Exhibit 4.1
DELL INC.,
AS ISSUER
4.700% Senior Notes due 2013
5.650% Senior Notes due 2018
6.500% Senior Notes due 2038
INDENTURE
DATED AS OF APRIL 17, 2008
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
AS TRUSTEE
CROSS-REFERENCE TABLE
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TIA
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Indenture
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Section
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Section
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310
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(a)(1)
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609
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(a)(2)
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609
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(a)(3)
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N.A.
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(a)(4)
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N.A.
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(b)
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608, 610, 611
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(c)
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N.A.
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311
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(a)
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613
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(b)
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613
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(c)
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N.A.
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312
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(a)
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701, 702(a)
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(b)
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702(b)
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(c)
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702(c)
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313
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(a)
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703(a)
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(b)(1)
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N.A.
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(b)(2)
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703(a)
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(c)
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703(a)
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(d)
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703(b)
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314
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(a)
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704
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(a)(4)
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1004
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(b)
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N.A.
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(c)(1)
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102
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(c)(2)
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102
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(c)(3)
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N.A.
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(d)
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N.A.
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(e)
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102
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(f)
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N.A.
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315
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(a)
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601, 603(1)
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(b)
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602
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(c)
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601
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(d)
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601
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(e)
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514
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316
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(a)(last sentence)
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N.A.
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(a)(1)(A)
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512
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(a)(1)(B)
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513
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(a)(2)
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N.A.
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(b)
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508
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(c)
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104(e)
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317
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(a)(1)
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503
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(a)(2)
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504
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(b)
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1003
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318
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(a)
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107
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N.A.
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means Not Applicable.
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Note:
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This Cross-Reference Table shall not, for any purpose, be deemed to be part of the
Indenture.
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i
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
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Section 101.
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Definitions
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1
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Section 102.
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Certificates and Opinions
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10
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Section 103.
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Form of Documents Delivered to Trustee
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11
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Section 104.
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Acts of Holders; Record Dates
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11
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Section 105.
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Notices, Etc., to Trustee and Company
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13
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Section 106.
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Notice to Holders; Waiver
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14
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Section 107.
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Conflict with Trust Indenture Act
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14
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Section 108.
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Effect of Headings and Table of Contents
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14
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Section 109.
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Successors and Assigns
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14
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Section 110.
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Separability Clause
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15
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Section 111.
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Benefits of Indenture
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15
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Section 112.
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Governing Law
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15
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Section 113.
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Legal Holidays
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15
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Section 114.
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No Recourse Against Others
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15
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Section 115.
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Counterparts
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15
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ARTICLE TWO
[RESERVED]
ARTICLE THREE
THE SECURITIES
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Section 301.
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Form and Dating
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16
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Section 302.
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Execution and Authentication
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16
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Section 303.
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Security Registrar and Paying Agent
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17
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Section 304.
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Paying Agent to Hold Money in Trust
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17
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Section 305.
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Security Holder Lists
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18
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Section 306.
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Transfer and Exchange
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18
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Section 307.
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Replacement Securities
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18
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Section 308.
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[Reserved]
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19
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Section 309.
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Temporary Securities
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19
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Section 310.
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Cancellation
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19
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Section 311.
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Defaulted Interest
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19
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Section 312.
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CUSIP Numbers, ISINs, etc
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19
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Section 313.
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Issuance of Additional Securities
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20
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i
ARTICLE FOUR
SATISFACTION AND DISCHARGE
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Section 401.
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Satisfaction and Discharge of Indenture
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20
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Section 402.
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Application of Trust Money
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22
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ARTICLE FIVE
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REMEDIES OF THE TRUSTEE AND HOLDERS IN EVENT OF DEFAULT
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Section 501.
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Events of Default
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22
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Section 502.
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Acceleration of Maturity; Rescission and Annulment
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24
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Section 503.
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Collection of Indebtedness and Suits for Enforcement by Trustee
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25
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Section 504.
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Trustee May File Proofs of Claim
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26
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Section 505.
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Trustee May Enforce Claims Without Possession of Securities
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26
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Section 506.
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Application of Money Collected
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27
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Section 507.
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Limitation on Suits
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28
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Section 508.
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Unconditional Right of Holders to Receive Principal, Premium and Interest
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28
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Section 509.
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Restoration of Rights and Remedies
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28
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Section 510.
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Rights and Remedies Cumulative
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29
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Section 511.
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Delay or Omission Not Waiver
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29
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Section 512.
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Control by Holders
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29
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Section 513.
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Waiver of Past Defaults
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30
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Section 514.
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Undertaking for Costs
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30
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Section 515.
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Waiver of Stay or Extension Laws
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31
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ARTICLE SIX
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THE TRUSTEE
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Section 601.
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Certain Duties and Responsibilities
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31
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Section 602.
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Notice of Defaults
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31
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Section 603.
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Certain Rights of Trustee
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32
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Section 604.
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Not Responsible for Recitals or Issuance of Securities
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32
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Section 605.
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May Hold Securities
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33
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Section 606.
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Money Held in Trust
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33
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Section 607.
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Compensation and Reimbursement
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33
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Section 608.
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Disqualification; Conflicting Interests
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34
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Section 609.
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Corporate Trustee Required; Eligibility
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34
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Section 610.
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Resignation and Removal; Appointment of Successor
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34
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Section 611.
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Acceptance of Appointment by Successor
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36
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Section 612.
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Merger, Conversion, Consolidation or Succession to Business
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37
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Section 613.
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Preferential Collection of Claims Against Company
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38
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Section 614.
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Appointment of Authenticating Agent
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38
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Section 615.
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Compliance with Tax Laws
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39
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ii
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
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Section 701.
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Company to Furnish Trustee Names and Addresses of Holders
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39
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Section 702.
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Preservation of Information; Communications to Holders
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40
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Section 703.
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Reports by Trustee
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40
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Section 704.
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Reports by Company
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41
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ARTICLE EIGHT
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CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
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Section 801.
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Company May Consolidate, Etc., Only on Certain Terms
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41
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Section 802.
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Successor Substituted
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42
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ARTICLE NINE
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SUPPLEMENTAL INDENTURES
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Section 901.
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Supplemental Indentures Without Consent of Holders
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42
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Section 902.
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Supplemental Indentures with Consent of Holders
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43
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Section 903.
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Execution of Supplemental Indentures
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44
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Section 904.
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Effect of Supplemental Indentures
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45
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Section 905.
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Conformity with Trust Indenture Act
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45
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Section 906.
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Reference in Securities to Supplemental Indentures
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45
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Section 907.
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Payment for Consent
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45
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ARTICLE TEN
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PARTICULAR COVENANTS OF THE COMPANY
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Section 1001.
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Payment of Principal, Premium and Interest
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45
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Section 1002.
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Maintenance of Office or Agency
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46
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Section 1003.
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Money for Securities Payments to Be Held in Trust
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46
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Section 1004.
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Statement by Officers as to Default
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47
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Section 1005.
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Existence
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47
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Section 1006.
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Maintenance of Properties
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47
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Section 1007.
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Payment of Taxes and Other Claims
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48
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Section 1008.
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Limitations on Liens
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48
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Section 1009.
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Limitations on Sale and Lease-Back Transactions
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49
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Section 1010.
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Waiver of Certain Covenants
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49
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ARTICLE ELEVEN
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REDEMPTION OF SECURITIES
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Section 1101.
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Applicability of Article
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50
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iii
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Section 1102.
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Election to Redeem; Notice to Trustee
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50
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Section 1103.
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Selection by Trustee of Securities to Be Redeemed
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50
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Section 1104.
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Notice of Redemption
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50
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Section 1105.
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Deposit of Redemption Price
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51
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Section 1106.
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Securities Payable on Redemption Date
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52
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Section 1107.
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Securities Redeemed in Part
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52
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ARTICLE TWELVE
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[RESERVED]
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ARTICLE THIRTEEN
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DEFEASANCE AND COVENANT DEFEASANCE
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Section 1301.
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Companys Option to Effect Defeasance or Covenant Defeasance
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53
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Section 1302.
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Defeasance and Discharge
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53
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Section 1303.
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Covenant Defeasance
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53
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Section 1304.
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Conditions to Defeasance or Covenant Defeasance
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54
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Section 1305.
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Deposited Money and U.S. Government Obligations to be Held in Trust; Indemnity
for U.S. Government Obligations; Repayment to Company
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55
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Section 1306.
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Reinstatement
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56
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ARTICLE FOURTEEN
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[RESERVED]
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Rule 144A/Regulation S Appendix
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Exhibit 1
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Form of Initial Security
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Exhibit A
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Form of Exchange Security or Private Exchange Security
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iv
INDENTURE, dated as of April 17, 2008, between DELL INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the Company), having its
principal office at One Dell Way, Round Rock, Texas 78682, and THE BANK OF NEW YORK TRUST COMPANY,
N.A., a national banking association duly organized and existing under the laws of the United
States, as Trustee hereunder (herein called the Trustee).
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of the Securities, to have such provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Initial Securities and, if and when issued pursuant to a registered
exchange for Initial Securities, the Exchange Securities and if and when issued pursuant to a
private exchange for Initial Securities, the Private Exchange Securities.
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this
Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United States of
America, and, except as otherwise herein expressly provided, the term generally accepted
accounting principles with respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally accepted at the date of such
computation; and
1
(4) the words herein, hereof and hereunder and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
Act, when used with respect to any Holder, has the meaning specified in Section 104.
Additional Securities has the meaning specified in Section 1.1 of the Appendix.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, control when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms controlling and
controlled have meanings correlative to the foregoing.
Appendix has the meaning specified in Section 301.
Applicable Premium means with respect to a Security at any redemption date, the greater of
(a) zero and (b)(1) the sum of the present
values of the remaining scheduled payments of principal and interest thereon (not including any
portion of such payments of interest accrued as of the date of redemption), discounted to the date
of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus 35 basis points, minus (2) 100% of
the principal amount of such Security.
Attributable Indebtedness when used in connection with a Sale and Lease-Back Transaction
involving a Principal Property means, at the time of determination, the lesser of (a) the fair
market value of property or assets involved in the Sale and Lease-Back Transaction (as determined
in good faith by the Companys Board of Directors), (b) the present value of the total net amount
of rent required to be paid under such lease during the remaining term thereof (including any
renewal term or period for which such lease has been extended) computed by discounting from the
respective due dates to such date such total net amount of rent at the rate of interest set forth
or implicit in the terms of such lease or, if not practicable to determine such rate, the rate per
annum equal to the weighted average interest rate per annum borne by the Securities of each series
Outstanding pursuant to this Indenture compounded semi-annually, or (c) if the obligation with
respect to the Sale and Lease-Back Transaction constitutes an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting purposes in accordance
with generally accepted accounting principles, the amount equal to the capitalized amount of such
obligation determined in accordance with generally accepted accounting principles and included in
the financial statements of the lessee. For purposes of the foregoing definition, rent shall not
include amounts required to be paid by the lessee, whether or not designated as rent or additional
rent, on account of or contingent upon maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges. In the case of any lease that is terminable by the lessee upon
the payment of a penalty, such net amount shall be the lesser of the net amount
2
determined assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which it may be so
terminated) or the net amount determined assuming no such termination.
Authenticating Agent means any Person authorized by the Trustee pursuant to Section 614 to
act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors means either the board of directors of the Company or any committee of
that board duly authorized to act for it in respect thereof.
Board Resolution means a copy of one or more resolutions certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the Trustee.
Business Day, when used with respect to any Place of Payment, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of
Payment are authorized or obligated by law or executive order to close, except as may otherwise be
provided in the form of Securities of any particular series pursuant to the provisions of this
Indenture.
Code means the Internal Revenue Code of 1986, as amended.
Commission means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person.
Company Request or Company Order means a written request or order signed in the name of
the Company by its Chairman, its Vice Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
Comparable Treasury Issue means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Securities to be
redeemed that would be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Securities.
3
Comparable Treasury Price means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Quotation Agent obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such quotations, or (iii) if
only one Reference Treasury Dealer Quotation is received, such quotation.
Consolidated Net Tangible Assets means, as of any particular time, the aggregate amount of
assets (less applicable reserves and other properly deductible items) after deducting therefrom:
(a) all current liabilities except for (1) notes and loans payable, (2) current maturities of
long-term debt and (3) current maturities of obligations under capital leases; and (b) to the
extent included in such aggregate amount of assets, all goodwill, trade names, trademarks, patents,
organization expenses, unamortized debt discount and expenses (other than capitalized unamortized
product development costs, such as, without limitation, capitalized hardware and software
development costs), all as set forth on the most recent consolidated balance sheet of the Company
and its consolidated Subsidiaries and computed in accordance with generally accepted accounting
principles.
Corporate Trust Office means the principal office of the Trustee at which at any particular
time its corporate trust business shall be conducted, which office, at the date of execution of
this Indenture, is located at 601 Travis Street, 18th Floor, Houston, Texas 77002.
Covenant Defeasance has the meaning specified in Section 1303.
Debt has the meaning specified in Section 1008.
default has the meaning specified in Section 602.
Defeasance has the meaning specified in Section 1302.
Event of Default has the meaning specified in Section 501.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended.
Exchange Securities has the meaning specified in Section 1.1 of the Appendix.
Global Securities has the meaning specified in Section 2.1(a) of the Appendix.
Holder means a Person in whose name a Security is registered in the Security Register.
Indenture means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto
4
entered into pursuant to the applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental indenture,
respectively. If at any time more than one Person is acting as Trustee under this Indenture due to
the appointment of one or more separate Trustees for any one or more separate series of Securities,
Indenture shall mean, with respect to such series of Securities for which any such Person is
Trustee, this instrument as originally executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities for which such
Person is Trustee exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when such terms or
provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had become such Trustee,
but to which such Person, as such Trustee, was not a party; provided further that in the event that
this indenture is supplemented or amended by one or more indentures supplemental hereto which are
only applicable to certain series of Securities, the term Indenture for a particular series of
Securities shall only include the supplemental indentures applicable thereto.
Initial Securities has the meaning specified in Section 1.1 of the Appendix.
Interest Payment Date, when used with respect to any Security, means the Stated Maturity of
an installment of interest on such Security.
Judgment Currency has the meaning specified in Section 506.
lien and liens have the respective meanings specified in Section 1008.
Maturity, when used with respect to any Security, means the date on which the principal of
such Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption, exercise of
option for repayment or otherwise.
Nonrecourse Obligation means indebtedness or other obligations substantially related to (a)
the acquisition of assets not previously owned by the Company or any Subsidiary or (b) the
financing of a project involving the development or expansion of properties of the Company or any
Subsidiary, as to which the obligee with respect to such indebtedness or obligation has no recourse
to the Company or any Subsidiary or any assets of the Company or any Subsidiary other than the
assets which were acquired with the proceeds of such transaction or the project financed with the
proceeds of such transaction (and the proceeds thereof).
Notice of Default means a written notice of the kind specified in Section 501(4).
5
Officer means the Chairman, any Vice Chairman, the President, or a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company.
Officers Certificate means a certificate signed by the Chairman, any Vice Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
Opinion of Counsel means a written opinion of counsel, who may be counsel for the Company
(and who may be an employee of the Company), or other counsel acceptable to the Trustee.
Outstanding, when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to Section 1302; and
(4) Securities in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of Holders for quorum purposes, Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the presence of a quorum,
only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such
Securities
6
and that the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
Paying Agent has the meaning specified in Section 303.
Permitted Liens means (a) liens on property, shares of stock, indebtedness or other assets
of any Person existing at the time such Person becomes a Subsidiary; provided that such liens are
not incurred in anticipation of such Person becoming a Subsidiary; (b)(i) liens on property, shares
of stock, indebtedness or other assets existing at the time of acquisition thereof by the Company
or a Subsidiary or liens thereon to secure the payment of all or any part of the purchase price
thereof, or (ii) liens on property, shares of stock, indebtedness or other assets to secure any
Debt incurred prior to, at the time of, or within one year after, the latest of the acquisition
thereof, or, in the case of property, the completion of construction, the completion of
improvements or the commencement of substantial commercial operation of such property for the
purpose of financing all or any part of the purchase price thereof, such construction or the making
of such improvements; (c) liens to secure Debt owing to the Company or to a Subsidiary; (d) liens
existing on the date of initial issuance of the Initial Securities; (e) liens on property or other
assets of a Person (which is not a Subsidiary) existing at the time such Person is merged into or
consolidated with the Company or a Subsidiary or at the time of a sale, lease or other disposition
of the properties of a Person as an entirety or substantially as an entirety to the Company or a
Subsidiary; (f) liens in favor of the United States of America or any State, territory or
possession thereof (or the District of Columbia), or any department, agency, instrumentality or
political subdivision of the United States of America or any State, territory or possession thereof
(or the District of Columbia), to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any Debt incurred for the purpose of financing all or any part
of the purchase price or the cost of constructing or improving the property subject to such liens;
(g) liens created in connection with a project financed with, and created to secure, a Nonrecourse
Obligation; (h) liens on any property to secure bonds for the construction, installation or
financing of pollution control or abatement facilities, or other forms of industrial revenue bond
financing, or indebtedness issued or guaranteed by the United States, any state or any department,
agency or instrumentality thereof; and (i) any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part, of any lien referred to in the
foregoing clauses (a) to (h), inclusive, without increase of the principal of the Debt secured
thereby; provided, however, that any liens permitted by any of the foregoing clauses (a) through
(h) shall not extend to or cover any property of the Company or such Subsidiary, as the case may
be, other than the property specified in such clauses and improvements thereto.
Person means any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
7
Place of Payment, when used with respect to the Securities of any series, means the place or
places where the principal of and any premium and interest on the Securities of that series are
payable as specified in such Securities.
Principal Property means the land, land improvements, buildings and fixtures (to the extent
they constitute real property interests) (including any leasehold interest therein) constituting
the principal corporate office, any manufacturing plant or any manufacturing facility (whether
owned at the date of this Indenture or thereafter acquired) and the equipment located thereon which
(a) is owned by the Company or any Subsidiary; (b) has not been determined in good faith by the
Board of Directors not to be materially important to the total business conducted by the Company
and its Subsidiaries taken as a whole; and (c) has a net book value on the date as of which the
determination is being made in excess of 1% of Consolidated Net Tangible Assets of the Company as
most recently determined on or prior to such date (including for purposes of such calculation the
land, land improvements, buildings and such fixtures comprising such office, plant or facility, as
the case may be).
Private
Exchange Securities has the meaning specified in
Section 1.1 of the Appendix.
Quotation Agent means the Reference Treasury Dealer appointed by the Company.
Redemption Date, when used with respect to any Security to be redeemed, means the date fixed
for such redemption by or pursuant to this Indenture.
Redemption Price, when used with respect to any Security to be redeemed, means the price at
which it is to be redeemed pursuant to this Indenture.
Reference Treasury Dealer means (i) Barclays Capital Inc., Goldman, Sachs & Co. or J.P.
Morgan Securities Inc. (or their respective affiliates that are Primary Treasury Dealers) and their
respective successors; provided, however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a Primary Treasury Dealer), the Company will
substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer
selected by the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third business day preceding such redemption date.
Required Currency has the meaning specified in Section 506.
Sale and Lease-Back Transaction means any arrangement with any Person providing for the
leasing by the Company or any Subsidiary of any Principal
8
Property, which property has been or is to be sold or transferred by the Company or such
Subsidiary to such Person, other than (a) any such transaction involving a lease for a term of not
more than three years, (b) any such transaction between the Company and a Subsidiary or between
Subsidiaries, or (c) any such transaction executed by the time of or within one year after the
latest of the acquisition, the completion of construction or improvement or the commencement of
commercial operation of such Principal Property.
Securities Act has the meaning specified in Section 1.1 of the Appendix.
Security or Securities means, collectively, the Initial Securities, the Exchange
Securities and the Private Exchange Securities.
Security Register and Security Registrar have the respective meanings specified in Section
303.
series means Securities that bear the same rate of interest and have the same Stated
Maturities.
Stated Maturity, when used with respect to any Security or any installment of principal
thereof or interest thereon, means the date specified in such Security as the fixed date on which
the principal of such Security or such installment of principal or interest is due and payable.
Subsidiary means (a) any corporation of which more than 50% of the outstanding voting stock
is at the time owned, directly or indirectly, by the Company or by one or more other Subsidiaries
of the Company or (b) any other Person (other than a corporation) in which the Company or one or
more other Subsidiaries of the Company directly or indirectly has more than 50% equity ownership
and power to direct the policies, management and affairs thereof. For the purposes of this
definition, voting stock means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
Successor Company has the meaning specified in Section 801.
Treasury Rate means, with respect to any redemption date, the rate per annum equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
Trust Officer means the Chairman of the Board, the President or any other officer or assistant
officer of the Trustee assigned by the Trustee to administer its corporate trust matters.
Trust Indenture Act means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed, except as provided in Section 905; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means,
to the extent required by any such amendment, the Trust Indenture Act of 1939.
9
Trustee means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Trustee shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, Trustee as used with respect to
the Securities of any series shall mean the Trustee with respect to Securities of that series.
Uniform Commercial Code means the New York Uniform Commercial Code as in effect from time to
time.
U.S. Government Obligations means securities that are (a) direct obligations of the United
States of America for the payment of which its full faith and credit is pledged or (b) obligations
of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America, the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case under clauses (a) or (b)
are not callable or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such U.S. Government Obligation or a specific payment
of interest on or principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
Vice President, when used with respect to the Company, means any vice president, whether or
not designated by a number or a word or words added before or after the title vice president.
Section 102. Certificates and Opinions.
(a) Upon any application or request by the Company to the Trustee to take or refrain from
taking any action under any provision of this Indenture, the Company shall furnish to the Trustee:
(1) an Officers Certificate in form and substance reasonably satisfactory to the
Trustee stating that, in the opinion of the signors, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
stating that, in the opinion of such counsel, all such conditions precedent have been
complied with.
10
(b) Every certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than those provided for in Section 1004) shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein related thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that
the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders
11
may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the Act of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in any other manner
which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other
Act of the Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) The Company may, in the circumstances permitted by the Trust Indenture Act, fix
any day as the record date for the purpose of determining the Holders of Securities of any
series entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or permitted to be
given or taken by Holders of Securities of such series. If not set by the Company prior to
the first solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if later, the date of
the most recent list of Holders required to be provided pursuant to Section 701) prior to
such first solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the Holders of
Securities of such series on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action. With regard to any record date set
12
pursuant to this paragraph, the Holders of Outstanding Securities of the relevant
series on such record date (or their duly appointed agents), and only such Persons, shall
be entitled to give or take the relevant action, whether or not such Holders remain Holders
after such record date. With regard to any action that may be given or taken hereunder
only by Holders of a requisite principal amount of Outstanding Securities of any series (or
their duly appointed agents) and for which a record date is set pursuant to this paragraph,
the Company may, at its option, set an expiration date after which no such action purported
to be given or taken by any Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents). On or
prior to any expiration date set pursuant to this paragraph, the Company may, on one or
more occasions at its option, extend such date to any later date. Nothing in this
paragraph shall prevent any Holder (or any duly appointed agent thereof) from giving or
taking, after any expiration date, any action identical to, or, at any time, contrary to or
different from, any action given or taken, or purported to have been given or taken,
hereunder by a Holder on or prior to such date, in which event the Company may set a record
date in respect thereof pursuant to this paragraph. Notwithstanding the foregoing or the
Trust Indenture Act, the Company shall not set a record date for, and the provisions of
this paragraph shall not apply with respect to, any action to be given or taken by Holders
pursuant to Section 501, 502 or 512.
(f) Without limiting the foregoing, a Holder entitled hereunder to give or take any
action hereunder with regard to any particular Security may do so with regard to all or any
part of the principal amount of such Security or by one or more duly appointed agents each
of which may do so pursuant to such appointment with regard to all or any different part of
such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to the attention of the Treasurer at
the address of the Companys principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the Trustee by the
Company; provided,
13
however, that such notice shall not be deemed to be given until received by the
Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any), and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it
shall be impracticable to give such notice by mail, then such notification as shall be made with
the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Indenture, the latter provision
shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein, the Table of Contents and cross-reference sheet are
for convenience only, are not intended to be considered a part hereof and shall not modify or
restrict any of the terms or provisions hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture and the Securities by the Company shall bind
its successors and assigns, whether so expressed or not. All agreements of the Trustee in this
Indenture shall bind its successors.
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Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, any Authenticating Agent, Paying
Agent, Security Registrar and the Holders, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by, and construed in accordance with, the
laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any
Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or the Securities) payment of interest or principal (and premium, if
any) need not be made at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date or at the Stated Maturity; provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the
case may be.
Section 114. No Recourse Against Others.
An incorporator or any past, present or future director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on or otherwise in respect of the Securities or
the Indenture. By accepting a Security, each Holder shall waive and release all such liability.
The waiver and release shall be part of the consideration for the issue of the Securities.
Section 115. Counterparts.
This instrument 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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ARTICLE TWO
[RESERVED]
ARTICLE THREE
THE SECURITIES
Section 301. Form and Dating.
Provisions relating to the Initial Securities, the Private Exchange Securities and the
Exchange Securities are set forth in the Rule 144A/Regulation S Appendix attached hereto (the
Appendix), which is hereby incorporated in, and expressly made part of, this Indenture. The
Initial Securities and the Trustees certificate of authentication shall be substantially in the
form of Exhibit 1 to the Appendix, which is hereby incorporated in, and expressly made a part of,
this Indenture. The Exchange Securities, the Private Exchange Securities and the Trustees
certificate of authentication with respect thereto shall be substantially in the form of Exhibit A,
which is hereby incorporated in and expressly made a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule, agreements to which
the Company is subject, if any, or usage (provided that any such notation, legend or endorsement is
in a form acceptable to the Company). Each Security shall be dated the date of its authentication.
The terms of the Securities set forth in the Appendix and Exhibit A are part of the terms of this
Indenture.
Section 302. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or facsimile signature. The
Companys seal shall be impressed, affixed, imprinted or reproduced on the Securities and may be in
facsimile form.
If an Officer whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
On the Issue Date, the Trustee shall authenticate and deliver the Initial Securities
consisting of $600 million of 4.700% Senior Notes due 2013, $500 million of 5.650% Senior Notes due
2018 and $400 million of 6.500% Senior Notes due 2038, and, at any time and from time to time
thereafter, the Trustee shall authenticate and deliver Additional Securities pursuant to Section
313, and Exchange Securities and Private Exchange Securities, for original issue in an aggregate
principal amount specified in such order, in each case upon a written order of the Company signed
by two Officers or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the
Company. Such
16
order shall specify the amount of the Securities to be authenticated and the date on which the
original issue of Securities is to be authenticated.
The Trustee may appoint an authenticating agent reasonably acceptable to the Company to
authenticate the Securities. Unless limited by the terms of such appointment, an authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as any Security Registrar, Paying Agent or agent for service of notices and
demands.
Section 303. Security Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange (the Security Registrar) and an office or agency where
Securities may be presented for payment (the Paying Agent). The Security Registrar shall keep a
register of the Securities and of their transfer and exchange (the register maintained in such
office and in any office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the Security Register). The Company may have one or more
co-registrars and one or more additional paying agents. The term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any Security Registrar,
Paying Agent or co-registrar not a party to this Indenture, which shall incorporate the terms of
the Trust Indenture Act. The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Security Registrar or Paying Agent, the Trustee shall
act as such and shall be entitled to appropriate compensation therefor pursuant to Section 607.
The Company or any wholly owned Subsidiary incorporated or organized within The United States of
America may act as Paying Agent, Security Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Security Registrar and Paying Agent in
connection with the Securities.
Section 304. Paying Agent to Hold Money in Trust.
Prior to each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and interest when so becoming
due. The Company shall require each Paying Agent (other than the Trustee) to agree in writing that
the Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by
the Paying Agent for the payment of principal of or interest on the Securities and shall notify the
Trustee of any default by the Company in making any such payment. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon
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complying with this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
Section 305. Security Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders. If the Trustee is not the Security
Registrar, the Company shall furnish to the Trustee, in writing at least five Business Days before
each interest payment date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names and addresses of
Holders.
Section 306. Transfer and Exchange.
The Securities shall be issued in registered form and shall be transferable only upon the
surrender of a Security for registration of transfer. When a Security is presented to the Security
Registrar or a co-registrar with a request to register a transfer, the Security Registrar shall
register the transfer as requested if the requirements of this Indenture and Section 8-401(1) of
the Uniform Commercial Code are met. When Securities are presented to the Security Registrar or a
co-registrar with a request to exchange them for an equal principal amount of Securities of the
same series and of other denominations, the Security Registrar shall make the exchange as requested
if the same requirements are met.
Section 307. Replacement Securities.
If a mutilated Security is surrendered to the Security Registrar or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Security if the requirements of Section
8-405 of the Uniform Commercial Code are met and the Holder satisfies any other reasonable
requirements of the Trustee. If required by the Trustee or the Company, such Holder shall furnish
an indemnity bond sufficient in the judgment of the Company and the Trustee to protect the Company,
the Trustee, the Paying Agent, the Security Registrar and any co-registrar from any loss which any
of them may suffer if a Security is replaced. The Company and the Trustee may charge the Holder
for their expenses in replacing a Security.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or wrongfully taken Security shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionally
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or wrongfully taken Securities.
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Section 308. [Reserved]
Section 309. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities and deliver them in exchange for temporary Securities.
Section 310. Cancellation.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar
and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all Securities
surrendered for registration of transfer, exchange, payment or cancellation and deliver a
certificate of such destruction to the Company unless the Company directs the Trustee to deliver
canceled Securities to the Company. The Company may not issue new Securities to replace Securities
it has redeemed, paid or delivered to the Trustee for cancellation.
Section 311. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities, the Company shall pay
defaulted interest (plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the persons who are Holders on a subsequent
special record date. The Company shall fix or cause to be fixed any such special record date and
payment date to the reasonable satisfaction of the Trustee and shall promptly mail to each Holder a
notice that states the special record date, the payment date and the amount of defaulted interest
to be paid.
Section 312. CUSIP Numbers, ISINs, etc.
The Company in issuing the Securities may use CUSIP numbers, ISINs and Common Code numbers
(in each case if then generally in use) and, if so, the Trustee shall use CUSIP numbers, ISINs
and Common Code numbers in notices of redemption as a convenience to Holders; provided, however,
that any such notice may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers. The Company shall
advise the Trustee in writing of any change in any CUSIP numbers, ISINs or Common Code numbers
applicable to the Securities.
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Section 313. Issuance of Additional Securities.
After the Issue Date, the Company shall be entitled to issue Additional Securities under this
Indenture, which Securities shall have identical terms as any one or more series of the Initial
Securities issued on the Issue Date, other than with respect to the date of issuance and issue
price. Additional Securities issued under this Indenture, together with the Initial Securities
having such identical terms (except as aforesaid), shall be treated as a single class for all
purposes of this Indenture including waivers, amendments, redemptions and offers to purchase.
With respect to any Additional Securities, the Company shall set forth in a resolution of the
Board of Directors and an Officers Certificate, a copy of each which shall be delivered to the
Trustee, the following information:
(1) the aggregate principal amount of such Additional Securities to be authenticated
and delivered pursuant to this Indenture;
(2) the issue price, the issue date and the CUSIP numbers, ISIN and Common Code
numbers of such Additional Securities; provided, however, that no Additional Securities may
be issued at a price that would cause such Additional Securities to have original issue
discount within the meaning of Section 1273 of the Code; and
(3) whether such Additional Securities shall be Initial Securities or shall be issued
in the form of Exchange Securities as set forth in Exhibit A.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
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(B) all such Securities not theretofore delivered to the Trustee for
cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year and are not repayable at the option of the Holder prior thereto, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company
and are not repayable at the option of the Holder prior thereto,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose, lawful money of the United States or U.S.
Government Obligations which through the payment of interest and principal in respect thereof in
accordance with their terms will provide lawful money not later than the due dates of principal
(and premium, if any) or interest, or any combination thereof, in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
In the event there are Outstanding Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument prepared by the Company acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to the Securities of all series
to which it is Trustee and if the other conditions thereto are met. In the event there are two or
more Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon
receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating
Agent under Section 614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
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Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 401 shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto as set forth in the Securities
Register, of the principal and any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE
AND HOLDERS IN EVENT OF DEFAULT
Section 501. Events of Default.
Event of Default, wherever used herein with respect to a series of Securities, means any one
of the following events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or
order of any court or any order, rule or regulation of any administrative or governmental body):
(1) failure to pay the principal of (or any premium on) any Security of that series
at its Maturity; or
(2) failure to pay any interest upon any Security of that series when it becomes due
and payable, and continuance of such default for a period of 30 days; or
(3) [Reserved]
(4) with respect to a series of Securities, failure to perform, or the breach of, any
other covenant of the Company in this Indenture (other than a covenant a default in whose
performance or whose breach is specifically dealt with elsewhere in this Section or which
has expressly been included in this Indenture solely for the benefit of a series of
Securities other than that series or which has been included in this Indenture but not made
applicable to the Securities of such series), and continuance of such default or breach for
a period of 90 days after there has been given a written notice specifying such failure or
breach and requiring it to be remedied and stating that such notice is a Notice of
Default hereunder, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series; or
(5) [Reserved]
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(6) [Reserved]
(7) the entry by a court having jurisdiction in the premises of (a) a decree or order
for relief in respect of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or of any substantial part of its properties, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90 consecutive days;
or
(8) the commencement by the Company of a voluntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by the Company to the entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against the Company, or the filing by the Company of a
petition or answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by the Company to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial part
of its properties, or the making by the Company of an assignment for the benefit of
creditors, or the admission by the Company in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company in
furtherance of any such action.
Upon receipt by the Trustee of any Notice of Default pursuant to this Section 501 with respect
to Securities of any series, a record date shall automatically and without any other action by any
Person be set for the purpose of determining the Holders of Outstanding Securities of such series
entitled to join in such Notice of Default, which record date shall be the close of business on the
day the Trustee receives such Notice of Default. Promptly after the establishment of a record date
pursuant to the provisions of this Section 501, the Trustee shall notify the Company and the
Holders of Outstanding Securities of such series of the establishment of such record date. The
Holders of Outstanding Securities of such series on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to join in such Notice of Default, whether or not
such Holders remain Holders after such record date; provided that, unless such Notice of Default
shall have become effective by virtue of Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date,
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such Notice of Default shall automatically and without any action by any Person be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder (or a duly appointed
agent thereof) from giving, before or after the expiration of such 90-day period, a Notice of
Default contrary to or different from, or, after the expiration of such period, identical to, a
Notice of Default that has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date in respect thereof shall be set pursuant to this paragraph.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case either the Trustee or the Holders of at least 25% in
principal amount of the Outstanding Securities of that series may declare the principal amount of
all of the Securities of that series to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series
has been made, but before a judgment or decree for payment of the money due has been obtained by
the Trustee, as hereinafter in this Article provided, the Holders of a majority in principal amount
of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such acceleration and its consequences (except an acceleration due to a Default in payment of the principal or interest on Securities of
any series) if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities, to the
extent that payment of such interest is lawful,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel; and
(2) all Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in Section 513.
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No such rescission shall affect any subsequent default or impair any right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any rescission and
annulment of any such declaration, pursuant to this Section with respect to Securities of any
series, a record date shall automatically and without any other action by any Person be set for the
purpose of determining the Holders of Outstanding Securities of such series entitled to join in
such declaration, or rescission or annulment, as the case may be, which record date shall be the
close of business on the day the Trustee receives such declaration, or rescission and annulment, as
the case may be. Promptly after the establishment of a record date pursuant to the provisions of
this Section, the Trustee shall notify the Company and the Holders of Outstanding Securities of
such series of the establishment of such record date. The Holders of Outstanding Securities of
such series on such record date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such declaration, or rescission and annulment, as the case may be, whether or
not such Holders remain Holders after such record date; provided that, unless such declaration, or
rescission and annulment, as the case may be, shall have become effective by virtue of Holders of
the requisite principal amount of Outstanding Securities of such series on such record date (or
their duly appointed agents) having joined therein on or prior to the 90th day after such record
date, such declaration or rescission and annulment, as the case may be, shall automatically and
without any action by any Person be canceled and of no further effect. Nothing in this paragraph
shall prevent a Holder (or a duly appointed agent thereof) from giving, before or after the
expiration of such 90-day period, a declaration of acceleration, or a rescission and annulment of
any such declaration, contrary to or different from, or, after the expiration of such period,
identical to, a declaration, or rescission and annulment, as the case may be, that has been
canceled pursuant to the proviso to the preceding sentence, in which event a new record date in
respect thereof shall be set pursuant to this paragraph.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holder of any such
Security, the whole amount then due and payable on any such Security for principal and any premium
and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at the rate or rates
prescribed therefor by the terms of any such Security; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and
25
expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding
26
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
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FIRST:
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To the payment of all amounts due the Trustee under Section 607;
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SECOND:
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To the payment of the amounts then due and unpaid for principal of
and any premium and interest on the Securities in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and any premium and
interest, respectively; and
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THIRD:
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The balance, if any, to the Company or any other Person or Persons
entitled thereto.
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To the fullest extent allowed under applicable law, if for the purpose of obtaining judgment
against the Company in any court it is necessary to convert the sum due in respect of the principal
of, or any premium or interest on the Securities of any series (the Required Currency) into a
currency in which judgment will be rendered (the Judgment Currency), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the New York Business
Day preceding that on which final judgment is given. The Company shall not be liable for any
shortfall nor shall it benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency into the Required
Currency to make payments under this Section to Holders of Securities, but payment of such judgment
shall discharge all amounts owed by the Company on the claim or claims underlying such judgment.
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Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against
the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision of this Indenture, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the principal of, premium, if
any, and any interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the
28
Company, the Trustee and the Holders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities in the last paragraph of Section 307, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this
Indenture,
(2) the Trustee shall not determine (it being understood that the Trustee shall have
no obligation to make such determination) that the action so directed would be unjustly
prejudicial to Holders of Securities of that series, or any other series, not taking part
in such direction, and
(3) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Upon receipt by the Trustee of any Notice of Default pursuant to this Section with respect to
Securities of any series, a record date shall automatically and without any other action by any
Person be set for the purpose of determining the Holders of Outstanding Securities of such series
entitled to join in such Notice of Default, which
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record date shall be the close of business on the day the Trustee receives such Notice of
Default. Promptly after the establishment of a record date pursuant to the provisions of this
Section, the Trustee shall notify the Company and the Holders of Outstanding Securities of such
series of the establishment of such record date. The Holders of Outstanding Securities of such
series on such record date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such Notice of Default, whether or not such Holders remain Holders after such
record date; provided that, unless such Notice of Default shall have become effective by virtue of
Holders of the requisite principal amount of Outstanding Securities of such series on such record
date (or their duly appointed agents) having joined therein on or prior to the 90th day after such
record date, such Notice of Default shall automatically and without any action by any Person be
canceled and of no further effect. Nothing in this paragraph shall prevent a Holder (or a duly
appointed agent thereof) from giving, before or after the expiration of such 90-day period, a
Notice of Default contrary to or different from, or, after the expiration of such period, identical
to, a Notice of Default that has been canceled pursuant to the proviso to the preceding sentence,
in which event a new record date in respect thereof shall be set pursuant to this paragraph.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of
such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess costs against any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking and that the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the
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aggregate more than 10% in principal amount of the Outstanding Securities of that series or to
any suit instituted by any Holder in each case for the enforcement of the payment of the principal
of, or premium, if any, or interest on, any Security on or after the due date for such payment.
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture
Act. Notwithstanding the foregoing (but subject to Section 107), no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the Trustee shall give
the Holders of Securities of such series notice of such default known to the Trustee as and to the
extent provided by the Trust Indenture Act and in the manner provided in Section 106; provided,
however, that in the case of any default of the character specified in Section 501(4) with respect
to Securities of such series, no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. Except in the case of a Default in the payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such Security, if any), the
Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is not opposed to the
interests of the Security Holders. For the purpose of this Section, the term default means any event which
is, or after notice or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
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Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) in the absence of bad faith on the part of the Trustee, the Trustee may rely and
shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers Certificate;
(4) the Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders pursuant
to this Indenture (including, without limitation, under Section 512), unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, unless requested in writing to do so by the Holders of a
majority in aggregate principal amount of Outstanding Securities of a series affected by
such matter; and
(7) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and the
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Trustee or any Authenticating Agent assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities, if any, of any series, except that the Trustee represents that it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its obligations
hereunder, and that the statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Section 606. Money Held in Trust.
Subject to the provisions of Section 1305(c) and the last paragraph of Section 1003, all
moneys received by the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except
to the extent required by law. The Trustee shall be under no liability for investment of or
interest on any money received by it hereunder except as otherwise agreed with the Company. Except
for amounts deposited pursuant to Article Thirteen, so long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be paid from time to time
to the Company upon a Company Order.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except to the
extent any such expense, disbursement or advance may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense, arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder or the performance of its duties
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hereunder, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be attributable to
its negligence, willful misconduct or bad faith.
As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for payment of principal of (and premium, if any)
or interest, if any, on particular Securities.
Trustee, for purposes of this Section, includes any predecessor Trustee, provided that the
negligence, willful misconduct or bad faith of any Trustee shall not affect the rights under this
Section of any other Trustee.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest within 90 days, apply to the
Commission for permission to continue or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Indenture, and the Company shall
take prompt action to have a successor Trustee appointed in the manner provided herein. For
purposes of Section 310(b)(1) of the Trust Indenture Act, no Trustee hereunder will be deemed to
have a conflicting interest solely by reason of being Trustee in respect of more than one series of
Securities.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder with respect to the Securities of each series,
which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such, has a
combined capital and surplus of at least $50,000,000, and be subject to supervision or examination
by Federal or State authority. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then, for the
purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect hereinafter specified in
this Article. No obligor upon the Securities of a particular series or Person directly or
indirectly controlling, controlled by or under common control with such obligor shall serve as
Trustee upon the Securities of such series.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of acceptance by
a successor Trustee required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(A) the Trustee shall fail to comply with Section 608 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(B) the Trustee shall cease to be eligible under Section 609 and shall fail to
resign after written request therefor by the Company or by any such Holder, or
(C) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or of
its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect
to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the Securities
of one or more series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within six months after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
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Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance with the applicable
requirements of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to
the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee
with respect to Securities of any series and each appointment of a successor Trustee with
respect to Securities of any series to all Holders of Securities of such series in the
manner provided in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring Trustee; but,
on the request of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (ii) if the retiring
Trustee is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series
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as to which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor
Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities. In the event any Securities shall
not have been authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the certificate of
authentication of the Trustee.
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Section 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any
creditor relationship listed in Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the
extent indicated therein.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 307, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustees certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to the requirements of
said supervising or examining authority, then, for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may
appoint a
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successor Authenticating Agent which shall be acceptable to the Company and shall mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve, as their names and addresses
appear in the Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Dated:
[NAME OF TRUSTEE],
As Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Officer
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Section 615. Compliance with Tax Laws.
The Trustee hereby agrees to comply with all U.S. Federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium (if any) and interest
on the Securities of any series, whether acting as Trustee, Security Registrar, Paying Agent or
otherwise with respect to the Securities of any series.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
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(1) semi-annually, not later than 15 days after the regular record date for each
series of Securities, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Securities as of such regular record date (unless the
Trustee has such information), or if there is no regular record date for interest for such
series of Securities, semi-annually, upon such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(2) at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar, no such list shall be
required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Securities (i) contained in the most recent list
furnished to the Trustee for each series as provided in Section 701 and (ii) received by
the Trustee for each series in the capacity as Security Registrar if the Trustee is acting
in such capacity. The Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding rights and
privileges of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of information as to the names
and addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders of Securities, as their names and addresses
appear in the Security Register, such reports, if any, concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. Any such reports required pursuant to
Section 313(a) of the Trust Indenture Act shall be transmitted on or about June 14, 2009,
and on or about each June 14 thereafter and shall be dated as of April 15 of that year.
The Trustee also shall comply with Section 313(b)(2) of the Trust Indenture Act.
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(b) A copy of such report shall, at the time of such transmission to Holders, be filed
by the Trustee with each stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when any Securities
are listed on any stock exchange and of any delisting thereof.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to Holders, such
information, documents and other reports, if any, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust
Indenture Act; provided that any such information, documents or reports required to be filed with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee
within 15 days after the same is so required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge with or into any Person, or convey, transfer
or lease all or substantially all of its assets, or permit any Person to consolidate with or merge
into the Company, unless the following conditions have been satisfied:
(a) either (1) the Company shall be the continuing Person in the case of a merger or
(2) the resulting, surviving or transferee Person, if other than the Company (the
Successor Company), is a Person (if such Person is not a corporation, then the Successor
Company shall include a corporate co-issuer of the Securities) organized and existing under
the laws of the United States, any State or the District of Columbia and shall expressly
assume all the obligations of the Company under the Securities and the Indenture;
(b) immediately after giving effect to the transaction (and treating any Debt that
becomes an obligation of the Successor Company or any Subsidiary of the Company as a result
of the transaction as having been incurred by the Successor Company or the Subsidiary at
the time of the transaction), no default, Event of Default or event that, after notice or
lapse of time, would become an Event of Default under this Indenture would occur or be
continuing; and
(c) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that the consolidation, merger, transfer or lease complies
with this Indenture.
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Section 802. Successor Substituted.
Upon any consolidation by the Company with, or merger by the Company into, any other Person or
any conveyance, transfer or lease of the properties and assets of the Company as an entirety or
substantially as an entirety as described in the preceding paragraph, the Successor Company
resulting from such consolidation or into which the Company is merged or the transferee or lessee
to which such conveyance, transfer or lease is made, will succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture, and thereafter, except in
the case of a lease, the predecessor (if still in existence) will be released from its obligations
and covenants under this Indenture and all Outstanding Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
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
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to cure any ambiguity or omission or to correct or supplement any provision
contained in this Indenture, in any supplemental indenture or in any Securities that may be
defective or inconsistent with any other provision contained therein, to convey, transfer,
assign, mortgage or pledge any property to or with the Trustee, or to make such other
provisions in regard to matters or questions arising under this Indenture, in each case as
shall not adversely affect the interests of any Holders of Securities of any series in any
material respect;
(b) to evidence the succession of another Person to the Company pursuant to the
provisions of this Indenture relating to consolidations, mergers and sales of assets and
the assumption by the successor of the covenants, agreements and obligations of the Company
herein and in the Securities;
(c) to surrender any right or power conferred upon the Company by this Indenture, to
add to the covenants of the Company such further covenants, restrictions, conditions or
provisions for the protection of the Holders of all or any series of Securities as the
Board of Directors of the Company shall consider to be for the protection of the Holders of
the Securities, and to make the occurrence, or the occurrence and continuance of a default
in any of the additional covenants, restrictions, conditions or provisions a default or an
Event of Default under this Indenture (provided, however, that with respect to any such
additional covenant, restriction, condition or provision, the supplemental indenture may
provide for a period of grace after default, which may be shorter or longer than that
allowed in the case of other defaults, may provide for an immediate enforcement upon the
42
default, may limit the remedies available to the Trustee upon the default, or may
limit the right of Holders of a majority in aggregate principal amount of any or all series
of Securities to waive the default);
(d) to add guarantees with respect to any or all of the Securities or to secure any or
all of the Securities;
(e) to add or appoint a successor or separate trustee or other agent;
(f) to provide for the issuance of the Exchange Notes, which will have terms
substantially identical in all material respects to the Securities (except that the
transfer restrictions contained in the Securities will be modified or eliminated, as
appropriate, and there will be no registration rights), and which will be treated, together
with any Outstanding Securities in respect of which they are exchanged, as a single issue
of Securities;
(g) to provide for the issuance of any Additional Securities;
(h) to modify or amend this Indenture in such a manner as to permit the qualification
of this Indenture or any supplemental indenture under the Trust Indenture Act as then in
effect;
(i) to comply with the rules of any applicable securities depository;
(j) to provide for uncertificated Securities in addition to or in place of
certificated Securities (provided that the uncertificated Securities are issued in
registered form for purposes of Section 163(f) of the Code or in a manner such that the
uncertificated Securities are described in Section 163(f)(2)(B) of the Code); and
(k) to make any change that does not adversely affect the rights of any Holder.
After an amendment under this Section becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment under this Section.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities affected by such supplemental indenture, by Act of said Holders (including
consents obtained in connection with a tender offer or exchange for the Securities) delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities under this Indenture and any
past
43
default or compliance with any provisions may also be waived by Act of said Holders; provided,
however, that no such supplemental indenture shall without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of
or interest on, any Security, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof, or change any Place of
Payment where, or the coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities, the
consent of whose Holders is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section 1010, except
to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the references to
the Trustee and concomitant changes in this Section and Section 1010, or the deletion of
this proviso, in accordance with the requirements of Sections 611(b) and 901(h).
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
After an amendment under this Section becomes effective, the Company shall mail to Holders a
notice briefly describing such amendment. The failure to give such notice to all Holders, or any
defect therein, shall not impair or affect the validity of an amendment under this Section.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to
44
Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture which affects the
Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities
of such series.
Section 907. Payment for Consent.
Neither the Company nor any Affiliate of the Company shall, directly or indirectly, pay or
cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for
or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Securities unless such consideration is offered to all Holders and is paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in solicitation
documents relating to such consent, waiver or agreement.
ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay the principal of and any premium and
45
interest on the Securities of that series in accordance with the terms of the Securities and
this Indenture. Principal, premium and interest shall be considered paid on the date due if on
such date the Trustee or the Paying Agent holds in accordance with this Indenture money sufficient
to pay all principal, premium and interest then due.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, on or before each due date of the principal of or any premium or interest on
any of the Securities of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of, or any premium or interest on, any
Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such
sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such
46
Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (a) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent and (b) during the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee
all sums held in trust by such Paying Agent for payment in respect of the Securities of that
series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
All monies deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium or interest has become due and
payable shall be paid to the Company on Company Request (including interest income on such funds,
if any), or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of
the Company ending after the date hereof, a brief certificate from the principal executive,
financial or accounting officer or treasurer of the Company as to his or her knowledge of the
Companys compliance (without regard to any period of grace or requirement of notice provided
hereunder) with all conditions and covenants hereof.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 1006. Maintenance of Properties.
The Company will cause all material properties used or useful in the conduct of its business
or the business of any Subsidiary to be maintained and kept in
47
good condition, repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as (and to the extent) in the judgment of the Company may be necessary or appropriate
in connection with its business; provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, within 30 days after the
Company shall have received notice that the same has become delinquent (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon
the income, profits or property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a material lien upon the
property of the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith by appropriate
proceedings; provided, further, that the Company shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim unless the failure to pay or
discharge such tax, assessment, charge or claim would, individually or in the aggregate with all
such failures, have a material adverse effect on the Company and its Subsidiaries taken as a whole.
Section 1008. Limitations on Liens.
The Company will not, nor will it permit any Subsidiary to, issue, incur, create, assume or
guarantee any debt for borrowed money (hereinafter referred to as Debt), secured by a mortgage,
security interest, pledge, lien, charge or other encumbrance (mortgages, security interests,
pledges, liens, charges and other encumbrances being hereinafter in this Article Ten referred to as
lien or liens) upon any Principal Property of the Company or any Subsidiary or upon any shares
of stock or indebtedness of any Subsidiary that owns any Principal Property (whether such Principal
Property, shares of stock or indebtedness are now existing or owed or hereafter created or
acquired) without in any such case effectively providing concurrently with the issuance,
incurrence, creation, assumption or guaranty of any such Debt that the Securities (together with,
if the Company shall so determine, any other indebtedness of or guarantee by the Company or such
Subsidiary ranking equally with the Securities and then existing or thereafter created) shall be
secured equally and ratably with (or, at the Companys option, prior to) such secured Debt until
such time as such Debt is no longer secured by a lien. The preceding sentence shall not require
the Company to secure any Securities if the lien consists of either of the following:
(a) Permitted Liens; or
48
(b) liens securing Debt if, after giving pro forma effect to the incurrence, creation,
assumption or guaranty of such Debt (and the receipt and application of the proceeds
thereof) or the securing of outstanding Debt, the sum of (without duplication) (i) the
aggregate principal amount of all such Debt of the Company and its Subsidiaries secured by
liens (other than Permitted Liens) upon Principal Property of the Company or any Subsidiary
or upon any shares of stock or indebtedness of any Subsidiary that owns any Principal
Property (or, in the case of a lien, the lesser of such principal amount and the fair
market value of the property subject to such lien, as determined in good faith by the Board
of Directors) and (ii) all Attributable Indebtedness in respect of Sale and Lease-Back
Transactions in each case not otherwise permitted under Section 1009, at the time of
determination does not exceed the greater of 10% of Consolidated Net Tangible Assets or
$800,000,000.
Section 1009. Limitations on Sale and Lease-Back Transactions.
The Company will not, nor will it permit any Subsidiary to, enter into any Sale and Lease-Back
Transaction unless (a) the Company or such Subsidiary would be entitled to incur Debt secured by a
lien on the Principal Property involved in such transaction in an amount at least equal to the
Attributable Indebtedness with respect to such Sale and Lease-Back Transaction without equally and
ratably securing the Securities of such series pursuant to Section 1008 or (b) the Company, within
six months after the effective date of such Sale and Lease-Back Transaction, applies an amount
equal to the Attributable Indebtedness in respect of such Sale and Lease-Back Transaction to the
defeasance or retirement (other than any mandatory retirement, mandatory prepayment or sinking fund
payment or by way of payment at maturity) of Securities or other Debt of the Company or a
Subsidiary that matures more than one year after the creation of such Debt or to the purchase,
construction or development of other comparable property.
Section 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1008 and 1009 if before the time for such compliance the Holders of
not less than a majority in principal amount of the Outstanding Securities shall, by Act of such
Holders, either waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
49
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all the Securities of any
series, the Company shall, at least 60 days (45 days in the case of redemption of all Securities of
any series) prior to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be
redeemed. In the case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers Certificate evidencing compliance with such
restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If fewer than all the Securities of a series are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata to the extent practicable. The Trustee shall make the selection
from Outstanding Securities of such series not previously called for redemption. The Trustee may
select for redemption portions of the principal of Securities that have denominations larger than
$2,000. Securities and portions of them the Trustee selects shall be in principal amounts of
$2,000 or any greater multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for redemption.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, unless a
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shorter period is specified in the Securities to be redeemed, to each Holder of Securities to
be redeemed, at his address appearing in the Security Register.
Any notice that is mailed to the Holder of any Securities in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest, if any, to be paid,
(3) if less than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security to be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(6) the place or places where such Securities are to be surrendered for payment of the
Redemption Price,
(7) [Reserved]
(8) the CUSIP number, ISIN or Common Code number, if any, printed on the
Securities being redeemed; and
(9) that no representation is made as to the correctness or accuracy of the CUSIP
number, ISIN, or Common Code number, if any, listed in such notice or printed on the
Securities.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent,
51
segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their terms.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
[RESERVED]
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Companys Option to Effect Defeasance or Covenant Defeasance.
Section 1302 and/or Section 1303 shall apply to the Outstanding Securities of all series.
Section 1302. Defeasance and Discharge.
The Company shall be deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 1304, in the case of defeasance, are satisfied (hereinafter called
Defeasance). For this purpose, such Defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding Securities of such
series and to have satisfied all of its other obligations under the Securities of such series and
this Indenture insofar as the Securities of such series are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the same), subject to the
following which shall survive until all the Securities of such series have in fact been paid in
full: (a) the rights of Holders of Securities of such series to receive, solely from the trust
fund described in Section 1304 and as more fully set forth in such Section, payments in respect of
the principal of and any premium and interest on such Securities of such series when payments are
due, and (b) the Companys obligations with respect to the Securities of such series under Sections
307, 310, 1002 and 1003. Thereafter, the Companys obligations set forth in Sections 607 and 1305
shall survive. The rights, powers, trusts, duties and immunities of the Trustee hereunder and the
provisions of this Article shall survive until otherwise terminated or discharged hereunder.
Subject to compliance with this Article, the Company may defease the Outstanding Securities of
any series pursuant to this Section notwithstanding the prior Covenant Defeasance of the
Outstanding Securities of such series pursuant to Section 1303.
Section 1303. Covenant Defeasance.
The Company shall be released from its obligations under Sections 1005 through 1009,
inclusive, and the occurrence of any event specified in Section 501(4) (with respect to any of
Sections 1005 through 1009 inclusive) shall be deemed not to be or result in an Event of Default,
in each case with respect to Outstanding Securities of any series as provided in this Section on
and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called
Covenant Defeasance). For this purpose,
53
such Covenant Defeasance means that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such specified Section
(to the extent so specified in the case of Section 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any reference in any
such Section to any other provision herein or in any other document, but the remainder of this
Indenture and the Securities of such series shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to Defeasance pursuant to Section 1302 or Covenant
Defeasance pursuant to Section 1303 of the Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee that satisfies the requirements contemplated by Section 609 and
agrees to comply with the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of Outstanding Securities of such
series, (A) money in an amount, or (B) U.S. Government Obligations that through the
scheduled payment of principal and interest in respect thereof in accordance with their
terms will provide, not later than the due date of any payment, money in an amount, or (C)
a combination thereof, in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal of, and
premium (not relating to optional redemption), if any, and interest on, the Outstanding
Securities of such series on the dates such installments of principal of, and premium (not
relating to optional redemption), if any, or interest are due.
(2) In the case of Defeasance under Section 1302, the Company shall have delivered to
the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling or (B) since the date first
set forth hereinabove, there has been a change in the applicable Federal income tax law, in
either case (A) or (B) to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series will not recognize gain or
less for Federal income tax purposes as a result of the deposit, Defeasance and discharge
to be effected with respect to the Securities of such series and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would be the
case if such deposit, Defeasance and discharge were not to occur.
(3) In the case of Covenant Defeasance under Section 1303, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss for Federal
income tax purposes as a result of the deposit and
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Covenant Defeasance to be effected with respect to the Securities of such series and
will be subject to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officers Certificate to the
effect that the Securities of such series, if then listed on any securities exchange, will
not be demisted as a result of such deposit.
(5) No Event of Default or event that (after notice or lapse of time or both) would
become an Event of Default shall have occurred and be continuing at the time of such
deposit or, with regard to any Event of Default or any such event specified in Sections
501(7) and (8), at any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after such 90th
day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities
are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance (including the deposit pursuant to such
Defeasance or Covenant Defeasance) shall not result in a breach or violation of, or
constitute a default under, the Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound.
(8) The Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect to such
Defeasance or Covenant Defeasance have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the Investment
Company Act of 1940, unless such trust shall be qualified under such Act or exempt from
regulation thereunder.
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Section 1305.
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Deposited Money and U.S. Government Obligations to be Held in Trust; Indemnity for
U.S. Government Obligations; Repayment to Company.
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(a) Subject to the provisions of the last paragraph of Section 1003, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and Section 1306, the Trustee
and any such other trustee are referred to collectively as the Trustee) pursuant to
Section 1304 in respect of the Securities of any series shall be held in trust and applied
by the Trustee, in accordance with the provisions of the Securities of such series and this
Indenture, to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of
Securities of such series, of all sums due and to become due thereon in respect of
55
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
(b) The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to
Section 1304 or the principal and interest received in respect thereof other than any such
tax, fee or other charge that by law is for the account of the Holders of Outstanding
Securities.
(c) Anything in this Article to the contrary notwithstanding, the Trustee and any
Paying Agent shall promptly deliver or pay to the Company upon Company Request any money or
U.S. Government Obligations held by them as provided in Section 1304 with respect to
Securities of any series that, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to
the Trustee, are in excess of the amount thereof that would then be required to be
deposited to effect an equivalent Defeasance or Covenant Defeasance with respect to the
Securities of such series.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article with respect to the Securities of any series by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the Companys obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to this Article with respect to
Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to Section 1305 with respect to Securities of such series in
accordance with this Article; provided, however, that if the Company makes any payment of principal
of or any premium or interest on any Security of such series following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of Securities of such
series to receive such payment from the money so held in trust.
ARTICLE FOURTEEN
[RESERVED]
56
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, as of
the day and year first above written.
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DELL INC.
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By:
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/s/ Brian P. MacDonald
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Name:
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Brian
P. MacDonald
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Title:
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Vice
President and Treasurer
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THE BANK OF NEW YORK TRUST COMPANY, N.A.
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By:
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/s/ Julie Hoffman-Ramos
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Name:
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Julie
Hoffman-Ramos
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Title:
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Assistant
Treasurer
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58
RULE 144A/REGULATION S APPENDIX
PROVISIONS RELATING TO INITIAL SECURITIES,
PRIVATE EXCHANGE SECURITIES
AND EXCHANGE SECURITIES
1. Definitions
1.1
Definitions
For the purposes of this Appendix the following terms shall have the meanings indicated below:
Additional Securities means Securities (other than the Initial Securities issued on the
Issue Date) issued under this Indenture, as part of the same series as one of the series of the
Initial Securities issued on the Issue Date.
Applicable Procedures means, with respect to any transfer or transaction involving a
Temporary Regulation S Global Security or beneficial interest therein, the rules and procedures of
the Depository for such a Temporary Regulation S Global Security, to the extent applicable to such
transaction and as in effect from time to time.
Definitive Security means a certificated Initial Security or Exchange Security or Private
Exchange Security bearing, if required, the appropriate restricted securities legend set forth in
Section 2.3(f) hereof.
Depository means The Depository Trust Company, its nominees and their respective successors.
Distribution Compliance Period, with respect to any Securities, means the period of 40
consecutive days beginning on and including the later of (i) the day on which such Securities are
first offered to Persons other than distributors (as defined in Regulation S under the Securities
Act) in reliance on Regulation S and (ii) the issue date with respect to such Securities.
Exchange Securities means (1) the 4.700% Senior Notes Due 2013 issued pursuant to the
Indenture in connection with a Registered Exchange Offer, (2) the 5.650% Senior Notes Due 2018
issued pursuant to the Indenture in connection with a Registered Exchange Offer, (3) the 6.500%
Senior Notes Due 2038 issued pursuant to the Indenture in connection with a Registered Exchange
Offer and (4) Additional Securities, if any, issued pursuant to a registration statement filed with
the SEC under the Securities Act.
IAI means an institutional accredited investor, as defined in Rule 501(a)(1), (2), (3) and
(7) of Regulation D under the Securities Act.
1
Initial Purchasers means (1) with respect to the Initial Securities issued on the Issue
Date, Barclays Capital Inc., Goldman, Sachs & Co., J.P. Morgan Securities Inc., Banc of America
Securities LLC, Deutsche Bank Securities Inc., HSBC Securities (USA) Inc., Mizuho Securities USA
Inc., UBS Securities LLC, Citigroup Global Markets Inc. and Morgan Stanley & Co. Incorporated and
(2) with respect to each issuance of Additional Securities, the Persons purchasing such Additional
Securities under the related Purchase Agreement.
Initial Securities means (1) $600,000,000, aggregate principal amount of 4.700% Senior Notes
Due 2013 issued on the Issue Date, (2) $500,000,000, aggregate principal amount of 5.650% Senior
Notes Due 2018 issued on the Issue Date, (3) $400,000,000, aggregate principal amount of 6.500%
Senior Notes Due 2038 issued on the Issue Date, and (4) Additional Securities, if any, issued in a
transaction exempt from the registration requirements of the Securities Act.
Issue Date means April 17, 2008.
Private Exchange means the offer by the Company, pursuant to a Registration Rights
Agreement, to the Initial Purchasers to issue and deliver to each Initial Purchaser, in exchange
for the Initial Securities held by the Initial Purchaser as part of its initial distribution, a
like aggregate principal amount of Private Exchange Securities.
Private Exchange Securities means any (1) 4.700% Senior Notes Due 2013, (2) 5.650% Senior
Notes Due 2018 and (3) 6.500% Senior Notes Due 2038, in each case issued in connection with a
Private Exchange.
Purchase Agreement means (1) with respect to the Initial Securities issued on the Issue
Date, the Purchase Agreement dated April 14, 2008, among the Company and the Initial Purchasers,
and (2) with respect to each issuance of Additional Securities, the purchase agreement or
underwriting agreement among the Company and the Persons purchasing such Additional Securities.
QIB means a qualified institutional buyer as defined in Rule 144A.
Registered Exchange Offer means the offer by the Company, pursuant to a Registration Rights
Agreement, to certain Holders of Initial Securities, to issue and deliver to such Holders, in
exchange for the Initial Securities, a like aggregate principal amount of Exchange Securities
registered under the Securities Act.
Registration Rights Agreement means (1) with respect to the Initial Securities issued on the
Issue Date, Exchange and Registration Rights Agreement dated April 17, 2008, between the Company
and the Initial Purchasers and (2) with respect to each issuance of Additional Securities issued in
a transaction exempt from the registration requirements of the Securities Act, the registration
rights agreement, if any, among the Company and the Persons purchasing such Additional Securities
under the related Purchase Agreement.
2
Securities Act means the Securities Act of 1933, as amended.
Securities Custodian means the custodian with respect to a Global Security (as appointed by
the Depository), or any successor Person thereto and shall initially be the Trustee.
Shelf Registration Statement means the registration statement issued by the Company in
connection with the offer and sale of Initial Securities or Private Exchange Securities pursuant to
a Registration Rights Agreement.
Transfer Restricted Securities means Securities that bear or are required to bear the legend
relating to restrictions on transfer relating to the Securities Act set forth in Section 2.3(f)
hereof.
1.2
Other Definitions
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Defined
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in
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Term
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Section:
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Agent Members
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2.1
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(b)
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Global Securities
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2.1
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(a)
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IAI Global Security
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2.1
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(a)
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Permanent Regulation S Global Security
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2.1
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(a)
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Regulation S
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2.1
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(a)
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Regulation S Global Security
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2.1
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(a)
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Rule 144A
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2.1
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(a)
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Rule 144A Global Security
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2.1
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(a)
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Temporary Regulation S Global Security
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2.1
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(a)
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2.
The Securities.
2.1 (a)
Form and Dating.
The Initial Securities will be offered and sold by the
Company pursuant to a Purchase Agreement. The Initial Securities will be resold initially only to
(i) QIBs in reliance on Rule 144A under the Securities Act (Rule 144A) and (ii) Persons other
than U.S. Persons (as defined in Regulation S) in reliance on Regulation S under the Securities Act
(Regulation S). Initial Securities may thereafter be transferred to, among others, QIBs, IAIs
and purchasers in reliance on
3
Regulation S, subject to the restrictions on transfer set forth herein. Initial Securities
initially resold pursuant to Rule 144A shall be issued initially in the form of one or more
permanent global Securities in definitive, fully registered form (collectively, the Rule 144A
Global Security); Initial Securities initially resold to IAIs shall be issued initially in the
form of one or more permanent global Securities in definitive, fully registered form (collectively,
the IAI Global Security); and Initial Securities initially resold pursuant to Regulation S shall
be issued initially in the form of one or more temporary global securities in fully registered form
(collectively, the Temporary Regulation S Global Security), in each case without interest coupons
and with the global securities legend and the applicable restricted securities legend set forth in
Exhibit 1 hereto, which shall be deposited on behalf of the purchasers of the Initial Securities
represented thereby with the Securities Custodian and registered in the name of the Depository or a
nominee of the Depository, duly executed by the Company and authenticated by the Trustee as
provided in this Indenture. Except as set forth in this Section 2.1(a), beneficial ownership
interests in the Temporary Regulation S Global Security will not be exchangeable for interests in
the Rule 144A Global Security, the IAI Global Security, a permanent global security (the Permanent
Regulation S Global Security, and together with the Temporary Regulation S Global Security, the
Regulation S Global Security) or any other Security prior to the expiration of the Distribution
Compliance Period and then, after the expiration of the Distribution Compliance Period, may be
exchanged for interests in a Rule 144A Global Security, an IAI Global Security or the Permanent
Regulation S Global Security only upon certification in form reasonably satisfactory to the Trustee
that (i) beneficial ownership interests in such Temporary Regulation S Global Security are owned
either by non-U.S. persons or U.S. persons who purchased such interests in a transaction that did
not require registration under the Securities Act and (ii) in the case of an exchange for an IAI
Global Security, certification that the interest in the Temporary Regulation S Global Security is
being transferred to an institutional accredited investor under the Securities Act that is an
institutional accredited investor acquiring the securities for its own account or for the account
of an institutional accredited investor.
Beneficial interests in Temporary Regulation S Global Securities or IAI Global Securities may
be exchanged for interests in Rule 144A Global Securities if (1) such exchange occurs in connection
with a transfer of Securities in compliance with Rule 144A and (2) the transferor of the beneficial
interest in the Temporary Regulation S Global Security or the IAI Global Security, as applicable,
first delivers to the Trustee a written certificate (in a form satisfactory to the Trustee) to the
effect that the beneficial interest in the Temporary Regulation S Global Security or the IAI Global
Security, as applicable, is being transferred to a Person (a) who the transferor reasonably
believes to be a QIB, (b) purchasing for its own account or the account of a QIB in a transaction
meeting the requirements of Rule 144A and (c) in accordance with all applicable securities laws of
the States of the United States and other jurisdictions.
Beneficial interests in Temporary Regulation S Global Securities and Rule 144A Global
Securities may be exchanged for an interest in IAI Global Securities if (1) such exchange occurs in
connection with a transfer of the securities in compliance with an exemption under the Securities
Act and (2) the transferor of the Regulation S Global Security or Rule 144A Global Security, as
applicable, first delivers to the trustee a
4
written certificate (substantially in the form of Exhibit 2) to the effect that the Regulation S
Global Security or Rule 144A Global Security, as applicable, is being transferred (a) to an
accredited investor within the meaning of Rule 501(a)(1),(2),(3) and (7) under the Securities Act
that is an institutional investor acquiring the securities for its own account or for the account
of such an institutional accredited investor, in each case in a minimum principal amount of the
securities of $250,000, for investment purposes and not with a view to or for offer or sale in
connection with any distribution in violation of the Securities Act and (b) in accordance with all
applicable securities laws of the States of the United States and other jurisdictions.
Beneficial interests in a Rule 144A Global Security or an IAI Global Security may be
transferred to a Person who takes delivery in the form of an interest in a Regulation S Global
Security, whether before or after the expiration of the Distribution Compliance Period, only if the
transferor first delivers to the Trustee a written certificate (in the form provided in the
Indenture) to the effect that such transfer is being made in accordance with Rule 903 or 904 of
Regulation S or Rule 144 (if applicable).
The Rule 144A Global Security, the IAI Global Security, the Temporary Regulation S Global
Security and the Permanent Regulation S Global Security are collectively referred to herein as
Global Securities. The aggregate principal amount of the Global Securities may from time to time
be increased or decreased by adjustments made on the records of the Trustee and the Depository or
its nominee as hereinafter provided.
(b)
Book-Entry Provisions.
This Section 2.1(b) shall apply only to a Global Security
deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance with this Section 2.1(b),
authenticate and deliver initially one or more Global Securities that (a) shall be registered in
the name of the Depository for such Global Security or Global Securities or the nominee of such
Depository and (b) shall be delivered by the Trustee to such Depository or pursuant to such
Depositorys instructions or held by the Trustee as custodian for the Depository.
Members of, or participants in, the Depository (Agent Members) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depository or by the
Trustee as the custodian of the Depository or under such Global Security, and the Company, the
Trustee and any agent of the Company or the Trustee shall be entitled to treat the Depository as
the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a holder of a
beneficial interest in any Global Security.
5
(c)
Definitive Securities.
Except as provided in this Section 2.1 or Section 2.3 or
2.4, owners of beneficial interests in Global Securities shall not be entitled to receive physical
delivery of Definitive Securities.
2.2
Authentication.
The Trustee shall authenticate and deliver: (1) on the Issue
Date, an aggregate principal amount of $600,000,000 of 4.700% Senior Notes Due 2013, (2) on the
Issue Date, an aggregate principal amount of $500,000,000 of 5.650% Senior Notes Due 2018, (3) on
the Issue Date, an aggregate principal amount of $400,000,000 of 6.500% Senior Notes Due 2038, (4)
any Additional Securities for an original issue in an aggregate principal amount specified in the
written order of the Company pursuant to Section 302 of the Indenture and (5) Exchange Securities
or Private Exchange Securities for issue only in a Registered Exchange Offer or a Private Exchange,
respectively, pursuant to a Registration Rights Agreement, for a like principal amount of Initial
Securities, in each case upon a written order of the Company signed by two Officers or by an
Officer and either an Assistant Treasurer or an Assistant Secretary of the Company. Such order
shall specify the amount of the Securities to be authenticated and the date on which the original
issue of Securities is to be authenticated
.
2.3
Transfer and Exchange.
(a)
Transfer and Exchange of Definitive Securities.
When Definitive Securities are
presented to the Registrar with a request:
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(x)
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to register the transfer of such Definitive Securities; or
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(y)
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to exchange such Definitive Securities for an equal principal
amount of Definitive Securities of other authorized denominations,
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the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met;
provided
,
however
, that the Definitive
Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or its attorney duly authorized in writing; and
(ii) if such Definitive Securities are required to bear a restricted securities
legend, they are being transferred or exchanged pursuant to an effective registration
statement under the Securities Act, pursuant to Section 2.3(b) or pursuant to clause (A),
(B) or (C) below, and are accompanied by the following additional information and
documents, as applicable:
(A) if such Definitive Securities are being delivered to the Registrar by a
Holder for registration in the name of such Holder, without transfer, a
certification from such Holder to that effect; or
(B) if such Definitive Securities are being transferred to the Company, a
certification to that effect; or
6
(C) if such Definitive Securities are being transferred (x) pursuant to an
exemption from registration in accordance with Rule 144A, Regulation S or Rule 144
under the Securities Act; or (y) in reliance upon another exemption from the
requirements of the Securities Act: (i) a certification to that effect (in the form
set forth on the reverse of the Security) and (ii) if the Company so requests, an
opinion of counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the legend set forth in Section
2.3(f)(i).
(b)
Restrictions on Transfer of a Definitive Security for a Beneficial Interest in a
Global Security.
A Definitive Security may not be exchanged for a beneficial interest in a
Rule 144A Global Security, an IAI Global Security or a Permanent Regulation S Global Security
except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a
Definitive Security, duly endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(i) certification, in the form set forth on the reverse of the Security, that
such Definitive Security is either (A) being transferred to a QIB in accordance
with Rule 144A, (B) being transferred to an IAI or (C) being transferred after
expiration of the Distribution Compliance Period by a Person who initially
purchased such Security in reliance on Regulation S to a buyer who elects to hold
its interest in such Security in the form of a beneficial interest in the Permanent
Regulation S Global Security; and
(ii) written instructions directing the Trustee to make, or to direct the
Securities Custodian to make, an adjustment on its books and records with respect
to such Rule 144A Global Security (in the case of a transfer pursuant to clause
(b)(i)(A)), IAI Global Security (in the case of a transfer pursuant to clause
(b)(1)(B)) or Permanent Regulation S Global Security (in the case of a transfer
pursuant to clause (b)(i)(B)) to reflect an increase in the aggregate principal
amount of the Securities represented by the Rule 144A Global Security, IAI Global
Security or Permanent Regulation S Global Security, as applicable, such
instructions to contain information regarding the Depository account to be credited
with such increase,
then the Trustee shall cancel such Definitive Security and cause, or direct the Securities
Custodian to cause, in accordance with the standing instructions and procedures existing between
the Depository and the Securities Custodian, the aggregate principal amount of Securities
represented by the Rule 144A Global Security, IAI Global Security or Permanent Regulation S Global
Security, as applicable, to be increased by the aggregate principal amount of the Definitive
Security to be exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Rule 144A Global Security, IAI Global
Security or Permanent Regulation S Global Security, as applicable, equal to the principal amount of
the Definitive Security so
7
canceled. If no Rule 144A Global Securities, IAI Global Securities or Permanent Regulation S
Global Securities, as applicable, are then outstanding, the Company shall issue and the Trustee
shall authenticate, upon written order of the Company in the form of an Officers Certificate of
the Company, a new Rule 144A Global Security, IAI Global Security or Permanent Regulation S Global
Security, as applicable, in the appropriate principal amount.
(c)
Transfer and Exchange of Global Securities.
(i) The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depository, in accordance with this Indenture
(including applicable restrictions on transfer set forth herein, if any) and the
procedures of the Depository therefor. A transferor of a beneficial interest in a
Global Security shall deliver to the Registrar a written order given in accordance
with the Depositorys procedures containing information regarding the participant
account of the Depository to be credited with a beneficial interest in the Global
Security. The Registrar shall, in accordance with such instructions instruct the
Depository to credit to the account of the Person specified in such instructions a
beneficial interest in the Global Security and to debit the account of the Person
making the transfer the beneficial interest in the Global Security being
transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest in one
Global Security to a beneficial interest in another Global Security, the Registrar
shall reflect on its books and records the date and an increase in the principal
amount of the Global Security to which such interest is being transferred in an
amount equal to the principal amount of the interest to be so transferred, and the
Registrar shall reflect on its books and records the date and a corresponding
decrease in the principal amount of the Global Security from which such interest is
being transferred.
(iii) Notwithstanding any other provisions of this Appendix (other than the
provisions set forth in Section 2.4), a Global Security may not be transferred as a
whole except by the Depository to a nominee of the Depository or by a nominee of
the Depository to the Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or a nominee of such
successor Depository.
(iv) In the event that Global Security is exchanged for Definitive Securities
pursuant to Section 2.4 of this Appendix, prior to the consummation of a Registered
Exchange Offer or the effectiveness of a Shelf Registration Statement with respect
to such Securities, such Securities may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this Section 2.3
(including the certification requirements set forth on the reverse of the Initial
Securities intended to ensure that such transfers comply with Rule
8
144A, Regulation S or another applicable exemption under the Securities Act,
as the case may be) and such other procedures as may from time to time be adopted
by the Company.
(e)
Restrictions on Transfer of Temporary Regulation S Global Securities.
During the
Distribution Compliance Period, beneficial ownership interests in Temporary Regulation S Global
Securities may only be sold, pledged or transferred in accordance with the Applicable Procedures
and only (i) to the Company, (ii) in an offshore transaction in accordance with Regulation S (other
than a transaction resulting in an exchange for an interest in a Permanent Regulation S Global
Security) and (iii) pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any State of the United States.
(f)
Legend.
(i) Except as permitted by the following paragraphs (ii), (iii) and (iv), each
Security certificate evidencing the Global Securities (and all Securities issued in
exchange therefor or in substitution thereof), in the case of Securities offered
otherwise than in reliance on Regulation S shall bear a legend in substantially the
following form:
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE SECURITIES ACT) AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE
TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.
Each certificate evidencing a Security offered in reliance on Regulation S shall, in
addition to the foregoing, bear a legend in substantially the following form:
9
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933,
AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE TRANSFERRED IN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON
EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES
LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S
UNDER THE SECURITIES ACT.
Each Definitive Security shall also bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Security (including
any Transfer Restricted Security represented by a Global Security) pursuant to Rule
144 under the Securities Act, the Registrar shall permit the transferee thereof to
exchange such Transfer Restricted Security for a certificated Security that does
not bear the legend set forth above and rescind any restriction on the transfer of
such Transfer Restricted Security, if the transferor thereof certifies in writing
to the Registrar that such sale or transfer was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Security).
(iii) After a transfer of any Initial Securities or Private Exchange
Securities pursuant to and during the period of the effectiveness of a Shelf
Registration Statement with respect to such Initial Securities or Private Exchange
Securities, as the case may be, all requirements pertaining to legends on such
Initial Security or such Private Exchange Security will cease to apply, the
requirements requiring any such Initial Security or such Private Exchange Security
issued to certain Holders be issued in global form will cease to apply, and a
certificated Initial Security or Private Exchange Security or an Initial Security
or Private Exchange Security in global form, in each case without restrictive
transfer legends, will be available to the transferee of the Holder of such Initial
Securities or Private Exchange Securities upon exchange of such transferring
Holders certificated Initial Security or Private Exchange Security or directions
to transfer such Holders interest in the Global Security, as applicable.
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(iv) Upon the consummation of a Registered Exchange Offer with respect to the
Initial Securities, all requirements pertaining to such Initial Securities that
Initial Securities issued to certain Holders be issued in global form will still
apply with respect to Holders of such Initial Securities that do not exchange their
Initial Securities, and Exchange Securities in certificated or global form, in each
case without the restricted securities legend set forth in Exhibit 1 hereto will be
available to Holders that exchange such Initial Securities in such Registered
Exchange Offer.
(v) Upon the consummation of a Private Exchange with respect to the Initial
Securities, all requirements pertaining to such Initial Securities that Initial
Securities issued to certain Holders be issued in global form will still apply with
respect to Holders of such Initial Securities that do not exchange their Initial
Securities, and Private Exchange Securities in global form with the global
securities legend and the applicable restricted securities legend set forth in
Exhibit 1 hereto will be available to Holders that exchange such Initial Securities
in such Private Exchange.
(g)
Cancellation or Adjustment of Global Security.
At such time as all beneficial
interests in a Global Security have either been exchanged for Definitive Securities, redeemed,
purchased or canceled, such Global Security shall be returned to the Depository for cancellation or
retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for certificated Securities, redeemed, purchased or
canceled, the principal amount of Securities represented by such Global Security shall be reduced
and an adjustment shall be made on the books and records of the Trustee (if it is then the
Securities Custodian for such Global Security) with respect to such Global Security, by the Trustee
or the Securities Custodian, to reflect such reduction.
(h)
No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any beneficial
owner of a Global Security, a member of, or a participant in the Depository or
other Person with respect to the accuracy of the records of the Depository or its
nominee or of any participant or member thereof, with respect to any ownership
interest in the Securities or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depository) of any notice
(including any notice of redemption) or the payment of any amount, under or with
respect to such Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders under the Securities shall be given
or made only to or upon the order of the registered Holders (which shall be the
Depository or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through the
Depository subject to the applicable rules and procedures of the Depository. The
Trustee may rely and shall be fully protected in
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relying upon information furnished by the Depository with respect to its
members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest in
any Security (including any transfers between or among Depository participants,
members or beneficial owners in any Global Security) 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 Indenture,
and to examine the same to determine substantial compliance as to form with the
express requirements hereof.
2.4
Definitive Securities.
A Global Security deposited with the Depository or with the Trustee as Securities Custodian
for the Depository pursuant to Section 2.1 shall be transferred to the beneficial owners thereof in
the form of Definitive Securities in an aggregate principal amount equal to the principal amount of
such Global Security, in exchange for such Global Security, only if such transfer complies with
Section 2.3 hereof and (i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security and the Depository fails to appoint a successor
depository or if at any time such Depository ceases to be a clearing agency registered under the
Exchange Act, in either case, and a successor depository is not appointed by the Company within 90
days of such notice, or (ii) an Event of Default has occurred and is continuing or (iii) the
Company, in its sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Securities under this Indenture.
Any Global Security that is transferable to the beneficial owners thereof pursuant to this
Section 2.4 shall be surrendered by the Depository to the Trustee located at its principal
corporate trust office in the Borough of Manhattan, The City of New York, to be so transferred, in
whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Security, an equal aggregate principal amount of
Definitive Securities of authorized denominations. Any portion of a Global Security transferred
pursuant to this Section 2.4 shall be executed, authenticated and delivered only in denominations
of $2,000 principal amount and any greater integral multiple of $1,000 and registered in such names
as the Depository shall direct. Any Definitive Security delivered in exchange for an interest in
the Transfer Restricted Security shall, except as otherwise provided by Section 2.3(f) hereof, bear
the applicable restricted securities legend and definitive securities legend set forth in Exhibit 1
hereto.
Subject to the provisions of Section 2.3(b) hereof, the registered Holder of a Global Security
shall be entitled to grant proxies and otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
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In the event of the occurrence of one of the events specified in Section 2.3(a) hereof, the
Company shall promptly make available to the Trustee a reasonable supply of Definitive Securities
in definitive, fully registered form without interest coupons. In the event that such Definitive
Securities are not issued, the Company expressly acknowledges, with respect to the right of any
Holder to pursue a remedy pursuant to Section 507 of this Indenture, the right of any beneficial
owner of Securities to pursue such remedy with respect to the portion of the Global Security that
represents such beneficial owners Securities as if such Definitive Securities had been issued.
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EXHIBIT 1
to
RULE 144A/REGULATION S APPENDIX
[FORM OF FACE OF INITIAL SECURITY]
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS 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.
[[FOR REGULATION S GLOBAL SECURITY ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR
COMPLETION OF THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS
DEFINED IN THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF
SUCH OFFER OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Securities Legend for Securities offered otherwise than in Reliance on Regulation S]
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT
OF 1933 (THE SECURITIES ACT) AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
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OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION
S UNDER THE SECURITIES ACT, OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
[Restricted Securities Legend for Securities Offered in Reliance on
Regulation S.]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES
ACT), AND MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY
U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN
TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
[Temporary Regulation S Global Security Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S
GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL
SECURITY OR ANY OTHER SECURITY REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH
DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE
SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE
THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED
SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL SECURITY MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED (I) TO THE COMPANY, (II)
OUTSIDE THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES. HOLDERS OF INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL
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NOTIFY ANY PURCHASER OF THIS SECURITY OF THE RESALE RESTRICTIONS REFERRED TO ABOVE, IF THEN
APPLICABLE.
AFTER THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD BENEFICIAL INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY MAY BE EXCHANGED FOR INTERESTS IN A RULE 144A GLOBAL
SECURITY ONLY IF (1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN
COMPLIANCE WITH RULE 144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY FIRST DELIVERS
TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT
THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES TO BE A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO
IS PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
AFTER THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL SECURITY MAY BE EXCHANGED FOR INTERESTS IN AN IAI GLOBAL SECURITY
ONLY IF (1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE SECURITIES IN COMPLIANCE WITH
AN EXEMPTION UNDER THE SECURITIES ACT AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL SECURITY
FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO
THE EFFECT THAT THE REGULATION S GLOBAL SECURITY IS BEING TRANSFERRED (A) TO AN ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(A)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF SECURITIES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL SECURITY OR AN IAI GLOBAL SECURITY MAY BE
TRANSFERRED TO A PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL
SECURITY, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY
IF THE TRANSFEROR FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM
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ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE
WITH RULE 903 OR 904 OF REGULATION S OR RULE 144 (IF AVAILABLE).
[Definitive Securities Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT
SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM
THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
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% Senior Notes Due 20
Dell Inc., a Delaware corporation, promises to pay to
, or registered
assigns, the principal sum of
Dollars on , 20 .
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Security are set forth on the other side of this Security.
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Dated:
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DELL INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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This is one of the Securities referred to in the within-mentioned Indenture.
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BANK OF NEW YORK TRUST
COMPANY, N.A.,
as Trustee
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By:
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Authorized Signatory
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[FORM OF REVERSE SIDE OF INITIAL SECURITY]
% Senior Note Due 20
1.
Interest
Dell Inc., a Delaware corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the Company), promises to pay interest on
the principal amount of this Security at the rate per annum shown above;
provided
,
however
, that if a Registration Default (as defined in the Registration Rights Agreement)
occurs, additional interest will accrue on this Security at a rate of 0.25% per annum for the first
90 days immediately following the occurrence of a Registration Default, at a per annum rate of
0.50% for the second 90 days immediately following a Registration Default, at a per annum rate of
0.75% for the third 90 days immediately following a Registration Default and at a per annum rate of
1.00% thereafter for the remaining period immediately following a Registration Default from and
including the date on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. The Company will pay interest semiannually on
April 15 and October 15 of each year, commencing October 15, 2008. Interest on the Securities will
accrue from the most recent date to which interest has been paid or, if no interest has been paid,
from April 17, 2008. Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company will pay interest on overdue principal at the rate borne by this Security plus
1.0% per annum, and it will pay interest on overdue installments of interest at the same rate to
the extent lawful.
2.
Method of Payment
The Company will pay interest on the Securities (except defaulted interest) to the Persons who
are registered holders of Securities at the close of business on the April 1 or October 1 next
preceding the interest payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the accounts specified by
the Depository. The Company will make all payments in respect of a certificated Security
(including principal, premium and interest) by mailing a check to the registered address of each
Holder thereof;
provided
,
however
, that payments on a certificated Security will be
made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United
States if such Holder elects payment by wire transfer by giving written notice to the Trustee or
the Paying Agent to such effect designating such account no later than 30 days immediately
preceding the relevant due date for payment (or such other date as the Trustee may accept in its
discretion).
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3.
Paying Agent and Registrar
Initially,
The Bank of New York Trust Company, N.A. (the Trustee) will act as Paying Agent
and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may
act as Paying Agent, Registrar or co-registrar.
4.
Indenture
The Company issued the Securities under an Indenture dated as of April 17, 2008 (Indenture),
between the Company and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa-77bbbb) (the Trust Indenture Act). Terms defined in the Indenture and
not defined herein have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Security Holders are referred to the Indenture and the Trust Indenture Act
for a statement of those terms.
The Securities are general unsecured obligations of the Company. The Company shall be
entitled to issue Additional Securities pursuant to Section 313 of the Indenture. The Initial
Securities of a series issued on the Issue Date, any Additional Securities with respect to such
series and all Exchange Securities or Private Exchange Securities issued in exchange therefor will
be treated as a single class for all purposes under the Indenture. The Indenture contains
covenants that limit the ability of the Company and its subsidiaries to create liens on assets;
engage in sale/leaseback transactions; and consolidate, merge or transfer all or substantially all
of the assets of the Company. These covenants are subject to important exceptions and
qualifications.
5.
Optional Redemption
Except as set forth below, the Company shall not be entitled to redeem the Securities.
The Company shall be entitled at its option to redeem all or a portion of any series of
Securities at any time and from time to time at a redemption price equal to 100.00% of the
principal amount of the Securities of such series plus the Applicable Premium as of, and accrued
and unpaid interest to, the redemption date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant interest payment date). The Company shall cause
notice of such redemption to be mailed by first-class mail to each Holders registered address, not
less than 30 nor more than 60 days prior to the redemption date.
6.
Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at his registered address. Securities
in denominations larger than $2,000 principal amount may
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be redeemed in part but only in whole multiples of $1,000. If money sufficient to pay the
redemption price of and accrued interest on all Securities (or portions thereof) to be redeemed on
the redemption date is deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue on such Securities
(or such portions thereof) called for redemption.
7.
Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of $2,000 principal
amount and any greater integral multiple of $1,000. A Holder may transfer or exchange Securities
in accordance with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or 15 days before an interest payment date.
8.
Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of it for all purposes.
9.
Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
10.
Discharge and Defeasance
Subject to certain conditions, the Company at any time shall be entitled to terminate some or
all of its obligations under the Securities and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
11.
Amendment; Waiver
Subject to certain exceptions set forth in the Indenture, (a) the Indenture and the Securities
may be amended or supplemented with the written consent of the Holders of at least a majority in
principal amount outstanding of the Securities and (b) any default or noncompliance with any
provision may be waived with the written consent of the Holders of a majority in principal amount
outstanding of the Securities. Subject to certain exceptions set forth in the Indenture, without
the consent of any Security Holder, the Company and the Trustee shall be entitled to amend or
supplement
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the Indenture or
the Securities (i) to cure any ambiguity, omission, defect or inconsistency, (ii) to evidence
the succession of another Person to the Company and the assumption by any such successor of the
obligations of the Company, (iii) to add any additional Events of Default, or to add to the
Companys covenants for the benefit of Security Holders or to surrender any right or power
conferred upon the Company, (iv) to add one or more guarantees for the benefit of Security Holders,
(v) to add collateral security with respect to the Securities, (vi) to add or appoint a successor
or separate trustee or other agent, (vii) to provide for the issuance of the exchange notes, which
will have terms substantially identical in all material respects to a series of Securities, and
which will be treated, together with any outstanding Securities, as a single issue of Securities of
such series, (viii) to provide for the issuance of any Additional Securities, (ix) to comply with
any requirement in connection with the qualification of the Indenture under the Trust Indenture
Act, (x) to comply with the rules of any applicable securities depository, (xi) to provide for
uncertificated Securities in addition to or in place of certificated Securities, (xii) to make any
change if the change does not adversely affect the interests of any Security Holders.
12.
Defaults and Remedies
Under the Indenture, Events of Default include (a) the failure to pay the principal of (or
premium, if any, on) any series of Securities when due and payable; (b) the failure to pay any
interest installment on any series of Securities when due and payable, continued for 30 days; and
(c) the failure of the Company to perform any other covenant under the Indenture continued for 90
days after written notice to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding Securities of the series. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the outstanding Securities of such series may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy, insolvency or reorganization are Events of
Default which will result in the Securities being due and payable immediately upon the occurrence
of such Events of Default.
Security Holders may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Security Holders of a
majority in principal amount of the Securities of a series may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Security Holders notice of any continuing
Default (except a Default in payment of principal or interest) if it determines that withholding
notice is in the interest of the Holders.
13.
Trustee Dealings with the Company
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with and collect obligations owed
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to it by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
14.
No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company or the Trustee shall not
have any liability for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Security, each Security Holder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
15.
Authentication
This Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Security.
16.
Abbreviations
Customary abbreviations may be used in the name of a Security Holder or an assignee, such as
TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift
to Minors Act).
17.
CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures the Company has caused CUSIP numbers to be printed on the Securities and has directed
the Trustee to use CUSIP numbers in notices of redemption as a convenience to Security Holders. No
representation is made as to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
18.
Holders Compliance with Registration Rights Agreement
Each Holder of a Security, by acceptance hereof, acknowledges and agrees to the provisions of
the Registration Rights Agreement, including the obligations of the Holders with respect to a
registration and the indemnification of the Company to the extent provided therein.
19.
Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
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The Company will furnish to any Security Holder upon written request and without charge to the
Security Holder a copy of the Indenture which has in it the text of this Security in larger type.
Requests may be made to:
Dell Inc.
One Dell Way
Round Rock, TX 78682
Attention: Secretary
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
[Print or type assignees name, address and zip code]
[Insert assignees soc. sec. or tax I.D. No.]
and irrevocably appoint agent to transfer this Security on the books of
the Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer of any of the Securities evidenced by this certificate occurring
prior to the expiration of the period referred to in Rule 144(b)(1)(i) under the Securities Act
after the later of the date of original issuance of such Securities and the last date, if any, on
which such Securities were owned by the Company or any Affiliate of the Company, the undersigned
confirms that such Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
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1.
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to the Company; or
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2.
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o
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pursuant to an effective registration statement under the Securities
Act of 1933; or
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3.
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inside the United States to a qualified institutional buyer (as
defined in Rule 144A under the Securities Act of 1933) that purchases for its own
account or for the account of a qualified institutional buyer to whom notice is given
that such transfer is being made in reliance on Rule 144A, in each case pursuant to
and in compliance with Rule 144A under the Securities Act of 1933; or
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4.
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o
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outside the United States in an offshore transaction within the
meaning of Regulation S under the Securities Act in compliance with Rule 904 under the
Securities Act of 1933; or
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14
15
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5.
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o
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pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933; or
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6.
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o
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to an institutional accredited investor (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933) that has furnished to the
Trustee a signed letter containing certain representations and agreements.
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Unless one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any person other than the
registered holder thereof;
provided
,
however
, that if box (4) is checked,
the Trustee shall be entitled to require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration requirements of the Securities
Act of 1933, such as the exemption provided by Rule 144 under such Act.
Signature Guarantee:
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Signature must be guaranteed
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Signature
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Signatures must be guaranteed by an eligible guarantor institution meeting the requirements
of the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
15
16
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigneds foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
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Dated: ____________________
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Notice: To be executed by
an executive officer
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16
17
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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Principal amount of
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Signature of
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Amount of decrease
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Amount of increase
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this Global
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authorized officer
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in Principal amount
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in Principal amount
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Security following
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of Trustee or
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Date of
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of this Global
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of this Global
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such decrease or
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Securities
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Exchange
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Security
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Security
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increase
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Custodian
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17
EXHIBIT A
[FORM OF FACE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY]
*
/
**
/
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*
/
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If the Security is to be issued in global form, add the Global Securities Legend from
Exhibit 1 to Appendix A and the attachment from such Exhibit 1 captioned [TO BE ATTACHED TO GLOBAL
SECURITIES] SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY.
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**
/
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If the Security is a Private Exchange Security issued in a Private Exchange to an
Initial Purchaser holding an unsold portion of its initial allotment, add the Restricted Securities
Legend from Exhibit 1 to Appendix A and replace the Assignment Form included in this Exhibit A with
the Assignment Form included in such Exhibit 1.
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1
2
% Senior Notes Due 20
Dell Inc., a Delaware corporation, promises to pay to
, or registered
assigns, the principal sum of
Dollars on , 20 .
Interest Payment Dates: April 15 and October 15.
Record Dates: April 1 and October 1.
Additional provisions of this Security are set forth on the other side of this Security.
2
3
Dated:
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DELL INC.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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3
4
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This is one of the Securities referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK TRUST
COMPANY, N.A.
as Trustee
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By:
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Authorized Signatory
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4
5
[FORM OF REVERSE SIDE OF EXCHANGE SECURITY
OR PRIVATE EXCHANGE SECURITY]
% Senior Note Due 20
1.
Interest
Dell Inc., a Delaware corporation (such corporation, and its successors and assigns under the
Indenture hereinafter referred to, being herein called the Company), promises to pay interest on
the principal amount of this Security at the rate per annum shown above[;
provided
,
however
, that if a Registration Default (as defined in the Registration Rights Agreement)
occurs, additional interest will accrue on this Security at a rate of 0.25% per annum for the first
90 days immediately following the occurrence of a Registration Default, at a per annum rate of
0.50% for the second 90 days immediately following a Registration Default, at a per annum rate of
0.75% for the third 90 days immediately following a Registration Default and at a per annum rate of
1.00% thereafter for the remaining period immediately following a Registration Default from and
including the date on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured.]
1
The Company will pay interest
semiannually on April 15 and October 15 of each year, commencing October 15, 2008. Interest on the
Securities will accrue from the most recent date to which interest has been paid or, if no interest
has been paid, from April 17, 2008. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Company will pay interest on overdue principal at the rate borne by this
Security plus 1.0% per annum, and it will pay interest on overdue installments of interest at the
same rate to the extent lawful.
2.
Method of Payment
The Company will pay interest on the Securities (except defaulted interest) to the Persons who
are registered holders of Securities at the close of business on the April 1 or October 1 next
preceding the interest payment date even if Securities are canceled after the record date and on or
before the interest payment date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts. Payments in
respect of the Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the accounts specified by
the Depository. The Company will make all payments in respect of a certificated Security
(including principal, premium and interest) by mailing a check to the registered address of each
Holder thereof;
provided
,
however
, that payments on a certificated Security will
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1
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Insert if at the date of issuance of the Exchange
Security or Private Exchange Security (as the case may be) any Registration
Default has occurred with respect to the related Initial Securities during the
interest period in which such date of issuance occurs.
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5
6
be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the
United States if such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later than 30 days
immediately preceding the relevant due date for payment (or such other date as the Trustee may
accept in its discretion).
3.
Paying Agent and Registrar
Initially,
The Bank of New York Trust Company, N.A. (the Trustee) will act as Paying Agent
and Registrar. The Company may appoint and change any Paying Agent, Registrar or co-registrar
without notice. The Company or any of its domestically incorporated wholly owned Subsidiaries may
act as Paying Agent, Registrar or co-registrar.
4.
Indenture
The Company issued the Securities under an Indenture dated as of April 17, 2008 (Indenture),
between the Company and the Trustee. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15
U.S.C.
§§ 77aaa-77bbbb) (the Trust Indenture Act). Terms defined in the Indenture and
not defined herein have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Security Holders are referred to the Indenture and the Trust Indenture Act
for a statement of those terms.
The Securities are general unsecured obligations of the Company. The Company shall be
entitled to issue Additional Securities pursuant to Section 313 of the Indenture. The Initial
Securities of a series issued on the Issue Date, any Additional Securities with respect to such
series and all Exchange Securities or Private Exchange Securities issued in exchange therefor will
be treated as a single class for all purposes under the Indenture. The Indenture contains
covenants that limit the ability of the Company and its subsidiaries to create liens on assets;
engage in sale/leaseback transactions; and consolidate, merge or transfer all or substantially all
of the assets of the Company. These covenants are subject to important exceptions and
qualifications.
5.
Optional Redemption
Except as set forth below, the Company shall not be entitled to redeem the Securities.
The Company shall be entitled at its option to redeem all or a portion of any series of
Securities at any time and from time to time at a redemption price equal to 100.00% of the
principal amount of the Securities of such series plus the Applicable Premium as of, and accrued
and unpaid interest to, the redemption date (subject to the right of Holders on the relevant record
date to receive interest due on the relevant interest payment date). The Company shall cause
notice of such redemption to be mailed by first-class mail to each Holders registered address, not
less than 30 nor more than 60 days prior to the redemption date.
6
7
6.
Notice of Redemption
Notice of redemption will be mailed at least 30 days but not more than 60 days before the
redemption date to each Holder of Securities to be redeemed at his registered address. Securities
in denominations larger than $2,000 principal amount may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and accrued interest on
all Securities (or portions thereof) to be redeemed on the redemption date is deposited with the
Paying Agent on or before the redemption date and certain other conditions are satisfied, on and
after such date interest ceases to accrue on such Securities (or such portions thereof) called for
redemption.
7.
Denominations; Transfer; Exchange
The Securities are in registered form without coupons in denominations of $2,000 principal
amount and any greater integral multiple of $1,000. A Holder may transfer or exchange Securities
in accordance with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be redeemed in part, the
portion of the Security not to be redeemed) or any Securities for a period of 15 days before a
selection of Securities to be redeemed or 15 days before an interest payment date.
8.
Persons Deemed Owners
The registered Holder of this Security may be treated as the owner of it for all purposes.
9.
Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
or Paying Agent shall pay the money back to the Company at its request unless an abandoned property
law designates another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
10.
Discharge and Defeasance
Subject to certain conditions, the Company at any time shall be entitled to terminate some or
all of its obligations under the Securities and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of principal and interest on the
Securities to redemption or maturity, as the case may be.
11.
Amendment; Waiver
Subject
to certain exceptions set forth in the Indenture, (9) the Indenture and the Securities
may be amended or supplemented with the written consent of the Holders of at
7
8
least a
majority in principal amount outstanding of the Securities and (b) any default or
noncompliance with any provision may be waived with the written consent of the Holders of a
majority in principal amount outstanding of the Securities. Subject to certain exceptions set
forth in the Indenture, without the consent of any Security Holder, the Company and the Trustee
shall be entitled to amend or supplement the Indenture or the Securities (i) to cure any ambiguity,
omission, defect or inconsistency, (ii) to evidence the succession of another Person to the Company
and the assumption by any such successor of the obligations of the Company, (iii) to add any
additional Events of Default, or to add to the Companys covenants for the benefit of Security
Holders or to surrender any right or power conferred upon the Company, (iv) to add one or more
guarantees for the benefit of Security Holders, (v) to add collateral security with respect to the
Securities, (vi) to add or appoint a successor or separate trustee or other agent, (vii) to provide
for the issuance of the exchange notes, which will have terms substantially identical in all
material respects to a series of the Securities, and which will be treated, together with any
outstanding Securities, as a single issue of Securities of such series, (viii) to provide for the
issuance of any Additional Securities, (ix) to comply with any requirement in connection with the
qualification of the Indenture under the Trust Indenture Act, (x) to comply with the rules of any
applicable securities depository, (xi) to provide for uncertificated Securities in addition to or
in place of certificated Securities, or (xii) to make any change if the change does not adversely
affect the interests of any Security Holders.
12.
Defaults and Remedies
Under the Indenture, Events of Default include (a) the failure to pay the principal of (or
premium, if any, on) any series of Securities when due and payable; (b) the failure to pay any
interest installment on any series of Securities when due and payable, continued for 30 days; and
(c) the failure of the Company to perform any other covenant under the Indenture, continued for 90
days after written notice to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the outstanding Securities of the series. If an
Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the outstanding Securities may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy, insolvency or reorganization are Events of Default
which will result in the Securities being due and payable immediately upon the occurrence of such
Events of Default.
Security Holders may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may refuse to enforce the Indenture or the Securities unless it receives
indemnity or security satisfactory to it. Subject to certain limitations, Security Holders of a
majority in principal amount of the Securities may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing Default (except a Default
in payment of principal or interest) if it determines that withholding notice is in the interest of
the Holders.
8
9
13.
Trustee Dealings with the Company
Subject to certain limitations imposed by the Trust Indenture Act, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and
may otherwise deal with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
14.
No Recourse Against Others
A director, officer, employee or stockholder, as such, of the Company or the Trustee shall not
have any liability for any obligations of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of such obligations or their creation. By accepting
a Security, each Security Holder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
15.
Authentication
This Security shall not be valid until an authorized signatory of the Trustee (or an
authenticating agent) manually signs the certificate of authentication on the other side of this
Security.
16.
Abbreviations
Customary abbreviations may be used in the name of a Security Holder or an assignee, such as
TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with
rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift
to Minors Act).
17.
CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures the Company has caused CUSIP numbers to be printed on the Securities and has directed
the Trustee to use CUSIP numbers in notices of redemption as a convenience to Security Holders. No
representation is made as to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
[18.
Holders Compliance with Registration Rights Agreement
Each Holder of a Security, by acceptance hereof, acknowledges and agrees to the provisions of
the Registration Rights Agreement, including the obligations of the
9
10
Holders with respect to a registration and the indemnification of the Company to the extent
provided therein.]
2
19.
Governing Law
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.
The Company will furnish to any Security Holder upon written request and without charge to the
Security Holder a copy of the Indenture which has in it the text of this Security in larger type.
Requests may be made to:
Dell Inc.
One Dell Way
Round Rock, TX 78682
Attention: Secretary
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Delete if this Security is not being issued in exchange
for an Initial Security.
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10
S
11
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
[Print or type assignees name, address and zip code]
[Insert assignees soc. sec. or tax I.D. No.]
and irrevocably appoint agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
Sign exactly as your name appears on the other side of this Security.
11
EXHIBIT 2 to RULE 144A/REGULATION S APPENDIX
Form of
Transferee Letter of Representation
Dell Inc.
In care of
The Bank of New York Trust Company, N.A.
601 Travis Street, 18th Floor
Houston, Texas 77002
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal amount of the [ ]% Senior Notes Due 20[ ] (the Securities) of Dell, Inc. (the Company).
Upon transfer, the Securities would be registered in the name of the new beneficial owner as
follows:
Name:________________________
Address:______________________
Taxpayer ID Number:_____________
The undersigned represents and warrants to you that:
1. We are an institutional accredited investor (as defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act of 1933, as amended (the Securities Act)), purchasing for our own
account or for the account of such an institutional accredited investor at least $250,000
principal amount of the Securities, and we are acquiring the Securities not with a view to, or for
offer or sale in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Securities, and we invest in or purchase securities
similar to the Securities in the normal course of our business. We, and any accounts for which we
are acting, are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under the Securities Act and,
unless so registered, may not be sold except as permitted in the following sentence. We agree on
our own behalf and on behalf of any investor account for which we are purchasing Securities to
offer, sell or otherwise transfer such Securities prior to
the date that is two years after the later of the date of original issue and the last date on
which the Company or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the Resale Restriction Termination Date) only (i) to the Company, (ii) in
the United States to a person whom the seller reasonably believes is a qualified institutional
buyer in a transaction meeting the requirements of Rule 144A, (iii) to an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is an
institutional accredited investor purchasing for its own account or for the account of an
institutional accredited investor, in each case in a minimum principal amount of the Securities of
$250,000, (iv) outside the United States in a transaction complying with the provisions of Rule 904
under the Securities Act, (v) pursuant to an exemption from registration under the Securities Act
provided by Rule 144 (if available) or (vi) pursuant to an effective registration statement under
the Securities Act, in each of cases (i) through (vi) subject to any requirement of law that the
disposition of our property or the property of such investor account or accounts be at all times
within our or their control and in compliance with any applicable state securities laws. The
foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination
Date. If any resale or other transfer of the Securities is proposed to be made pursuant to clause
(iii) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter
from the transferee substantially in the form of this letter to the Company and the Trustee, which
shall provide, among other things, that the transferee is an institutional accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is
acquiring such Securities for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the Trustee reserve the right
prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the
Securities pursuant to clause (iii), (iv) or (v) above to require the delivery of an opinion of
counsel, certifications or other information satisfactory to the Company and the Trustee.
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TRANSFEREE:_______________,
by:__________________
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2
Exhibit 4.2
EXECUTION COPY
Dell Inc.
4.700% Notes due 2013
5.650% Notes due 2018
6.500% Notes due 2038
Exchange and Registration Rights Agreement
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
J.P. Morgan Securities Inc.
270 Park Avenue
New York, New York 10017
As Representatives of the several Purchasers
named in Schedule I hereto
Ladies and Gentlemen:
Dell Inc., a Delaware corporation (the Company), proposes to issue and sell to the
Purchasers (as defined herein) upon the terms set forth in the Purchase Agreement (as defined
herein) $600,000,000 aggregate principal amount of notes due 2013 (the 2013 Notes), $500,000,000
aggregate principal amount of notes due 2018 (the 2018 Notes) and $400,000,000 aggregate
principal amount of notes due 2038 (the 2038 Notes and, together with the 2013 Notes and the 2018
Notes, the Notes). As an inducement to the Purchasers to enter into the Purchase Agreement and
in satisfaction of a condition to the obligations of the Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1.
Certain Definitions
. For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
Base Interest
shall mean the interest that would otherwise accrue on the Securities under
the terms thereof and the Indenture, without giving effect to the provisions of this Agreement.
The term
broker-dealer
shall mean any broker or dealer registered with the Commission
under the Exchange Act.
Closing Date
shall mean the date on which the Securities are initially issued.
Commission
shall mean the United States Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act, whichever is
the relevant statute for the particular purpose.
DTC
shall mean The Depository Trust Company.
Effective Time,
in the case of (i) an Exchange Registration, shall mean the time and date
as of which the Commission declares the Exchange Registration Statement effective or as of which
the Exchange Registration Statement otherwise becomes effective and (ii) a Shelf Registration,
shall mean the time and date as of which the Commission declares the Shelf Registration
Statement effective or as of which the Shelf Registration Statement otherwise becomes effective.
Electing Holder
shall mean any holder of Registrable Securities that has returned a
completed and signed Notice and Questionnaire to the Company in accordance with Section 3(d)(ii)
or 3(d)(iii) hereof.
Exchange Act
shall mean the Securities Exchange Act of 1934, or any successor thereto, as
the same shall be amended from time to time.
Exchange Offer
shall have the meaning assigned thereto in Section 2(a) hereof.
Exchange Registration
shall have the meaning assigned thereto in Section 3(c) hereof.
Exchange Registration Statement
shall have the meaning assigned thereto in Section 2(a)
hereof.
Exchange Securities
shall have the meaning assigned thereto in Section 2(a) hereof.
The term
holder
shall mean each of the Purchasers and other persons who acquire
Registrable Securities from time to time (including any successors or assigns), in each case for
so long as such person owns any Registrable Securities.
Indenture
shall mean the Indenture, dated as of April 17, 2008
,
between the Company and
The Bank of New York Trust Company, N.A., as Trustee, as the same shall be amended from time to
time.
Notice and Questionnaire
means a Notice of Registration Statement and Selling
Securityholder Questionnaire substantially in the form of Exhibit A hereto.
The term
person
shall mean a corporation, association, partnership, organization,
business, individual, government or political subdivision thereof or governmental agency.
Purchase Agreement
shall mean the Purchase Agreement, dated as of April 14, 2008,
between the Purchasers and the Company relating to the Securities.
Purchasers
shall mean the Purchasers named in Schedule I to the Purchase Agreement.
2
Registrable Securities
shall mean the Securities;
provided, however,
that a Security
shall cease to be a Registrable Security when (i) in the circumstances contemplated by Section
2(a) hereof, the Security has been exchanged for an Exchange Security in an Exchange Offer as
contemplated in Section 2(a) hereof (
provided
that any Exchange Security that, pursuant to the
last two sentences of Section 2(a), is included in a prospectus for use in connection with
resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections
5, 6 and 9 until resale of such Registrable Security has been effected within the 270-day period
referred to in Section 2(a)); (ii) in the circumstances contemplated by Section 2(b) hereof, a
Shelf Registration Statement registering such Security under the Securities Act has been
declared or becomes effective and such Security has been sold or otherwise transferred by the
holder thereof pursuant to and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances in which any
legend borne by such Security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or pursuant to the Indenture; (iv) after
completion of an Exchange Offer as contemplated in Section 2(a) hereof, such Security is freely
transferable by persons who are not affiliates (as defined in Rule 144) of the Company (and
have not been affiliates of the Company for the preceding three months) without registration
under the Securities Act pursuant to the second sentence of Rule 144(b)(1)(i); or (v) such
Security shall cease to be outstanding.
Registration Default
shall have the meaning assigned thereto in Section 2(c) hereof.
Registration Expenses
shall have the meaning assigned thereto in Section 4 hereof.
Resale Period
shall have the meaning assigned thereto in Section 2(a) hereof.
Restricted Holder
shall mean (i) a holder that is an affiliate of the Company within the
meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary course
of such holders business, (iii) a holder who has arrangements or understandings with any person
to participate in the Exchange Offer for the purpose of distributing Exchange Securities, and
(iv) a holder that is a broker-dealer, but only with respect to Exchange Securities received by
such broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities acquired
by the broker-dealer directly from the Company.
Rule 144, Rule 405 and Rule 415
shall mean, in each case, such rule promulgated under
the Securities Act (or any successor provision), as the same shall be amended from time to time.
Securities
shall mean, collectively, the Notes to be issued by the Company and sold to
the Purchasers, and securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture.
Securities Act
shall mean the Securities Act of 1933, or any successor thereto, as the
same shall be amended from time to time.
Shelf Registration
shall have the meaning assigned thereto in Section 2(b) hereof.
Shelf Registration Statement
shall have the meaning assigned thereto in Section 2(b)
hereof.
Special Interest
shall have the meaning assigned thereto in Section 2(c) hereof.
3
Suspension Period
shall have the meaning assigned thereto in Section 3(h).
Trust Indenture Act
shall mean the Trust Indenture Act of 1939, or any successor thereto,
and the rules, regulations and forms promulgated thereunder, all as the same shall be amended
from time to time.
Unless the context otherwise requires, any reference herein to a Section or clause refers
to a Section or clause, as the case may be, of this Exchange and Registration Rights Agreement, and
the words herein, hereof and hereunder and other words of similar import refer to this
Exchange and Registration Rights Agreement as a whole and not to any particular Section or other
subdivision.
2.
Registration Under the Securities Act
.
(a) Except as set forth in Section 2(b) below, the Company agrees to file with the
Commission under the Securities Act no later than November 7, 2008 a registration statement
relating to an offer to exchange (such registration statement, the Exchange Registration
Statement, and such offer, the Exchange Offer) any and all of the Securities for a like
aggregate principal amount of debt securities issued by the Company, which debt securities are
substantially identical to the Securities (and are entitled to the benefits of a trust indenture
which is substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been registered pursuant to an
effective registration statement under the Securities Act and do not contain transfer
restrictions or provisions for the additional interest contemplated in Section 2(c) below (such
new debt securities hereinafter called Exchange Securities). The Company agrees to use its
reasonable best efforts to cause the Exchange Registration Statement to become effective under
the Securities Act no later than 270 days after the Closing Date. The Exchange Offer will be
registered under the Securities Act on the appropriate form and will comply with all applicable
tender offer rules and regulations under the Exchange Act. The Company further agrees to use its
reasonable best efforts to commence and complete the Exchange Offer no later than 45 days after
such registration statement has become effective, hold the Exchange Offer open for at least 30
days and exchange Exchange Securities for all Registrable Securities that may legally be
exchanged in the Exchange Offer and that have been properly tendered and not withdrawn on or
prior to the expiration of the Exchange Offer. The Exchange Offer will be deemed to have been
completed only if the debt securities received by holders other than Restricted Holders in the
Exchange Offer for Registrable Securities are, upon receipt, transferable by each such holder
without restriction under the Securities Act and the Exchange Act (except for the requirement to
deliver a prospectus included in the Exchange Offer Registration Statement applicable to resales
by certain broker-dealers of Exchange Securities received by them pursuant to the Exchange
Offer). The Exchange Offer shall be deemed to have been completed upon the earlier to occur of
(i) the Company having exchanged the Exchange Securities for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Company having exchanged, pursuant to the
Exchange Offer, Exchange Securities for all Registrable Securities that may legally be exchanged
in the Exchange Offer and that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which
shall be on a date that is at least 30 days following the commencement of the Exchange
Offer. The Company agrees (x) to include in the Exchange Registration Statement a prospectus for
use in any resales by any holder of Exchange Securities that is a broker-dealer eligible under
Commission interpretations as of the date hereof to use such a prospectus for such resales and
(y) to keep such Exchange Registration Statement effective for a period (the Resale
4
Period)
beginning when Exchange Securities are first issued in the Exchange Offer and ending upon the
earlier of the expiration of the 180th day after the Exchange Offer has been completed or such
time as such broker-dealers no longer own any Registrable Securities. With respect to such
Exchange Registration Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed existing Commission
interpretations are changed such that the debt securities received by holders other than
Restricted Holders in the Exchange Offer for Registrable Securities are not or would not be,
upon receipt, transferable by each such holder without restriction under the Securities Act
(except for the requirement to deliver a prospectus included in the Exchange Offer Registration
Statement applicable to resales by certain broker-dealers of Exchange Securities received by
them pursuant to the Exchange Offer), (ii) the Exchange Offer has not been completed within 315
days following the Closing Date or (iii) the Exchange Offer is not available to any holder of
the Securities because of applicable law or Commission interpretations, the Company shall, in
lieu of (or, in the case of clause (iii), in addition to) conducting the Exchange Offer
contemplated by Section 2(a), use its reasonable best efforts to file under the Securities Act
no later than 45 days after the time such obligation to file arises, a shelf registration
statement providing for the registration of, and the sale on a continuous or delayed basis by
the holders of, all of the Registrable Securities, pursuant to Rule 415 or any similar rule that
may be adopted by the Commission (such filing, the Shelf Registration and such registration
statement, the Shelf Registration Statement). The Company agrees to use its reasonable best
efforts (x) to cause the Shelf Registration Statement to become or be declared effective no
later than 120 days after such Shelf Registration Statement is filed and to keep such Shelf
Registration Statement continuously effective for a period ending on the earlier of the first
anniversary of the Effective Time or such time as there are no longer any Registrable Securities
outstanding;
provided
,
however
, that no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement or to use the prospectus forming a part
thereof for resales of Registrable Securities unless such holder is an Electing Holder, and (y)
after the Effective Time of the Shelf Registration Statement, promptly upon the request of any
holder of Registrable Securities that is not then an Electing Holder, to take any action
reasonably necessary to enable such holder to use the prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any action necessary to
identify such holder as a selling securityholder in the Shelf Registration Statement;
provided
further
,
however,
that nothing in this Clause (y) shall (a) relieve any such holder of the
obligation to return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof or (b) in the case of a Shelf Registration under clause
(iii) above, require the Company to enable any holder not covered by such clause to use such
prospectus. The Company further agrees to supplement or make amendments to the Shelf
Registration Statement, as and when required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf registration,
and the Company agrees to furnish to each Electing Holder copies of any such supplement or
amendment prior to its being used or promptly following its filing with the Commission.
(c) In the event that (i) the Company has not filed the Exchange Registration Statement or
Shelf Registration Statement on or before the date on which such registration statement is
required to be filed pursuant to Section 2(a) or 2(b), respectively, or (ii) such Exchange
Registration Statement or Shelf Registration Statement has not become effective or been
5
declared
effective by the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or 2(b), respectively, or
(iii) the Exchange Offer has not been completed within 45 days after the initial effective date
of the Exchange Registration Statement relating to the Exchange Offer (if the Exchange Offer is
then required to be made) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or 2(b) hereof is filed and declared effective but shall
thereafter either be withdrawn by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein) without being succeeded as
promptly as practicable by an additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a Registration Default and each
period during which a Registration Default has occurred and is continuing, a Registration
Default Period), then, as liquidated damages for such Registration Default, subject to the
provisions of Section 9(b), special interest (Special Interest), in addition to the Base
Interest, shall accrue at a per annum rate of 0.25% for the first 90 days of the Registration
Default Period, at a per annum rate of 0.50% for the second 90 days of the Registration Default
Period, at a per annum rate of 0.75% for the third 90 days of the Registration Default Period
and at a per annum rate of 1.00% thereafter for the remaining portion of the Registration
Default Period. Following the cure of all Registration Defaults, the accrual of Special
Interest shall cease.
(d) The Company shall take all actions reasonably necessary or advisable to be taken to
ensure that the transactions contemplated herein are effected as so contemplated.
(e) Any reference herein to a registration statement as of any time shall be deemed to
include any document incorporated, or deemed to be incorporated, therein by reference as of such
time and any reference herein to any post-effective amendment to a registration statement as of
any time shall be deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3.
Registration Procedures
.
If the Company files a registration statement pursuant to Section 2(a) or Section 2(b), the
following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf Registration, as the
case may be, the Company shall qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee
under the Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(c) In connection with the Companys obligations with respect to the registration of
Exchange Securities as contemplated by Section 2(a) (the Exchange Registration), if
applicable, the Company shall use its reasonable best efforts (or as otherwise specified) to:
(i) prepare and file with the Commission no later than November 7, 2008 an Exchange
Registration Statement on any form which may be utilized by the Company and which shall
permit the Exchange Offer and resales of Exchange Securities by broker-dealers during
the Resale Period to be effected as contemplated by Section 2(a), and use its reasonable
best efforts to cause such
6
Exchange Registration Statement to become effective no later
than 270 days after the Closing Date;
(ii) as soon as practicable prepare and file with the Commission such amendments
and supplements to such Exchange Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in Section 2(a) hereof
and as may be required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities with such number of
copies of the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder, as such
broker-dealer reasonably may request prior to the expiration of the Resale Period, for
use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or received copies of
the prospectus included in such registration statement, and confirm such advice in
writing, (A) when such Exchange Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Exchange Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any comments by the Commission and
by the blue sky or securities commissioner or regulator of any state with respect
thereto or any request by the Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such Exchange
Registration Statement or the initiation or threatening of any proceedings for that
purpose, (D) if at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all material respects, (E) of
the receipt by the Company of any notification with respect to the suspension of the
qualification of the Exchange Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, or (F) at any time during the Resale
Period when a prospectus is required to be delivered under the Securities Act, that such
Exchange Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder or contains an untrue statement of a material
fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing;
(iv) in the event that the Company would be required, pursuant to Section
3(c)(iii)(F) above, to notify any broker-dealers holding Exchange Securities, without
unreasonable delay prepare and furnish to each such holder a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter delivered to purchasers
of such Exchange Securities during the Resale Period, such prospectus shall conform in
all material respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
7
thereunder and shall not
contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing; and each such broker-dealer agrees that upon receipt
of any notice from the Company pursuant to Section 3(c)(iii)(F) it shall forthwith
discontinue the disposition of Exchange Securities pursuant to the Exchange Offer
Registration Statement applicable to such Exchange Securities until such broker-dealer
shall have received copies of such amended or supplemented prospectus;
(v) use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement or any
post-effective amendment thereto at the earliest practicable date;
(vi) if required, use its reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) no later than the commencement of the Exchange Offer,
(B) keep such registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other actions as may
be reasonably necessary or advisable to enable each broker-dealer holding Exchange
Securities that is eligible to use the prospectus included in the Exchange Registration
Statement in connection with resales thereof to consummate the disposition thereof in
such jurisdictions;
provided, however,
that the Company shall not be required for any
such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it
would not otherwise be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such jurisdiction, qualify as
a dealer in securities in a jurisdiction in which it is not so qualified or subject
itself to taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject or (3) make any changes to its certificate of incorporation or
by-laws or any agreement between it and its stockholders;
(vii) use its reasonable best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be required
to effect the Exchange Registration, the Exchange Offer and the offering and sale of
Exchange Securities by broker-dealers that are eligible to use the prospectus included
in the Exchange Registration Statement in connection with resales thereof during the
Resale Period;
(viii) provide a CUSIP number for all Exchange Securities, not later than the
applicable Effective Time;
(ix) comply with all applicable rules and regulations of the Commission, and make
generally available to its securityholders as soon as practicable but no later than
eighteen months after the effective date of such Exchange Registration Statement, an
earning statement of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Company, Rule 158 thereunder).
8
(d) In connection with the Companys obligations with respect to the Shelf Registration, if
applicable, the Company shall use its reasonable best efforts (or as otherwise specified) to:
(i) prepare and file with the Commission within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may be utilized by the
Company and which shall register all of the Registrable Securities for resale by the
holders thereof in accordance with such method or methods of disposition as may be
specified by such of the holders as, from time to time, may be Electing Holders and use
its reasonable best efforts to cause such Shelf Registration Statement to become
effective within the time periods specified in Section 2(b);
(ii) not less than 30 calendar days prior to the Effective Time of the Shelf
Registration Statement, mail the Notice and Questionnaire to the holders of Registrable
Securities (or, if the Securities are then in book-entry form, to all of the direct
participants of DTC that DTC identifies to the Company on a security position listing as
holders of the Securities); no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the Effective Time, and no
holder shall be entitled to use the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has returned a completed and
signed Notice and Questionnaire to the Company by the deadline for response set forth
therein;
provided, however
, holders of Registrable Securities shall have at least 28
calendar days from the date on which the Notice and Questionnaire is first mailed to
such holders to return a completed and signed Notice and Questionnaire to the Company;
(iii) after the Effective Time of the Shelf Registration Statement, upon the
request of any holder of Registrable Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder;
provided
that the Company shall
not be required to take any action to name such holder as a selling securityholder in
the Shelf Registration Statement or to enable such holder to use the prospectus forming
a part thereof for resales of Registrable Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Company;
(iv) as soon as practicable prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the prospectus included therein
as may be necessary to effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions applicable to
the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such supplement or
amendment simultaneously with or prior to its being used or filed with the Commission;
(v) comply with the provisions of the Securities Act with respect to the
disposition of all of the Registrable Securities covered by such Shelf Registration
Statement in accordance with the intended methods of disposition by the Electing Holders
provided for in such Shelf Registration Statement;
9
(vi) provide (A) the Electing Holders, (B) the underwriters (which term, for
purposes of this Exchange and Registration Rights Agreement, shall include a person
deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities
Act), if any, thereof, (C) any sales or placement agent therefor, (D) counsel for any
such underwriter or agent and (E) not more than one counsel for all the Electing Holders
the opportunity to participate in the preparation of such Shelf Registration Statement,
each prospectus included therein or filed with the Commission and each amendment or
supplement thereto;
(vii) for a reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in Section 2(b), make available at
reasonable times at the Companys principal place of business or such other reasonable
place for inspection by the persons referred to in Section 3(d)(vi) who shall certify to
the Company that they have a current intention to sell the Registrable Securities
pursuant to the Shelf Registration such financial and other information and books and
records of the Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act;
provided, however,
that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or records reasonably
designated by the Company as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in such
registration statement or otherwise, but not because of disclosure, unauthorized by the
Company or its representatives, by such person or its representatives), or (B) such
person shall be required so to disclose such information pursuant to a subpoena or order
of any court or other governmental agency or body having jurisdiction over the matter
(subject to the requirements of such order, and only after such person shall have given
the Company prompt prior written notice of such requirement), or (C) such information is
required to be set forth in such Shelf Registration Statement or the prospectus included
therein or in an amendment to such Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and regulations of the
Commission and does not contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
(viii) promptly notify each of the Electing Holders, any sales or placement agent
therefor and any underwriter thereof (which notification may be made through
any managing underwriter that is a representative of such underwriter for such
purpose) and confirm such advice in writing, (A) when such Shelf Registration Statement
or the prospectus included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Shelf Registration
Statement or any post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the Commission for
amendments or supplements to such Shelf Registration Statement or prospectus or for
additional information, (C) of the issuance by the
10
Commission of any stop order
suspending the effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time when a prospectus is
required to be delivered under the Securities Act, the representations and warranties of
the Company contemplated by Section 3(d)(xvii) or Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose, or
(F) if at any time when a prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances
then existing;
(ix) use its reasonable best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any post-effective
amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any placement or
sales agent or any Electing Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the applicable rules and
regulations of the Commission and as such managing underwriter or underwriters, such
agent or such Electing Holder reasonably specifies should be included therein relating
to the terms of the sale of such Registrable Securities, including information with
respect to the principal amount of Registrable Securities being sold by such Electing
Holder or agent or to any underwriters, the name and description of such Electing
Holder, agent or underwriter, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold by such Electing Holder or agent
or to such underwriters; and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(xi) furnish to each Electing Holder, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective counsel referred to in
Section 3(d)(vi) an executed copy (or, in the case of an Electing Holder, a conformed
copy) of such Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of an Electing
Holder of Registrable Securities, upon request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference therein unless specifically so
requested by such Electing Holder, agent or underwriter, as the case may be) and of the
prospectus included in such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture Act and the rules
and regulations of the Commission thereunder, and such
11
other documents, as such Electing
Holder, agent, if any, and underwriter, if any, may reasonably request in order to
facilitate the offering and disposition of the Registrable Securities owned by such
Electing Holder, offered or sold by such agent or underwritten by such underwriter and
to permit such Electing Holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder and by any such agent and underwriter,
in each case in the form most recently provided to such person by the Company, in
connection with the offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or any supplement or
amendment thereto;
(xii) use reasonable best efforts to (A) register or qualify the Registrable
Securities to be included in such Shelf Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing Holder and each placement or
sales agent, if any, therefor and underwriter, if any, thereof shall reasonably request,
(B) keep such registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain effective under Section
2(b) above and for so long as may be necessary to enable any such Electing Holder, agent
or underwriter to complete its distribution of Securities pursuant to such Shelf
Registration Statement (so long as such distribution is commenced during the period
during which the Shelf Registration Statement is required to remain effective pursuant
to Section 2(b)) and (C) take any and all other actions as may be reasonably necessary
or advisable to enable each such Electing Holder, agent, if any, and underwriter, if
any, to consummate the disposition in such jurisdictions of such Registrable Securities;
provided, however,
that the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(d)(xii), (2) consent to
general service of process in any such jurisdiction, qualify as a dealer in securities
in a jurisdiction in which it is not so qualified or subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so subject or
(3) make any changes to its certificates of incorporation or by-laws or any agreement
between it and its stockholders;
(xiii) use its reasonable best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be required
to effect the Shelf Registration or the offering or sale in connection
therewith or to enable the selling holder or holders to offer, or to consummate the
disposition of, their Registrable Securities;
(xiv) unless any Registrable Securities shall be in book-entry only form, cooperate
with the Electing Holders and the managing underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates, if so required by any securities exchange upon which any
Registrable Securities are listed, shall be penned, lithographed or engraved, or
produced by any combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
12
denominations and registered
in such names as the managing underwriters may request at least two business days prior
to any sale of the Registrable Securities;
(xv) provide a CUSIP number for all Registrable Securities, not later than the
applicable Effective Time;
(xvi) enter into one or more underwriting agreements, engagement letters, agency
agreements, best efforts underwriting agreements or similar agreements, as
appropriate, including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith as any Electing
Holders aggregating at least 20% in aggregate principal amount of the Registrable
Securities at the time outstanding shall request and as are customarily taken in order
to expedite or facilitate the disposition of such Registrable Securities;
(xvii) whether or not an agreement of the type referred to in Section 3(d)(xvi)
hereof is entered into and whether or not any portion of the offering contemplated by
the Shelf Registration is an underwritten offering or is made through a placement or
sales agent or any other entity, (A) make such representations and warranties to the
Electing Holders and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any appropriate agreement or
to a registration statement filed on the form applicable to the Shelf Registration; (B)
obtain an opinion of counsel to the Company in customary form and covering such matters,
of the type customarily covered by such an opinion, as the managing underwriters, if
any, or as any Electing Holders of at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding may reasonably request, addressed to such
Electing Holder or Electing Holders and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof and dated the effective date of such Shelf
Registration Statement (and if such Shelf Registration Statement contemplates an
underwritten offering of a part or all of the Registrable Securities, dated the date of
the closing under the underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall include the due incorporation and good
standing of the Company and its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due authorization,
execution and delivery of the relevant agreement of the type referred to in Section
3(d)(xvi) hereof; the due authorization, execution, authentication and issuance, and the
validity and enforceability, of the Securities; the absence of material legal or
governmental proceedings involving the Company; the absence of a breach by the Company
or any of its subsidiaries of, or a default under, material agreements binding upon the
Company or any subsidiary of the Company as a result of the contemplated
transaction; the absence of certain governmental approvals required to be obtained in
connection with the Shelf Registration, the offering and sale of the Registrable
Securities, this Exchange and Registration Rights Agreement or any agreement of the type
referred to in Section 3(d)(xvi) hereof, except such approvals as may be required under
state securities or blue sky laws; the material compliance as to form of such Shelf
Registration Statement and any documents incorporated by reference therein and of the
Indenture with the requirements of the Securities Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder, respectively; and, a statement
that as of the date of the opinion and of the Shelf Registration Statement or most
recent post effective amendment thereto, as the case may be, no facts have come to the
13
attention to such counsel that would lead such counsel to believe that such Shelf
Registration Statement and the prospectus included therein, as then amended or
supplemented, and from the documents incorporated by reference therein (in each case
other than the financial statements and other financial information contained therein)
of an untrue statement of a material fact or the omission to state therein a material
fact necessary to make the statements therein not misleading (in the case of such
documents, in the light of the circumstances existing at the time that such documents
were filed with the Commission under the Exchange Act);
provided
,
however
, that such
opinions may include customary qualifications and limitations and shall not be
materially more extensive in scope and content than the opinions of counsel to or of the
Company under the Purchase Agreement); (C) obtain a cold comfort letter or letters
from the independent certified public accountants of the Company addressed to the
selling Electing Holders, the placement or sales agent, if any, therefor or the
underwriters, if any, thereof, dated (i) the effective date of such Shelf Registration
Statement and (ii) the effective date of any prospectus supplement to the prospectus
included in such Shelf Registration Statement or post-effective amendment to such Shelf
Registration Statement which includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such statements included in such
prospectus (and, if such Shelf Registration Statement contemplates an underwritten
offering pursuant to any prospectus supplement to the prospectus included in such Shelf
Registration Statement or post-effective amendment to such Shelf Registration Statement
which includes unaudited or audited financial statements as of a date or for a period
subsequent to that of the latest such statements included in such prospectus, dated the
date of the closing under the underwriting agreement relating thereto), such letter or
letters to be in customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such documents and certificates, including
officers certificates, as may be reasonably requested by any Electing Holders of at
least 20% in aggregate principal amount of the Registrable Securities at the time
outstanding or the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in Section 5(a) hereof
and the compliance with or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company; and (E) undertake
such obligations relating to expense reimbursement, indemnification and contribution as
are provided in Section 6 hereof;
(xviii) notify in writing each holder of Registrable Securities affected thereby of
any proposal by the Company to amend or waive any provision of this Exchange and
Registration Rights Agreement pursuant to Section 9(h) hereof and of any amendment
or waiver effected pursuant thereto, each of which notices shall contain the text of the
amendment or waiver proposed or effected, as the case may be;
(xix) in the event that any broker-dealer registered under the Exchange Act shall
underwrite any Registrable Securities or participate as a member of an underwriting
syndicate or selling group or assist in the distribution (within the meaning of the
Conduct Rules (the Conduct Rules) of the National Association of Securities Dealers,
Inc. (NASD) or any successor thereto, as amended from time to time) thereof, whether
as a holder of such Registrable Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist such broker-dealer
in complying with the requirements of such Conduct Rules,
14
including by (A) if such
Conduct Rules shall so require, engaging a qualified independent underwriter (as
defined in such Conduct Rules) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities, to exercise usual
standards of due diligence in respect thereto and, if any portion of the offering
contemplated by such Shelf Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 6 hereof (or to such other
customary extent as may be reasonably requested by such underwriter), and (C) providing
such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Conduct Rules; and
(xx) comply with all applicable rules and regulations of the Commission, and make
generally available to its securityholders as soon as practicable but in any event not
later than eighteen months after the effective date of such Shelf Registration
Statement, an earning statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the Company, Rule 158
thereunder).
(e) In the event that the Company would be required, pursuant to Section 3(d)(viii)(F)
above, to notify the Electing Holders, the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof, the Company shall without unreasonable delay prepare and
furnish to each of the Electing Holders, to each placement or sales agent, if any, and to each
such underwriter, if any, a reasonable number of copies of a prospectus supplemented or amended
so that, as thereafter delivered to purchasers of Registrable Securities, such prospectus shall
conform in all material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder and shall not
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in light of the
circumstances then existing. Each Electing Holder agrees that upon receipt of any notice from
the Company pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder shall forthwith
discontinue the disposition of Registrable Securities pursuant to the Shelf Registration
Statement applicable to such Registrable Securities until such Electing Holder shall have
received copies of such amended or supplemented prospectus, and if so directed by the Company,
such Electing Holder shall deliver to the Company (at the Companys expense) all copies, other
than
permanent file copies, then in such Electing Holders possession of the prospectus covering
such Registrable Securities at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information required to be
provided by each Electing Holder in its Notice Questionnaire, the Company may require such
Electing Holder to furnish to the Company such additional information regarding such Electing
Holder and such Electing Holders intended method of distribution of Registrable Securities as
may be required in order to comply with the Securities Act. Each such Electing Holder agrees to
notify the Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Company or of the occurrence of any event in
either case as a result of which any prospectus relating to such Shelf Registration contains or
would contain an untrue statement of a material fact regarding such Electing Holder or such
Electing Holders intended method of disposition of such Registrable Securities or omits to
state any material fact regarding such Electing Holder or
15
such Electing Holders intended method
of disposition of such Registrable Securities required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then existing, and promptly
to furnish to the Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall not contain, with
respect to such Electing Holder or the disposition of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances then
existing.
(g) Notwithstanding any provision of this Exchange and Registration Rights Agreement to the
contrary, in the event of a potential acquisition or business combination or other transaction,
business development or event involving the Company that may require disclosure in a Shelf
Registration Statement, if the Company shall determine in the exercise of its reasonable
judgment that disclosure of such potential acquisition or business combination or other
transaction, business development or event is not in the best interests of the Company or that
obtaining any financial statements relating to an acquisition or business combination required
to be included in such Shelf Registration Statement would be impracticable, the Company shall
have the right to suspend the effectiveness of such Shelf Registration Statement for no more
than a total of 90 days and no more than two times (each, a Suspension Period) in any calendar
year. In any such event, the Company shall promptly notify each Electing Holder eligible to
resell Securities under a Shelf Registration Statement, of the suspension of the effectiveness
of such registration statement, provided that the Company shall not be required to disclose in
such notice the possible acquisition or business combination or other transaction, business
development or event if it determines in good faith that such disclosure would not be in the
best interests of the Company. Any Suspension Period shall terminate upon the later of (i) the
abandonment, consummation or termination of such acquisition or business combination or other
transaction, business development or event or the availability of the required financial
statements with respect to a possible acquisition or business combination and (ii) any required
amendment or supplement to such Shelf Registration Statement, and the Company shall promptly
notify Electing Holders eligible to resell Securities under the Shelf Registration Statement,
that the use of the prospectus contained in such Shelf Registration Statement, as amended or
supplemented, may resume. The Company shall provide sufficient copies of the most recent version
of such prospectus to Electing Holders eligible to resell Securities under the Shelf
Registration Statement, promptly upon written request, and in no event later than five business
days after such request.
(h) Until the expiration of one year after the Closing Date, the Company will not, and will
not permit any of its affiliates (as defined in Rule 144) to, resell any of the Securities
that have been reacquired by any of them except pursuant to an effective registration statement
under the Securities Act.
4.
Registration Expenses
.
The Company agrees to bear and to pay or cause to be paid promptly all expenses incident to
the Companys performance of or compliance with this Exchange and Registration Rights Agreement,
including (a) all Commission and any NASD registration, filing and review fees and expenses
including fees and disbursements of not more than one counsel for the placement or sales agent or
underwriters in connection with such registration, filing and review, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under the State
securities and blue sky laws referred to in Section 3(d)(xii) hereof and
16
determination of their eligibility for investment under the laws of such jurisdictions as any managing underwriters or the
Electing Holders may designate, including any reasonable fees and disbursements of not more than
one counsel for the Electing Holders or underwriters in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing, production, distribution and
reproduction of each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities for delivery and the expenses of printing or
producing any underwriting agreements, agreements among underwriters, selling agreements and blue
sky or legal investment memoranda and all other documents in connection with the offering, sale or
delivery of Securities to be disposed of (including certificates representing the Securities), (d)
messenger, telephone and delivery expenses relating to the offering, sale or delivery of Securities
and the preparation of documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee and of any collateral
agent or custodian, (f) internal expenses of the Company (including all salaries and expenses of
the Companys officers and employees performing legal or accounting duties), (g) fees,
disbursements and expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or cold comfort letters required by or incident to such
performance and compliance), (h) fees, disbursements and expenses of any qualified independent
underwriter engaged pursuant to Section 3(d)(xix) hereof, (i) fees, disbursements and expenses of
one counsel for the Electing Holders retained in connection with a Shelf Registration, as selected
by the Electing Holders of at least a majority in aggregate principal amount of the Registrable
Securities held by Electing Holders (which counsel shall be reasonably satisfactory to the
Company), (j) any fees charged by securities rating services for rating the Securities, and (k)
fees, expenses and disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the Registration Expenses). To the
extent that any Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the Company shall
reimburse such person for the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such holders (severally or
jointly), other than the counsel and experts specifically referred to above.
5.
Representations and Warranties
.
The Company represents and warrants to, and agrees with, each Purchaser and each of the
holders from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and each prospectus
(including any preliminary or summary prospectus) contained therein or furnished pursuant to
Section 3(d) or Section 3(c) hereof and any further amendments or supplements to any such
registration statement or prospectus, when it becomes effective or is filed with the Commission,
as the case may be, and, in the case of an underwritten offering of Registrable Securities, at
the time of the closing under the underwriting agreement relating thereto, will conform in all
material respects to the requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and at all times
17
subsequent to the Effective Time
when a prospectus would be required to be delivered under the Securities Act, other than from
(i) such time as a notice has been given to holders of Registrable Securities pursuant to
Section 3(d)(viii)(F) or Section 3(c)(iii)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(e) or Section 3(c)(iv)
hereof, each such registration statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(d) or Section 3(c) hereof, as then amended
or supplemented, will conform in all material respects to the requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the Commission thereunder and will
not contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in the light of the
circumstances then existing;
provided, however,
that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by a holder of Registrable Securities expressly for use
therein.
(b) Any documents incorporated by reference in any prospectus referred to in Section 5(a)
hereof, when they become or became effective or are or were filed with the Commission, as the
case may be, will conform or conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and none of such documents will contain or
contained an untrue statement of a material fact or will omit or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading;
provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in writing to the
Company by a holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this Exchange and
Registration Rights Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any subsidiary of the Company is a party or by which the
Company or any subsidiary of the Company is bound or to which any of the property or assets of
the Company or any subsidiary of the Company is subject, nor will such action result in any
violation of the provisions of the certificate of incorporation, as amended, or the by-laws of
the Company or any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any
subsidiary of the Company or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company of the transactions contemplated
by this Exchange and Registration Rights Agreement, except the registration under the Securities
Act of the Securities, qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may be required under
State securities or blue sky laws in connection with the offering and distribution of the
Securities.
(d) This Exchange and Registration Rights Agreement has been duly authorized, executed and
delivered by the Company.
6.
Indemnification
.
18
(a)
Indemnification by the Company.
The Company will indemnify and hold harmless each of
the holders of Registrable Securities included in an Exchange Registration Statement, each of
the Electing Holders of Registrable Securities included in a Shelf Registration Statement and
each person who participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities against any losses, claims, damages or liabilities, joint
or several, to which such holder, agent or underwriter may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Exchange Registration Statement or Shelf Registration Statement,
as the case may be, under which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein or furnished by the
Company to any such holder, Electing Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse such holder, such Electing Holder, such agent and
such underwriter for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are incurred;
provided,
however,
that the Company shall not be liable to (A) any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in such registration
statement, or preliminary, final or summary prospectus, or amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the Company by such person
expressly for use therein or (B) any such Indemnified Person who is an Electing Holder for any
disposition by such Electing Holder of Registrable Securities made during a Suspension Period or
during any suspension of the use of the Prospectus, if prior to the commencement of such
Suspension Period or suspension of the use of the Prospectus, as the case may be, the Company
had provided notice of such Suspension Period or suspension of the use of the Prospectus to such
Electing Holder in accordance with Section 3(g) of this Agreement.
(b)
Indemnification by the Holders and any Agents and Underwriters.
The Company may
require, as a condition to including any Registrable Securities in any registration statement
filed pursuant to Section 2(b) hereof and to entering into any underwriting agreement with
respect thereto, that the Company shall have received an undertaking reasonably satisfactory to
it from the Electing Holder of such Registrable Securities and from each underwriter named in
any such underwriting agreement, severally and not jointly,
to (i) indemnify and hold harmless the Company, and all other holders of Registrable
Securities, against any losses, claims, damages or liabilities to which the Company or such
other holders of Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in such registration statement, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such Electing Holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to the
Company by such Electing Holder or underwriter expressly for use therein, and (ii) reimburse the
Company for any legal or other expenses reasonably
19
incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are incurred;
provided,
however,
that no such Electing Holder shall be required to undertake liability to any person
under this Section 6(b) for any amounts in excess of the dollar amount of the proceeds to be
received by such Electing Holder from the sale of such Electing Holders Registrable Securities
pursuant to such registration.
(c)
Notices of Claims, Etc.
Promptly after receipt by an indemnified party under subsection
(a) or (b) above of written notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such indemnifying party
in writing of the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any indemnified party
otherwise than under the indemnification provisions of or contemplated by Section 6(a) or 6(b)
hereof;
provided
,
however
, that failure by such indemnified party to so notify such indemnifying
party shall relieve the indemnifying party from the obligation to indemnify the indemnified
party only to the extent that the indemnifying party suffers actual prejudice as a result of
such failure, but shall not relieve the indemnifying party from its obligation to provide
reimbursement and contribution to the indemnified party. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party of the
commencement thereof, such indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the written
consent of the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
Contribution.
If for any reason the indemnification provisions contemplated by Section
6(a) or Section 6(b) are unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault of such indemnifying
party and indemnified party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by such indemnified
party, and the parties relative intent, knowledge, access to information and opportunity to
correct or
20
prevent such statement or omission. The parties hereto agree that it would not be
just and equitable if contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, or liabilities (or actions in
respect thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 6(d), no
holder shall be required to contribute any amount in excess of the amount by which the dollar
amount of the proceeds received by such holder from the sale of any Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto) exceeds the amount of
any damages which such holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no underwriter shall be required
to contribute any amount in excess of the amount by which the total price at which the
Registrable Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The holders and any underwriters obligations in this Section
6(d) to contribute shall be several in proportion to the principal amount of Registrable
Securities registered or underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same terms and
conditions, to each officer, director and partner of each holder, agent and underwriter and each
person, if any, who controls any holder, agent or underwriter within the meaning of the
Securities Act; and the obligations of the holders and any agents or underwriters contemplated
by this Section 6 shall be in addition to any liability which the respective holder, agent or
underwriter may otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent, is named in any
registration statement as about to become a director of the Company) and to each person, if any,
who controls the Company within the meaning of the Securities Act.
7.
Underwritten Offerings
.
(a)
Selection of Underwriters.
If any of the Registrable Securities covered by the Shelf
Registration are to be sold pursuant to an underwritten offering, the managing underwriter or
underwriters thereof shall be designated by Electing Holders holding at least a majority in
aggregate principal amount of the Registrable Securities to be included in such offering,
provided that such designated managing underwriter or underwriters is or are reasonably
acceptable to the Company.
(b)
Participation by Holders.
Each holder of Registrable Securities hereby agrees with each
other such holder that no such holder may participate in any underwritten offering hereunder
unless such holder (i) agrees to sell such holders Registrable Securities on the basis provided
in any underwriting arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
21
8.
Rule 144 and Rule 144A
.
The Company covenants to the holders of Registrable Securities that to the extent it shall be
required to do so under the Exchange Act, the Company shall timely file the reports required to be
filed by it under the Exchange Act or the Securities Act (including the reports under Section 13
and 15(d) of the Exchange Act referred to in subparagraph (d)(4) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by the Commission
thereunder, and shall take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the limitations of the
exemption provided by Rules 144 and 144A including, without limitation, the requirements of Rule
144A(d)(4). Upon the request of any holder of Registrable Securities in connection with that
holders sale pursuant to Rule 144, the Company shall deliver to such holder a written statement as
to whether it has complied with such requirements.
9.
Miscellaneous
.
(a)
No Inconsistent Agreements.
The Company represents, warrants, covenants and agrees
that it has not granted, and shall not grant, registration rights with respect to Registrable
Securities or any other securities which would be inconsistent with the terms contained in this
Exchange and Registration Rights Agreement.
(b)
Specific Performance.
The parties hereto acknowledge that there would be no adequate
remedy at law if the Company fails to perform any of its obligations hereunder and that the
Purchasers and the holders from time to time of the Registrable Securities may be irreparably
harmed by any such failure, and accordingly agree that the Purchasers and such holders, in
addition to any other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of the Company under this Exchange
and Registration Rights Agreement in accordance with the terms and conditions of this Exchange
and Registration Rights Agreement, in any court of the United States or any State thereof having
jurisdiction.
(c)
Notices.
All notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered by
hand, if delivered personally or by courier, or three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt requested) as follows: If to the
Company, addressed to it at Attention: [Secretary], Dell Inc., 1 Dell Way, Round Rock, Texas
78682, and if to a holder, to the address of such holder set forth in the security register or
other records of the Company, or to such other address as the Company or any such holder may
have furnished to the other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(d)
Parties in Interest.
All the terms and provisions of this Exchange and Registration
Rights Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable
by the parties hereto and the holders from time to time of the Registrable Securities and the
respective successors and assigns of the parties hereto and such holders. In the event that any
transferee of any holder of Registrable Securities shall acquire Registrable Securities, in any
manner, whether by gift, bequest, purchase, operation of law or otherwise, such transferee
shall, without any further writing or action of any kind, be
22
deemed a beneficiary hereof for all
purposes and such Registrable Securities shall be held subject to all of the terms of this
Exchange and Registration Rights Agreement, and by taking and holding such Registrable
Securities such transferee shall be entitled to receive
the benefits of, and be conclusively deemed to have agreed to be bound by all of the
applicable terms and provisions of this Exchange and Registration Rights Agreement. If the
Company shall so request, any such successor, assign or transferee shall agree in writing to
acquire and hold the Registrable Securities subject to all of the applicable terms hereof.
(e)
Survival.
The respective indemnities, agreements, representations, warranties and each
other provision set forth in this Exchange and Registration Rights Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or statement as to
the results thereof) made by or on behalf of any holder of Registrable Securities, any director,
officer or partner of such holder, any agent or underwriter or any director, officer or partner
thereof, or any controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and the transfer and
registration of Registrable Securities by such holder and the consummation of an Exchange Offer.
(f)
Governing Law.
This Exchange and Registration Rights Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
(g)
Headings.
The descriptive headings of the several Sections and paragraphs of this
Exchange and Registration Rights Agreement are inserted for convenience only, do not constitute
a part of this Exchange and Registration Rights Agreement and shall not affect in any way the
meaning or interpretation of this Exchange and Registration Rights Agreement.
(h)
Entire Agreement; Amendments.
This Exchange and Registration Rights Agreement and the
other writings referred to herein (including the Indenture and the form of Securities) or
delivered pursuant hereto which form a part hereof contain the entire understanding of the
parties with respect to its subject matter. This Exchange and Registration Rights Agreement
supersedes all prior agreements and understandings between the parties with respect to its
subject matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively) only by a
written instrument duly executed by the Company and the holders of at least a majority in
aggregate principal amount of the Registrable Securities at the time outstanding. Each holder of
any Registrable Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable Securities or is delivered to
such holder.
(i)
Inspection.
For so long as this Exchange and Registration Rights Agreement shall be in
effect, this Exchange and Registration Rights Agreement and a complete list of the names and
addresses of all the holders of Registrable Securities shall be made available for inspection
and copying on any business day by any holder of Registrable Securities for proper purposes only
(which shall include any purpose related to the rights of the holders of Registrable Securities
under the Securities, the Indenture and this Agreement) at the offices of the Company at the
address thereof set forth in Section 9(c) above and at the office of the Trustee under the
Indenture.
23
(j)
Counterparts.
This agreement may be executed by the parties in counterparts, each of
which shall be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
24
If the foregoing is in accordance with your understanding, please sign and return to us (one
for the Company and each of the Representatives plus one for each counsel) counterparts hereof, and
upon the acceptance hereof by you, on behalf of each of the Purchasers, this letter and such
acceptance hereof shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each of the Purchasers
is pursuant to the authority set forth in a form of Agreement among Purchasers, the form of which
shall be submitted to the Company for examination upon request, but without warranty on your part
as to the authority of the signers thereof.
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Very truly yours,
DELL INC.,
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By:
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/s/
Brian P. MacDonald
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Name:
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Brian P. MacDonald
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Title:
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Vice President and Treasurer
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25
Accepted as of the date hereof:
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By:
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/s/
Pamela Kendall
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(Barclays Capital Inc.)
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By:
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/s/
Goldman, Sachs & Co.
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(Goldman, Sachs & Co.)
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J.P. MORGAN SECURITIES INC.
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By:
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/s/
Stephen L. Sheiner
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Name:
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Stephen L. Sheiner
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Title:
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Vice President
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28
Exhibit A
Dell Inc.
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
*
The Depository Trust Company (DTC) has identified you as a DTC Participant through which
beneficial interests in the Dell Inc. (the Company) [Title of Securities] (the Securities) are
held.
The Company is in the process of registering the Securities under the Securities Act of 1933 for
resale by the beneficial owners thereof. In order to have their Securities included in the
registration statement, beneficial owners must complete and return the enclosed Notice of
Registration Statement and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the enclosed
materials as soon as possible
as their rights to have the Securities included in the
registration statement depend upon their returning the Notice and Questionnaire by [Deadline For
Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact [Name], Dell Inc., 1 Dell Way, Round
Rock, Texas 78682.
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*
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Not less than 28 calendar days from date of mailing.
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A-1
Dell Inc.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the Exchange and
Registration Rights Agreement) between Dell Inc. (the Company) and the Purchasers named therein.
Pursuant to the Exchange and Registration Rights Agreement, the Company has filed with the United
States Securities and Exchange Commission (the Commission) a registration statement on Form [___]
(the Shelf Registration Statement) for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the Securities Act), of the Companys [Title of Securities]
(the Securities). A copy of the Exchange and Registration Rights Agreement is attached hereto.
All capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the
Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf Registration Statement. In
order to have Registrable Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire (Notice and Questionnaire) must
be completed, executed and delivered to the Companys counsel at the address set forth herein for
receipt ON OR BEFORE [Deadline for Response]. Beneficial owners of Registrable Securities who do
not complete, execute and return this Notice and Questionnaire by such date (i) will not be named
as selling securityholders in the Shelf Registration Statement and (ii) may not use the Prospectus
forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus. Accordingly, holders and beneficial owners of
Registrable Securities are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.
The term
Registrable Securities
is defined in the Exchange and Registration Rights
Agreement.
A-2
ELECTION
The undersigned holder (the Selling Securityholder) of Registrable Securities hereby elects to
include in the Shelf Registration Statement the Registrable Securities beneficially owned by it and
listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Registrable Securities by the terms and conditions of this
Notice and Questionnaire and the Exchange and Registration Rights Agreement, including, without
limitation, Section 6 of the Exchange and Registration Rights Agreement, as if the undersigned
Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration Statement, the Selling
Securityholder will be required to deliver to the Company and Trustee the Notice of Transfer set
forth in Appendix A to the Prospectus and as Exhibit B to the Exchange and Registration Rights
Agreement.
The Selling Securityholder hereby provides the following information to the Company and represents
and warrants that such information is accurate and complete:
A-3
QUESTIONNAIRE
(1)
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(a)
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Full Legal Name of Selling Securityholder:
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(b)
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Full Legal Name of Registered Holder (if not the same as in (a) above) of Registrable
Securities Listed in Item (3) below:
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(c)
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Full Legal Name of DTC Participant (if applicable and if not the same as (b) above)
Through Which Registrable Securities Listed in Item (3) below are Held:
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(2)
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Address for Notices to Selling Securityholder:
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Telephone:
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Fax:
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Contact Person:
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(3)
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Beneficial Ownership of Securities:
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Except as set forth below in this Item (3), the undersigned does not beneficially own any
Securities.
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(a)
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Principal amount of Registrable Securities beneficially owned:
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CUSIP No(s). of such Registrable Securities:
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(b)
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Principal amount of Securities other than Registrable Securities beneficially owned:
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CUSIP No(s). of such other Securities:
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(c)
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Principal amount of Registrable Securities which the undersigned wishes to be included
in the Shelf Registration Statement:
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CUSIP No(s). of such Registrable Securities to be included in the Shelf Registration
Statement:
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(4)
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Beneficial Ownership of Other Securities of the Company:
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Except as set forth below in this Item (4), the undersigned Selling Securityholder is not
the beneficial or registered owner of any other securities of the Company, other than
the Securities listed above in Item (3).
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State any exceptions here:
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A-4
(5)
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Relationships with the Company:
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Except as set forth below, neither the Selling Securityholder nor any of its affiliates,
officers, directors or principal equity holders (5% or more) has held any position or
office or has had any other material relationship with the Company (or its
predecessors or affiliates) during the past three years.
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State any exceptions here:
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(6)
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Plan of Distribution:
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Except as set forth below, the undersigned Selling Securityholder intends to distribute
the Registrable Securities listed above in Item (3) only as follows (if at all):
Such Registrable Securities may be sold from time to time directly by the undersigned
Selling Securityholder or, alternatively, through underwriters, broker-dealers or
agents. Such Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying prices determined
at the time of sale, or at negotiated prices. Such sales may be effected in
transactions (which may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered Securities may be
listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the over-the-counter
market, or (iv) through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short sales of
the Registrable Securities in the course of hedging the positions they assume. The
Selling Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
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State any exceptions here:
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By signing below, the Selling Securityholder acknowledges that it understands its obligation to
comply, and agrees that it will comply, with the provisions of the Exchange Act and the rules and
regulations thereunder, particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the Registrable
Securities listed in Item (3) above after the date on which such information is provided to the
Company, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer
of its rights and obligations under this Notice and Questionnaire and the Exchange and Registration
Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of the information
contained herein in its answers to Items (1) through (6) above and the inclusion of such
information in the Shelf Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
A-5
In accordance with the Selling Securityholders obligation under Section 3(d) of the Exchange and
Registration Rights Agreement to provide such information as may be required by law for inclusion
in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the
Company of any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect.
All notices hereunder and pursuant to the Exchange and Registration Rights Agreement shall be made
in writing, by hand-delivery, first-class mail, or air courier guaranteeing overnight delivery as
follows:
(i) To the Company:
[insert name]
Dell Inc.
1 Dell Way
Round Rock, Texas 78682
(ii) With a copy to:
[insert]
Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the
Companys counsel, the terms of this Notice and Questionnaire, and the representations and
warranties contained herein, shall be binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above). This Agreement shall be
governed in all respects by the laws of the State of New York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated:
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Selling Securityholder
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(Print/type full legal name of beneficial owner of Registrable Securities)
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By:
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Name:
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Title:
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PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE
[DEADLINE FOR RESPONSE] TO THE COMPANYS COUNSEL AT:
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
Dell Inc.
c/o The Bank of New York Trust Company, N.A.
601 Travis Street, 18th Floor
Houston, Texas 77002
Attention: Julie Hoffman-Ramos
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Re:
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Dell Inc. (the Company)
[Title of Securities]
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Dear Sirs:
Please be advised that
has transferred $
aggregate principal amount of the above-referenced
Notes pursuant to an effective Registration Statement on Form [
] (File No. 333-
) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933,
as amended, have been satisfied and that the above-named beneficial owner of the Notes is named as
a Selling Holder in the Prospectus dated [date] or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such Prospectus opposite such
owners name.
Dated:
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Very truly yours,
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(Name)
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By:
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(Authorized Signature)
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B-1