EXHIBIT (4)(d)
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XXXXXXX KODAK COMPANY
TO
THE BANK OF NEW YORK
Trustee
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THIRD SUPPLEMENTAL INDENTURE
Dated as of January 26, 1993
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THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of January 26, 1993 (this
"Third Supplemental Indenture"), between XXXXXXX KODAK COMPANY, a corporation
duly organized and existing under the laws of the State of New Jersey (the
"Company"), having its principal offices at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxx 00000, and THE BANK OF NEW YORK, a corporation duly organized and existing
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, which has been supplemented
by the First Supplemental Indenture thereto, dated as of September 6, 1991 (as
so supplemented, the "Basic Indenture"), and the Second Supplemental Indenture
thereto, dated as of September 20, 1991 (the "Second Supplemental Indenture")
(the Basic Indenture as so supplemented, the "Indenture"); and
WHEREAS, under and pursuant to the Second Supplemental Indenture the
Company has issued Zero Coupon Exchangeable Senior Debentures due 2006 (the
"Debentures"); and
WHEREAS, pursuant and subject to the terms of the Debentures and the
Second Supplemental Indenture, each $1000 principal amount at maturity of the
Debentures is exchangeable at the option of the holder thereof for a number of
shares of the common stock of Sun Microsystems, Inc. ("Sun Common Stock") at the
Exchange Rate (as defined in the Second Supplemental Indenture); provided, that
at the option of the Company, the Company may pay the Cash Exchange Price (as
defined in the Second Supplemental Indenture) in lieu of delivering shares of
Sun Common Stock, all as provided in the Second Supplemental Indenture; and
WHEREAS, pursuant to the Second Supplemental Indenture, the Company
and The First National Bank of Boston have heretofore entered into the Escrow
Agreement, dated as of September 20, 1991 (the "Escrow Agreement")
and in connection therewith, the Company deposited 2,999,984 shares of Sun
Common Stock with the Escrow Agent; and
WHEREAS, Section 7(b) of the Escrow Agreement permits the Company to
exercise its right to pay the Cash Exchange Price in lieu of delivering Exchange
Property (as defined in the Second Supplemental Indenture) in respect of all
exchanges made during a specified period or otherwise and indicates that
notification thereof may be given to the Escrow Agent by facsimile or an
Officers' Certificate (as defined in the Escrow Agreement); and
WHEREAS, Section 10 of the Escrow Agreement permits the Company to
direct the Escrow Agent to sell for the account of the Company Escrowed Property
(as defined in the Escrow Agreement) which is not then deliverable upon the
exchange of the Securities then outstanding; and
WHEREAS, pursuant to Sections 7 and 10 of the Escrow Agreement, and in
contemplation of entering into the Escrow Supplement (as hereinafter defined),
the Company and the Escrow Agent have heretofore entered into a letter
agreement, dated as of December 21, 1992 (the "Letter Agreement") under which
the Company directed the Escrow Agent to settle all future exchanges of
Debentures using the Cash Exchange Price, which Letter Agreement provided for
the sale for the account of the Company of the 2,999,926 shares of the Sun
Common Stock then remaining on deposit with the Escrow Agent, and which Letter
Agreement required, among other things, that the Company maintain on deposit
with the Escrow Agent pursuant to the Escrow Agreement cash at least equal in
amount to the Cash Exchange Price with respect to the Securities outstanding and
that the Company and the Escrow Agent agree forthwith on the details and
mechanics of the foregoing arrangement; and
WHEREAS, Section 19 of the Escrow Agreement provides that, without the
consent of any holders of any of the Debentures, the Company and the Escrow
Agent may by mutual accord enter into supplemental agreements to, among other
things, cure any ambiguity or otherwise amend any provision contained in the
Escrow Agreement which may be defective or inconsistent with any other provision
contained therein or the Indenture or any supplemental indenture, or make such
other provisions in regard to
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matters or questions arising under the Escrow Agreement, in each case so long as
the interest of the holders of the Debentures, including the right of such
holders to exchange any Debenture for Exchange Securities and Exchange Property
(each as defined in the Second Supplemental Indenture) apportioned thereto at
the rate and upon the terms set forth in the Securities and the Second
Supplemental Indenture, shall not be adversely affected; and
WHEREAS, pursuant to the Letter Agreement and Section 19 of the Escrow
Agreement the Company and the Escrow Agent propose to enter into a First
Supplemental Agreement to the Escrow Agreement, substantially in the form set
forth in Exhibit A hereto (the "Escrow Supplement") to establish the details and
mechanics of the arrangement set forth in the Letter Agreement, to provide
certain additional flexibility in respect thereof, and to such extent to
supersede the terms thereof, and to amend and supplement the Escrow Agreement in
certain respects in connection therewith; and
WHEREAS, Section 901(9) of the Basic Indenture provides that, without
the consent of any holders of Securities of any Series, 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
holders of Securities of any series in any material respect or, pursuant to
Section 206(a)(1) of the Second Supplemental Indenture, adversely affect the
right to exchange any Debenture for Exchange Property as provided in Article
Five of the Second Supplemental Indenture; and
WHEREAS, pursuant to the foregoing authority the Company and the
Trustee propose in and by this Supplemental Indenture to amend and supplement
the Second Supplemental Indenture in certain respects in connection with the
effectiveness and implementation of the Escrow Supplement; and
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WHEREAS, Section 22 of the Escrow Agreement, Section 501 of the Second
Supplemental Indenture and paragraph 5 of the Debentures provide that nothing in
the Escrow Agreement, the Indenture or any Securities shall grant, and the
Escrow Agent or the Trustee, as applicable, and the holders of Debentures shall
not assert, any lien, pledge, charge, encumbrance, preferential rights or
mortgage on, or with respect to, the Escrowed Property as security for the
Debentures, any other indebtedness or otherwise; and
WHEREAS, the description of the escrow arrangements set forth in the
Offering Circular pursuant to which the Debentures were sold provides that the
Exchange Property will remain the property of the Company and the right of the
holders of Debentures to exchange their Debentures could be adversely affected
in the event of the bankruptcy, insolvency or liquidation of the Company, in
which event the Exchange Property could become subject to the claims of general
creditors of the Company; and
WHEREAS, in light of the foregoing, it has been concluded that this
Third Supplemental Indenture may be entered into by the Trustee and the Company
in accordance with the above-referenced provisions of Section 901(9) of the
Basic Indenture without the consent of the holders of the Debentures since their
interests will not be adversely affected; and
WHEREAS, all things necessary to make this Third Supplemental
Indenture a valid agreement of the Company, and a valid amendment and supplement
amending the Second Supplemental Indenture, have been done.
NOW, THEREFORE, THIS THIRD 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:
Section 1. Definitions
Capitalized terms used herein without definition shall have the
meaning specified in the Second Supplemental Indenture.
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Section 2. General Permission
(a) The Company and the Escrow Agent may enter into the Escrow
Supplement, and the Indenture is hereby amended and supplemented so as to permit
any actions or omissions which are permitted thereunder.
(b) Without limiting the generality of the foregoing provisions
of this Section, in the event that any Exchange Property is substituted for
other Exchange Property pursuant to Section 3 of the Escrow Supplement, from and
after such date the Cash Exchange Price and adjustments to the Exchange Rate
shall be calculated under Article Five of the Second Supplemental Indenture, and
the Company will provide the information required by Section 508 of the Second
Supplemental Indenture, as if no such substitution had occurred.
Section 3. Event of Default
Without limiting the generality of Section 203 of the Second
Supplemental Indenture, the following event shall constitute an Event of Default
with respect to the Debentures under Section 203(a) of the Second Supplemental
Indenture:
"default in the performance, or breach, of the provisions of Section 3 of
the First Supplemental Agreement, dated as of January 26, 1993, to the
Escrow Agreement, and continuance of such default or breach for a period of
60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Debentures a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder."
Section 4. Company Election
It is hereby agreed that the Company has duly elected to settle
exchanges by delivering in lieu of Exchange Property the Cash Exchange Price
until such time as the Company shall have elected otherwise in the manner
provided for elections to pay the Cash Exchange Price pursuant to Section 7(b)
of the Escrow Agreement.
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Section 5. No Lien Created Hereby
Nothing in this Third Supplemental Indenture, the Second Supplemental
Indenture, the Escrow Agreement (as supplemented by the Escrow Supplement) or
any of the Debentures shall grant, and the Trustee and the Holders of the
Debentures shall not assert, any lien, pledge, charge, encumbrance, preferential
right or mortgage on, or with respect to, any Escrowed Property held by the
Escrow Agent pursuant to the Escrow Agreement as security for the Debentures,
any other Indebtedness or otherwise.
Section 6. Miscellaneous
(a) The Trustee accepts the trusts created by the Indenture,
including the Second Supplemental Indenture as amended and supplemented hereby,
and agrees to perform the same upon the terms and conditions of the Indenture,
including the Second Supplemental Indenture as amended and supplemented hereby.
(b) The recitals contained herein shall be taken as 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
Third Supplemental Indenture.
(c) Each of the Company and the Trustee makes and reaffirms as of
the date of execution of this Supplemental Indenture all of its respective
representations, warranties, covenants and agreements set forth in the Indenture
(including the Second Supplemental Indenture as amended and supplemented
hereby).
(d) All covenants and agreements in this Third Supplemental
Indenture by the Company or the Trustee shall bind its respective successors and
assigns, whether so expressed or not.
(e) In case any provision in this Third 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.
(f) Nothing in this Third Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under
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the Indenture and the Holders of the Debentures, any benefit or any legal or
equitable right, remedy or claim under the Indenture (including the Second
Supplemental Indenture as supplemented hereby).
(g) If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act of 1939, as may be amended from time to
time, that is required under such Act to be a part of and govern this Third
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 Third
Supplemental Indenture as so modified or excluded, as the case may be.
(h) This Third Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
(i) All amendments and supplements to the Indenture made hereby
shall have effect only with respect to the Debentures.
(j) All provisions of this Third Supplemental Indenture shall be
deemed to be incorporated in, and made a part of, the Indenture; and the
Indenture, as amended and supplemented by this Third Supplemental Indenture,
shall be read, taken and construed as one and the same instrument.
* * * *
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This Third Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
XXXXXXX KODAK COMPANY
By:
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Title:
Attest:
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Title:
THE BANK OF NEW YORK
By:
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Title:
Attest:
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Title:
0
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF MONROE )
On the ____ day of January, 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.
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of January, 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 the seal affixed to said instrument is such corporate seal;
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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