EXHIBIT (4)(e)
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XXXXXXX KODAK COMPANY
TO
THE BANK OF NEW YORK
Trustee
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FOURTH SUPPLEMENTAL INDENTURE
Dated as of March 1, 1993
TO
INDENTURE
Dated as of January 1, 1988
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FOURTH SUPPLEMENTAL INDENTURE, dated as of March 1, 1993, between
XXXXXXX KODAK COMPANY, a corporation duly organized and existing under the laws
of the State of New Jersey (the "Company"), having its principal office at 000
Xxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and THE BANK OF NEW YORK, a corporation
duly organized and existing under the laws of the State of New York, as trustee
(the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of January 1, 1988, as supplemented by First
Supplemental Indenture thereto, dated as of September 6, 1991, Second
Supplemental Indenture thereto, dated as of September 20, 1991 and Third
Supplemental Indenture thereto, dated as of January 26, 1993 (as so
supplemented, the "Indenture"), providing for the issuance from time to time of
its unsecured debentures, notes or other evidences of indebtedness (herein and
therein called the "Securities"), to be issued in one or more series as in the
Indenture provided;
WHEREAS, Section 901(9) of the Indenture provides that, without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture for the purpose of curing any
ambiguity, correcting or supplementing any provision in the Indenture which may
be inconsistent with any other provision therein, or making any other provisions
with respect to matters or questions arising under the Indenture, provided such
action shall not adversely affect the interests of the Holders of Securities of
any series in any material respect;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this Fourth Supplemental Indenture to amend and supplement the Indenture
in certain respects as set forth herein; and
WHEREAS, all things necessary to make this Fourth Supplemental
Indenture a valid agreement of the Company, and a valid amendment of and
supplement to the Indenture, have been done.
NOW, THEREFORE, THIS FOURTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE ONE
Relation To Indenture; Definitions
SECTION 1.01. This Fourth Supplemental Indenture constitutes an
integral part of the Indenture and shall be construed in connection with and as
part of the Indenture.
SECTION 1.02. For all purposes of this Fourth Supplemental Indenture,
capitalized terms used herein without definition shall have the meanings
specified in the Indenture.
SECTION 1.03. The definition of "Trust Indenture Act" provided in
Section 101 of the Indenture shall be amended to read in its entirety as
follows:
"'Trust Indenture Act' means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990 as in effect at the
date of the Fourth Supplemental Indenture to this Indenture."
SECTION 1.04. Section 104 of the Indenture is amended to add at the
end thereof new subsections (e) and (f) as follows:
"(e) If any Security of a series is issuable in the form of a
Global Security or Securities, the Depositary therefor may grant
proxies and otherwise authorize participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action which the Holder of such Security is entitled to grant or
take under this Indenture.
(f) The Company may set a record date for purposes of determining
the identity of Holders entitled to vote or consent to any action by
vote or consent authorized or permitted by the second paragraph of
Section 502 or Section 512. Such record date shall be the later of 30
days prior to the first solicitation of such consent or the date of
the most recent list of Holders furnished to the Trustee pursuant to
Section 701 prior to such solicitation."
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ARTICLE TWO
The Securities
SECTION 2.01. The Indenture is amended to add a new Section 205 as
follows:
"SECTION 205. Securities in Global Form.
If any Security of a series is issuable in the form of a Global
Security or Securities, each such Global Security may provide that it
shall represent the aggregate amount of Outstanding Securities from
time to time endorsed thereon and may also provide that the aggregate
amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Global
Security to reflect the amount of Outstanding Debt Securities
represented thereby shall be made by the Trustee and in such manner as
shall be specified on such Global Security. Any instructions by the
Company with respect to a Global Security, after its initial issuance,
shall be in writing but need not comply with Section 102."
SECTION 2.02. Section 304 of the Indenture is amended by adding the
phrase "a permanent Global Security or Securities or" before the words
"definitive Securities" in the first line thereof; by adding the phrase "or one
or more temporary Global Securities" before the words "which are printed" in the
third line thereof; and by adding the phrase "or permanent Global Security or
Securities, as the case may be", before the words "in lieu of" in the fifth line
thereof.
SECTION 2.03. Section 308 of the Indenture is amended by inserting the
following paragraph at the end thereof:
"None of the Company, any Paying Agent, or the Security Registrar
will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests."
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ARTICLE THREE
The Trustee
SECTION 3.01. Section 608 (a) of the Indenture is amended by inserting
directly before the word "either" appearing in the third line thereof the
following:
"and if the default (exclusive of any period of grace or requirement
of notice) to which such conflicting interest relates has not been
cured or waived or otherwise eliminated within 90 days after
ascertaining that it has such conflicting interest,";
Section 608(a) is further amended by inserting directly before the word "resign"
in the fourth line thereof the phrase "except as otherwise provided below in
this Section".
SECTION 3.02. Section 608 (c) of the Indenture is hereby amended by
inserting directly after the phrase "of any series" appearing in the second line
thereof the following:
"if such Securities are in default (exclusive of any period of grace
or requirement of notice) and".
SECTION 3.03. Section 608(c)(8) of the Indenture is amended by
deleting the word "or" appearing in the last line thereof.
SECTION 3.04. Section 608(c)(9) of the Indenture is amended by
deleting the words and punctuation "on May 15 in any calendar year," appearing
in the first line thereof and inserting in their place the following:
"on the date of default upon Securities of any series (exclusive of
any period of grace or requirement of notice) or any anniversary of
such default while such default upon such Securities remains
outstanding,";
Section 608(c)(9) is further amended by deleting the words and punctuation "May
15 in each calendar year," appearing in line thirteen thereof and inserting in
their place the following:
"the dates of any such default upon a series of Securities and
annually in each succeeding year that such series of Securities
remains in default,";
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Section 608(c)(9) is further amended by deleting the phrase "May 15" appearing
in line fifteen thereof and inserting in its place the word "dates";
and Section 608(c)(9) is further amended by deleting the period appearing in the
last line thereof and inserting in its place the following:
"; or
(10) the Trustee, except under the circumstances described in
paragraphs (1), (3), (9), (5) or (6) of this Section 608(c), shall be
or shall become a creditor of the Company.
For purposes of paragraph (1) of this subsection the term 'series
of securities' or 'series' means a series, class or group of
securities issuable under an indenture pursuant to the terms of which
holders of one such series may vote to direct the Trustee, or
otherwise take action pursuant to a vote of holders, separately from
holders of another such series; provided that 'series of securities'
or 'series' shall not include any series of securities issuable under
an indenture if all such series rank equally and are wholly
unsecured."
SECTION 3.05. Section 608(d)(1) of the Indenture is amended by
deleting the phrase "three years" appearing in the second line thereof and
inserting in its place the words "one year".
SECTION 3.06. Section 608 of the Indenture is amended by inserting at
the end thereof the following:
"(f) Except in the case of a default in the payment of the principal
of or interest on any series of Securities, or in the payment of any
sinking or purchase fund installment, the Trustee shall not be required to
resign as provided by Section 608(c) hereof if the Trustee shall have
sustained the burden of proving, on application to the Commission and after
opportunity for hearing thereon and in accordance with any applicable
regulations of the Commission, that--
(i) the default under the Indenture may be cured or waived
during a reasonable period and under the procedures described in such
application, and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the
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interests of holders of such series of Securities. The filing of such
an application shall automatically stay the performance of the duty to
resign until the Commission orders otherwise.
Any resignation of the Trustee shall become effective only upon the
appointment of a successor trustee and such successor's acceptance of such
an appointment."
SECTION 3.07. Section 609 of the Indenture is amended by inserting
directly after the second sentence thereof the following:
"Neither the Company, nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as
Trustee for the Securities of any series."
SECTION 3.08. Section 610(d)(1) of the Indenture is amended by
inserting directly after the word and punctuation "months," in the third line
thereof the following:
"unless the Trustee's duty to resign is stayed in accordance with the
provisions of Section 608(f),"
SECTION 3.09. Section 613 of the Indenture is amended by deleting the
phrases "four months" and "four-month" each place they appear therein and
inserting in place thereof the phrases "three months" and "three-month",
respectively.
ARTICLE FOUR
Holders' Lists and Reports by
Trustee and Company
SECTION 4.01. Section 703(a) of the Indenture is amended by inserting
directly after the phrase "with respect to" appearing in the fourth line thereof
the following:
"any of the following events which may have occurred within the previous
twelve months (but if no such event has occurred within such period no
report need be transmitted)".
SECTION 4.02. Section 703(a)(1) of the Indenture is amended by
deleting the same in its entirety and inserting in its place the following: "any
change to its eligibility under Section 609 and its qualifications under Section
608;".
SECTION 4.03. Section 703(a) of the Indenture is amended by adding a
new subsection (2) as follows and by
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redesignating subsections (2), (3), (4), (5) and (6) as subsections (3), (4),
(5), (6) and (7), respectively:
"(2) the creation of any material change to a relationship specified
in paragraph (1) through (10) of Section 608(c);".
SECTION 4.04. Section 703(a)(5) (as redesignated pursuant to Section
4.03 of this Fourth Supplemental Indenture) of the Indenture is amended by
inserting at the beginning thereof the phrase "any change to".
SECTION 4.05. Section 704 of the Indenture is amended by adding a new
subsection (4) at the end thereof as follows:
"(4) furnish to the Trustee, not less often than annually, a brief
certificate from the principal executive officer, the principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
Indenture. For purposes of this subsection (4), such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture."
ARTICLE FIVE
Covenants
SECTION 5.01. Section 1001 of the Indenture is amended by inserting
the following paragraph at the end thereof:
"The interest, if any, due in respect of any Global Security, together with
any additional amounts payable in respect thereof, as provided in the terms
and conditions of the Securities represented thereby, shall be payable only
upon presentation of such Global Security to the Trustee for notation
thereon of the payment of such interest."
ARTICLE SIX
Redemption of Securities
SECTION 6.01. Section 1103 of the Indenture is amended by deleting the
first word "If" and inserting in place thereof the words "Except as otherwise
specified as contemplated by Section 301 for Securities of any series, if".
SECTION 6.02. Section 1107 is amended by inserting at the end thereof
the words"; except that if a Global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to the Depositary
for such Global
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Security, without service charge, a new Global Security in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Global
Security so surrendered."
ARTICLE SEVEN
Securityholders' Meetings
SECTION 7.01. The Indenture is hereby amended by adding after Article
Thirteen the following new Article:
"ARTICLE FOURTEEN
SECURITYHOLDERS' MEETINGS"
Section 14.01. Purposes for Which Meetings May be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to the provisions of this
Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Holders of Securities of any or all Series, as the case may be,
pursuant to any of the provisions of Article Five;
(2) to remove the Trustee and appoint a successor trustee pursuant to
the provisions of Article Six;
(3) to consent to the execution of a Supplemental Indenture pursuant
to the provisions of Section 902; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified principal amount of the Securities of any
or all series, as the case may be, under any other provision of this
Indenture or under applicable law.
Section 14.02. Manner of Calling Meetings.
The Trustee may at any time call a meeting of Holders of Securities to
take any action specified in Section 1401, to be held at such time and at
such place in The City of New York, State of New York, as the Trustee shall
determine. Notice of every meeting of Holders of Securities, setting forth
the time and place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be mailed not less than 20 nor more than
60 days prior to the date fixed for the meeting.
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Section 14.03. Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant to a resolution of its Board
of Directors, or the Holders of not less than ten percent in principal
amount of the Securities of any or all series, as the case may be, then
Outstanding, shall have requested the Trustee to call a meeting of Holders
of Securities of any or all series, as the case may be, to take any action
authorized in Section 1401 by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have mailed notice of such meeting within 20 days after receipt
of such request, then the Company or such Holders of Securities in the
amount above specified may determine the time and place in The City of New
York, New York for such meeting and may call such meeting to take any
action authorized in Section 1401, by mailing notice thereof as provided in
Section 1402.
Section 14.04. Who May Attend and Vote at Meetings.
To be entitled to vote at any meeting of Holders, a Person shall (a)
be a Holder of one or more Outstanding Securities with respect to which the
meeting is being held; or (b) be a Person appointed by an instrument in
writing as proxy by such Holder of one or more Securities. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders
shall be the Persons entitled to vote at such meeting and their counsel and
any representatives of the Trustee and its counsel and any representatives
of the Company or its counsel.
Section 14.05. Regulations May be Made by Trustee; Conduct of the Meeting;
Voting Rights -- Adjournment.
Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any
meeting of Holders, in regard to proof of the holding of Securities and of
the appointment of proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit. Except
as otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in said
Section 104; provided, however, that such regulations may provide that
written instruments appointing proxies regular on their face, may be
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presumed valid and genuine without the proof hereinabove or in said Section
104 specified.
The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1403, in which case the
Company or the Holders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by majority vote of the
meeting.
At any meeting each Holder of an Outstanding Security or proxy
therefor shall be entitled to one vote for each $250,000 principal amount
(in the case of Original Issue Discount Securities, such principal amount
shall be equal to such portion of the principal amount as may be specified
in the terms of such series) of Securities held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Securities held
by such Person or instruments in writing as aforesaid duly designating such
Person as the Person to vote on behalf of other Holders. Any meeting of
Holders duly called pursuant to the provisions of Section 1402 or 1403 may
be adjourned from time to time and the meeting may be held so adjourned
without further notice.
At any meeting of Holders, the presence of Persons holding or
representing Securities in principal amount sufficient to take action on
the business for the transaction of which such meeting was called shall
constitute a quorum, but, if less than a quorum is present, the Persons
holding or representing a majority in principal amount of the Securities
represented at the meeting may adjourn such meeting with the same effect
for all intents and purposes, as though a quorum had been present.
Section 1406. Manner of Voting at Meetings and Records to be Kept.
The vote upon any resolution submitted to any meeting of Holders shall
be by written ballots on which shall be subscribed the signatures of the
Holders of Securities or of their representatives by proxy and the
principal amount or principal amounts of the Securities held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors
of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting
their verified
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written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Holders shall be prepared
by the secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more Persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 1402. The record shall show the
principal amount or principal amounts of the Securities voting in favor of
or against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one
of the duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 1407. Exercise of Rights to Trustee and Securityholders Not to be
Hindered or Delayed.
Nothing in this Article contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrances or delay in the exercise of any right or rights conferred upon
or reserved to the Trustee or to the Holders under any of the provisions of
this Indenture or of the Securities.
ARTICLE EIGHT
Miscellaneous
SECTION 8.01. The Trustee accepts the trusts created by the Indenture,
as supplemented by this Fourth Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
Fourth Supplemental Indenture.
SECTION 8.02. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Fourth Supplemental Indenture.
SECTION 8.03. Each of the Company and the Trustee makes and reaffirms
as of the date of execution of this Fourth Supplemental Indenture all of its
respective representations, warranties, covenants and agreements set forth in
the Indenture.
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SECTION 8.04. All covenants and agreements in this Fourth Supplemental
Indenture by the Company or the Trustee shall bind its respective successors and
assigns, whether so expressed or not.
SECTION 8.05. In case any provision in this Fourth Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 8.06. Nothing in this Fourth Supplemental Indenture, express
or implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders, any benefit or any legal or
equitable right, remedy or claim under the Indenture.
SECTION 8.07. If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act, as it may be amended from time to
time, that is required under such Act to be a part of and govern this Fourth
Supplemental Indenture, the latter provision shall control. If any provision
hereof modifies or excludes any provision of such Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Fourth
Supplemental Indenture as so modified or excluded, as the case may be.
SECTION 8.08. THIS FOURTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.09. All provisions of this Fourth Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the Indenture; and
the Indenture, as supplemented by this Fourth Supplemental Indenture, shall be
read, taken and construed as one and the same instrument.
* * * * *
This Fourth Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, and their respective corporate seals
(where applicable) to be hereunto affixed and attested, all as of the day and
year first above written.
[Corporate Seal] XXXXXXX KODAK COMPANY
Attest:
By:
-------------------------
Title:
-------------------------------
Title:
[Corporate Seal] THE BANK OF NEW YORK
Attest:
By:
------------------------
Title:
-------------------------------
Title:
00
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF MONROE )
On the ____ day of ___________, 1993, before me personally came
________________________, to me known, who being duly sworn, did depose and say
that he is ________________________ of XXXXXXX KODAK COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
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STATE OF NEW YORK )
)ss.:
COUNTY OF NEW YORK )
On the ____ day of ___________, 1993, before me personally came
________________________, to me known, who being duly sworn, did depose and say
that he is ________________________ of THE BANK OF NEW YORK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that it was so affixed by authority of the
Board of Directors of said corporation, and that he signed his name thereto by
like authority.
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