mean of
the U.S. dollar offered rates which at least two New York City
banks selected by the Calculation Agent are or were quoting on
such Interest Determination Date to leading European banks for a
period of three months in amounts of not less than $1,000,000;
provided, however, that if the banks selected as aforesaid by the Calculation
Agent are not quoting as mentioned above, the Rate of Interest shall be the Rate
of Interest in effect for the last preceding Interest Period to which (a) or (b)
above shall have applied or, if applicable, the Initial Interest Rate.
The Calculation Agent shall, as soon as practicable after 11:00
a.m. (London time) on each Interest Determination Date, determine the Rate of
Interest and calculate the amount of interest payable in respect of the
following Interest Period (the "Interest Amount"). The Interest Amount shall be
calculated by applying the Rate of Interest to the principal amount of each Note
outstanding at the commencement of the Interest Period, multiplying each such
amount by the actual number of days in the Interest Period concerned (which
actual number of days shall include the first day but exclude the last day of
such Interest Period) divided by 360 and rounding the resultant figure upwards
to the nearest cent. The determination of the Rate of Interest and the Interest
Amount by the Calculation Agent shall (in the absence of willful misconduct, bad
faith or gross negligence) be final and binding on all parties. Notwithstanding
anything herein to the contrary, the rate of interest on the Notes shall in no
event be higher than the maximum rate permitted by New York law, as the same may
be modified by United States law of general application.
The Company shall provide that, so long as any of the Notes
remain outstanding, there shall at all times be a Calculation Agent for the
purpose of the Notes. In the event of the Calculation Agent being unable or
unwilling to continue to act as the Calculation Agent or in the case of the
Calculation Agent failing duly to establish the Rate of Interest for any
Interest Period, the Company shall appoint another leading bank engaged in the
London inter-bank market to act as such in its place. The Calculation Agent may
not resign its duties without a successor having been appointed as aforesaid.
17
All certificates, communications, opinions, determinations,
calculations, quotations and decisions given, expressed, made or obtained for
the purposes of the provisions relating to the payment and calculation of
interest on the Notes, whether by the Reference Banks (or any of them) or the
Calculation Agent, shall (in the absence of willful misconduct, bad faith or
gross negligence) be binding on the Company, the Calculation Agent and all of
the Holders and no liability shall (in the absence of willful misconduct, bad
faith or gross negligence) attach to the Calculation Agent in connection with
the exercise or non-exercise by it of its powers, duties and discretions.
This Note shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by or on
behalf of the Trustee.
The provisions of this Note are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed on this [____]the day of [______________], 2001.
GENERAL DYNAMICS CORPORATION
By: ___________________________________
Name:
Title:
Attest:
By: ________________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated: ______________________________
The Bank of New York, as Trustee
By: ______________________________
Authorized Signatory
18
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of August 27, 2001, duly executed and delivered by and
among the Company, the Guarantors and The Bank of New York as Trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture dated as of
August 27, 2001, by and among the Company, the Guarantors and the Trustee (the
Indenture, as so supplemented, the "Indenture"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company, the Guarantors and the Holders of the Notes. By the
terms of the Indenture, the Notes are issuable in series that may vary as to
amount, date of maturity, rate of interest and in other respects as provided in
the Indenture. This series of Notes is initially offered in aggregate principal
amount as specified in said First Supplemental Indenture.
The Company shall have the right but not the obligation to
redeem this Note at the option of the Company, without premium or penalty, in
whole or in part (an "Optional Redemption"), beginning after September 1, 2002,
at a redemption price equal to the accrued and unpaid interest on the Notes so
redeemed to, but excluding, the date fixed for redemption, plus 100% of the
principal amount thereof (the "Optional Redemption Price").
Any redemption pursuant to the preceding paragraph will be made
upon not less than 30 nor more than 60 days' prior notice before the Redemption
Date to the Holders, at the Optional Redemption Price. If the Notes are only
partially redeemed pursuant to an Optional Redemption, the Notes will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided, that if at the time of redemption the Notes are registered as Global
Notes, the Depository shall determine, in accordance with its procedures, the
principal amount of such Notes held by each Holder of Notes to be redeemed. The
Optional Redemption Price shall be paid prior to 12:00 noon, New York time, on
the Redemption Date or such earlier time as the Company determines, provided
that the Company shall deposit with the Trustee an amount sufficient to pay the
Optional Redemption Price by 10:00 a.m., New York time, on the date such
Optional Redemption Price is to be paid.
In the event of redemption of this Note in part only, a new Note
or Notes of this series for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
In the event that a Registration Default (as defined in the
Registration Rights Agreement) occurs, then the Company shall pay additional
interest (in addition to the interest otherwise due hereon) ("Additional
Interest") to the Holder for the first 90-day period immediately following the
occurrence of a Registration Default at a per annum rate equal to 0.125%, and
such per annum rate will increase by an additional 0.125% with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum additional interest rate of 0.25%. The Company shall pay such
Additional Interest on each
19
Interest Payment Date, and payment of Additional Interest shall be subject to
the terms and conditions of the Registration Rights Agreement.(1)
There shall also be payable in respect of this Note all
Additional Interest that may have accrued on the Note for which this Note was
exchanged (as defined in such Note) pursuant to the Registered Exchange Offer,
such Additional Interest to be calculated in accordance with the terms of such
Note and payable at the same time and in the same manner as periodic interest on
this Note.(2)
In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Notes may be
declared, and upon such declaration shall become, due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Notes; provided,
however, that no such supplemental indenture shall (i) extend the fixed maturity
of any Notes of any series, or reduce the principal amount thereof, or reduce
the rate or extend the time of payment of interest thereon, or reduce any
premium payable upon the redemption thereof, without the consent of the Holder
of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the
Holders of which are required to consent to any such supplemental indenture,
without the consent of the Holders of each Note then outstanding and affected
thereby. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Notes of any series at the time
outstanding affected thereby, on behalf of all of the Holders of the Notes of
such series, to waive any past default in the performance of any of the
covenants contained in the Indenture, or established pursuant to the Indenture
with respect to such series, and its consequences, except a default in the
payment of the principal of or premium, if any, or interest on any of the Notes
of such series. Any such consent or waiver by the registered Holder (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
Holder and upon all future Holders and owners of this Note and of any Note
issued in exchange therefore or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and premium, if
any, and interest on this Note at the time and place and at the rate and in the
money herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this Note is transferable by the registered Holder hereof on
the Security Register of the
- ------------------------
(1) To be included in Initial Notes not Exchange Notes.
(2) To be included in Exchange Notes.
20
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Trustee in the City and State of New York accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company or the Trustee duly executed by the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount and series
will be issued to the designated transferee or transferees. No service charge
will be made for any such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in relation
thereto.
Prior to due presentment for registration of transfer of this
Note, the Company, the Trustee, any paying agent and the Security Registrar may
deem and treat the registered Holder hereof as the absolute owner hereof
(whether or not this Note shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the Security Registrar)
for the purpose of receiving payment of or on account of the principal hereof
and premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of,
premium, if any, or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or any Guarantor or of any predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the
issuance hereof, expressly waived and released.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
This Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. As provided in the Indenture
and subject to certain limitations herein and therein set forth, Notes of this
series so issued are exchangeable for a like aggregate principal amount of Notes
of this series of a different authorized denomination, as requested by the
Holder surrendering the same.
All terms used in this Note that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto Insert Taxpayer Identification
No. ___________________. Please print or typewrite name and address including
zip code of assignee ______ ___________ _____ the within Note and all rights
thereunder, hereby irrevocably constituting and appointing
21
____________________ attorney to transfer said Note on the books of the Company
with full power of substitution in the premises.
By: __________________________________
Date: __________________________________
[THE FOLLOWING PROVISION TO BE INCLUDED ON
ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to
the date which is the earlier of (i) the date of an effective registration or
(ii) two years (or such lesser period as may be provided in any amendment to
Rule 144(k) under the Securities Act of 1933, as amended, (the "Securities
Act")) after the later of the original issuance of this Note or the last date on
which this Note was held by the Company or an Affiliate of the Company, the
undersigned confirms that without utilizing any general solicitation or general
advertising that this Note is being transferred in accordance with its terms:
Check One:
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective
registration statement under the Securities Act; or
(3) [ ] in the United States to
a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) 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; 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; or
(5) [ ] pursuant to the
exemption from registration provided by Rule 144 under
the Securities Act.
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Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
Person other than the registered holder thereof, provided, however, that if box
(4) or (5) is checked, the Trustee may require, prior to registering any such
transfer of the Notes, such legal opinions, certifications and other information
as the Company has reasonably requested to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933.
_______________________________________
Signature
Signature Guarantee:
________________________________ ________________________________
Signature Signature must be guaranteed
Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Security Registrar, which
requirements include membership or participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Security Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities and Exchange Act of 1934, as
amended.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Note for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated: _________________________________
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Amount of Decrease in Amount of Increase in Principal Amount of this
Principal Amount of this Principal Amount of this Global Note Following Signature of Authorized
Date of Exchange Global Note Global Note such Decrease or Increase Signatory of Trustee
________________________ _________________________ __________________________ _________________________ ________________________
________________________ _________________________ __________________________ _________________________ ________________________
ARTICLE V
ORIGINAL ISSUE OF NOTES
SECTION 5.01. Original Issue of Notes; Further Issuances.
(a) Notes in the initial aggregate principal amount
of $500,000,000 may, upon execution of this First Supplemental
Indenture, be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver
said Notes to or upon the written order of the Company, signed by the
Chairman of the Board, the Chief Executive Officer, Chief Financial
Officer or any Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company without any further action by the
Company.
(b) The Company may from time to time, without
notice to or the consent of the Holders of the Notes, create and issue
further notes ranking equally and ratably with the Notes in all respects
(or in all respects except for the payment of interest accruing prior to
the issue date of such further notes or except for the first payment of
interest following the issue date of such further notes), so that such
further notes shall be consolidated and form a single series with the
Notes and shall have the same terms as to status, redemption or
otherwise as the Notes. Any such Notes referred to in this Section
5.01(b) will be issued under a further supplemental indenture.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Execution, Authentication and Delivery and Dating.
For the purpose of issuing the Notes under this First Supplemental Indenture,
the Indenture need not be qualified under the Trust Indenture Act and no opinion
of counsel as to qualification shall be required as prescribed in Section
3.03(4) of the Indenture.
SECTION 6.02. Ratification of Indenture. The Indenture, as
supplemented by this First Supplemental Indenture, including without limitation
as set forth in Section 6.01, is in all respects ratified and confirmed, and
this First Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 6.03. Trustee Not Responsible for Recitals. The recitals
herein contained are made by the Company and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee makes no
representation as to the validity or sufficiency of this First Supplemental
Indenture.
SECTION 6.04. Governing Law. This First Supplemental Indenture
and each Note shall be governed by and construed in accordance with the laws of
the State of New York without regard to conflicts of laws.
SECTION 6.05. Severability. In case any one or more of the
provisions contained in this First Supplemental Indenture or in the Notes shall
for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provisions of this First Supplemental Indenture or of the Notes, but this First
Supplemental Indenture and the Notes shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein or therein.
SECTION 6.06. Counterparts. This First Supplemental Indenture
may be executed in any number of counterparts each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year first above
written.
General Dynamics Corporation, a Delaware
corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Vice President and Treasurer
American Overseas Marine Corporation, a
Delaware corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Vice President and Treasurer
Bath Iron Works Corporation, a Maine corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Assistant Treasurer
Computer Systems & Communications Corporation,
a Delaware corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Treasurer
Electric Boat Corporation, a Delaware
corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Assistant Treasurer
26
General Dynamics Advanced Technology Systems,
Inc., a Delaware corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Treasurer
General Dynamics Armament Systems, Inc., a
Delaware corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Assistant Treasurer
General Dynamics Defense Systems, Inc., a
Delaware corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Treasurer
General Dynamics Government Systems Corporation,
a Delaware corporation
By: /s/ David A. Savner
_____________________________________________
Name: David A. Savner
Title: Vice President
General Dynamics Information Systems, Inc., a
Delaware corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Treasurer
General Dynamics Land Systems Inc., a Delaware
corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Assistant Treasurer
27
General Dynamics Ordnance and Tactical Systems,
Inc., a Virginia corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Treasurer
Gulfstream Aerospace Corporation, a Delaware
corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Treasurer
Material Service Resources Company, a Delaware
corporation
By: /s/ Michael E. Stanczak
_____________________________________________
Name: Michael E. Stanczak
Title: President
National Steel and Shipbuilding Company, a
Nevada corporation
By: /s/ David H. Fogg
_____________________________________________
Name: David H. Fogg
Title: Treasurer
The Bank of New York, a New York banking
corporation as Trustee
By: /s/ Geovanni Barris
_____________________________________________
Name: Geovanni Barris
Title: Vice President
28