IBM International Business Machines Corp

 

Title of each class	Capital stock, par value $.20 per share
Trading symbol	IBM
	Common Stock

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549 

 

 

FORM 8-K

 

 

CURRENT REPORT PURSUANT TO SECTION 13 OR 15 (d)

OF THE SECURITIES EXCHANGE ACT OF 1934 

 

Date of Report: January 29, 2024

(Date of earliest event reported)

 

 

INTERNATIONAL BUSINESS MACHINES CORPORATION

(Exact name of registrant as specified in its charter)

 

 

New York		1-2360		13-0871985
(State of Incorporation)		(Commission File Number)		(IRS employer Identification No.)

 

One New Orchard Road
Armonk, New York		10504
(Address of principal executive offices)		(Zip Code)

 

914-499-1900

(Registrant’s telephone number)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading symbol(s)		Name of each exchange on which registered
Capital stock, par value $.20 per share		IBM		New York Stock Exchange
				NYSE Chicago
1.125% Notes due 2024		IBM 24A		New York Stock Exchange
2.875% Notes due 2025		IBM 25A		New York Stock Exchange
0.950% Notes due 2025		IBM 25B		New York Stock Exchange
0.875% Notes due 2025		IBM 25C		New York Stock Exchange
0.300% Notes due 2026		IBM 26B		New York Stock Exchange
1.250% Notes due 2027		IBM 27B		New York Stock Exchange
3.375% Notes due 2027		IBM 27F		New York Stock Exchange
0.300% Notes due 2028		IBM 28B		New York Stock Exchange
1.750% Notes due 2028		IBM 28A		New York Stock Exchange
1.500% Notes due 2029		IBM 29		New York Stock Exchange
0.875% Notes due 2030		IBM 30A		New York Stock Exchange
1.750% Notes due 2031		IBM 31		New York Stock Exchange
3.625% Notes due 2031		IBM 31B		New York Stock Exchange
0.650% Notes due 2032		IBM 32A		New York Stock Exchange
1.250% Notes due 2034		IBM 34		New York Stock Exchange
3.750% Notes due 2035		IBM 35		New York Stock Exchange
4.875% Notes due 2038		IBM 38		New York Stock Exchange
1.200% Notes due 2040		IBM 40		New York Stock Exchange
4.000% Notes due 2043		IBM 43		New York Stock Exchange
7.00% Debentures due 2025		IBM 25		New York Stock Exchange
6.22% Debentures due 2027		IBM 27		New York Stock Exchange
6.50% Debentures due 2028		IBM 28		New York Stock Exchange
5.875% Debentures due 2032		IBM 32D		New York Stock Exchange
7.00% Debentures due 2045		IBM 45		New York Stock Exchange
7.125% Debentures due 2096		IBM 96		New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

The information set forth in the second and third paragraphs and the last sentence of Item 8.01 of this Current Report on Form 8-K is incorporated by reference herein.

 

Item 8.01. Other Events.

 

On January 29, 2024, IBM International Capital Pte. Ltd. (“IIC”), a private company limited by shares incorporated under the laws of the Republic of Singapore and a 100% owned “finance subsidiary” (as described by the U.S. Securities and Exchange Commission in Rule 13-01(a)(4)(vi) of Regulation S-X) of International Business Machines Corporation (“IBM”), and IBM entered into an underwriting agreement (the “Underwriting Agreement”) with Merrill Lynch (Singapore) Pte. Ltd., Citigroup Global Markets Singapore Pte. Ltd., Goldman Sachs (Singapore) Pte., J.P. Morgan Securities Asia Private Limited and The Hongkong and Shanghai Banking Corporation Limited, Singapore Branch pursuant to which IIC agreed to sell $600,000,000 aggregate principal amount of its 4.700% Notes due 2026, $500,000,000 aggregate principal amount of its 4.600% Notes due 2027, $500,000,000 aggregate principal amount of its 4.600% Notes due 2029, $500,000,000 aggregate principal amount of its 4.750% Notes due 2031, $1,000,000,000 aggregate principal amount of its 4.900% Notes due 2034, $1,000,000,000 aggregate principal amount of its 5.250% Notes due 2044 and $1,400,000,000 aggregate principal amount of its 5.300% Notes due 2054 (together, the “Notes”) and the related guarantee of the Notes in a registered public offering (the “Offering”). The Notes will be fully and unconditionally guaranteed by IBM (the “Guarantee”).

 

On February 2, 2024, IIC and IBM, as guarantor, entered into an indenture (the “Indenture”) with The Bank of New York Mellon, as trustee. The Indenture provides for the issuance of debt securities by IIC and the full and unconditional guarantee of such debt securities by IBM.

 

Under the Indenture, subject to no event of default, IBM has the right, at its option at any time, without the consent of any holders of any series of debt securities, to be substituted for, and assume the obligations of, IIC under each series of debt securities that are then outstanding under the Indenture. The Indenture also contains covenants that limit the aggregate amount of secured indebtedness and sale and leaseback transactions of IBM, subject to exceptions described therein, and restrict IIC’s and IBM’s ability to merge or consolidate unless certain conditions are met.

 

The Notes and the Guarantee will be issued pursuant to the Indenture and the closing of the Offering is expected to occur on February 5, 2024, subject to customary closing conditions.

 

The Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated herein by reference. The Indenture is filed as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

This Current Report on Form 8-K is also being filed to incorporate by reference into Registration Statement Nos. 333-276739 and 333-276739-01 on Form S-3, effective January 29, 2024, the documents included as (1) Exhibits 4.2, 4.3, 4.4, 4.5, 4.6, 4.7 and 4.8 relating to the Notes and (2) Exhibits 5.1, 5.2, 23.1 and 23.2 regarding the Notes.

 

(d) Exhibits

 

Exhibit No.		Description of Exhibit
1.1		Underwriting Agreement dated January 29, 2024 among IBM International Capital Pte. Ltd., International Business Machines Corporation and Merrill Lynch (Singapore) Pte. Ltd., Citigroup Global Markets Singapore Pte. Ltd., Goldman Sachs (Singapore) Pte., J.P. Morgan Securities Asia Private Limited and The Hongkong and Shanghai Banking Corporation Limited, Singapore Branch, as Underwriters
4.1		Indenture dated as of February 2, 2024, between IBM International Capital Pte. Ltd., International Business Machines Corporation, as guarantor, and The Bank of New York Mellon, as trustee
4.2		Form of 4.700% Note due 2026
4.3		Form of 4.600% Note due 2027
4.4		Form of 4.600% Note due 2029
4.5		Form of 4.750% Note due 2031
4.6		Form of 4.900% Note due 2034
4.7		Form of 5.250% Note due 2044
4.8		Form of 5.300% Note due 2054

 

 

5.1		Opinion of Frank Sedlarcik, Vice President, Assistant General Counsel and Secretary of IBM regarding the Notes
5.2.		Opinion of Drew & Napier LLC
23.1		Consent of Frank Sedlarcik, Vice President, Assistant General Counsel and Secretary of IBM (included in Exhibit 5.1)
23.2		Consent of Drew & Napier LLC (included in Exhibit 5.2)
104		Cover Page Interactive Data File - the cover page interactive data file does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document

 

IBM’s web site (www.ibm.com) contains a significant amount of information about IBM, including financial and other information for investors (www.ibm.com/investor/). IBM encourages investors to visit its various web sites from time to time, as information is updated and new information is posted.

 

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

Date:     February 2, 2024

 

	By:	/s/ Simon J. Beaumont
		Simon J. Beaumont
		Vice President and Treasurer

 

 

 

Exhibit 1.1

 

EXECUTION VERSION

 

IBM INTERNATIONAL CAPITAL PTE. LTD. 

 

$5,500,000,000

 

Debt Securities

 

$600,000,000 4.700% Notes due 2026

$500,000,000 4.600% Notes due 2027

$500,000,000 4.600% Notes due 2029

$500,000,000 4.750% Notes due 2031

$1,000,000,000 4.900% Notes due 2034

$1,000,000,000 5.250% Notes due 2044

$1,400,000,000 5.300% Notes due 2054

 

fully and unconditionally guaranteed by

 

INTERNATIONAL BUSINESS MACHINES CORPORATION

 

UNDERWRITING AGREEMENT

 

New York, New York

 

Dated as of January 29, 2024

 

To the Representatives named in Schedule I hereto
   of the Underwriters named in Schedule II hereto

 

Ladies and Gentlemen:

 

International Business Machines Corporation, a New York corporation (the “Company”), and IBM International Capital Pte. Ltd., a private company limited by shares incorporated under the laws of the Republic of Singapore (the “Issuer”), propose that the Issuer will sell to the underwriters named in Schedule II hereto (the “Underwriters”), for whom you are acting as joint lead managers and representatives (the “Representatives”), the principal amount of its debt securities identified in Schedule I hereto (the “Notes”) and the related guarantee of such debt securities, to be issued under an indenture dated on or about the Closing Date (as defined below) (the “Indenture”), between the Company, the Issuer and The Bank of New York, as trustee (the “Trustee”). The Notes will be fully and unconditionally guaranteed (the “Guarantee”) by the Company pursuant to the terms of the Indenture. The Notes and the Guarantee are referred to collectively in this Agreement as the “Securities”. If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms “Underwriters” and “Representatives”, as used herein shall each be deemed to refer to such firm or firms.

  

1.            Representations and Warranties.  Each of the Issuer and the Company, jointly and severally, represents and warrants to, and agrees with each Underwriter that:

 

 

(a)            Each of the Issuer and the Company meets the requirements for use of Form S-3 under the Securities Act of 1933 (the “Act”) and has filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement as defined in Rule 405 (the file number of which is set forth in Schedule I hereto), including a related basic prospectus, on such Form for the registration under the Act of the offering and sale of the Securities. Such Registration Statement, including any amendments thereto filed prior to the Execution Time, became effective upon filing. The Issuer and the Company may have filed with the Commission as part of an amendment to the Registration Statement or pursuant to Rule 424(b) one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to you. The Issuer and the Company will file with the Commission a final prospectus supplement relating to the Securities in accordance with Rule 424(b). As filed, such final prospectus supplement shall include all information required by the Act and the rules thereunder, and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Issuer or the Company has advised you, prior to the Execution Time, will be included or made therein. If the Registration Statement contains the undertaking specified by Regulation S-K Item 512(a), the Registration Statement, at the Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).

  

The terms which follow, when used in this Agreement, shall have the meanings indicated. The term the “Effective Date” shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective. “Execution Time” shall mean the date and time that this Agreement is executed and delivered by the parties hereto. “Basic Prospectus” shall mean the basic prospectus relating to the Registration Statement to be used in connection with offering the Securities. “Final Prospectus” shall mean the prospectus supplement relating to the Securities and containing the final terms of the Securities that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus. “Registration Statement” shall mean the registration statement referred to in the preceding paragraph, including incorporated documents, exhibits and financial statements and any prospectus supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, in the form in which it or they has or have or shall become effective and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date (as hereinafter defined), shall also mean such registration statement or statements as so amended. “Rule 433”, “Rule 415”, “Rule 424”, “Rule 430B” and “Regulation S-K” refer to such rules under the Act. “Disclosure Package” shall mean (i) the Basic Prospectus, as amended and supplemented (including any preliminary prospectus supplement issued before the Execution Time relating to the Securities) to the Execution Time, (ii) the Issuer Free Writing Prospectuses, if any, identified in Schedule III hereto, and (iii) any other Free Writing Prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. “Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405. “Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in Rule 433. “Preliminary Final Prospectus” shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus, together with the Basic Prospectus. Any reference herein to the Registration Statement, a Preliminary Final Prospectus or the Final Prospectus shall

  

 

be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934 (the “Exchange Act”) on or before the effective date of the Registration Statement or the date of such Preliminary Final Prospectus or the Final Prospectus, as the case may be; and any reference herein to the terms “amend”, “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the effective date of the Registration Statement, or the date of any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. 

 

(b)            On the Effective Date and at the Execution Time, the Registration Statement did, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplements thereto) will, comply in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the requirements of the Trust Indenture Act of 1939 (the “Trust Indenture Act”) and the rules thereunder; on the Effective Date and at the Execution Time, the Registration Statement did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and, on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that neither the Issuer nor the Company makes any representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Issuer or the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Final Prospectus (or any supplement thereto).

 

(c)            At the Execution Time, the Disclosure Package, when taken together as a whole, does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Issuer or the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof.

 

(d)            At the earliest time after the filing of the Registration Statement that the Issuer, the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)) of the Securities, neither the Issuer nor the Company was, nor is, an Ineligible Issuer (as defined in Rule 405), without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Issuer or the Company be considered an Ineligible Issuer.

 

  

(e)            Each Issuer Free Writing Prospectus and the final term sheet prepared and filed pursuant to Section 4(A)(g) hereto do not include any information that conflicts with the information contained in the Registration Statement, including any document incorporated therein and any prospectus supplement deemed to be a part thereof that has not been superseded or modified. The foregoing sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Issuer or the Company by any Underwriter through the Representatives specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as such in Section 7 hereof.

  

(f)             (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Sections 13 or 15(d) of the Exchange Act or form of prospectus), and (iii) at the time the Issuer, the Company or any person acting on either of their behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule 163, each of the Issuer and the Company was or is (as the case may be) a “well-known seasoned issuer” as defined in Rule 405. The Issuer agrees to pay the fees required by the Commission relating to the Securities within the time required by Rule 456(b)(1) without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).

 

2.              Purchase and Sale.  Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Issuer agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Issuer, at the purchase price set forth in Schedule I hereto, the respective principal amounts of the Securities set forth opposite each respective Underwriter’s name in Schedule II hereto, except that, if Schedule I hereto provides for the sale of Securities pursuant to delayed delivery arrangements, the respective principal amounts of Securities to be purchased by the Underwriters shall be as set forth in Schedule II hereto, less the respective amounts of Contract Securities determined as provided below. Securities to be purchased by the Underwriters are herein sometimes called the “Underwriters’ Securities” and Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are herein called “Contract Securities”.

 

If so provided in Schedule I hereto, the Underwriters are authorized to solicit offers to purchase Securities from the Issuer pursuant to delayed delivery contracts (“Delayed Delivery Contracts”), substantially in the form of Schedule IV hereto but with such changes therein as the Issuer may authorize or approve. The Underwriters will endeavor to make such arrangements and, as compensation therefor, the Issuer will pay to the Representatives, for the account of underwriters, on the Closing Date, the percentage set forth in Schedule I hereto of the principal amount of the Securities for which Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The Issuer will make Delayed Delivery Contracts in all cases where sales of Contract Securities arranged by the Underwriters have been approved by the Issuer but, except as the Issuer may otherwise agree, each such Delayed Delivery Contract must be for not less than the minimum principal amount set forth in Schedule I hereto and the aggregate principal amount of Contract Securities may not exceed the maximum aggregate principal amount set forth in Schedule I hereto. The Underwriters will not

 

  

have any responsibility in respect of the validity or performance of Delayed Delivery Contracts. The principal amount of Securities to be purchased by each Underwriter as set forth in Schedule II hereto shall be reduced by an amount which shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the aggregate principal amount set forth in Schedule II hereto, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Issuer in writing; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the aggregate principal amount set forth in Schedule II hereto, less the aggregate principal amount of Contract Securities.

 

3.            Delivery and Payment.  Delivery of and payment for the Underwriters’ Securities shall be made at the office, on the date and at the time specified in Schedule I hereto, which date and time may be postponed by agreement between the Representatives and the Issuer or as provided in Section 8 hereof (such date and time of delivery and payment for the Securities being called the “Closing Date”). Delivery of the Underwriters’ Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof, net of applicable goods and services tax (“GST”) charged under the Goods and Services Tax Act 1993 of Singapore by each GST-registered Representative on the difference (with respect to each of the Underwriters’ Securities set forth opposite such Representative’s name on Schedule II) between the offering price and purchase price as set forth in Schedule I (such difference, an “Underwriting Discount”), to or upon the order of the Issuer by certified or official bank check or checks payable, or wire transfers, in immediately available funds.  The Securities shall be delivered in definitive global form through the facilities of The Depository Trust Company. For the avoidance of doubt, each Underwriting Discount as set out in Schedule I hereto has been computed exclusive of GST, and the GST charged by each GST-registered Representative will be satisfied by the Issuer as a result of the netting mechanism described in the second sentence of this Section 3.

 

4.              Agreements.

 

(A)            Each of the Issuer and the Company agrees with the several Underwriters that:

 

(a)           The Issuer and the Company will file the Final Prospectus, properly completed, pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Issuer and the Company will promptly advise the Representatives (i) when any amendment to the Registration Statement relating to the Securities shall have become effective, (ii) of any request by the Commission for any amendment of the Registration Statement or amendment of or supplement to the Final Prospectus or for any additional information, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any notice that would prevent its use or the institution or threatening of any proceeding for that purpose and (iv) of the receipt by the Issuer or the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Issuer and the Company will each use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. Neither the Issuer nor the Company will file any amendment of the Registration Statement or supplement to the Final Prospectus unless you have been furnished a copy for your review prior

 

 

to filing and will not file any such proposed amendment or supplement to which you reasonably object.

 

(b)            If, at any time when a prospectus relating to the Securities is required to be delivered under the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Issuer and the Company will give the Representatives immediate notice of the occurrence of such event and promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance.

 

(c)            The Company will make generally available to its security holders and to the Representatives as soon as practicable, but not later than 45 days after the end of the 12-month period beginning at the end of the current fiscal quarter of the Company, an earning statement (which need not be audited) of the Company and its subsidiaries, covering a period of at least 12 months beginning after the end of the current fiscal quarter of the Company, which will satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder.

 

(d)            The Issuer will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act (including in circumstances where such requirement may be satisfied pursuant to Rule 172), as many copies of any Preliminary Final Prospectus and the Final Prospectus and each Issuer Free Writing Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request.

 

(e)            The Issuer and the Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors.

 

(f)             Until the earlier of the day on which the distribution of the Securities is completed or the business day following the Closing Date, neither the Issuer nor the Company will, without the consent of the Representatives, offer or sell, or announce the offering of, any United States dollar denominated debt securities covered by the Registration Statement or any other registration statement filed under the Act.

 

(g)            To prepare a final term sheet, containing solely a description of the Securities, in a form approved by you and to file such term sheet pursuant to Rule 433(d) within the time required by such Rule.

 

 

(h)            If there occurs an event or development as a result of which the Disclosure Package would include an untrue statement of a material fact or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Issuer or the Company will notify promptly the Representatives so that any use of the Disclosure Package may cease until it is amended or supplemented.

  

(i)            Each of the Issuer and the Company agrees that, unless it obtains the prior written consent of the Representatives, it has not made and will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in Rule 405) required to be filed by the Issuer or the Company with the Commission or retained by the Issuer or the Company under Rule 433, other than the final term sheet prepared and filed pursuant to Section 4(A)(g) hereto; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule III hereto. Any such free writing prospectus consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the Issuer and the Company agrees that (x) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the Commission, legending and record keeping.

 

(j)            The Issuer (and the Company, if applicable) agrees to, in cooperation with the Representatives, complete and sign the return on debt securities form and send the same to the Underwriters in order that the duly completed return on debt securities form may be submitted to the Monetary Authority of Singapore within one month from the date of issuance of the Securities.

 

(B)            The several Underwriters agree with the Issuer and the Company that:

 

(a)            The Representatives will pay the expenses of printing and distributing all documents relating to the offering.

 

(b)            The Representatives will pay the reasonable fees and disbursements of outside counsel for the Issuer and the Company and the Underwriters relating to the offering.

 

(c)            The Representatives will pay any fees of Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Financial Services LLC, a part of McGraw-Hill Financial (“S&P”) relating to the rating of the Securities.

 

(d)            The Representatives will pay the fees and disbursements of PricewaterhouseCoopers LLP relating to the preparation of the letter required by Section 5(e) of this Agreement.

 

(e)            The Representatives will pay the reasonable fees and expenses of The Bank of New York, as Trustee.

 

(f)            The Representatives will pay any and all fees associated with listing the Securities on any United States or foreign securities exchange.

 

 

(g)            The Representatives will pay any and all travel expenses incurred by the Issuer and the Company in connection with the offering of the Securities.

 

(h)            The Representatives will pay any and all other miscellaneous expenses and/or taxes associated with the offering.

 

(i)             Each Underwriter agrees to furnish the Issuer and the Company with a copy of each proposed Free Writing Prospectus to be prepared by or on behalf of such Underwriter before its first use and not to use any Free Writing Prospectus, to which the Issuer or the Company reasonably objects, provided, however, that without consent of the Issuer and the Company each Underwriter may use the final term sheet prepared and filed pursuant to Section 4(A)(g) hereto and one or more preliminary term sheets relating to the Securities containing customary information.

 

5.              Conditions to the Obligations of the Underwriters.  The obligations of the Underwriters to purchase the Underwriters’ Securities shall be subject to the accuracy of the representations and warranties on the part of the Issuer and the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the statements of the Issuer and the Company made in any certificates pursuant to the provisions hereof, to the performance by each of the Issuer and the Company of its obligations hereunder and to the following additional conditions:

 

(a)            The Final Prospectus, and any supplement thereto, have been filed in the manner and within the time period required by Rule 424(b); the final term sheet contemplated by Section 4(A)(g) hereto, and any other material required to be filed by the Issuer or the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any notice that would prevent its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.

 

(b)            The Issuer shall have furnished to the Representatives the opinion of the General Counsel, an Assistant General Counsel, an Associate General Counsel or other senior counsel of the Company, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.

 

(c)            The Representatives shall have received from Davis Polk & Wardwell LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus, Disclosure Package and other related matters as the Representatives may reasonably require, and the Issuer and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.

 

(d)            The Company shall have furnished to the Representatives:

 

(i)            A certificate of the Issuer, signed by a director or officer of the Issuer, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the

   

 

Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto and this Agreement and that:

 

(1)            the representations and warranties of the Issuer in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Issuer has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and

 

(2)            no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Issuer’s knowledge, threatened.

 

(ii)            A certificate of the Company, signed by the principal financial or accounting officer (or Vice President and Treasurer) of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any supplements or amendments thereto and this Agreement and that:

 

(1)            the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;

 

(2)            no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and

 

(3)            since the date of the most recent financial statements included in the Disclosure Package or the Final Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Final Prospectus.

 

(e)            At the Closing Date, PricewaterhouseCoopers LLP shall have furnished to the Representatives a letter or letters with respect to the consolidated financial statements and certain financial information of the Company (which may refer to a letter previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:

  

 

(i)            in their opinion the audited financial statements and schedules thereto included or incorporated in the Registration Statement, the Disclosure Package and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations thereunder with respect to financial statements and financial statement schedules included or incorporated in annual reports on Form 10-K under the Exchange Act;

  

(ii)            on the basis of a reading of the unaudited financial statements included or incorporated in the Registration Statement, the Disclosure Package and the Final Prospectus and of the latest unaudited financial statements made available by the Company and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and executive committees of the Company and the subsidiaries since the date of the latest audited balance sheet, through a specified date not more than five business days prior to the date of the letter; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Final Prospectus, nothing came to their attention which caused them to believe that:

 

(1)            any unaudited financial statements included or incorporated in the Registration Statement, the Disclosure Package and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not stated on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus;

 

(2)            with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement, the Disclosure Package and the Final Prospectus, there were, at a specified date not more than five business days prior to the date of the letter, any increases in long-term debt of the Company and its subsidiaries or decreases in the capital stock of the Company or decreases in the stockholders’ equity of the Company and its subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement, the Disclosure Package and the Final Prospectus, except in all instances for increases or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and

 

(iii)            they have performed certain other procedures as a result of which they determined that the information described in a schedule to be delivered on behalf of the Underwriters of an accounting, financial or statistical nature (which is limited to

 

  

accounting, financial or statistical information derived from the general ledger of the Company) set forth in the Registration Statement, as amended, the Disclosure Package, the Final Prospectus, as amended or supplemented, and in Exhibit 12 to the Registration Statement (including selected accounting, financial or statistical information included or incorporated in the Company’s Annual Report on Form 10-K incorporated in the Final Prospectus or any of the Company’s Quarterly Reports on Form 10-Q incorporated therein), agrees with the general ledger of the Company and its subsidiaries, excluding any questions of legal interpretation.

 

References to the Final Prospectus in this paragraph (e) include any supplements thereto at the date of the letter.

 

(f)             Subsequent to the respective dates of which information is given in the Registration Statement and the Final Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Securities as contemplated by the Registration Statement, the Disclosure Package and the Final Prospectus.

 

(g)            Prior to the Closing Date, the Issuer and the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.

 

(h)            The Issuer shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Issuer.

 

(i)             Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Securities by Moody’s or S&P and neither Moody’s nor S&P shall have publicly announced that it has placed any of the Securities on a credit watch with negative implications.

 

If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancelation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.

 

6.              Reimbursement of Underwriters’ Expenses. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied or because of any refusal, inability or failure on the part of the Issuer or the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Issuer or the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees

 

 

and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.

 

7.              Indemnification and Contribution. (a)  Each of the Issuer and the Company, jointly and severally, agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus, or in any amendment thereof 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 agrees to reimburse each such indemnified party for any legal or other expenses reasonably incurred, as incurred, by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that neither the Issuer nor the Company will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Issuer or the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof. This indemnity agreement will be in addition to any liability which the Issuer or the Company may otherwise have.

 

(b)            Each Underwriter severally agrees to indemnify and hold harmless the Issuer, the Company, each of their directors, each of their officers who signs the Registration Statement, and each person who controls the Issuer or the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Issuer and the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Issuer or the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Issuer and the Company each acknowledges that the statements set forth in the last paragraph of the cover page of the Final Prospectus and under the heading “Underwriting” or “Plan of Distribution” and, if Schedule I hereto provides for sales of Securities pursuant to delayed delivery arrangements, in the last sentence under the heading “Delayed Delivery Arrangements” in any Preliminary Final Prospectus and the Final Prospectus, constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Basic Prospectus, any Preliminary Final Prospectus, the Final Prospectus or any Issuer Free Writing Prospectus, and you, as the Representatives, confirm that such statements are correct.

 

(c)            Promptly after receipt by an indemnified party under this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this

 

 

Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to appoint counsel satisfactory to such indemnified party to represent the indemnified party in such action; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to appoint counsel to defend such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to any local counsel), approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii).

  

(d)            In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) of this Section 7 is due in accordance with its terms but is for any reason held by a court to be unavailable from the Issuer and the Company on grounds of policy or otherwise, the Issuer and the Company and the Underwriters shall contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) to which the Issuer, the Company and one or more of the Underwriters may be subject in such proportion so that the Underwriters are responsible for that portion represented by the percentage that the underwriting discount bears to the sum of such discount and the purchase price of the Securities set forth on Schedule I hereto and the Issuer and the Company are responsible for the balance; provided, however, that (y) in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount applicable to the Securities purchased by such Underwriter hereunder and (z) no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as such Underwriter, and each person who controls the Issuer or the Company within the meaning of either the Act or the Exchange Act, each officer of the Issuer or the Company who shall have signed the Registration Statement and each director of the Issuer or the Company shall have the same rights to contribution as the Issuer or the Company, subject in each case to clauses (y) and (z) of this paragraph (d). Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect

 

 

of which a claim for contribution may be made against another party or parties under this paragraph (d), notify such party or parties from whom contribution may be sought, but the omission to so notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this paragraph (d).

 

8.              Default by an Underwriter. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter, the Issuer or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement, the Disclosure Package and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company, the Issuer and any nondefaulting Underwriter for damages occasioned by its default hereunder.

 

9.              Recognition of the U.S. Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.

 

(b)            In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.

 

(c)            For purposes of this Section 9:

 

“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).

 

“Covered Entity” means any of the following:

 

 

(i)            a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);

  

(ii)           a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or

 

(iii)          a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

 

“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.

 

10.            Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Issuer and the Company prior to delivery of and payment for the Securities, if prior to such time (i) trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representatives, impracticable to market the Securities.

 

11.            Representations and Indemnities to Survive. The respective agreements, representations, warranties, indemnities and other statements of each of the Issuer and the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, the Issuer or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6 and 7 hereof shall survive the termination or cancelation of this Agreement.

 

12.            Notices. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telegraphed and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Issuer or the Company, will be mailed, delivered or telegraphed and confirmed to it, at Armonk, New York 10504; attention of the Treasurer.

 

13.            Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder.

 

14.            Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York.

 

  

15.            Arms-Length Transaction. Each of the Issuer and the Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Issuer and the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Issuer or the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Issuer or the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Issuer or the Company on other matters) or any other obligation to the Issuer or the Company except the obligations expressly set forth in this Agreement and (iv) each of the Issuer and the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. Each of the Issuer and the Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Issuer or the Company, in connection with such transaction or the process leading thereto.

  

16.            “Prescribed Capital Markets Products”. Pursuant to Section 309B(1)(c) of the Securities and Futures Act 2001 of Singapore, the Issuer hereby notifies the Underwriters that the Securities are “prescribed capital markets products” (as defined in the Securities and Futures (Capital Markets Products) Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).

 

17.            Submission to Jurisdiction. Each party hereto hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Agreement, the Basic Prospectus, the Final Prospectus or the offering of the Securities, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts. To the extent that Issuer has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Issuer irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.

 

18.            Appointment of Agent. The Issuer has appointed the Company as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Agreement, the Basic Prospectus, the Final Prospectus or the offering of the Securities which may be instituted in any New York court, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable prior to a substitution of the Issuer by the Company in accordance with Section 9.03 of the Indenture. The Issuer represents that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Issuer and the Company shall be deemed, in every respect, effective service of process upon the Issuer and the Company.

 

  

19.            Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the U.S. business day preceding that on which final judgment is given. The obligation of either the Issuer or the Company with respect to any sum due from it to any Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first U.S. business day following receipt by such Underwriter or controlling person of such Underwriter of any sum in such other currency, and only to the extent that such Underwriter or controlling person of such Underwriter may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person of such Underwriter hereunder, then each of the Issuer and the Company agrees to pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person of such Underwriter hereunder, such Underwriter or controlling person of such Underwriter agrees to pay to the Issuer or the Company an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person of such Underwriter hereunder. Any amounts payable by the Issuer, the Guarantor or any Underwriter under this Section shall be paid to the applicable Underwriter(s), the Issuer or the Company (as applicable) as promptly as reasonably practicable.

  

[signatures follow]

 

  

If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Issuer, the Company and the several Underwriters.

 

	Very truly yours,
	IBM INTERNATIONAL CAPITAL PTE. LTD.
	By:	/s/ Mark William Hobbert
	Name:	Mark William Hobbert
	Title:	Chief Executive Officer,
		Chief Financial Officer,
		Chief Accounting Officer,
		President, Treasurer, Controller and Director
	INTERNATIONAL BUSINESS MACHINES
	CORPORATION
	By:	/s/ Mark William Hobbert
	Name:	Mark William Hobbert
	Title:	Vice President and Assistant Treasurer

  

[Signature Page to the Underwriting Agreement (USD)]

 

 

The foregoing Agreement is hereby

confirmed and accepted on the

date specified in Schedule I hereto.

 

For themselves and the other several

Underwriters, if any, named in

Schedule II to the foregoing Agreement.

 

Merrill Lynch (Singapore) Pte. Ltd.

Citigroup Global Markets Singapore Pte. Ltd. 

Goldman Sachs (Singapore) Pte.

J.P. Morgan Securities Asia Private Limited 

The Hongkong and Shanghai Banking Corporation Limited,
Singapore Branch

 

[Signature Page to the Underwriting Agreement]

 

 

By: Merrill Lynch (Singapore) Pte. Ltd.

 

By:	/s/ Clemente Antonio C Puno IV
	Name: Clemente Antonio C Puno IV
	Title:   Managing Director

 

[Signature Page to the Underwriting Agreement]

 

 

 

By: Citigroup Global Markets Singapore Pte. Ltd.

 

By:	/s/ Jonathan Quek
	Name: Jonathan Quek
	Title:   Managing Director

 

[Signature Page to the Underwriting Agreement]

 

 

By: Goldman Sachs (Singapore) Pte.

 

By:	/s/ Andy Tai
	Name: Andy Tai
	Title:   Managing Director

 

[Signature Page to the Underwriting Agreement]

 

 

By: J.P. Morgan Securities Asia Private Limited

 

By:	/s/ Reuben Ong
	Name: Reuben Ong
	Title:   Executive Director

 

[Signature Page to the Underwriting Agreement]

 

 

By: The Hongkong and Shanghai Banking Corporation Limited, Singapore Branch

 

By:	/s/ Goh Chong Han
	Name: Goh Chong Han
	Title:   Director - DCM

 

[Signature Page to the Underwriting Agreement]

 

 

SCHEDULE I

 

Underwriting Agreement dated January 29, 2024

 

Registration No. 333-276739 and 333-276739-01

 

Representatives:

 

Merrill Lynch (Singapore) Pte. Ltd. 

50 Collyer Quay

#14-01 OUE Bayfront 

Singapore 049321

Attn: DCM 

Tel: +65 6678 0000

 

Citigroup Global Markets Singapore Pte. Ltd.

8 Marina View 

#21-00 Asia Square Tower 1

Singapore 018960 

Attn: Capital Markets Origination

Tel: +65 6657 1965

 

Goldman Sachs (Singapore) Pte. 

1 Raffles Link

#07-01 South Lobby 

Singapore 039393

Attn: Global Banking & Markets 

Tel: +65 6889 1954

 

J.P. Morgan Securities Asia Private Limited

88 Market Street 

26th Floor, CapitaSpring

Singapore 048948 

Attn: Reuben Ong

Tel: +65 6882 1802

 

The Hongkong and Shanghai Banking Corporation Limited, Singapore Branch 

10 Marina Boulevard

#47-01 Marina Bay Financial Centre Tower 2 

Singapore 018983

Attn: Debt Capital Markets/Legal c/o HSBC Mailroom 

Email: hsbcdcmsg@hsbc.com.sg

 

 

Title, Purchase Price and Description of Securities:

 

Title:

4.700% Notes due 2026 (the “2026 Notes”)

4.600% Notes due 2027 (the “2027 Notes”) 

4.600% Notes due 2029 (the “2029 Notes”)

4.750% Notes due 2031 (the “2031 Notes”) 

4.900% Notes due 2034 (the “2034 Notes”)

5.250% Notes due 2044 (the “2044 Notes”) 

5.300% Notes due 2054 (the “2054 Notes”)

 

Principal amount:

2026 Notes: $600,000,000

2027 Notes: $500,000,000 

2029 Notes: $500,000,000

2031 Notes: $500,000,000 

2034 Notes: $1,000,000,000

2044 Notes: $1,000,000,000 

2054 Notes: $1,400,000,000

 

Purchase price:

2026 Notes: 99.776% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2027 Notes: 99.692% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2029 Notes: 99.604% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2031 Notes: 99.470% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2034 Notes: 99.300% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2044 Notes: 98.996% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2054 Notes: 98.635% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

Offering price:

2026 Notes : 99.876% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2027 Notes: 99.842% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

 

2029 Notes: 99.854% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2031 Notes: 99.770% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2034 Notes: 99.750% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2044 Notes: 99.596% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

2054 Notes: 99.435% of the principal amount of the Securities plus accrued interest from and including February 5, 2024

 

Interest:

2026 Notes Payable on February 5 and August 5 of each year, commencing on August 5, 2024

 

2027 Notes Payable on February 5 and August 5 of each year, commencing on August 5, 2024

 

2029 Notes Payable on February 5 and August 5 of each year, commencing on August 5, 2024

 

2031 Notes Payable on February 5 and August 5 of each year, commencing on August 5, 2024

 

2034 Notes Payable on February 5 and August 5 of each year, commencing on August 5, 2024

 

2044 Notes Payable on February 5 and August 5 of each year, commencing on August 5, 2024

 

2054 Notes Payable on February 5 and August 5 of each year, commencing on August 5, 2024

 

Sinking fund provisions: None.

 

Redemption provisions: The Securities are redeemable at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part, each as set forth in the prospectus supplement dated the date of this Agreement.

 

Closing Date, Time and Location: February 5, 2024, 10:00 A.M. (New York City time), at the offices of Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, New York.

 

Delayed Delivery Arrangements: None.

 

 

Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): The unaudited capsule information in the Disclosure Package and the Final Prospectus.

 

Other Terms:

 

1.            Section 4(B)(a) – (h) are deleted.

 

2.            Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company.

 

The Underwriters also agree to abide by the following offering restrictions:

 

Prohibition of Sales to European Economic Area (“EEA”) Retail Investors

 

Each Underwriter represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the EEA. For the purposes of this provision:

 

(a)          the expression “retail investor” means a person who is one (or more) of the following:

 

(i)            a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or

 

(ii)           a customer within the meaning of Directive (EU) 2016/97 (as amended, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or

 

(iii)          not a qualified investor as defined in Regulation (EU) 2017/1129, as amended; and

 

(b)          the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities.

 

Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended, the “PRIIPs Regulation”) for offering or selling the Securities or otherwise making them available to retail investors in the EEA has been prepared and therefore offering or selling the Securities or otherwise making them available to any retail investor in the EEA may be unlawful under the PRIIPs Regulation.

 

Prohibition of Sales to United Kingdom (“U.K.”) Retail Investors

 

 

Each Underwriter represents and agrees that it has not offered, sold or otherwise made available and will not offer, sell or otherwise make available any Securities to any retail investor in the U.K. For the purposes of this provision:

 

(a)           the expression “retail investor” means a person who is one (or more) of the following:

 

(i)            a retail client as defined in point (8) of Article 2 of Regulation (EU) No. 2017/565 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 (“EUWA”); or

 

(ii)           a customer within the meaning of the provisions of the Financial Services and Markets Act 2000 (as amended, “FSMA”), and any rules or regulations made under the FSMA to implement the Insurance Distribution Directive, where that customer would not qualify as a professional client as defined in point (8) of Article 2(1) of Regulation (EU) No. 600/2014 as it forms part of domestic law by virtue of the EUWA; or

 

(iii)          not a qualified investor as defined in Article 2 of Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the EUWA; and

 

(b)          the expression “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe the Securities.

 

Consequently no key information document required by Regulation (EU) No 1286/2014 as it forms part of domestic law by virtue of the EUWA (the “U.K. PRIIPs Regulation”) for offering or selling the Securities or otherwise making them available to retail investors in the U.K. has been prepared and therefore offering or selling the Securities or otherwise making them available to any retail investor in the U.K. may be unlawful under the U.K. PRIIPs Regulation.

 

Each Underwriter represents and agrees that it and each of its affiliates:

 

(a)          has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and

 

(b)          has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the U.K.

 

Singapore

 

Each Underwriter acknowledges that no document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Securities has been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, each Underwriter represents,

 

 

warrants and agrees, and each further Underwriter will be required to represent, warrant and agree, that it has not offered or sold any Securities or caused the Securities to be made the subject of an invitation for subscription or purchase and will not offer or sell any Securities or cause the Securities to be made the subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it circulate or distribute, any document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Securities, whether directly or indirectly, to any person in Singapore other than (i) to an institutional investor (as defined in Section 4A of the Securities and Futures Act 2001 of Singapore, as modified or amended from time to time (the “SFA”) pursuant to Section 274 of the SFA, or (ii) to an accredited investor (as defined in Section 4A of the SFA) pursuant to and in accordance with the conditions specified in Section 275 of the SFA and, (where applicable) Regulation 3 of the Securities and Futures (Classes of Investors) Regulations 2018.

 

Any reference to the SFA is a reference to the Securities and Futures Act 2001 of Singapore and a reference to any term as defined in the SFA or any provision in the SFA is a reference to that term as modified or amended from time to time including by such of its subsidiary legislation as may be applicable at the relevant time.

 

Japan

 

Each Underwriter acknowledges that the Notes have not been and will not be registered under the Financial Instruments and Exchange Law of Japan (the Financial Instruments and Exchange Law), and each Underwriter has agreed that it will not offer or sell any Notes, directly or indirectly, in Japan or to, or for the benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to others for re-offering or resale, directly or indirectly, in Japan or to a resident of Japan, except pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the Financial Instruments and Exchange Law and any other applicable laws, regulations and ministerial guidelines of Japan.

 

Hong Kong

 

Each Underwriter acknowledges that the Notes have not been and may not be offered or sold in Hong Kong by means of any document other than (i) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571, Laws of Hong Kong) (“SFO”) and any rules made thereunder, or (ii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32, Laws of Hong Kong) or which do not constitute an offer to the public within the meaning of that Ordinance, and no advertisement, invitation or document relating to the Notes has been or may be issued or has been or may be in the possession of any person for the purpose of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to the Notes which are or

 

 

are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made thereunder.

 

Switzerland

 

Each Underwriter acknowledges that the Notes may not be publicly offered, directly or indirectly, in Switzerland within the meaning of the Swiss Financial Services Act (“FinSA”) and no application has or will be made to admit the Notes to trading on any trading venue (exchange or multilateral trading facility) in Switzerland. Neither this document nor any other offering or marketing material relating to the Notes constitutes a prospectus pursuant to the FinSA, and neither this document nor any other offering or marketing material relating to the Notes may be publicly distributed or otherwise made publicly available in Switzerland.

 

3.           The last sentence of Section 7(b) shall be deleted and replaced by the following text:

 

The Issuer and the Company each acknowledges that the statements set forth in the last paragraph of the cover page of the Preliminary Final Prospectus and the Final Prospectus, the sentence “The underwriters have informed IIC that they intend to make a market in the Notes but are under no obligation to do so and such market making may be terminated at any time without notice.” and the statements contained in the fourth paragraph, seventh through ninth paragraphs and the first, fourth, fifth, sixth and seventh sentences of the tenth paragraph under the caption “Underwriting” in the Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Basic Prospectus, any Preliminary Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or the Final Prospectus, and you, as the Representatives, confirm that such statements are correct.

 

4.           The following shall be additional conditions added to Section 5:

 

The Issuer shall have furnished to the Representatives the opinion of Cravath, Swaine & Moore LLP, counsel to the Issuer and the Company, dated the Closing Date to the effect that the statements under the caption “United States Taxation” in the Disclosure Package and the Final Prospectus constitute a fair presentation of the material U.S. federal income tax consequences to holders of Securities.

 

The Issuer shall have furnished to the Representatives the opinion of Drew & Napier LLC, Singapore counsel to the Issuer and the Company, such opinion or opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.

 

 

5.           For purposes of Section 8, the 2026 Notes, the 2027 Notes, the 2029 Notes, the 2031 Notes, the 2034 Notes, the 2044 Notes and the 2054 Notes shall be treated as seven separate series of Securities, and Section 8 shall apply to each series as if this Underwriting Agreement applied solely to such series.

 

6.           The following shall be a new Section 20:

 

20.          Electronic Signatures. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

7.           The following shall be a new Section 21:

 

21.          Recognition of Hong Kong Stay Powers. Notwithstanding and to the exclusion of any other term or condition of this Agreement or any other agreement, arrangement or understanding, each party to this Agreement acknowledges, accepts and agrees to be bound by any suspension of a termination right (as defined in the FIRO Rules) in relation to the Covered Entity relating to this Agreement imposed by the Resolution Authority in accordance with section 90(2) of the FIRO or any other laws, regulations, rules or requirements relating thereto.

 

For the purposes of this Section 21:

 

“Covered Entity” means any party to this Agreement that is or becomes a “covered entity” within the meaning of the FIRO Rules.

 

“FIRO” means the Financial Institutions (Resolution) Ordinance (Cap. 628) of Hong Kong.

 

“FIRO Rules” means the Financial Institutions (Resolution) (Contractual Recognition of Suspension of Termination Rights – Banking Sector) Rules (Cap. 628C) of Hong Kong.

 

“Resolution Authority” means the resolution authority in relation to a banking sector entity from time to time, which is currently the Hong Kong Monetary Authority.

 

 

SCHEDULE II

 

IBM International Capital Pte. Ltd.

 

$5,500,000,000

 

fully and unconditionally guaranteed by

 

International Business Machines Corporation

 

$600,000,000 4.700% Notes due 2026

$500,000,000 4.600% Notes due 2027 

$500,000,000 4.600% Notes due 2029

$500,000,000 4.750% Notes due 2031 

$1,000,000,000 4.900% Notes due 2034

$1,000,000,000 5.250% Notes due 2044 

$1,400,000,000 5.300% Notes due 2054

 

Underwriters		Principal Amount of 2026 Notes to be Purchased			Principal Amount of 2027 Notes to be Purchased			Principal Amount of 2029 Notes to be Purchased			Principal Amount of 2031 Notes to be Purchased			Principal Amount of 2034 Notes to be Purchased			Principal Amount of 2044 Notes to be Purchased			Principal Amount of 2054 Notes to be Purchased
Merrill Lynch (Singapore) Pte. Ltd.		$	72,000,000		$	60,000,000		$	60,000,000		$	60,000,000		$	120,000,000		$	120,000,000		$	168,000,000
Citigroup Global Markets Singapore Pte. Ltd.		$	72,000,000		$	60,000,000		$	60,000,000		$	60,000,000		$	120,000,000		$	120,000,000		$	168,000,000
Goldman Sachs (Singapore) Pte.		$	72,000,000		$	60,000,000		$	60,000,000		$	60,000,000		$	120,000,000		$	120,000,000		$	168,000,000
The Hongkong and Shanghai Banking Corporation Limited, Singapore Branch		$	72,000,000		$	60,000,000		$	60,000,000		$	60,000,000		$	120,000,000		$	120,000,000		$	168,000,000
J.P. Morgan Securities Asia Private Limited		$	72,000,000		$	60,000,000		$	60,000,000		$	60,000,000		$	120,000,000		$	120,000,000		$	168,000,000
BNP Paribas Securities Corp.		$	37,500,000		$	31,250,000		$	31,250,000		$	31,250,000		$	62,500,000		$	62,500,000		$	87,500,000
Deutsche Bank Securities Inc.		$	37,500,000		$	31,250,000		$	31,250,000		$	31,250,000		$	62,500,000		$	62,500,000		$	87,500,000
RBC Capital Markets, LLC		$	37,500,000		$	31,250,000		$	31,250,000		$	31,250,000		$	62,500,000		$	62,500,000		$	87,500,000
Wells Fargo Securities, LLC		$	37,500,000		$	31,250,000		$	31,250,000		$	31,250,000		$	62,500,000		$	62,500,000		$	87,500,000
Mizuho Securities USA LLC		$	19,000,000		$	15,833,000		$	15,833,000		$	15,834,000		$	31,666,000		$	31,667,000		$	44,333,000
MUFG Securities Americas Inc.		$	19,000,000		$	15,834,000		$	15,833,000		$	15,833,000		$	31,667,000		$	31,667,000		$	44,333,000
Santander US Capital Markets LLC		$	19,000,000		$	15,833,000		$	15,834,000		$	15,833,000		$	31,667,000		$	31,666,000		$	44,334,000
Scotia Capital (USA) Inc.		$	10,000,000		$	8,334,000		$	8,333,000		$	8,333,000		$	16,667,000		$	16,666,000		$	23,333,000
SMBC Nikko Securities America, Inc.		$	10,000,000		$	8,333,000		$	8,334,000		$	8,333,000		$	16,667,000		$	16,667,000		$	23,333,000
Truist Securities Inc.		$	10,000,000		$	8,333,000		$	8,333,000		$	8,334,000		$	16,666,000		$	16,667,000		$	23,334,000
Blaylock Van, LLC		$	1,000,000		$	834,000		$	833,000		$	833,000		$	1,667,000		$	1,666,000		$	2,334,000
C.L. King & Associates, Inc.		$	1,000,000		$	833,000		$	834,000		$	833,000		$	1,667,000		$	1,667,000		$	2,333,000
Drexel Hamilton, LLC		$	1,000,000		$	833,000		$	833,000		$	834,000		$	1,666,000		$	1,667,000		$	2,333,000
Total		$	600,000,000		$	500,000,000		$	500,000,000		$	500,000,000		$	1,000,000,000		$	1,000,000,000		$	1,400,000,000

 

 

SCHEDULE III

 

Schedule of Free Writing Prospectuses included in the Disclosure Package

 

Pricing Term Sheet dated January 29, 2024, as filed pursuant to Rule 433.

 

 

SCHEDULE IV

 

Delayed Delivery Contract

 

[Insert names and addresses of lead Representatives]

 

, 20

 

Dear Sir/Madam:

 

The undersigned hereby agrees to purchase from IBM International Capital Pte. Ltd. (the “Issuer”), and the Issuer agrees to sell to the undersigned, on           , 20_, (the “Delivery Date”),          $ principal amount of the Issuer’s              , which are fully and unconditionally guaranteed by International Business Machines Corporation (the “Securities”), offered by the Issuer’s Final Prospectus dated         , 20_, receipt of a copy of which is hereby acknowledged, at a purchase price of      % of the principal amount thereof, plus accrued       , if any, thereon from        , 20_, to the date of payment and delivery, and on the further terms and conditions set forth in this contract.

 

Payment for the Securities to be purchased by the undersigned shall be made on or before 11:00 A.M. (New York City time) on the Delivery Date to or upon the order of the Issuer in New York Clearing House (next day) funds, at your office or at such other place as shall be agreed between the Issuer and the undersigned upon delivery to the undersigned of the Securities in definitive, fully registered form and in such authorized denominations and registered in such names as the undersigned may request by written or telegraphic communication addressed to the Issuer not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on the Delivery Date.

 

The obligation of the undersigned to take delivery of and make payment for Securities on the Delivery Date, and the obligation of the Issuer to sell and deliver Securities on the Delivery Date, shall be subject to the conditions (and neither party shall incur any liability by reason of the failure thereof) that (1) the purchase of Securities to be made by the undersigned, which purchase the undersigned represents is not prohibited on the date hereof, shall not on the Delivery Date be prohibited under the laws of the jurisdiction to which the undersigned is subject, and (2) the Issuer, on or before the Delivery Date, shall have sold to certain underwriters (the “Underwriters”) such principal amount of the Securities as is to be sold to them pursuant to the Underwriting Agreement referred to in the Final Prospectus mentioned above. Promptly after completion of such sale to the Underwriters, the Issuer will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Issuer delivered to the Underwriters in connection therewith. The obligation of the undersigned to take delivery of and make payment for the Securities, and the obligation of the Issuer to cause the Securities to be sold and delivered, shall not be affected by the failure of any purchaser to take delivery of and make payment for the Securities pursuant to other contracts similar to this contract.

 

This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.

 

 

It is understood that acceptance of this contract and other similar contracts is in the Issuer’s sole discretion and, without limiting the foregoing, need not be on a first come, first served basis. If this contract is acceptable to the Issuer, it is required that the Issuer sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract between the Issuer and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered.

 

This agreement shall be governed by and construed in accordance with the laws of the State of New York.

 

Very truly yours,

 

(Name of Purchaser)

 

	By
		(Signature and Title)
		(Address)

 

Accepted:

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

By

 

 

 

Exhibit 4.1

 

[EXECUTION VERSION]

 

 

IBM INTERNATIONAL CAPITAL PTE. LTD.,

 

INTERNATIONAL BUSINESS MACHINES CORPORATION,

 

as Guarantor

 

and

 

THE BANK OF NEW YORK MELLON,

 

as Trustee

 

 

INDENTURE

 

Dated as of February 2, 2024

 

 

Providing for the Issuance of
Debt Securities in Series

 

 

 

Reconciliation and Tie between Trust Indenture Act of 1939
and Indenture Provisions*

 

Trust Indenture Act Section			Indenture Section
Section 310	(a)(1)		7.09
	(a)(2)		7.09
	(a)(3)		Not Applicable
	(a)(4)		Not Applicable
	(a)(5)		7.09
	(b)		7.08
			7.10
Section 311	(a)		Not Applicable
	(b)		Not Applicable
	(b)(2)		Not Applicable
Section 312	(a)		8.01
			8.02(a)
	(b)		8.02(b)
	(c)		8.02(c)
Section 313	(a)		8.03(a)
	(b)		Not Applicable
	(c)		8.03(c)
	(d)		8.03(b)
Section 314	(a)		8.04
	(b)		Not Applicable
	(c)(1)		1.02
	(c)(2)		1.02
	(c)(3)		Not Applicable
	(d)		Not Applicable
	(e)		1.02
Section 315	(a)		7.01(a)
	(b)		7.02
	(c)		7.01(b)
	(d)		7.01(c)
	(d)(1)		7.01(a)
	(d)(2)		7.01(c)(ii)
	(d)(3)		7.01(c)(iii)
	(e)		6.14
Section 316	(a) (last sentence)		1.01
	(a)(1)(A)		6.02
			6.12
	(a)(1)(B)		6.13
	(a)(2)		Not Applicable
	(b)		6.08
	(c)		1.04(h)
Section 317	(a)(1)		6.03
	(a)(2)		6.04

 

 

	(b)		11.03
Section 318	(a)		1.07

 

* This reconciliation and tie shall not for any purpose, be deemed to be a part of the Indenture.

 

 

TABLE OF CONTENTS

  

		Page
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01.	Definitions	1
SECTION 1.02.	Compliance Certificates and Opinions	13
SECTION 1.03.	Form of Documents Delivered to Trustee	14
SECTION 1.04.	Acts of Holders	15
SECTION 1.05.	Notices, Etc., to Trustee, Company and Guarantor	16
SECTION 1.06.	Notice to Holders; Waiver	17
SECTION 1.07.	Conflict with Trust Indenture Act	18
SECTION 1.08.	Effect of Headings and Table of Contents	18
SECTION 1.09.	Successors and Assigns	18
SECTION 1.10.	Separability Clause	18
SECTION 1.11.	Benefits Of Indenture	18
SECTION 1.12.	Governing Law	18
SECTION 1.13.	Legal Holidays	19
SECTION 1.14.	Moneys of Different Currencies to be Segregated	19
SECTION 1.15.	Payment to be in Proper Currency	19
SECTION 1.16.	Language of Notices, etc	19
SECTION 1.17.	Changes in Exhibits	19
SECTION 1.18.	Counterparts	20
SECTION 1.19.	Submission to Jurisdiction	20

 

ARTICLE II
Issuance of Securities
SECTION 2.01.	Creation of Securities in Amount Unlimited	20
SECTION 2.02.	Documents Required for Issuance of Each Series of Securities Other Than Medium-Term Debt Securities	21
ARTICLE III
Issuance of Medium-Term Debt Securities
SECTION 3.01.	Documents Required for Issuance of Each Series of Medium-Term Debt Securities	24
SECTION 3.02.	Form of Medium-Term Debt Securities	28
SECTION 3.03.	Initial Issuance of Medium-Term Debt Securities	29

 

 

		Page
ARTICLE IV
The Securities
SECTION 4.01.	Form and Denomination	29
SECTION 4.02.	Execution, Delivery, Dating and Authentication	29
SECTION 4.03.	Temporary Securities	31
SECTION 4.04.	Registration, Registration of Transfer and Exchange	33
SECTION 4.05.	Mutilated, Destroyed, Lost and Stolen Securities	36
SECTION 4.06.	Payment of Interest; Interest Rights Preserved	37
SECTION 4.07.	Persons Deemed Owners	38
SECTION 4.08.	Cancellation	39
SECTION 4.09.	Computation of Interest	40
SECTION 4.10.	Currency and Manner of Payment in Respect of Securities	40
SECTION 4.11.	Securities in Global Form	44
ARTICLE V
Satisfaction and Discharge
SECTION 5.01.	Satisfaction and Discharge of Indenture in Respect of any Series of Securities	45
SECTION 5.02.	Application of Trust Money	46
SECTION 5.03.	Satisfaction, Discharge and Defeasance of Securities of any Series	47
SECTION 5.04.	Reinstatement	48
SECTION 5.05.	Definitions	49
ARTICLE VI
Remedies
SECTION 6.01.	Events of Default	50
SECTION 6.02.	Acceleration of Maturity; Rescission and Annulment	51
SECTION 6.03.	Collection of Indebtedness and Suits for Enforcement by Trustee	52
SECTION 6.04.	Trustee May File Proofs of Claim	53
SECTION 6.05.	Trustee May Enforce Claims Without Possession of Securities	53
SECTION 6.06.	Application of Money Collected	54
SECTION 6.07.	Limitation on Suits	54
SECTION 6.08.	Unconditional Right of Holders to Receive Principal, Premium and Interest	55
SECTION 6.09.	Restoration of Rights and Remedies	55
SECTION 6.10.	Rights and Remedies Cumulative	55
SECTION 6.11.	Delay or Omission Not Waiver	55
SECTION 6.12.	Control by Holders	55
SECTION 6.13.	Waiver of Past Defaults	56
SECTION 6.14.	Undertaking for Costs	56

 

 

 

 

		Page
SECTION 6.15.	Waiver of Stay or Extension Laws	56
ARTICLE VII
The Trustee
SECTION 7.01.	Certain Duties and Responsibilities	57
SECTION 7.02.	Notice of Defaults	58
SECTION 7.03.	Certain Rights of Trustee	58
SECTION 7.04.	Not Responsible for Recitals or Issuance of Securities	59
SECTION 7.05.	May Hold Securities	60
SECTION 7.06.	Money Held in Trust	60
SECTION 7.07.	Compensation and Reimbursement	60
SECTION 7.08.	Disqualification; Conflicting Interests	61
SECTION 7.09.	Corporate Trustee Required; Eligibility	61
SECTION 7.10.	Resignation and Removal; Appointment of Successor	62
SECTION 7.11.	Acceptance of Appointment by Successor	63
SECTION 7.12.	Merger, Conversion, Consolidation or Succession to Business	64
SECTION 7.13.	Judgment Currency	64
SECTION 7.14.	Appointment of Authenticating Agent	65
SECTION 7.15.	Force Majeure	67
SECTION 7.16.	Consequential Damages	67
SECTION 7.17.	Electronic Means	67
SECTION 7.18.	Tax Withholding	68
ARTICLE VIII
Holders’ Lists and Reports by Trustee and Company
SECTION 8.01.	Company to Furnish Trustee Names and Addresses of Holders	68
SECTION 8.02.	Preservation of Information; Communications to Holders	68
SECTION 8.03.	Reports by Trustee	69
SECTION 8.04.	Reports by Guarantor	70
ARTICLE IX
Consolidation, Merger, Conveyance or Transfer
SECTION 9.01.	Company and Guarantor May Consolidate, Etc., Only on Certain Terms	70
SECTION 9.02.	Successor Person Substituted	71
SECTION 9.03.	Substitution of the Company	72

 

 

		Page
ARTICLE X
Supplemental Indentures
SECTION 10.01.	Supplemental Indentures Without Consent of Holders	72
SECTION 10.02.	Supplemental Indentures with Consent of Holders	73
SECTION 10.03.	Execution of Supplemental Indentures	75
SECTION 10.04.	Effect of Supplemental Indentures	75
SECTION 10.05.	Conformity with Trust Indenture Act	75
SECTION 10.06.	Reference in Securities to Supplemental Indentures	75
ARTICLE XI
Covenants
SECTION 11.01.	Payment of Principal, Premium and Interest	75
SECTION 11.02.	Maintenance of Office or Agency	75
SECTION 11.03.	Money for Securities Payments to be Held in Trust	77
SECTION 11.04.	Statement by Officers as to Default	78
SECTION 11.05.	Additional Amounts	78
SECTION 11.06.	Limitation on Secured Indebtedness	79
SECTION 11.07.	Limitation on Sale and Leaseback Transactions	79
SECTION 11.08.	Waiver of Certain Covenants	80
ARTICLE XII
Redemption of Securities
SECTION 12.01.	Applicability of Article	80
SECTION 12.02.	Election to Redeem; Notice to Trustee	80
SECTION 12.03.	Selection by Trustee of Securities to be Redeemed	80
SECTION 12.04.	Notice of Redemption	81
SECTION 12.05.	Deposit of Redemption Price	81
SECTION 12.06.	Securities Payable on Redemption Date	82
SECTION 12.07.	Securities Redeemed in Part	82
ARTICLE XIII
Sinking Funds
SECTION 13.01.	Applicability of Article	83
SECTION 13.02.	Satisfaction of Sinking Fund Payments with Securities	83
SECTION 13.03.	Redemption of Securities for Sinking Fund	83

 

 

		Page
ARTICLE XIV
Meetings of Holders of Securities
SECTION 14.01.	Purposes for Which Meetings may be Called	84
SECTION 14.02.	Call, Notice and Place of Meetings	84
SECTION 14.03.	Persons Entitled to Vote at Meetings	84
SECTION 14.04.	Quorum; Action	84
SECTION 14.05.	Determination of Voting Rights; Conduct and Adjournment of Meetings	85
SECTION 14.06.	Counting Votes and Recording Action of Meetings	86
SECTION 14.07.	Action without Meeting	86
ARTICLE XV
Guarantee
SECTION 15.01.	Guarantee	87

 

 

EXHIBIT A	Reserved
EXHIBIT B.1	Form of Certificate to be given by Person entitled to receive Bearer Security
EXHIBIT B.2	Form of Certificate to be given by Euroclear and Clearstream in connection with the Exchange of a portion of Temporary Global Security.
EXHIBIT B.3	Form of Certificate to be given by Euroclear and Clearstream to obtain Interest prior to an Exchange Date
EXHIBIT B.4	Form of Certificate to be given by Beneficial Owners to obtain Interest prior to an Exchange Date
EXHIBIT B.5	Form of Confirmation to be sent to purchasers of Bearer Securities

 

 

 

INDENTURE, dated as of February 2, 2024, between IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (hereinafter called the “Company”), having its registered office at #10-01, Ocean Financial Centre, Singapore 049315, INTERNATIONAL BUSINESS MACHINES CORPORATION, a corporation duly organized and existing under the laws of the State of New York (hereinafter called the “Guarantor”), having its principal office at One New Orchard Road, Armonk, New York 10504, and THE BANK OF NEW YORK MELLON, as Trustee (hereinafter called the “Trustee”), having a corporate trust office at BNY Mellon Corporate Trust, US Corporate Client Service Management, 500 Ross Street, 12th Floor, Pittsburgh, PA 15262.

 

The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided, and the Guarantor has agreed to guarantee the Securities and other obligations of the Company hereunder pursuant to the terms of this Indenture.

 

All things necessary to make this Indenture a valid agreement of the Company and Guarantor, in accordance with its terms, have been done.

 

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

 

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:

 

ARTICLE I

 

Definitions and Other Provisions of General Application

 

SECTION 1.01. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

 

(a)  the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;

 

(b)  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;

 

(c)  all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, 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 in the United States of America at the date of such computation; and

 

 

(d)  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. Certain terms, used principally within an Article of this Indenture, may be defined in that Article.

 

“Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.

 

“applicants” has the meaning specified in Section 8.02(b).

 

“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.

 

“Attributable Debt” means, as of the date of its determination, the present value (discounted semiannually at the Attributable Interest Rate) of the obligation of a lessee for rental payments pursuant to any Sale and Leaseback Transaction (reduced by the amount of the rental obligations of any sublessee of all or part of the same property) during the remaining term of such Sale and Leaseback Transaction (including any period for which the lease relating thereto has been extended), such rental payments not to include amounts payable by the lessee for maintenance and repairs, insurance, taxes, assessments and similar charges and for contingent rents (such as those based on sales). In the case of any Sale and Leaseback Transaction in which the lease is terminable by the lessee upon the payment of a penalty, such rental payments shall be considered for purposes of this definition to be the lesser of (a) the rental payments to be paid under such Sale and Leaseback Transaction until the first date (after the date of such determination) upon which it may be so terminated plus the then applicable penalty upon such termination and (b) the rental payments required to be paid during the remaining term of such Sale and Leaseback Transaction (assuming such termination provision is not exercised).

 

“Attributable Interest Rate” means, as of the date of its determination, the weighted average of the interest rates (or the effective rate in the case of Original Issue Discount Securities or discount securities) of all Outstanding Securities, all securities issued and outstanding (as defined in the 1985 Indenture) under the 1985 Indenture to which Sections 6.05 and 6.06 of the 1985 Indenture apply (and whose application has not been waived) and all Outstanding Securities (as defined in the 1993 Indenture) under the 1993 Indenture to which Sections 1104 and 1105 of the 1993 Indenture apply (and whose application has not been waived).

 

“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 7.14 to act on behalf of the Trustee to authenticate Securities of one or more series.

 

“Authorized Agent” has the meaning specified in Section 1.19.

 

“Authorized Newspaper” means a newspaper of general circulation in the place of publication, printed in the official language of the country of publication and customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays.

 

Whenever successive weekly publications in an Authorized Newspaper are authorized or required hereunder, they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers.

 

“Authorized Officers” has the meaning specified in Section 7.17.

 

“Bearer Security” means any Security which is not registered in the Security Register as to both principal and interest (including without limitation any Security in temporary or definitive global bearer form).

 

“Business Day”, when used with respect to (i) New York, means a day that is not a Saturday or a Sunday, or a day on which banks or trust companies in New York City are authorized or obligated by law, regulation or executive order to be closed and, (ii) any other Place of Payment or place of publication, means each day on which commercial banks and foreign exchange markets settle payments in the Place of Payment or place of publication, or as specified for a series of Securities pursuant to Section 2.02 or Section 3.01, as the case may be.

 

“Clearstream” has the meaning specified in Section 4.03(c).

 

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, 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.

 

“Common Depositary” has the meaning specified in Section 4.03(c).

 

“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 Board of Directors” means either the board of directors of the Company, any officer or director of the Company duly authorized to act in the name of or on behalf of that board or any committee of or established by the board of directors of the Company duly authorized to act in the name of or on behalf of that board.

 

“Company Board Resolution” means a copy of a resolution certified by an officer of the Company to have been duly adopted by the Company Board of Directors and to be in full force and effect on the date of such certification.

 

“Company Officer’s Certificate” means a certificate signed by an officer of the Company, and delivered to the Trustee. Each such Company Officer’s Certificate shall contain the statements provided in Section 1.02 if and to the extent required by the provisions of such Section.

 

“Company Request”, “Request of the Company”, “Company Order” or “Order of the Company” means a written request or order signed in the name of the Company by one of its officers and delivered to the Trustee.

 

 

“Component Currency” has the meaning specified in Section 4.10(i).

 

“Consolidated Net Tangible Assets” means, at any date, the total assets appearing on the most recently prepared consolidated balance sheet of the Guarantor and the Subsidiaries as of the end of a fiscal quarter of the Guarantor, prepared in accordance with generally accepted accounting principles, less (a) all current liabilities as shown on such balance sheet and (b) intangible assets. “Intangible assets” means the value (net of any applicable reserves), as shown on or reflected in such balance sheet, of: (i) all trade names, trademarks, licenses, patents, copyrights and goodwill; (ii) organizational and development costs; (iii) deferred charges (other than prepaid items such as insurance, taxes, interest, commissions, rents and similar items and tangible assets being amortized); and (iv) unamortized debt discount and expense, less unamortized premium; but in no event shall the term “intangible assets” include program products.

 

“Conversion Date” has the meaning specified in Section 4.10(e).

 

“Conversion Rate” has the meaning specified in Section 7.13.

 

“Corporate Trust Office” means the corporate trust office of the Trustee at which at any particular time this Indenture shall be principally administered, which office at the date of execution of this instrument is BNY Mellon Corporate Trust, US Corporate Client Service Management, 500 Ross Street, 12th Floor, Pittsburgh, PA 15262, or such other office as the Trustee may designate from time to time by notice to the Company, except that with respect to the presentation of Securities (or Coupons, if any, representing an installment of interest) for payment or for registration of transfer and exchange, such term shall mean the office or the agency of the Trustee designated for such purpose.

 

“corporation” includes corporations, associations, companies (including limited liability companies) and business trusts.

 

“Coupon” or “coupon” means any interest coupon appertaining to a Bearer Security.

 

“Defaulted Interest” has the meaning specified in Section 4.06(b).

 

“Discharged” has the meaning specified in Section 5.05.

 

“Dollar” means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.

 

“Dollar Equivalent of the Currency Unit” has the meaning specified in Section 4.10(h).

 

“Dollar Equivalent of the Foreign Currency” has the meaning specified in Section 4.10(g).

 

“Electronic Means” means the following communications methods: S.W.I.F.T., e-mail, facsimile transmission, secure electronic transmission containing applicable authorization

 

 

codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.

 

“Euroclear” means the operator of the Euroclear System.

 

“Event of Default” has the meaning specified in Section 6.01.

 

“Exchange Date” has the meaning specified in Section 4.03(d).

 

“Exchange Rate Agent” means the entity appointed by the Company pursuant to Section 1.04(g).

 

“Exchange Rate Officers’ Certificate” means a telecopy or a certificate setting forth (i) the applicable Official Currency Unit Exchange Rate and (ii) the Dollar or Foreign Currency or currency unit amounts of principal, premium, if any, and interest, if any, respectively (on an aggregate basis and on the basis of a Security having a principal amount of 1,000 units in the relevant currency or currency unit), payable on the basis of such Official Currency Unit Exchange Rate, sent (in the case of a telecopy) or executed (in the case of a certificate) by the Controller or any Assistant Controller or by the Treasurer or any Assistant Treasurer of the Company and delivered to the Trustee; such telecopy or certificate need not comply with Section 1.02.

 

“Foreign Currency” means a currency issued by the government of any country other than the United States of America.

 

“Foreign Government Securities” has the meaning specified in Section 5.05.

 

“Funded Debt” means any Indebtedness maturing by its terms more than one year from the date of the issuance thereof, including any Indebtedness renewable or extendible at the option of the obligor to a date later than one year from the date of the original issuance thereof.

 

“Guarantee” shall mean the guarantee by the Guarantor of the Company’s obligations under the Securities and this Indenture as provided in Article XV.

 

“Guarantor” means the Person named as the “Guarantor” 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 “Guarantor” shall mean such successor Person.

 

“Guarantor Board of Directors” means either the board of directors of the Guarantor, any executive officer of the Guarantor duly authorized to act in the name of or on behalf of that board or any committee of or established by the board of directors of the Guarantor duly authorized to act in the name of or on behalf of that board.

 

“Guarantor Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Guarantor to have been duly adopted by the Guarantor Board of Directors and to be in full force and effect on the date of such certification.

 

 

“Guarantor Officers’ Certificate” means a certificate signed by the Chairman of the Board, the President or any Vice President, and by the Treasurer, the Controller, the Secretary or any Assistant Treasurer, Assistant Controller or Assistant Secretary, of the Guarantor, and delivered to the Trustee. Each such Guarantor Officers’ Certificate shall contain the statements provided in Section 1.02 if and to the extent required by the provisions of such Section.

 

“Holder” or “holder” means, with respect to a Registered Security, the Person in whose name at the time a particular Registered Security is registered in the Security Register and, with respect to a Bearer Security and/or a Coupon, the bearer thereof.

 

“Indebtedness” of any corporation means all indebtedness representing money borrowed which is created, assumed, incurred or guaranteed in any manner by such corporation or for which such corporation is otherwise responsible or liable (whether by agreement to purchase indebtedness of, or to supply funds to or invest in, others).

 

“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 entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 2.02 and Section 3.01, as the case may be.

 

“Instructions” has the meaning specified in Section 7.17.

 

“interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.

 

“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

 

“Lien” means any mortgage, pledge, security interest, lien, charge or other encumbrance, but does not include any of the foregoing types of encumbrances that are incidental to the conduct of the business of the Guarantor or any Restricted Subsidiary or the ownership of the property and assets of any of them and that were not incurred in connection with the incurrence of any Indebtedness. Such incidental encumbrances that are to be excluded from the term “Liens” include without limitation: pledges or deposits made to secure obligations of the Guarantor or a Restricted Subsidiary under workmen’s compensation laws or similar legislation; liens imposed by law, such as materialmen’s, mechanics’, carriers’, workmen’s, vendors’, repairmen’s or other like liens incurred in the ordinary course of business; governmental (Federal, state or municipal) liens arising out of contracts for the purchase of products of the Guarantor or a Restricted Subsidiary, and deposits or pledges to obtain the release of any of the foregoing liens; liens created by or resulting from any litigation or legal proceeding that is currently being contested in good faith by appropriate proceedings; leases made or existing on Principal Property entered into in the ordinary course of business by the Guarantor or a Restricted Subsidiary; landlords’ liens under leases of Principal Property to which the Guarantor or a Restricted Subsidiary is a party; zoning restrictions, easements, licenses or restrictions on the use of Principal Property or minor irregularities in the title thereto; deposits in connection with bids, tenders or contracts (other than for the payment of money) to which the

 

 

Guarantor or any Restricted Subsidiary is a party; deposits to secure public or statutory obligations of the Guarantor or any Restricted Subsidiary; deposits in connection with obtaining or maintaining self-insurance or to obtain the benefits of any law, regulation or arrangement pertaining to unemployment insurance, old age pensions, social security or similar matters; deposits of cash or obligations of the United States of America to secure surety, appeal or customs bonds to which the Guarantor or any Restricted Subsidiary is a party; and liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings.

 

“Market Exchange Rate” has the meaning specified in Section 4.10(i).

 

“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 or otherwise.

 

“Medium-Term Debt Securities” has the meaning specified in Section 3.01.

 

“Medium-Term Debt Securities Certificate” shall mean a certificate signed by an officer of the Company, or any other employee of the Company designated by a Company Board Resolution as having the authority to deliver a Medium-Term Debt Securities Certificate hereunder.

 

“Official Currency Unit Exchange Rate” means, with respect to any payment to be made hereunder, the exchange rate between the relevant currency unit and the currency or currency unit of payment calculated by the Exchange Rate Agent for the Securities of the relevant series, on the Business Day (in the city in which such Exchange Rate Agent has its principal office) immediately preceding delivery of any Exchange Rate Officers’ Certificate.

 

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee of the Company or Guarantor, and who shall be acceptable to the Trustee. Each Opinion of Counsel shall contain the statements provided in Section 1.02 if and to the extent required by the provisions of such Section.

 

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02.

 

“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:

 

(i)  Securities theretofore canceled by the Trustee or delivered or deemed delivered to the Trustee for cancelation;

 

(ii)  Securities for whose payment or redemption money in the necessary amount and in the required currency or currency unit has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or Guarantor) in trust or set aside and segregated in trust by the

 

 

Company or Guarantor (if the Company or Guarantor shall act as 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; and

 

(iii)  Securities which have been paid pursuant to Section 4.05 or 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 protected 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 whether a quorum is present at a meeting of Holders of Outstanding Securities or the number of votes entitled to be cast by each Holder of a Security in respect of such Security at any such meeting, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02, (ii) the principal amount of a Security denominated in a Foreign Currency or currency unit shall be the Dollar equivalent obtained by converting the specified Foreign Currency or currency unit into Dollars at the Market Exchange Rate on the date of such determination (or, in the case of a Security denominated in a currency unit for which there is no Market Exchange Rate, the Dollar equivalent obtained by adding together the results obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for each such Component Currency on the date of such determination) of the principal amount (or, in the case of an Original Issue Discount Security, of the amount determined as provided in (i) above) of such Security, and (iii) Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company or Guarantor 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, only Securities which a Responsible Trust Officer of the Trustee actually 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 pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or Guarantor or any other obligor upon the Securities or any Affiliate of the Company or Guarantor or of such other obligor.

 

“Paying Agent” means the Trustee or any other Person authorized by the Company or Guarantor, as applicable, to pay the principal of (and premium, if any) or interest, if any, on any Securities on behalf of the Company or Guarantor, as applicable.

 

“Person” or “person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

 

“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest, if any, on the Securities of that series are payable as specified in accordance with Section 2.02 or Section 3.01, as the case may be.

 

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 4.05 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

 

“Principal Property” means any land, land improvements, buildings and associated factory, laboratory and office equipment (excluding all products marketed by the Guarantor or any Subsidiary) constituting a manufacturing facility, development facility, warehouse facility, service facility or office facility (including any portion thereof), which facility (a) is owned by or leased to the Guarantor or any Restricted Subsidiary, (b) is located within the United States, and (c) has an acquisition cost plus capitalized improvements in excess of 0.15% of Consolidated Net Tangible Assets as of the date of such determination, other than (i) any such facility, or portion thereof, which has been financed by obligations issued by or on behalf of a state, a Territory or a possession of the United States, or any political subdivision of any of the foregoing, or the District of Columbia, the interest on which is, or at the time of issuance of such obligations was determined by counsel to be, excludable from the gross income of the holders thereof (other than a “substantial user” of such facility or a “related person” as those terms were used in Section 147 of the Internal Revenue Code of 1986 (the “Code”)) pursuant to the provisions of Section 103 and related Sections of the Code (or any similar provisions hereafter enacted) as in effect at the time of issuance of such obligations, (ii) any such facility which the Guarantor Board of Directors may by Guarantor Board Resolution declare is not of material importance to the Guarantor and the Restricted Subsidiaries taken as a whole, and (iii) any such facility, or portion thereof, owned or leased jointly or in common with one or more Persons other than the Guarantor and any Subsidiary and in which the interest of the Guarantor and all Subsidiaries does not exceed 50%.

 

“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, in the currency or currency unit in which such Security is payable, at which it is to be redeemed pursuant to this Indenture.

 

“Registered Security” means any Security registered in the Security Register (including without limitation any Security in temporary or definitive global registered form).

 

“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 2.02 or Section 3.01, as the case may be, which date shall be, unless otherwise specified pursuant to Section 2.02 or Section 3.01, as the case may be, the fifteenth day preceding such Interest Payment Date, whether or not such day shall be a Business Day.

 

 

“Required Currency” has the meaning specified in Section 1.15.

 

“Responsible Trust Officer”, when used with respect to the Trustee, means any officer assigned to the Corporate Trust Division – Corporate Finance Unit (or any successor division or unit) of the Trustee located at the Corporate Trust Office of the Trustee, who shall have direct responsibility for the administration of this Indenture, and for the purposes of Section 6.12(iii), Section 7.01(c)(ii) and the first proviso of Section 7.02 shall also include any other officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

 

“Restricted Securities” means any shares of the capital stock or Indebtedness of any Restricted Subsidiary.

 

“Restricted Subsidiary” means (a) any Subsidiary (i) which has substantially all its property within the United States of America, (ii) which owns or is a lessee of any Principal Property, and (iii) in which the investment of the Guarantor and all other Subsidiaries exceeds 0.15% of Consolidated Net Tangible Assets as of the date of such determination; provided, however, that the term “Restricted Subsidiary” shall not include (A) any Subsidiary (x) primarily engaged in the business of purchasing, holding, collecting, servicing or otherwise dealing in and with installment sales contracts, leases, trust receipts, mortgages, commercial paper or other financing instruments, and any collateral or agreements relating thereto, including in the business, individually or through partnerships, of financing (whether through long- or short-term borrowings, pledges, discounts or otherwise) the sales, leasing or other operations of the Guarantor and the Subsidiaries or any of them, or (y) engaged in the business of financing the assets and operations of third parties, and (z) in any case, not, except as incidental to such financing business, engaged in owning, leasing or operating any property which but for this proviso would qualify as Principal Property or (B) any Subsidiary acquired or organized after July 15, 1985, for the purpose of acquiring the stock or business or assets of any Person other than the Guarantor or any Restricted Subsidiary, whether by merger, consolidation, acquisition of stock or assets or similar transaction analogous in purpose or effect, so long as such Subsidiary shall not have, since such date, and does not hereafter acquire by merger, consolidation, acquisition of stock or assets or similar transaction analogous in purpose or effect all or any substantial part of the business or assets of the Guarantor or any Restricted Subsidiary; and (b) any other Subsidiary which is hereafter designated by the Guarantor Board of Directors as a Restricted Subsidiary.

 

“Sale and Leaseback Transaction” means any arrangement with any Person providing for the leasing by the Guarantor or any Restricted Subsidiary of any Principal Property (whether such Principal Property is now owned or hereafter acquired) that has been or is to be sold or transferred by the Guarantor or such Restricted Subsidiary to such Person, other than (a) temporary leases for a term, including renewals at the option of the lessee, of not more than three years; (b) leases between the Guarantor and a Restricted Subsidiary or between Restricted Subsidiaries; and (c) leases of Principal Property executed by the time of, or within 180 days after the latest of, the acquisition, the completion of construction or improvement (including any improvements on property which will result in such property becoming Principal Property), or the commencement of commercial operation of such Principal Property.

 

 

“Secured Indebtedness” means (a) Indebtedness of the Guarantor or a Restricted Subsidiary which is secured by any Lien upon any Principal Property or Restricted Securities and (b) Indebtedness of the Guarantor or a Restricted Subsidiary in respect of any conditional sale or other title retention agreement covering Principal Property or Restricted Securities; but “Secured Indebtedness” shall not include any of the following:

 

(i)  Indebtedness of the Guarantor and the Restricted Subsidiaries outstanding on July 15, 1985, secured by then existing Liens upon, or incurred in connection with conditional sales agreements or other title retention agreements with respect to, Principal Property or Restricted Securities;

 

(ii)  Indebtedness which is secured by (A) purchase money Liens upon Principal Property or Restricted Securities acquired after July 15, 1985, or (B) Liens placed on Principal Property after July 15, 1985, during construction or improvement thereof (including any improvements on property which resulted or will result in such property becoming Principal Property) or placed thereon within 180 days after the later of acquisition, completion of construction or improvement or the commencement of commercial operation of such Principal Property or improvement, or placed on Restricted Securities acquired after July 15, 1985, or (C) conditional sale agreements or other title retention agreements with respect to any Principal Property or Restricted Securities acquired after July 15, 1985, if (in each case referred to in this subparagraph (ii)) (x) such Lien or agreement secures all or any part of the Indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of construction of such Principal Property or improvement or Restricted Securities and (y) such Lien or agreement does not extend to any Principal Property or Restricted Securities other than the Principal Property or Restricted Securities so acquired or the Principal Property, or portion thereof, on which the property so constructed, or such improvement, is located; provided, however, that the amount by which the aggregate principal amount of Indebtedness secured by any such Lien or agreement exceeds the cost to the Guarantor or such Restricted Subsidiary of the related acquisition, construction or improvement shall be considered to be “Secured Indebtedness”;

 

(iii)  Indebtedness which is secured by Liens on Principal Property or Restricted Securities, which Liens exist at the time of acquisition (by any manner whatsoever) of such Principal Property or Restricted Securities by the Guarantor or a Restricted Subsidiary;

 

(iv)  Indebtedness of Restricted Subsidiaries owing to the Guarantor or any other Restricted Subsidiary and Indebtedness of the Guarantor owing to any Restricted Subsidiary;

 

(v)  in the case of any corporation which shall have become or becomes (by any manner whatsoever), as the case may be, a Restricted Subsidiary after July 15, 1985, Indebtedness which is secured by Liens upon, or conditional sale agreements or other title retention agreements with respect to, its property which constitutes Principal Property or Restricted Securities, which Liens shall have existed or exist, as the case may be, at the time such corporation shall have become or becomes, as the case may be, a Restricted Subsidiary;

 

(vi)  guarantees by the Guarantor of Secured Indebtedness and Attributable Debt of any Restricted Subsidiaries and guarantees by a Restricted Subsidiary of Secured Indebtedness and Attributable Debt of the Guarantor and any other Restricted Subsidiaries;

 

 

(vii)  Indebtedness arising from any Sale and Leaseback Transaction;

 

(viii)  Indebtedness secured by Liens on property of the Guarantor or a Restricted Subsidiary in favor of the United States of America or Canada, any state, Territory or possession thereof, or the District of Columbia, or any department, agency or instrumentality or political subdivision of the United States of America or Canada, any state, Territory or possession thereof, or the District of Columbia, or in favor of any other country or any political subdivision thereof, if such Indebtedness was incurred for the purpose of financing all or any part of the purchase price or the cost of construction of the property subject to such Liens; provided, however, that the amount by which the aggregate principal amount of Indebtedness secured by any such Lien exceeds the cost to the Guarantor or such Restricted Subsidiary of the related acquisition or construction shall be considered to be “Secured Indebtedness”; and

 

(ix)  the replacement, extension or renewal (or successive replacements, extensions or renewals) of any Indebtedness (in whole or in part) excluded from the definition of “Secured Indebtedness” by subparagraphs (i) through (viii) above; provided, however, that no Lien securing, or conditional sale or title retention agreement with respect to, such Indebtedness shall extend to or cover any Principal Property or any Restricted Securities, other than such property which secured the Indebtedness so replaced, extended or renewed (plus improvements on or to any such Principal Property); provided, further, however, that to the extent that such replacement, extension or renewal increased or increases the principal amount of Indebtedness secured by such Lien or was or is in a principal amount in excess of the principal amount of Indebtedness excluded from the definition of “Secured Indebtedness” by subparagraphs (i) through (viii) above, the amount of such increase or excess shall be considered to be “Secured Indebtedness”.

 

In no event shall the foregoing provisions be interpreted to mean or their operation to cause the same Indebtedness to be included more than once in the calculation of “Secured Indebtedness” as that term is used in this Indenture.

 

“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities (including Medium-Term Debt Securities) authenticated and delivered under this Indenture and, in the case of any Bearer Security, shall include where appropriate any Coupons appertaining thereto.

 

“Security Register” has the meaning specified in Section 4.04(a).

 

“Security Registrar” means the Person appointed as the initial Security Registrar in Section 4.04(a) or any Person appointed by the Company as a successor or replacement Security Registrar.

 

“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 4.06(b).

 

“Specified Amount” has the meaning specified in Section 4.10(i).

 

“Stated Maturity”, when used with respect to any Security (or Coupon, if any, representing an installment of interest) or any installment of principal thereof or interest thereon,

 

 

means the date specified in such Security (or Coupon) as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.

 

“Subsidiary” means any corporation a majority of the Voting Shares of which are at the time owned or controlled, directly or indirectly, by the Guarantor or by one or more Subsidiaries, or by the Guarantor and one or more Subsidiaries.

 

“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.

 

“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, and as in force at the date as of which this instrument was executed, except as provided in Section 10.05.

 

“United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

“U.S. Government Obligations” has the meaning specified in Section 5.05.

 

“Valuation Date” has the meaning specified in Section 4.10(e).

 

“Vice President”, when used with respect to the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “vice president”.

 

“Voting Shares” means, as to shares of a particular corporation, outstanding shares of stock of any class of such corporation entitled to vote in the election of directors, excluding shares entitled so to vote only upon the happening of some contingency.

 

“1985 Indenture” means the Indenture dated as of July 15, 1985, between the Guarantor and The Bank of New York (successor to Morgan Guaranty Trust Company of New York), as Trustee, as supplemented and amended by the Instrument of Resignation, Appointment and Acceptance dated as of May 1, 1996, among the Guarantor, Morgan Guaranty Trust Company of New York and The Bank of New York.

 

“1993 Indenture” means the Indenture dated as of October 1, 1993, between the Guarantor and The Bank of New York Mellon, as Trustee, as amended by the First Supplemental Indenture dated as of December 15, 1995.

 

SECTION 1.02. Compliance Certificates and Opinions. (a)  Upon any application or request by the Company or Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or Guarantor, as the case may be, shall furnish to the Trustee a Company Officer’s Certificate or Guarantor Officers’ Certificate, as applicable, stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have

  

 

been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.

 

(b)  Unless expressly otherwise specified with respect to any certificate or opinion provided for in this Indenture, every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than annual certificates provided pursuant to Section 11.04) shall include:

 

(i)  a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;

 

(ii)  a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

 

(iii)  a statement that, in the opinion of 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

 

(iv)  a statement as to whether or not, in the opinion of each such individual, such condition or covenant has been complied with.

 

SECTION 1.03. Form of Documents Delivered to Trustee. (a)  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.

 

(b)  Any certificate or opinion of an officer of the Company or Guarantor 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 or Guarantor, as applicable, stating that the information with respect to such factual matters is in the possession of the Company or Guarantor, as applicable, 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.

 

(c)  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 1.04. Acts of Holders. (a)  Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities of any series may be embodied in and evidenced by (i) one or more instruments of substantially similar tenor signed by such Holders in person or by proxies duly appointed in writing, (ii) the record of such Holders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article XIV, or (iii) a combination of any such record and one or more instruments of substantially similar tenor signed by such Holders in person or by proxies duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such record and/or instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company and Guarantor. Such record or 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 or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such proxy shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 14.06.

 

(b)  The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient. 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.

 

(c)  The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed by any trust company, bank, banker or other depository, wherever situated, showing that at the date therein mentioned such Person had on deposit with such depository, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (2) such Bearer Security is produced to the Trustee by some other Person, (3) such Bearer Security is surrendered in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding.

 

(d)  The fact and date of execution of any such instrument or writing pursuant to clause (c) above, the authority of the Person executing the same and the principal amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of holding the same may also be proved in any other manner which the Trustee deems sufficient; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this clause.

 

(e)  The principal amount and serial numbers of Registered Securities held by any Person and the date of holding the same shall be proved by the Security Register.

 

 

(f)  Any request, demand, authorization, direction, notice, consent, waiver or other Act of a Holder shall bind every future Holder of the same Security and/or Coupon and the Holder of every Security and/or Coupon 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 and/or Coupon.

 

(g)  Whenever any Act is to be taken hereunder by the Holders of two or more series of Securities denominated in different currencies (or currency units), then, for the purpose of determining the principal amount of Securities held by such Holders, the aggregate principal amount of the Securities denominated in a Foreign Currency (or any currency unit) shall be deemed to be that amount determined by the Company or by an authorized Exchange Rate Agent and evidenced to the Trustee by a Company Officer’s Certificate as of the date the taking of such Act by the Holders of the requisite percentage in principal amount of the Securities is evidenced to the Trustee to be equal to the Dollar equivalent obtained by converting the specified Foreign Currency or currency unit into Dollars at the Market Exchange Rate on such date (or, in the case of a Security denominated in a currency unit for which there is no Market Exchange Rate, the Dollar equivalent obtained by adding together the results obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate for each such Component Currency on such date) of the principal amount (or, in the case of an Original Issue Discount Security, the principal amount thereof that would be due and payable as of the declaration of acceleration of the Maturity thereof pursuant to Section 6.02) of such Security. An Exchange Rate Agent may be authorized in advance or from time to time by the Company. Any such determination by the Company or by any such Exchange Rate Agent shall be conclusive and binding on all Holders, the Company and the Trustee, and neither the Company nor any such Exchange Rate Agent shall be liable therefor in the absence of bad faith.

 

(h)  If the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may, at its option, by or pursuant to a Company Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.

 

SECTION 1.05. Notices, Etc., to Trustee, Company and Guarantor. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:

 

 

(a)  the Trustee by any Holder or by the Company shall be made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office and unless otherwise herein expressly provided, any such document shall be deemed to be sufficiently made, given, furnished or filed upon its receipt by a Responsible Trust Officer of the Trustee,

 

(b)  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 it at the address of its registered office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company, Attention: Secretary, or

 

(c)  the Guarantor 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 Guarantor addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Guarantor, Attention:  Assistant Treasurer.

 

SECTION 1.06. Notice to Holders; Waiver. (a)  Where this Indenture provides for notice to Holders of any event:

 

(i)  if any of the Securities affected by such event are Registered Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided or unless otherwise specified in such Securities) if in writing and delivered in person, mailed, first-class postage prepaid or sent by overnight courier, to each Holder affected by such event, at his address as it appears in the Security Register, within the time prescribed for the giving of such notice, and

 

(ii)  if any of the Securities affected by such event are Bearer Securities, such notice shall be sufficiently given (unless otherwise herein expressly provided or unless otherwise specified in such Securities) if (A) published once in an Authorized Newspaper in New York City and London and, if applicable, in such other place of publication as may be required pursuant to the rules and regulations of any securities exchange on which such Securities are listed, and (B) delivered in person, mailed, first-class postage prepaid or sent by overnight courier to such Persons whose names were previously filed with the Trustee, within the time prescribed for the giving of such notice.

 

(b)  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 to Holders of Registered Securities in the manner specified above, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder.

 

(c)  In any case where notice to a Holder of Registered Securities is given in any manner specified in paragraph (a) above, such notice shall be conclusively presumed to have been duly

 

 

given, whether or not such Holder receives such notice. In any case where notice to Holders of Registered Securities is given in any manner specified in paragraph (a) above, neither the failure to deliver, mail or send such notice, nor any defect in any notice so mailed or sent, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Neither the failure to give notice by publication to Holders of Bearer Securities as provided in paragraph (a) above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein.

 

(d)  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 of Securities 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.

 

(e)  Where this Indenture or any Security provides for notice of any event or any other communication to a Holder of a global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the applicable Person designated as depositary for such global Security pursuant to the standing instructions from, by agreement with or by applicable procedures of such depositary or its designee, including by electronic mail in accordance with accepted practices at such depositary.

 

SECTION 1.07. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act through operation of Section 318(c) thereof, such imposed duties shall control.

 

SECTION 1.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

SECTION 1.09. Successors and Assigns. All covenants and agreements in this Indenture by the Company or Guarantor shall bind its respective successors and assigns, whether so expressed or not.

 

SECTION 1.10. 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 1.11. Benefits Of Indenture. Nothing in this Indenture or in the Securities or Coupons, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

SECTION 1.12. Governing Law. THIS INDENTURE AND THE SECURITIES AND COUPONS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO

 

 

APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

SECTION 1.13. Legal Holidays. Except as otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, in any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security or Coupon shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of such Security or Coupon) 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 or Redemption Date, or at the Stated Maturity, as the case may be, 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, to the next succeeding Business Day at such Place of Payment.

 

SECTION 1.14. Moneys of Different Currencies to be Segregated. The Trustee shall segregate moneys, funds and accounts held by the Trustee hereunder in one currency (or currency unit) from any moneys, funds or accounts in any other currencies (or currency units), notwithstanding any provision herein which would otherwise permit the Trustee to commingle such amounts.

 

SECTION 1.15. Payment to be in Proper Currency. In the case of any Security denominated in any particular currency or currency unit (the “Required Currency”), subject to applicable law and except as otherwise provided herein, therein or in or pursuant to the related Company Board Resolution, Medium-Term Debt Securities Certificate or supplemental indenture, the obligation of the Company to make any payment of principal, premium or interest thereon shall not be discharged or satisfied by any tender by the Company, or recovery by the Trustee, in any currency or currency unit other than the Required Currency, except to the extent that such tender or recovery shall result in the Trustee’s timely holding the full amount of the Required Currency then due and payable. If any such tender or recovery is made in other than the Required Currency, the Trustee may take such actions as it considers appropriate to exchange such other currency or currency unit for the Required Currency. The costs and risks of any such exchange, including without limitation the risks of delay and exchange rate fluctuation, shall be borne by the Company, the Company shall be liable for any shortfall or delinquency in the full amount of the Required Currency then due and payable, and in no circumstances shall the Trustee be liable therefor. The Company hereby waives any defense of payment based upon any such tender or recovery which is not in the Required Currency, or which, when exchanged for the Required Currency by the Trustee, is less than the full amount of the Required Currency then due and payable

 

SECTION 1.16. Language of Notices, etc. Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

 

SECTION 1.17. Changes in Exhibits. At any time and from time to time, the Company may substitute a new form, or add new forms, of the Exhibits hereto. Such substitution shall be effective upon receipt by the Trustee of such new form of Exhibit and a Company Board Resolution or Company Officer’s Certificate adopting such new form of Exhibit, and thereafter

 

 

all references in this Indenture to such Exhibit shall be deemed to refer to such new form of Exhibit.

 

SECTION 1.18. Counterparts. This Indenture, the Securities and any document to be signed in connection with the Indenture or the Securities (including the Securities and the Trustee’s certificate of authentication thereof and amendments, supplements, waivers, consents and other modifications, Company Officer’s Certificates, Guarantor Officers’ Certificates, Company Orders and Opinions of Counsel and other issuance, authentication and delivery documents) may be executed by any one or more of the parties hereto in any number of counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

 

SECTION 1.19. Submission to Jurisdiction. Each party hereto hereby irrevocably submits to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture and the Securities, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts. The Company has appointed the Guarantor as its authorized agent (the “Authorized Agent”) upon whom process may be served in any such action arising out of or based on this Indenture, the Securities or the transactions contemplated hereby which may be instituted in any New York court, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable prior to a substitution of the Company by the Guarantor in accordance with Section 9.03. The Company represents that the Authorized Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company and the Guarantor shall be deemed, in every respect, effective service of process upon the Company and the Guarantor.

 

ARTICLE II

 

Issuance of Securities

 

SECTION 2.01. Creation of Securities in Amount Unlimited. An unlimited aggregate principal amount of Securities may be issued pursuant to this Article II and, in the case of Medium-Term Debt Securities, pursuant to Article III. The Securities (including Medium-Term Debt Securities) may be authenticated and delivered, as authorized by the Company Board of Directors, in an unlimited number of series.

 

 

SECTION 2.02. Documents Required for Issuance of Each Series of Securities Other Than Medium-Term Debt Securities. At any time and from time to time, Securities of each series created pursuant to the provisions of this Article II may be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee and delivered to, or upon the order of, the Company upon receipt by the Trustee of the following:

 

(a)  A Company Board Resolution or Company Board Resolutions authorizing the execution, authentication and delivery of the Securities of the series, and specifying:

 

(i)  the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);

 

(ii)  any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Article II (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 4.03, 4.04, 4.05, 10.06 or 12.07 and except for any Securities which, pursuant to Section 4.02, are deemed never to have been authenticated and delivered hereunder);

 

(iii)  the date or dates on which the principal (and premium, if any) of any of the Securities of the series are payable or the method of determination thereof;

 

(iv)  the rate or rates, or the method of determination thereof, at which any of the Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date;

 

(v)  the place or places where the principal of (and premium, if any) and interest, if any, on any of the Securities and Coupons, if any, of the series shall be payable and the office or agency for the Securities of the series maintained by the Company pursuant to Section 11.02;

 

(vi)  the period or periods within which, the price or prices at which and the terms and conditions upon which any of the Securities of the series may be redeemed, in whole or in part, at the option of the Company;

 

(vii)  the terms of any sinking fund and the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series shall be redeemed or purchased, in whole or in part;

 

(viii)  the terms of the obligation of the Company, if any, to permit the conversion of the Securities of the series into stock or other securities of the Company or of any other corporation;

 

(ix)  the terms, if any, for the attachment to Securities of the series of warrants, options or other rights to purchase or sell stock or other securities of the Company;

 

 

(x)  if other than denominations of $1,000 and in any integral multiple thereof, if Registered Securities, and $5,000 if Bearer Securities, for Securities denominated in Dollars, the denominations in which the Securities of the series shall be issuable;

 

(xi)  if other than the principal amount thereof, the portion of the principal amount of any of the Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;

 

(xii)  the application, if any, of Section 5.03, or such other means of satisfaction and discharge as may be specified for the Securities and Coupons, if any, for a series;

 

(xiii)  any deletions or modifications of or additions to the Events of Default set forth in Section 6.01 or covenants of the Company or Guarantor set forth in Article IX or XI pertaining to the Securities of the series (including without limitation whether the provisions of Section 11.06 or Section 11.07 shall not be applicable to the Securities of the series);

 

(xiv)  the forms of the Securities and Coupons, if any, of the series;

 

(xv)  if other than Dollars, the currency or currencies, or currency unit or units, in which the Securities of such series will be denominated and/or in which payment of the principal of (and premium, if any) and interest, if any, on any of the Securities of the series shall be payable and the Exchange Rate Agent, if any, for such series;

 

(xvi)  if the principal of (and premium, if any) or interest, if any, on any of the Securities of the series are to be payable at the election of the Company or a Holder thereof, or under some or all other circumstances, in a currency or currencies, or currency unit or units, other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made, or the other circumstances under which any of the Securities are to be so payable, including without limitation the application of Section 4.10(b) and any deletions to, modifications of or additions to the provisions thereof, and any provision requiring the Holder to bear currency exchange costs by deduction from such payments;

 

(xvii)  if the amount of payments of principal of (and premium, if any) or interest, if any, on any of the Securities of the series may be determined with reference to an index based on (A) a currency or currencies or currency unit or units other than that in which such Securities are stated to be payable or (B) any method, not inconsistent with the provisions of this Indenture, specified in or pursuant to such Company Board Resolution, then in each case (A) and (B) the manner in which such amounts shall be determined;

 

(xviii)  whether the Securities of the series are to be issued as Registered Securities or Bearer Securities (with or without Coupons), or any combination thereof, whether Bearer Securities may be exchanged for Registered Securities of the series and whether Registered Securities may be exchanged for Bearer Securities of the series (if permitted by applicable laws and regulations) and the circumstances under which and the place or places where any such exchanges, if permitted, may be made; and whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in definitive global form with or without Coupons and, if so, whether beneficial owners of interests in any

 

 

such definitive global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which and the place or places where any such exchanges may occur, if other than in the manner provided in Section 4.04;

 

(xix)  if the Securities and Coupons, if any, of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities and Coupons, if any, to be authenticated and delivered;

 

(xx)  whether and under what circumstances and with what procedures and documentation the Company will pay additional amounts on any of the Securities and Coupons, if any, of the series to any Holder in respect of any tax assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such Securities rather than pay additional amounts (and the terms of any such option);

 

(xxi)  the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the Coupons appertaining thereto as they severally mature and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 4.03; and

 

(xxii)  any other terms of any of the Securities of the series (which terms shall not be inconsistent with the provisions of the Trust Indenture Act, but may modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).

 

If any of the terms of the series are established by action taken pursuant to a Company Board Resolution or Company Board Resolutions, a Company Officer’s Certificate certifying as to such action also shall be delivered to the Trustee.

 

(b)  In case the Securities of the series to be authenticated and delivered are to be created pursuant to one or more supplemental indentures, such supplemental indenture or indentures, accompanied by a Company Board Resolution or Company Board Resolutions authorizing such supplemental indenture or indentures and designating the new series to be created and prescribing pursuant to paragraph (a) above, consistent with the applicable provisions of this Indenture, the terms and provisions relating to the Securities of the series.

 

(c)  Either (i) a certificate or other official document evidencing the due authorization, approval or consent of any governmental body or bodies, at the time having jurisdiction in the premises, together with an Opinion of Counsel that the Trustee is entitled to rely thereon and that the authorization, approval or consent of no other governmental body is required, or (ii) an Opinion of Counsel that no authorization, approval or consent of any governmental body is required.

 

(d)  An Opinion of Counsel that all instruments furnished to the Trustee conform to the requirements of this Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and deliver the Securities and to deliver the Coupons, if any, of the series; that all

 

 

conditions precedent provided for in this Indenture relating to the authentication and delivery of the Securities and delivery of the Coupons, if any, of the series have been complied with and the Company is duly entitled to the authentication and delivery of the Securities and Coupons, if any, of the series in accordance with the provisions of this Indenture; that all laws and requirements with respect to the form and execution by the Company of the supplemental indenture, if any, and the execution and delivery by the Company of the Securities and Coupons, if any, of the series have been complied with; that the Company has all requisite power to execute and deliver the supplemental indenture, if any, and to issue the Securities and Coupons, if any, of the series and has duly taken all necessary action for those purposes; and that the supplemental indenture, if any, as executed and delivered and the Securities and Coupons, if any, of the series, when issued, will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other laws affecting creditors’ rights generally from time to time in effect, the enforceability of the Company’s obligations also being subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); that the Securities and Coupons, if any, of the series, when issued, will be entitled to the benefits of this Indenture, equally and ratably with all other Securities and Coupons, if any, of such series theretofore issued and then Outstanding hereunder; and that the amount of Securities then Outstanding under this Indenture, including the Securities of the series, will not exceed the amount at the time permitted by law or this Indenture.

 

(e)  A Company Officer’s Certificate stating that the Company is not in default under this Indenture and that the issuance of the Securities and Coupons, if any, of the series will not result in any breach of any of the terms, conditions or provisions of, or constitute a default under, the Company’s constituting documents or any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which it is bound, or any order of any court or administrative agency entered in any proceeding to which the Company is a party or by which it may be bound or to which it may be subject; and that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Securities and Coupons, if any, of the series have been complied with.

 

ARTICLE III

 

Issuance of Medium-Term Debt Securities

 

SECTION 3.01. Documents Required for Issuance of Each Series of Medium-Term Debt Securities. At any time, and from time to time, Securities (sometimes referred to herein as “Medium-Term Debt Securities”) of each series created pursuant to the provisions of this Article III may be executed by the Company and delivered to the Trustee and shall be authenticated by the Trustee and delivered to, or upon the order of, the Company upon receipt by the Trustee of the following:

 

(a)  A Company Board Resolution or Company Board Resolutions authorizing the execution, authentication and delivery of Medium-Term Debt Securities up to a specified aggregate principal amount, in such series and subject to such terms as shall be established by officers of the Company authorized by such resolutions to establish such series and terms.

 

 

(b)  A Medium-Term Debt Securities Certificate requesting the Trustee to authenticate and deliver Medium-Term Debt Securities of a series as contemplated by Section 4.02, and specifying the following terms with respect to the Medium-Term Debt Securities of the particular series, authorized pursuant to the Company Board Resolution or Company Board Resolutions referred to in paragraph (a) above:

 

(i)  the title of the Medium-Term Debt Securities of the series (which shall distinguish the Medium-Term Debt Securities of the series from all other Medium-Term Debt Securities);

 

(ii)  the date of the Medium-Term Debt Securities of the series;

 

(iii)  any limit upon the aggregate principal amount of the Medium-Term Debt Securities of the series which may be authenticated and delivered under this Article III (except for Medium-Term Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Medium-Term Debt Securities of the series pursuant to Section 4.03, 4.04, 4.05, 10.06 or 12.07 and except for any Medium-Term Debt Securities which, pursuant to Section 4.02, are deemed never to have been authenticated and delivered hereunder);

 

(iv)  the date or dates on which the principal (and premium, if any) of any of the Medium-Term Debt Securities of the series are payable or the method of determination thereof, which in any event may not be less than nine months subsequent to the date of the first authentication of Medium-Term Debt Securities of the series;

 

(v)  the rate or rates, or the method of determination thereof, at which any of the Medium-Term Debt Securities of the series shall bear interest, if any, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on any Medium-Term Debt Securities of the series that are Registered Securities on any Interest Payment Date;

 

(vi)  the place or places where the principal of (and premium, if any) and interest, if any, on any of the Medium-Term Debt Securities and Coupons, if any, of the series shall be payable and the office or agency for the Medium-Term Debt Securities of the series maintained by the Company pursuant to Section 11.02;

 

(vii)  the period or periods within which, the price or prices at which and the terms and conditions upon which any of the Medium-Term Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company;

 

(viii)  the terms of any sinking fund and the obligation, if any, of the Company to redeem or purchase Medium-Term Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Medium-Term Debt Securities of the series shall be redeemed or purchased, in whole or in part;

 

(ix)  the terms of the obligation of the Company, if any, to permit the conversion of the Medium-Term Debt Securities of the series into stock or other securities of the Company or of any other corporation;

 

 

(x)  the terms, if any, for the attachment to Medium-Term Debt Securities of the series of warrants, options or other rights to purchase or sell stock or other securities of the Company;

 

(xi)  if other than denominations of $1,000 and in any integral multiple thereof, if Registered Securities, and $5,000 if Bearer Securities, for Medium-Term Debt Securities denominated in Dollars, the denominations in which the Medium-Term Debt Securities of the series shall be issuable;

 

(xii)  if other than the principal amount thereof, the portion of the principal amount of any of the Medium-Term Debt Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 6.02;

 

(xiii)  the application, if any, of Section 5.03, or such other means of satisfaction and discharge as may be specified for the Medium-Term Debt Securities and Coupons, if any, for a series;

 

(xiv)  any deletions or modifications of or additions to the Events of Default set forth in Section 6.01 or covenants of the Company or Guarantor set forth in Article IX or XI pertaining to the Medium-Term Debt Securities of the series (including without limitation whether the provisions of Section 11.06 or Section 11.07 shall not be applicable to the Medium-Term Debt Securities of the series);

 

(xv)  if other than Dollars, the currency or currencies, or currency unit or units, in which the Medium-Term Debt Securities of such series will be denominated and/or in which payment of the principal of (and premium, if any) and interest, if any, on any of the Medium-Term Debt Securities of the series shall be payable and the Exchange Rate Agent, if any, for such series;

 

(xvi)  if the principal of (and premium, if any) or interest, if any, on any of the Securities of the series are to be payable at the election of the Company or a Holder thereof, or under some or all other circumstances, in a currency or currencies, or currency unit or units, other than that in which the Medium-Term Debt Securities are denominated, the period or periods within which, and the terms and conditions upon which, such election may be made, or the other circumstances under which any of the Medium-Term Debt Securities are to be so payable, including without limitation the application of Section 4.10(b) and any deletions to, modifications of or additions to the provisions thereof, and any provision requiring the Holder to bear currency exchange costs by deduction from such payments;

 

(xvii)  if the amount of payments of principal of (and premium, if any) or interest, if any, on any of the Medium-Term Debt Securities of the series may be determined with reference to an index based on (A) a currency or currencies or currency unit or units other than that in which such Securities are stated to be payable or (B) any method, not inconsistent with the provisions of this Indenture, specified in or pursuant to such Company Board Resolution, then in each case (A) and (B) the manner in which such amounts shall be determined;

 

(xviii)  whether the Medium-Term Debt Securities of the series are to be issued as Registered Securities or Bearer Securities (with or without Coupons), or any combination thereof, whether Bearer Securities may be exchanged for Registered Securities of the series and whether Registered Securities may be exchanged for Bearer Securities of the series (if permitted by applicable laws and regulations) and the circumstances under which and the place or places

 

 

where any such exchanges, if permitted, may be made; and whether any Medium-Term Debt Securities of the series are to be issuable initially in temporary global form and whether any Medium-Term Debt Securities of the series are to be issuable in definitive global form with or without Coupons and, if so, whether beneficial owners of interests in any such definitive global Medium-Term Debt Security may exchange such interests for Medium-Term Debt Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which and the place or places where any such exchanges may occur, if other than in the manner provided in Section 4.04;

 

(xix)  if the Medium-Term Debt Securities and Coupons, if any, of the series are to be issued upon the exercise of warrants, the time, manner and place for such Medium-Term Debt Securities and Coupons, if any, to be authenticated and delivered;

 

(xx)  whether and under what circumstances and with what procedures and documentation the Company will pay additional amounts on any of the Medium-Term Debt Securities and Coupons, if any, of the series to any Holder in respect of any tax assessment or governmental charge withheld or deducted and, if so, whether the Company will have the option to redeem such Medium-Term Debt Securities rather than pay additional amounts (and the terms of any such option);

 

(xxi)  the Person to whom any interest on any Medium-Term Debt Security of the series that are Registered Securities shall be payable, if other than the Person in whose name that Medium-Term Debt Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the Coupons appertaining thereto as they severally mature and the extent to which, or the manner in which, any interest payable on a temporary global Medium-Term Debt Security on an Interest Payment Date will be paid if other than in the manner provided in Section 4.03;

 

(xxii)  the forms of the Medium-Term Debt Securities and Coupons, if any, of the series; and

 

(xxiii)  any other terms of any of the Medium-Term Debt Securities of the series (which terms shall not be inconsistent with the provisions of the Trust Indenture Act, but may modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).

 

Unless the Company shall be required to deliver a Company Officer’s Certificate pursuant to paragraph (d) below in connection with the authentication of the Medium-Term Debt Securities of the series, the delivery of such Medium-Term Debt Securities Certificate to the Trustee shall be deemed to be a certification by the Company that all matters certified in the most recent Company Officer’s Certificate delivered to the Trustee pursuant to paragraph (d) below continue to be true and correct, as if such Company Officer’s Certificate related to the Medium-Term Debt Securities covered by such Medium-Term Debt Securities Certificate, on and as of the date of such Medium-Term Debt Securities Certificate. The delivery of such Medium-Term Debt Securities Certificate also shall be deemed to be a certification that the Company Board Resolution or Company Board Resolutions referred to in paragraph (a) above are in full force and

 

 

effect on and as of the date of such Medium-Term Debt Securities Certificate and that the terms and form or forms of the Medium-Term Debt Securities and Coupons, if any, of the series have been established by an officer or officers of the Company authorized by such Company Board Resolution or Company Board Resolutions in accordance with the provisions thereof and hereof.

 

(c)  If (i) the Company shall not have previously delivered to the Trustee an Opinion of Counsel to the effect set forth in this paragraph (c) with respect to the Medium-Term Debt Securities authorized pursuant to the Company Board Resolution or Company Board Resolutions referred to in paragraph (a) above or (ii) if the Medium-Term Debt Securities Certificate referred to in paragraph (b) above specifies a means of satisfaction and discharge other than the application of Section 5.03 with respect to the series of Medium-Term Debt Securities to which such Medium-Term Debt Securities Certificate relates, an Opinion of Counsel that the Medium-Term Debt Securities have been duly authorized by resolutions of the Company Board of Directors, subject to the establishment of certain terms of the Medium-Term Debt Securities and Coupons, if any, of the series by officers of the Company authorized by such resolutions to establish such terms, that when the terms of the Medium-Term Debt Securities and Coupons, if any, of the series have been established as provided in such resolutions and in this Indenture and the Medium-Term Debt Securities and Coupons, if any, of the series have been executed, authenticated and delivered in accordance with the provisions of this Indenture, the Medium-Term Debt Securities and Coupons, if any, of the series will constitute legal, valid and binding obligations of the Company entitled to the benefits of this Indenture, equally and ratably with all other Securities and Coupons, if any, of such series theretofore issued and then Outstanding hereunder, that the amount of Securities then Outstanding under this Indenture, including the Medium-Term Debt Securities of the series, will not exceed the amount at the time permitted by law or this Indenture and that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Medium-Term Debt Securities and Coupons, if any, of the series have been complied with.

 

(d)  If the Company shall not have delivered a Company Officer’s Certificate pursuant to the provisions of this paragraph (d) to the Trustee during the immediately preceding 12-month period, a Company Officer’s Certificate stating that the Company is not in default under this Indenture, that the issuance of the Medium-Term Debt Securities and Coupons, if any, of the series will not result in any breach of any of the terms, conditions or provisions of, or constitute a default under, the Company’s constituting documents or any indenture, mortgage, deed of trust or other agreement or instrument to which the Company is a party or by which it is bound, or any order of any court or administrative agency entered in any proceeding to which the Company is a party or by which it may be bound or to which it may be subject, that all laws and requirements with respect to the execution and delivery by the Company of the Medium-Term Debt Securities and Coupons, if any, of the series have been complied with and that all conditions precedent provided in this Indenture relating to the authentication and delivery of the Medium-Term Debt Securities and Coupons, if any, of the series have been complied with.

 

SECTION 3.02. Form of Medium-Term Debt Securities. The Medium-Term Debt Securities and Coupons, if any, of each series shall be in such forms as shall be specified as contemplated by Section 3.01.

 

 

SECTION 3.03. Initial Issuance of Medium-Term Debt Securities. Prior to the initial issuance of any Medium-Term Debt Securities pursuant to this Indenture, the Company shall give the Trustee at least 30 days’ prior written notice of the intended date of such initial issuance and, if reasonably determined by the Trustee to be necessary for such issuance, enter into a supplemental indenture pursuant to Section 10.01 hereto to add, change or eliminate any of the provisions of this Indenture relating to the issuance of Medium-Term Debt Securities to such extent as shall be reasonably necessary to facilitate the initial issuance of Medium-Term Debt Securities. The Trustee shall not be required to proceed with any such issuance of any Medium-Term Debt Securities unless the Trustee is satisfied that such additions, changes or eliminations have been properly adopted in such supplemental indenture.

 

ARTICLE IV

 

The Securities

 

SECTION 4.01. Form and Denomination. All Securities of any one series and the Coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to the Company Board Resolution referred to in Section 2.02 or Section 3.01, as the case may be, and (subject to Section 4.02) set forth in the Company Officer’s Certificate or Medium-Term Debt Securities Certificate referred to in Section 2.02 or Section 3.01, as the case may be, or in any indenture supplemental hereto.

 

The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 2.02 or Section 3.01, as the case may be. In the absence of any such provisions with respect to the Securities of any series, the Securities of such series denominated in Dollars shall be issuable in denominations of $1,000 and in any integral multiple thereof, if registered, and in denominations of $5,000 if bearer. Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or in accordance with such plan as the officers of the Company executing the same may determine with the approval of the Trustee. Each Security shall bear the appropriate legends, if any, as required by U.S. Federal tax law and regulations.

 

SECTION 4.02. Execution, Delivery, Dating and Authentication. (a)  The Securities shall be executed on behalf of the Company by a manual, electronic or facsimile signature of one of its officers. Any Coupons shall be executed on behalf of the Company by the manual, electronic or facsimile signature of any such officer of the Company. In case any of the above referenced officers of the Company who shall have signed any of the Securities or Coupons shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Trustee or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities and/or Coupons had not ceased to be such officer; and any Securities or Coupons may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Security or Coupon, shall be such officers of the Company, although at the date of the execution of this Indenture any such person was not such officer. Prior to the initial issuance of any Bearer Securities pursuant to this Indenture, the Company shall give the Trustee at least 30 days’ prior written notice of the intended date of such initial issuance and, if reasonably determined by the Trustee to be

 

 

necessary for such issuance, enter into a supplemental indenture pursuant to Section 10.01 hereto to add, change or eliminate any of the provisions of this Indenture relating to the issuance of Bearer Securities to such extent as shall be reasonably necessary to facilitate the initial issuance of Bearer Securities. The Trustee shall not be required to proceed with any such issuance of any Bearer Securities unless the Trustee is satisfied that such additions, changes or eliminations have been properly adopted in such supplemental indenture.

 

(b)  At any time and from time to time, the Company may deliver Securities of any series, together with any Coupons appertaining thereto, executed by the Company to the Trustee for authentication, together (except in the case of any Medium-Term Debt Securities) with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order (or, in the case of Medium-Term Debt Securities of any series, upon receipt of a Medium-Term Debt Securities Certificate and in accordance with the terms thereof) shall authenticate and make available for delivery such Securities; provided, however, that, unless otherwise specified in the Company Board Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt Securities in the Medium-Term Debt Securities Certificate) with respect to an Bearer Securities, in connection with its original issuance, no Bearer Security (including any temporary Bearer Security issued pursuant to Section 4.03 which is not in global form) shall be mailed or otherwise delivered to any location in the United States; and provided further, that unless otherwise specified in the Company Board Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to such Bearer Securities, such Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security (including any temporary Bearer Security issued pursuant to Section 4.03 which is not in global form) shall have furnished to the Company or any agent, underwriter or selling group member a certificate substantially in the form set forth in Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary Security and this Indenture. In connection with the original issuance of any Bearer Security and unless otherwise specified in the Company Board Resolution (or, in the case of any Bearer Securities that are Medium-Term Debt Securities, in the Medium-Term Debt Securities Certificate) with respect to such Bearer Securities, a confirmation substantially in the form set forth in Exhibit B.5 to this Indenture shall be sent to each purchaser thereof. If any Security shall be represented by a definitive global Bearer Security, then, for purposes of this Section and Section 4.03, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with its original issuance of such beneficial owner’s interest in such definitive global Bearer Security. Except as permitted by Section 4.05, the Trustee shall not authenticate and make available for delivery any Bearer Security unless all appurtenant Coupons for interest then matured have been detached and canceled.

 

(c)  The Trustee shall not be required to authenticate Securities of any series if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee, or if the Trustee determines that such action may not lawfully be taken.

 

 

(d)  Unless otherwise specified pursuant to Section 3.01(b)(ii), each Registered Security shall be dated the date of its authentication, and each Bearer Security and any Bearer Security in global form shall be dated as of the date of original issuance of the first Security of such series to be issued.

 

(e)  No Security or Coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for below executed by the Trustee by manual, electronic or facsimile signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancelation as provided in Section 4.08 together with a written statement (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

(f)  The Trustee’s certificate of authentication shall be in substantially the following form:

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the Securities of the Series designated herein issued under the within-mentioned Indenture.

 

	THE BANK OF NEW YORK MELLON, as Trustee
	by
		Authorized Signatory

 

SECTION 4.03. Temporary Securities. (a)  Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order (or, in the case of Medium-Term Debt Securities, receipt of the Medium-Term Debt Securities Certificate with respect to such Medium-Term Debt Securities) the Trustee shall authenticate and make available for delivery, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more Coupons or without Coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine (but which do not affect the rights, duties or immunities of the Trustee), as evidenced conclusively by their execution of such Securities. Such temporary Securities may be in global form.

 

(b)  Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any

 

 

series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company maintained pursuant to Section 11.02 in a Place of Payment for such series for the purpose of exchanges of Securities of such series, without charge to the Holder. Upon surrender for cancelation of any one or more temporary Securities of any series (accompanied by any unmatured Coupons) the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like aggregate principal amount of definitive Securities of the same series and of like tenor or authorized denominations; provided, however, that, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; provided further that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 4.02.

 

(c)  If temporary Bearer Securities of any series are issued in global form, such temporary global Bearer Securities shall, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, be delivered to the London office of a depository or common depository (the “Common Depositary”), for the benefit of Euroclear and Clearstream Banking, société anonyme (“Clearstream”), for credit to the respective accounts of the beneficial owners of interests in such Securities (or to such other accounts as they may direct).

 

(d)  Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the “Exchange Date”), the Company shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and make available for delivery, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, definitive global form or any combination thereof, as specified as contemplated by Section 2.02 or Section 3.01, as the case may be, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, upon such presentation by the Common Depositary, such temporary global Security shall be accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit B.2 to this Indenture; provided further that definitive Bearer Securities (including a definitive global Bearer Security) shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 4.02.

 

 

(e)  Unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, the interest of a beneficial owner of Securities of a series in a temporary global Bearer Security shall be exchanged for definitive Bearer Securities of the same series and of like tenor following the Exchange Date when the beneficial owner instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate substantially in the form set forth in Exhibit B.1 to this Indenture, dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear, Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and any Paying Agent appointed for such series of Securities. Unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euroclear or Clearstream. The definitive Bearer Securities to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States.

 

(f)  Until exchanged in full as provided above, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, interest payable on a temporary global Bearer Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates substantially in the form set forth in Exhibit B.3 to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security (or to such other accounts as they may direct) on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate substantially in the form set forth in Exhibit B.4 to this Indenture. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 11.03.

 

SECTION 4.04. Registration, Registration of Transfer and Exchange. (a)  The Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with Section 11.02 a register (being the combined register of the Security Registrar and all additional transfer agents designated pursuant to Section 11.02 for the purpose of registration of transfer of Securities and sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities. The Bank of New York Mellon is hereby appointed the initial Security Registrar, with the Security Register initially to be kept at BNY Mellon Corporate Trust, 500 Ross Street, Suite 625, Pittsburgh, PA 15262. At all reasonable times each register maintained by the Security Registrar and any additional transfer agents shall be open for inspection by the Trustee. The Security Registrar shall provide a written copy of the Security Register to the Company upon reasonable request.

 

 

 

(b)  Upon surrender for registration of transfer of any Registered Security of any series at the office or agency of the Company maintained pursuant to Section 11.02 for such purpose in a Place of Payment for such series, the Company shall execute, and the Trustee shall authenticate and make available for delivery, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor.

 

(c)  At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Securities which the Holder making the exchange is entitled to receive. Unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, Bearer Securities may not be issued in exchange for Registered Securities.

 

(d)  At the option of the Holder and unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured Coupons and all matured Coupons in default appertaining thereto. If the Holder of a Bearer Security is unable to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing Coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 11.02, interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture.

 

 

(e)  Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and make available for delivery, the Securities which the Holder making the exchange is entitled to receive.

 

(f)  Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, any definitive global Bearer Security shall be exchangeable only as provided in this paragraph. If the beneficial owners of interests in a definitive global Bearer Security are entitled to exchange such interests for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 2.02 or Section 3.01, as the case may be, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall deliver to the Trustee definitive Securities in an aggregate principal amount equal to the principal amount of such definitive global Bearer Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such definitive global Bearer Security shall be surrendered by the Common Depositary or such other depositary or Common Depositary as shall be specified in the Company Order or Medium-Term Debt Securities Certificate, as the case may be, with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge and the Trustee shall authenticate and make available for delivery, in exchange for each portion of such definitive global Bearer Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such definitive global Bearer Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 2.02 or Section 3.01, as the case may be, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 Business Days before any selection of Securities of that series to be redeemed and ending on the relevant Redemption Date; provided further, that no Bearer Security delivered in exchange for a portion of a definitive global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a definitive global Bearer Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such definitive global Bearer Security is payable in accordance with the provisions of this Indenture.

 

(g)  All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.

 

 

(h)  Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or any transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar or any transfer agent duly executed, by the Holder thereof or his attorney duly authorized in writing.

 

(i)  No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 4.03, 10.06 or 12.07 not involving any transfer.

 

(j)  The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 Business Days before any selection of Securities of that series to be redeemed and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the day of mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor; provided that such Registered Security shall be simultaneously surrendered for redemption.

 

(k)  None of the Trustee, the Paying Agent and the Security Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among depositary participants, members or beneficial owners in any global Security) other than 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.

 

SECTION 4.05. Mutilated, Destroyed, Lost and Stolen Securities. (a)  If any mutilated Security or Security with a mutilated Coupon appertaining to it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding with Coupons corresponding to the Coupons, if any, appertaining to the surrendered Security, provided that if such new Security is a Bearer Security, such Security shall be delivered only outside the United States.

 

(b)  If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or Coupon and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or Coupon has been

 

 

acquired by a protected purchaser, the Company shall execute and the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen Coupon appertains (upon surrender to the Trustee of such Security with all appurtenant Coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with Coupons corresponding to the Coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Coupon appertains.

 

(c)  In case any such mutilated, destroyed, lost or stolen Security or Coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security or Coupon, pay such Security or Coupon; provided, however, that principal of (and premium, if any) and any interest on Bearer Securities shall, except as otherwise provided in Section 11.02, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, any interest on Bearer Securities shall be payable only upon presentation and surrender of the Coupons appertaining thereto.

 

(d)  Upon the issuance of any new Security or Coupon under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

 

(e)  Every new Security or Coupon of any series issued pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen Security or Coupon shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, 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 proportionately with any and all other Securities or Coupons of that series duly issued hereunder.

 

(f)  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 stolen Securities or Coupons.

 

SECTION 4.06. Payment of Interest; Interest Rights Preserved. (a)  Unless otherwise provided as contemplated by Section 2.02 or Section 3.01, as the case may be, with respect to any series of Securities, interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. At the option of the Company, interest on the Registered Securities of any series that bears interest may be paid by mailing a check to the address of any Holder as such address shall appear in the Security Register.

 

(b)  Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of

 

 

having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:

 

(i)  The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii).

 

(ii)  The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

 

Subject to the foregoing provisions of this Section and Section 4.04, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

SECTION 4.07. Persons Deemed Owners. (a)  Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 4.04, 4.06 and 4.11 and unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be) interest on such Security and for all other purposes whatsoever, whether or not such Security is overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

 

(b)  Title to any Bearer Security and any Coupons shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer Security and the Holder of any Coupon as the absolute owner of such Security or Coupon for the purpose of receiving payment thereof or on account thereof (unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be) and for all other purposes whatsoever, whether or not such Security or Coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.

 

(c)  None of the Company, the Trustee, the Paying Agent and the Security Registrar shall have any responsibility or obligation to any beneficial owner in a global Security, a depositary participant or other Person with respect to the accuracy of the records of any applicable depositary or its nominee or of any applicable depositary participant, with respect to any ownership interest in the Securities or with respect to the delivery to any depositary participant, beneficial owner or other Person (other than a depositary) 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 and this Indenture shall be given or made only to or upon the order of the registered holders (which shall be the applicable depositary or its nominee in the case of the global Security). The rights of beneficial owners in the global Security shall be exercised only through the applicable depositary subject to the applicable procedures. The Trustee, the Paying Agent and the Security Registrar shall be entitled to conclusively rely and shall be fully protected in relying upon information furnished by the applicable depositary with respect to its members, participants and any beneficial owners. The Company, the Guarantor, the Trustee, the Paying Agent and the Security Registrar shall be entitled to deal with the depositary, and any nominee thereof, that is the registered holder of any global Security for all purposes of this Indenture relating to such global Security (including the payment of principal, premium, if any, and interest and additional amounts, if any, and the giving of instructions or directions by or to the owner or holder of a beneficial ownership interest in such global Security) as the sole holder of such global Security and shall have no obligations to the beneficial owners thereof. None of the Trustee, the Paying Agent and the Security Registrar shall have any responsibility or liability for any acts or omissions of the depositary with respect to such global Security, for the records of any such depositary, including records in respect of beneficial ownership interests in respect of any such global Security, for any transactions between the depositary and any depositary participant or between or among the depositary, any such depositary participant and/or any holder or owner of a beneficial interest in such global Security, or for any transfers of beneficial interests in any such global Security.

 

Notwithstanding the foregoing, with respect to any global Security, 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 any applicable depositary (or its nominee), as a Holder, with respect to such global Security or shall impair, as between such depositary and owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such global Security.

 

SECTION 4.08. Cancellation. All Securities and Coupons surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment

 

 

shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Securities and Coupons so delivered shall be promptly canceled by the Trustee. All Bearer Securities and unmatured Coupons held by the Trustee pending such cancelation shall be deemed to be delivered for cancelation for all purposes of this Indenture and the Securities. The Company may at any time deliver to the Trustee for cancelation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancelation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered to the Trustee shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. All canceled Securities and Coupons held by the Trustee shall be disposed of in a manner selected by the Trustee unless otherwise directed by a Company Order; provided, however, that the Trustee may, but shall not be required to, destroy such canceled Securities and Coupons.

 

SECTION 4.09. Computation of Interest. Except as otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.

 

SECTION 4.10. Currency and Manner of Payment in Respect of Securities. The provisions of this Section shall apply to the Securities of any series unless otherwise provided as contemplated by Section 2.02 or Section 3.01, as the case may be.

 

(a)  The following payment provisions shall apply to any Registered Security of any series denominated in a Foreign Currency or any currency unit, except as provided in paragraph (b) below:

 

(i)  Except as provided in subparagraph (a)(ii) or in paragraph (e) below, payment of principal of and premium, if any, on such Registered Security will be made at the Place of Payment by delivery of a check in the currency or currency unit in which the Security is denominated on the payment date against surrender of such Registered Security, and any interest on any Registered Security will be paid at the Place of Payment by mailing a check in the currency or currency unit in which such interest is payable (which shall be the same as that in which the Security is denominated unless otherwise provided) to the Person entitled thereto at the address of such Person appearing on the Security Register.

 

(ii)  Payment of the principal of, premium, if any, and interest, if any, on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method.

 

(b)  With respect to any Registered Security of any series denominated in any currency unit, if the following provisions (or any substitute therefor, or addition thereto, not inconsistent with this Indenture) are established pursuant to Section 2.02 or Section 3.01, as the case may be, and if the Company has not, before the delivery of the election referred to in clause (i) below, deposited funds or securities in compliance with Section 5.01 or clause (a)(i) or (if specified pursuant to Section 2.02 or Section 3.01, as the case may be) clause (a)(ii) of Section 5.03, the following

 

 

payment provisions shall apply to any payment to be made prior to the giving of any notice to Holders of any election to redeem pursuant to Section 12.04, except as otherwise provided in paragraphs (e) and (f) below:

 

(i)  A Holder of Securities of a series shall have the option to elect to receive payments of principal of, premium, if any, and interest, if any, on such Securities in a currency or currency unit (including Dollars), other than that in which the Security is denominated, such election, as designated in the certificates for such Securities (or as provided by Section 2.02 or Section 3.01, as the case may be, or a supplemental indenture hereto with respect to uncertificated securities), shall be made by delivering to the Paying Agent a written election, to be in form and substance satisfactory to the Paying Agent, not later than the close of business in New York, New York, on the day 15 days prior to the applicable payment date. Such election will remain in effect for such Holder until changed by the Holder by written notice to the Paying Agent (but any such written notice must be received by the Paying Agent not later than the close of business on the day 15 days prior to the next payment date to be effective for the payment to be made on such payment date and no such change may be made with respect to payments to be made on any Security of such series with respect to which notice of redemption has been given by the Company pursuant to Article XII). Any Holder of any such Security who shall not have delivered any such election to the Paying Agent in accordance with this paragraph (b) will be paid the amount due on the applicable payment date in the relevant currency unit as provided in paragraph (a) of this Section. Payment of principal of and premium, if any, shall be made on the payment date therefor against surrender of such Security. Payment of principal, premium, if any, and interest, if any, shall be made at the Place of Payment by mailing at such location a check, in the applicable currency or currency unit, to the Holder entitled thereto at the address of such Holder appearing on the Security Register.

 

(ii)  Payment of the principal of, premium, if any, and interest, if any, on such Security may also, subject to applicable laws and regulations, be made at such other place or places as may be designated by the Company by any appropriate method.

 

(c)  Payment of the principal of and premium, if any, and interest, if any, on any Bearer Security will be made, except as provided in Section 4.03 with respect to temporary global Securities, unless otherwise specified pursuant to Section 2.02 or Section 3.01, as the case may be, and/or Section 10.01(viii), at such place or places outside the United States as may be designated by the Company pursuant to any applicable laws or regulations by any appropriate method in the currency or currencies or currency unit or units in which the Security is payable (except as provided in paragraph (e) below) on the payment date therefor against surrender of the Bearer Security, in the case of payment of principal and premium, if any, or the relevant Coupon, in the case of payment of interest, if any, to a Paying Agent designated for such series pursuant to Section 11.02.

 

(d)  Not later than 10 Business Days (with respect to any Place of Payment) prior to each payment date, the Paying Agent shall deliver to the Company a copy of its record of the respective aggregate amounts of principal of, premium, if any, and interest, if any, on the Securities to be made on such payment date, in the currency or currency unit in which each of the Securities is payable, specifying the amounts so payable in respect of Registered Securities and Bearer Securities and in respect of the Registered Securities as to which the Holders of

 

 

Securities denominated in any currency unit shall have elected to be paid in another currency or currency unit as provided in paragraph (b) above. If the election referred to in paragraph (b) above has been provided for pursuant to Section 2.02 or Section 3.01, as the case may be, and if at least one Holder has made such election, then, not later than the fifth Business Day (with respect to any Place of Payment) prior to the applicable payment date the Company will deliver to the Trustee an Exchange Rate Officers’ Certificate in respect of the Dollar or Foreign Currency or currency unit payments to be made on such payment date. The Dollar or Foreign Currency or currency unit amount receivable by Holders of Registered Securities denominated in a currency unit who have elected payment in another currency or currency unit as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Official Currency Unit Exchange Rate set forth in the applicable Exchange Rate Officers’ Certificate.

 

(e)  If a Foreign Currency in which any Security is denominated or payable ceases to be recognized both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, or if any other currency unit in which a Security is denominated or payable ceases to be used for the purposes for which it was established, in each case as determined in good faith by the Company, then with respect to each date for the payment of principal of, premium, if any, and interest, if any, on the applicable Security denominated or payable in such Foreign Currency, or such other currency unit occurring after the last date on which such Foreign Currency, or such other currency unit was so used (the “Conversion Date”), the Dollar shall become the currency of payment for use on each such payment date (but the Foreign Currency or the currency unit previously the currency of payment shall, at the Company’s election, resume being the currency of payment on the first such payment date preceded by 15 Business Days during which the circumstances which gave rise to the Dollar becoming such currency no longer prevail, in each case as determined in good faith by the Company). The Dollar amount to be paid by the Company to the Trustee and by the Trustee or any Paying Agent to the Holder of such Security with respect to such payment date shall be the Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the currency unit, as determined by the Exchange Rate Agent (which shall be delivered in writing to the Trustee not later than the fifth Business Day prior to the applicable payment date) as of the Conversion Date or, if later, the date most recently preceding the payment date in question on which such determination is possible of performance, but not more than 15 days before such payment date (such Conversion Date or date preceding a payment date as aforesaid being called the “Valuation Date”) in the manner provided in paragraph (g) or (h) below.

 

(f)  If the Holder of a Registered Security denominated in a currency unit elects payment in a specified Foreign Currency or currency unit as provided for by paragraph (b) and such Foreign Currency ceases to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, or if a currency unit ceases to be used for the purposes for which it is established, in each case as determined in good faith by the Company, such Holder shall (subject to paragraph (e) above) receive payment in the currency unit in which the Security is denominated. Each payment covered by an election pursuant to paragraph (b) above shall be governed by the provisions of this paragraph (f) (but, subject to any contravening valid election pursuant to paragraph (b) above, the specified Foreign Currency or other currency unit shall, at the Company’s election, resume being the currency or currency unit, as applicable, of payment with

 

 

respect to Holders who have so elected, but only with respect to payments on payment dates preceded by 15 Business Days during which the circumstances which gave rise to such currency unit becoming the currency unit of payment, no longer prevail, in each case as determined in good faith by the Company).

 

(g)  The “Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent as of each Valuation Date and shall be obtained by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Valuation Date.

 

(h)  The “Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent as of each Valuation Date and shall be the sum obtained by adding together the results obtained by converting the Specified Amount of each Component Currency into Dollars at the Market Exchange Rate on the Valuation Date for such Component Currency.

 

(i)  For purposes of this Section 4.10 the following terms shall have the following meanings:

 

A “Component Currency” shall mean any currency which, on the Conversion Date, was a component currency of the relevant currency unit.

 

A “Specified Amount” of a Component Currency shall mean the number of units (including decimals) which such Component Currency represented in the relevant currency unit, on the Conversion Date or, the Valuation Date or the last date the currency unit was so used, whichever is later. If after such date the official unit of any Component Currency is altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in the same proportion. If after such date two or more Component Currencies are consolidated into a single currency, the respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum of the respective Specified Amounts of such consolidated Component Currencies expressed in such single currency, and such amount shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency. If after such date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall be replaced by specified amounts of such two or more currencies, the sum of which, at the Market Exchange Rate of such two or more currencies on the date of such replacement, shall be equal to the Specified Amount of such former Component Currency and such amounts shall thereafter be Specified Amounts and such currencies shall thereafter be Component Currencies.

 

“Market Exchange Rate” shall mean, as of any date, for any currency or currency unit the noon Dollar buying rate for that currency or currency unit, as the case may be, for cable transfers quoted in New York City on such date as certified for customs purposes by the Federal Reserve Bank of New York or such other rate as may be established pursuant to Section 2.02 or Section 3.01, as the case may be. If such rates are not available for any reason with respect to one or more currencies or currency units for which an Exchange Rate is required, the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major

 

 

banks in New York City or in the country of issue of the currency or currency unit in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would, as determined in its sole discretion and without liability on the part of the Exchange Rate Agent, purchase such currency or currency unit in order to make payments in respect of such securities.

 

(j)  All decisions and determinations of the Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit and the Market Exchange Rate shall be in its sole discretion and shall, in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company and all Holders of the Securities and Coupons denominated or payable in the relevant currency or currency units. In the event that a Foreign Currency ceases to be used both by the government of the country which issued such currency and for the settlement of transactions by public institutions of or within the international banking community, the Company, after learning thereof, will immediately give notice thereof to the Trustee (and the Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the Holders) specifying the Conversion Date. In the event a currency unit in which Securities or Coupons are denominated or payable, ceases to be used for the purposes for which it was established, the Company, after learning thereof, will immediately give notice thereof to the Trustee (and the Trustee will promptly thereafter give notice in the manner provided in Section 1.06 to the Holders) specifying the Conversion Date. Any actions taken pursuant to the parentheticals at the end of the first sentence of Section 4.10(e) and at the end of Section 4.10(f) shall be promptly set forth in like notices from the Company to the Trustee and then from the Trustee to the Holders (which notice may be mailed with payment to the Holders). Subject to the provisions of Sections 7.01 and 7.03, the Trustee shall be fully justified and protected in relying and acting upon information received by it from the Company and the Exchange Rate Agent, and shall not otherwise have any duty or obligation to determine such information independently.

 

SECTION 4.11. Securities in Global Form. (a)  If Securities of a series are issuable in global form, as specified as contemplated by Section 2.02 or Section 3.01, as the case may be, then, notwithstanding clause (a)(viii) of Section 2.02 or clause (b)(ix) of Section 3.01, as the case may be, and the provisions of Section 4.01, such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced or increased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order (or, in the case of Medium-Term Debt Securities, the Medium-Term Debt Securities Certificate) to be delivered to the Trustee pursuant to Section 4.02 or Section 4.03. Subject to the provisions of Section 4.02 and, if applicable, Section 4.03, the Trustee shall deliver and redeliver any Security in definitive global bearer form in the manner and upon written instructions given by the Person or Persons

 

 

specified therein or in the applicable Company Order (or, in the case of Medium-Term Debt Securities, the Medium-Term Debt Securities Certificate). If a Company Order (or, in the case of Medium-Term Debt Securities, Medium-Term Debt Securities Certificate) pursuant to Section 4.02 or 4.03 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel. The Company may identify each Person designated as depositary or common depositary for such global Security in a Company Board Resolution (including but not limited to the Company Board Resolution authorizing the execution, authentication and delivery of the Securities of the series), a Company Officer’s Certificate or in the definitive global Security.

 

(b)  The provisions of the last sentence of Section 4.02(e) shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 4.02(e).

 

(c)  Notwithstanding the provisions of Section 4.06, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, payment of principal of and any premium and any interest on any Security in definitive global form shall be made to the Person or Persons specified therein.

 

(d)  Notwithstanding the provisions of Section 4.07 and except as provided in the preceding paragraph, the Company, and any agent of the Company may, and the Trustee and any agent of the Trustee, at the direction of the Company, may treat a Person as the Holder of such principal amount of Outstanding Securities represented by a definitive global Security as shall be specified in a written statement of the Holder of such definitive global Security or, in the case of a definitive global Security in bearer form, of Euroclear or Clearstream which is produced to the Trustee by such Person; provided, however, that none of the Company, the Trustee, the Security Registrar or any Paying Agent shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

 

ARTICLE V

 

Satisfaction and Discharge

 

SECTION 5.01. Satisfaction and Discharge of Indenture in Respect of any Series of Securities. This Indenture shall upon Company Request cease to be of further effect with respect to a series of Securities (except as to any surviving rights of (as applicable) registration of transfer or exchange of Securities and Coupons, if any, of such series herein expressly provided for), and the Trustee, at the request and expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to such series, when:

 

(a)  Either

 

 

(i)  all Securities and Coupons, if any, of such series theretofore authenticated and delivered (other than (A) Securities and Coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 4.05 and (B) Securities and Coupons of such series 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 11.03) have been delivered to the Trustee for cancelation; or

 

(ii)  all such Securities and Coupons of such series not theretofore delivered to the Trustee for cancelation (A) have become due and payable, or (B) will become due and payable at their Stated Maturity within one year, or (C) 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 the Company, in the case of (ii)(A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount in the currency or currency unit in which such Securities and Coupons of such series are payable sufficient to pay and discharge the entire indebtedness on such Securities and Coupons of such series not theretofore delivered to the Trustee for cancelation, for principal (and premium, if any) and interest, if any, to the date of such deposit (in the case of Securities and Coupons of such series which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;

 

(b)  the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such series of Securities; and

 

(c)  the Company has delivered to the Trustee a Company Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of such series of Securities under this Indenture have been complied with.

 

Notwithstanding the satisfaction and discharge of this Indenture with respect to a series, the obligations of the Company to the Trustee under Section 7.07, the obligations of the Trustee to any Authenticating Agent under Section 7.14 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Trustee under Section 5.02 and Section 11.03(e) shall survive.

 

SECTION 5.02. Application of Trust Money. Subject to the provisions of Section 11.03(e), all money deposited with the Trustee pursuant to Sections 5.01 and 5.03 (and all money received as payment in connection with U.S. Government Obligations and Foreign Government Securities deposited pursuant to Section 5.03) shall be held in trust and applied by it, in accordance with the provisions of the Securities and Coupons, if any, and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or Guarantor acting as Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest, if any, for whose payment such money has been deposited with the Trustee.

 

 

SECTION 5.03. Satisfaction, Discharge and Defeasance of Securities of any Series. (a)  If this Section is specified, as contemplated by Section 2.02 or Section 3.01, as the case may be, to be applicable to Securities and Coupons, if any, of any series, at the Company’s option, either

 

(i)  the Company and the Guarantor will be deemed to have been Discharged (as defined below) from its obligations with respect to Securities and Coupons, if any, of such series or

 

(ii)  the Company and the Guarantor will cease to be under any obligation with respect to such series to comply with any term, provision or condition set forth in (x) Sections 9.01, 9.02, 11.06 and 11.07 or (y) the instrument or instruments setting forth the terms, provisions or conditions of such series pursuant to Section 2.02 or Section 3.01, as the case may be (provided, in the case of this subclause (y), that such instrument or instruments specify which terms, provisions or conditions, if any, are subject to this clause (a)(ii) and that no such instrument may specify that the Company or Guarantor may cease to comply with any obligations as to which it may not be Discharged pursuant to the definition of “Discharged”).

 

(b)  A Discharge pursuant to clause (a)(i) above shall be effective with respect to the Securities and Coupons, if any, of such series on the 91st day after the applicable conditions set forth below in (i) and either (ii) or (iii) have been satisfied, and the Company’s and Guarantor’s release from their respective obligations to comply with certain obligations with respect to such series pursuant to clause (a)(ii) above shall be effective with respect to the Securities and Coupons, if any, of such series on the first day after the applicable conditions set forth below in (i) and either (ii) or (iii) have been satisfied:

 

(i)  the Company has:

 

(A)  paid or caused to be paid all other sums payable with respect to the Outstanding Securities and Coupons, if any, of such series (in addition to any required under clause (b)(ii) or (b)(iii)); and

 

(B)  delivered to the Trustee a Company Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding Securities and Coupons, if any, of any such series have been complied with;

 

(ii)  (A)  the Company shall have deposited or caused to be deposited irrevocably with the Trustee as a trust fund specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities and Coupons, if any, of such series (1) money in an amount (in such currency, currencies or currency unit or units in which any Outstanding Securities and Coupons, if any, of such series are payable) or (2) in the case of Securities and Coupons, if any, denominated in Dollars, U.S. Government Obligations (as defined below) or, in the case of Securities and Coupons, if any, denominated in a Foreign Currency, Foreign Government Securities (as defined below), which through the payment of interest and principal in respect thereof in accordance with their terms without reinvestment will provide, not later than one day before the due date of any payment of principal (including any premium) and interest, if any, under the Securities and Coupons, if any, of such series, money in an amount or (3) a combination of (1) and (2), which in any case of clauses (1), (2) and (3) is sufficient (in the

 

 

opinion with respect to (2) and (3) 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 (including premium, if any, on), and interest, if any, on, the Outstanding Securities and Coupons, if any, of such series on the dates such installments of interest or principal are due, in the currency, currencies or currency unit or units, in which such Securities and Coupons, if any, are payable;

 

(B)  no Event of Default or event (including such deposit) which with notice or lapse of time would become an Event of Default shall have occurred and be continuing on the date of such deposit, (2) no Event of Default as defined in clause (v) or (vi) of Section 6.01, or event which with notice or lapse of time or both would become an Event of Default under either such clause, shall have occurred within 90 days after the date of such deposit, and (3) such deposit and the related intended consequence under clause (a)(i) or (a)(ii) above will not result in any default or event of default under any material indenture, agreement or other instrument binding upon the Company;

 

(C)  the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities and Coupons, if any, of such series will not recognize income, gain or loss for Federal income tax purposes as a result of the Company’s exercise of its option under this Section 5.03 and will be subject to Federal income tax in the same amount, in the same manner and at the same times as would have been the case if such option had not been exercised; and

 

(D)  if the Securities of such series are then listed on the New York Stock Exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such Securities will not be delisted as the result of the Company’s exercise of its option under this Section 5.03;

 

(iii)  the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 2.02 or Section 3.01, as the case may be, to be applicable to the Securities and Coupons, if any, of such series.

 

(c)  Any deposits with the Trustee referred to in clause (b)(ii)(A) above will be made under the terms of an escrow trust agreement in form and substance satisfactory to the Trustee. If any Outstanding Securities and Coupons, if any, of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any mandatory redemption provisions or in accordance with any mandatory sinking fund requirement, the applicable escrow trust agreement will provide therefor and the Company will make arrangements for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.

 

SECTION 5.04. Reinstatement. If the Trustee is unable to apply any money, U.S. Government Obligations or Foreign Government Securities in accordance with Section 5.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and Guarantor’s obligations under this Indenture and the Securities and Coupons, if any, of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 5.01 until such time as the Trustee is permitted to apply all such money, U.S. Government Obligations or Foreign

 

 

Government Securities in accordance with Section 5.01; provided, however, that if the Company or Guarantor has made any payment of interest on or principal of (and premium, if any) on any Securities and Coupons, if any, of such series because of the reinstatement of its obligations, the Company or Guarantor shall be subrogated to the rights of the Holders of such series of Securities and Coupons, if any, to receive such payment from the money, U.S. Government Obligations or Foreign Government Securities held by the Trustee.

 

SECTION 5.05. Definitions. The following terms, as used in this Article, shall have the following meanings:

 

“Discharged” means that the Company and Guarantor will be deemed to have paid and discharged the entire indebtedness represented by, and obligations under, the Securities and Coupons, if any, of the series as to which this Section is specified as applicable as aforesaid and to have satisfied all the obligations under this Indenture relating to the Securities and Coupons, if any, of such series (and the Trustee, at the request and expense of the Company, will execute proper instruments acknowledging the same), except (A) the rights of Holders thereof to receive, from the trust fund described in Section 5.03(b)(ii)(A), payment of the principal of (and premium, if any) and the interest, if any, on such Securities and Coupons, if any, when such payments are due, (B) the Company’s obligations with respect to such Securities and Coupons, if any, under Sections 4.04 and 4.05 (insofar as applicable to Securities of such series), 5.02, 11.02 and 11.03(e) and the Company’s obligations to the Trustee under Section 7.07, (C) the rights of Holders of Securities of any series with respect to the currency or currency units in which they are to receive payments of principal, premium, if any, and interest, if any, and (D) the rights, powers, trusts, duties and immunities of the Trustee hereunder, will survive such discharge. The Company will reimburse the trust fund for any loss suffered by it as a result of any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or Foreign Government Securities, as the case may be, or any principal or interest paid on such obligations, and, subject to the provisions of Section 7.07, will indemnify the Trustee against any claims made against the Trustee in connection with any such loss.

 

“Foreign Government Securities” means, with respect to Securities and Coupons, if any, of any series that are denominated in a Foreign Currency, securities that are (i) direct obligations of the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of such government the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by such government, which, in either case under clause (i) or (ii), are not callable or redeemable at the option of the issuer thereof.

 

“U.S. Government Obligations” means securities that are (i) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (ii) 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 of the United States of America, which, in either case under clause (i) or (ii), are not callable or redeemable at

 

 

the option of the issuer thereof, and will also include a depository receipt issued by a bank or trust company 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 interest on or principal of the U.S. Government Obligation evidenced by such depository receipt.

 

ARTICLE VI

 

Remedies

 

SECTION 6.01. Events of Default. “Event of Default” with respect to any series of Securities means each one of the events specified below in this Section 6.01, unless it is either inapplicable to a particular series or is specifically deleted or modified in or pursuant to the supplemental indenture, Company Board Resolution or Medium-Term Debt Securities Certificate establishing such series of Securities:

 

(i)  default in the payment of any installment of interest upon any of the Securities of such series, as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or

 

(ii)  default in the payment of the principal of or premium, if any, on any of the Securities of such series, as and when the same shall become due and payable (subject to clause (iii) below) either at maturity, upon redemption, by declaration or otherwise; or

 

(iii)  default in the making of any payment for a sinking, purchase or analogous fund provided for in respect of such series of Securities, as and when the same shall become due and payable, and continuance of such default for a period of 30 days; or

 

(iv)  failure on the part of the Company or the Guarantor, in each case subject to Section 11.08, duly to observe or perform any other of the covenants or agreements in respect of the Securities of such series, or contained in this Indenture with respect to such series, for a period of 90 days after the date on which written notice of such failure requiring the Company or the Guarantor, as the case may be, to remedy the same and stating that such notice is a ‘Notice of Default’ hereunder, shall have been given, by registered or certified mail, to the Company and the Guarantor by the Trustee, or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of the Securities of such series at the time Outstanding; or

 

(v)  entry of a decree or order for relief in respect of the Company or the Guarantor by a court having jurisdiction in the premises in an involuntary case under any applicable Federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or the Guarantor, as the case may be, or for any substantial part of its property, or ordering the winding-

 

 

up or liquidation of its affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or

 

(vi)  commencement by the Company or the Guarantor of a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent by the Company or the Guarantor to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Company or the Guarantor, as the case may be, or for any substantial part of its property, or any general assignment by the Company or the Guarantor for the benefit of creditors, or failure by the Company or the Guarantor, as the case may be, generally to pay its debts as they become due, or the taking by the Company or the Guarantor of any corporate action in furtherance of any of the foregoing;

 

(vii)  the Guarantee shall be held in a judicial proceeding to be unenforceable or ceases for any reason to be in full force and effect (other than in accordance with the terms of this Indenture) or the Guarantor denies or disaffirms its obligations under the Guarantee other than in accordance with the terms thereof or upon release of the Guarantee in accordance with this Indenture; or

 

(viii)  any other Event of Default provided with respect to Securities of that series.

 

SECTION 6.02. Acceleration of Maturity; Rescission and Annulment. (a)  If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in each and every such case, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of that series or, in the case of an Event of Default specified in clause (v) or (vi) of Section 6.01, of all series (voting as a class) with respect to which such Event of Default has occurred and is continuing, may declare the principal amount (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of that series, together with accrued interest thereon, if any, to be due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount), together with accrued interest thereon, if any, shall become immediately due and payable.

 

(b)  At any time after such a declaration of acceleration with respect to Securities of any series has been made and 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, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if

 

(i)  the Company or the Guarantor 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 interest thereon at the rate or rates prescribed therefor in such Securities,

 

 

(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)  in Dollars 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

 

(ii)  all Events of Default with respect to Securities of that series, other than the nonpayment 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 6.13.

 

No such rescission shall affect any subsequent default or impair any right consequent thereon,

 

SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee. (a)  The Company covenants that if:

 

(i)  default shall be made in the payment of any installment of interest on any Security or Coupon as and when the same shall become due and payable, and such default shall have continued for the period of grace provided for with respect to such Security or Coupon, as the case may be,

 

(ii)  default shall be made in the payment of the principal of or premium, if any, on any Security as and when the same shall have become due and payable (subject to clause (iii) below), whether at maturity of the Security or upon redemption or by declaration or otherwise, and such default shall have continued for any period of grace provided for with respect to such Security, or

 

(iii)  default shall be made in the payment for any sinking, purchase or analogous fund provided for in respect of any Security as and when the same shall become due and payable, and such default shall have continued for any period of grace provided for with respect to such Security,

 

the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities and Coupons, if any, the whole amount then due and payable on such Securities and Coupons, if any, for principal (and premium, if any) and interest, if any, and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue installments of interest, if any, at the rate or rates prescribed therefor in such Securities and Coupons, if any, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.

 

(b)  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, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company, the Guarantor or any other obligor upon such Securities and Coupons, if any, and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor or any other obligor upon such Securities and Coupons, if any, wherever situated.

 

 

(c)  If an Event of Default with respect to Securities and Coupons, if any, 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 and/or Coupons 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 6.04. Trustee May File Proofs of Claim. (a)  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,

 

(i)  to file and prove a claim for the whole amount of principal (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and

 

(ii)  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 directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07.

 

(b)  Nothing herein contained 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 and/or Coupons 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 6.05. Trustee May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities and Coupons, if any, may be prosecuted and enforced by the Trustee without the possession of any of the Securities or Coupons, if any, or the production thereof in any proceeding relating thereto, and any such proceeding 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 and Coupons, if any, in respect of which such judgment has been recovered.

 

 

SECTION 6.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article or, after an Event of Default, any money or other property distributable in respect of the Company’s obligations under this Indenture, 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 or other property on account of principal (or premium, if any) or interest, upon presentation of the Securities and Coupons, if any, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:

 

FIRST: to the payment of all amounts due the Trustee (including any predecessor trustee) under Section 7.07;

 

SECOND: to the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities and Coupons, if any, 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 and/or Coupons for principal (and premium, if any) and interest, if any, respectively; and

 

THIRD: the balance, if any, to the Person or Persons entitled thereto.

 

SECTION 6.07. Limitation on Suits. No Holder of Securities 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

 

(i)  an Event of Default with respect to Securities of such series shall have occurred and be continuing and such Holder has previously given written notice to the Trustee of such continuing Event of Default;

 

(ii)  the Holders of not less than 25% in principal amount of the Outstanding Securities of that series or, in the case of an Event of Default specified in clause (v) or (vi) of Section 6.01, of all series (voting as a class) with respect to which such Event of Default has occurred and is continuing, 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;

 

(iii)  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;

 

(iv)  the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and

 

(v)  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 or, in the case of an Event of Default specified in clause (v) or (vi) of Section 6.01, of all series (voting as a class) with respect to which such Event of Default has occurred and is continuing;

 

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 (including

 

 

without limitation the provisions of Section 6.12) 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 such Holders.

 

SECTION 6.08. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security or any Coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 4.06) interest, if any, on such Security or Coupon 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 6.09. 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 and determination in such proceeding, the Company, the Guarantor, 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 6.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and/or Coupons, if any, in Section 4.05(f), 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 6.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities and/or Coupons 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. Subject to the provisions of Section 6.07, 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 6.12. Control by Holders. The Holders of not less than 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

 

(i)  such direction shall not be in conflict with any rule of law or with this Indenture.

 

 

(ii)  the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and

 

(iii)  subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Trust Officer or Officers of the Trustee, determine that the action so directed would involve the Trustee in personal liability or be unduly prejudicial to Holders not joining therein.

 

SECTION 6.13. 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

 

(i)  in the payment of the principal of (or premium, if any) or interest, if any, on any Security of such series, or

 

(ii)  in respect of a covenant or provision hereof which under Article X 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 with respect to such series, and any Event of Default with respect to such series 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 6.14. Undertaking for Costs. All parties to this Indenture agree, and each Holder of a Security and/or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company or the Guarantor, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on any Security or the payment of interest on any Coupon on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).

 

SECTION 6.15. 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 VII

 

The Trustee

 

SECTION 7.01. Certain Duties and Responsibilities. (a)  Except during the continuance of an Event of Default,

 

(i)  the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

(ii)  in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements, opinions or conclusions stated therein).

 

(b)  In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.

 

(c)  No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that

 

(i)  this SubSection shall not be construed to limit the effect of SubSections (a) or (d) of this Section;

 

(ii)  the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Trust Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and

 

(iii)  the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, given pursuant to Section 6.12, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series.

 

(d)  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.

 

(e)  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 7.02. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit to the Holders of Securities of such series notice as provided in Section 1.06 of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any, on) or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Trust Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; provided, further, that in the case of any default of the character specified in Section 6.01(iv) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence of such default. 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 the Securities of such series.

 

The Trustee shall not be deemed to have, or be charged with, notice or knowledge of any default or Event of Default unless written notice of such default or Event of Default from the Company, the Guarantor or any Holder is received by a Responsible Trust Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities of such series and this Indenture.

 

SECTION 7.03. Certain Rights of Trustee. Subject to the provisions of Section 7.01:

 

(a)  the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in reliance upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, 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;

 

(b)  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 Company Board of Directors may be sufficiently evidenced by a Company Board Resolution;

 

(c)  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 a Company Officer’s Certificate;

 

 

(d)  the Trustee may consult with counsel and the 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;

 

(e)  the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

 

(f)  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, approval, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company;

 

(g)  the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or counsel, and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or counsel appointed with due care by it hereunder;

 

(h)  the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;

 

(i)  the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and

 

(j)  the Trustee may request that the Company and the Guarantor deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which certificate may be signed by any person authorized to sign a Company Officer’s Certificate or a Guarantor Officers’ Certificate, as applicable, including any person specified as so authorized in any such certificate previously delivered and not superseded.

 

SECTION 7.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company and the Guarantor, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof. The Trustee shall not be responsible to make any calculation with respect to any matter under this Indenture. The Trustee shall have no duty to monitor or investigate the Company’s or Guarantor’s compliance with or the breach of, or cause to be performed or observed, any

 

 

representation, warranty, or covenant, or agreement of any Person, other than the Trustee, made in this Indenture.

 

SECTION 7.05. May Hold Securities. The Trustee, 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 or warrants to purchase Securities and, subject to Section 7.08, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such other agent.

 

SECTION 7.06. Money Held in Trust. Except as provided in Section 1.14, money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee or any Paying Agent shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.

 

SECTION 7.07. Compensation and Reimbursement. (a)  The Company agrees:

 

(i)  to pay to the Trustee from time to time in Dollars such compensation as shall be agreed to in writing between the Company and the Trustee 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);

 

(ii)  except as otherwise expressly provided herein, to reimburse the Trustee in Dollars 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 any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and

 

(iii)  to indemnify the Trustee in Dollars for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including reasonable fees and expenses of counsel), including taxes (other than taxes based upon, or measured or determined by, the income of the Trustee) incurred without negligence or bad faith on its part, arising out of or in connection with this Indenture, the Securities, the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim (whether asserted by the Company, the Guarantor or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or in connection with enforcing the provisions of this Section.

 

(b)  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 the payment of principal of, premium, if any, or interest, if any, on particular Securities.

 

(c)  In addition to, but without prejudice to its other rights under this Indenture, when the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(v) and Section 6.01(vi), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.

 

 

(d)  The provisions of this Section shall survive the satisfaction and discharge of the Indenture and the Securities, the termination for any reason of this Indenture and the resignation or removal of the Trustee.

 

SECTION 7.08. Disqualification; Conflicting Interests. (a)  If the Trustee has or shall acquire any conflicting interest, as defined in Section 310(b) of the Trust Indenture Act, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect provided by, and subject to the provisions of, Section 310(b) of the Trust Indenture Act and this Indenture.

 

(b)  In the event that the Trustee shall fail to comply with the provisions of the preceding sentence with respect to the Securities of any series, the Trustee shall, within 10 days after the expiration of such 90-day period, transmit, in the manner and to the extent provided in Section 1.06, to all Holders of Securities of that series notice of such failure.

 

(c)  Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the penultimate paragraph of Section 310(b) of the Trust Indenture Act.

 

(d)  To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest with respect to (i) the Securities of any series by virtue of being trustee with respect to the Securities of any particular series of Securities other than that series, (ii) the 1993 Indenture, (iii) the Indenture, dated as of August 13, 2007, between the IBM International Group Capital LLC and The Bank of New York as trustee and (iv) any other indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company or the Guarantor are outstanding.

 

SECTION 7.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee for each series of Securities hereunder which shall be either (1) a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by Federal or State authority and having its Corporate Trust Office located in The City of New York or (2) a corporation or other Person organized and doing business under the laws of a foreign government that is permitted to act as Trustee pursuant to a rule, regulation or order of the Commission, which is authorized under such laws to exercise corporate trust powers and is subject to supervision or examination by authority of such foreign government or a political subdivision thereof substantially equivalent to supervision or examination applicable to United States institutional trustees; in either case having a combined capital and surplus of at least $50,000,000. If such corporation or 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 corporation or Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Neither the Company nor any Person directly or indirectly controlling, controlled by, or under common control with the Company shall serve as trustee for the Securities of any series issued hereunder. 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.

 

 

SECTION 7.10. 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 7.11.

 

(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 7.11 shall not have been delivered to the resigning 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:

 

(i)  the Trustee shall fail to comply with Section 7.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of a series as to which the Trustee has a conflicting interest for at least six months, or

 

(ii)  the Trustee for a series shall cease to be eligible under Section 7.09 and shall fail to resign after written request therefor by the Company or by any Holder of Securities of such series, or

 

(iii)  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 Company Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 6.14, any Holder who has been a bona fide Holder of a Security for at least six months (and, in the case of clause (i) above, who is a holder of a Security of a series as to which the Trustee has a conflicting interest) 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 the Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Company 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 of or all such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and such successor Trustee or Trustees shall comply with the applicable requirements of Section 7.11. If, within one year 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 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 7.11, 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 7.11, 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 the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by giving notice of such event to all Holders of Securities of such series as provided by Section 1.06. 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 7.11. 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, subject to the lien provided for in Section 7.07(b).

 

(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 (1) 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, (2) 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 as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) 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 7.12. 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 that 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.

 

SECTION 7.13. Judgment Currency. (a)  If, for the purpose of obtaining a judgment in any court with respect to any obligation of the Company or the Guarantor hereunder or under any Security or Coupon, it shall become necessary to convert into any other currency or currency unit any amount in the currency or currency unit due hereunder or under such Security or Coupon, then such conversion shall be made at the Conversion Rate (as defined below) as in effect on the date the Company shall make payment to any Person in satisfaction of such judgment. If pursuant to any such judgment, conversion shall be made on a date other than the date payment is made and there shall occur a change between such Conversion Rate and the Conversion Rate as in effect on the date of payment or distribution, the Company agrees to pay such additional amounts (if any) as may be necessary to ensure that the amount paid is the amount in such other currency or currency unit which, when converted at the Conversion Rate as in effect on the date of payment or distribution, is the amount then due hereunder or under such Security or Coupon. Any amount due from the Company under this Section 7.13 shall be due as a separate debt and is not to be affected by or merged into any judgment being obtained for any other sums due hereunder or in respect of any Security or Coupon so that in any event the Company’s obligations hereunder or under such Security or Coupon will be effectively maintained as obligations in such currency or currency unit. In no event, however, shall the Company be required to pay more in the currency or currency unit stated to be due hereunder or under such Security or Coupon.

 

 

(b)  For purposes of this Section 7.13, “Conversion Rate” shall mean, as of any date, for any currency or currency unit into which an amount due hereunder or under any Security or Coupon is to be converted, the noon buying rate in the other currency or currency unit for that currency or currency unit for cable transfers quoted in New York City on such date as certified for customs purposes by the Federal Reserve Bank of New York. If such rates are not available for any reason with respect to one or more currencies or currency units for which a Conversion Rate is required, the Exchange Rate Agent shall use, in its sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in New York City or in the country of issue of the currency in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is more than one market for dealing in a currency or currency unit by reason of foreign exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which a nonresident issuer of securities designated in such currency or currency unit would, as determined in its sole discretion and without liability on the part of the Exchange Rate Agent, purchase such currency or currency unit in order to make payments in respect of such Securities. If there does not exist a quoted exchange rate in any currency or currency unit (the “First Currency”) for another currency unit (the “Second Currency”), then the Conversion Rate for the Second Currency shall be equal to equivalent amount in the First Currency obtained by converting the Specified Amount of each Component Currency of the Second Currency into the First Currency at the Conversion Rate (determined as provided above) for each such Component Currency on such date (or, if the First Currency is a currency unit for which there is no quoted exchange rate in any Component Currency, by converting the Specified Amount of each Component Currency of the Second Currency into the Specified Amount of each Component Currency of the First Currency at the Conversion Rate (determined as provided above) for each such Component Currency on such date).

 

SECTION 7.14. Appointment of Authenticating Agent. (a)  The Company 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 or upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 4.05, 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 Trustee’s 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 Trustee and shall at all times be a corporation having a combined capital and surplus of not less than the equivalent of $50,000,000 and subject to supervision or examination by Federal, state or District of Columbia authority or the equivalent foreign authority, in the case of an Authenticating Agent who is not organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia. 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.

 

(b)  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 such 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 such Authenticating Agent.

 

(c)  An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Company may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Trustee. 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 Company may appoint a successor Authenticating Agent which shall be acceptable to the Trustee and shall mail, or cause to be mailed, written notice of such appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, 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.

 

(d)  The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section.

 

(e)  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 Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:

 

This is one of the Securities of the Series designated herein issued under the within-mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee

 

By
	[                       ]
	As Authenticating Agent
By
	Authorized [Officer] [Signatory]

 

 

(f)  If all the Securities of a series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment or other place where the Company wishes to have Securities of such series authenticated upon original issuance, the Company shall appoint in accordance with this Section an Authenticating Agent (which may be an Affiliate of the Company if eligible to be appointed as an Authenticating Agent hereunder) having an office in such Place of Payment or other place designated by the Company with respect to such series of Securities.

 

SECTION 7.15. Force Majeure. The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations hereunder because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, strikes, work stoppages, civil or military disturbances, epidemics or pandemics, disease, fire, riot, embargo, declared or threatened state of emergency, the interruption, loss or malfunction of utilities or transportation, communications or computer (software and hardware) services or systems and government action; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

 

SECTION 7.16. Consequential Damages. Anything in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the likelihood of such loss or damage and regardless of the form of action.

 

SECTION 7.17. Electronic Means. The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and related financing documents and delivered using Electronic Means; provided, however, that the Company and/or the Guarantor, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Company and/or the Guarantor, as applicable, whenever a person is to be added or deleted from the listing. If the Company and/or the Guarantor, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company and the Guarantor understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Officer. The Company and the Guarantor shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the Company, the Guarantor and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and/or the Guarantor, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company and the Guarantor agree to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee,

 

 

including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties.

 

SECTION 7.18. Tax Withholding. Notwithstanding any other provision of this Indenture, the Trustee shall be entitled to make a deduction or withholding from any payment which it makes under this Indenture for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant holder failing to satisfy any certification or other requirements in respect of the Securities, in which event the Trustee shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted and shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax.

 

ARTICLE VIII

 

Holders’ Lists and Reports by Trustee and Company

 

SECTION 8.01. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee:

 

(a)  semiannually, not later than January 15 and July 15 in each year, a list in such form as the Trustee may reasonably require, of the names and addresses of the Holders of each series of Registered Securities as of the preceding January 1 or July 1, as the case may be, and such information concerning the Holders of Bearer Securities which is known to the Company or any Paying Agent other than the Company or Guarantor; provided, however, that the Company and such Paying Agents shall have no obligation to investigate any matter relating to any Holder of a Bearer Security or a Coupon; and

 

(b)  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, such list to be dated as of a date not more than 15 days prior to the time such list is furnished, and such information concerning the Holders of Bearer Securities which is known to the Company or any such Paying Agent; provided, however, that the Company and such Paying Agents shall have no obligation to investigate any matter relating to any Holder of a Bearer Security or a Coupon; notwithstanding the foregoing SubSections (a) and (b), at such times as the Trustee is the Security Registrar and Paying Agent with respect to a particular series of Securities, no such list shall be required to be furnished in respect of such series.

 

SECTION 8.02. 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 each series contained in the most recent list furnished to the Trustee as provided in Section 8.01 and the names and addresses of Holders of each series received by the Trustee in any capacity as Security Registrar or Paying Agent. The Trustee may destroy any list furnished to it as provided in Section 8.01 upon receipt of a new list so furnished.

 

 

(b)  If three or more Holders of Securities of any series (herein referred to as “applicants”) apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series with respect to their rights under this Indenture or under such Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either:

 

(i)  afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 8.02(a), or

 

(ii)  inform such applicants as to the approximate number of Holders of Securities of such series whose names and addresses appear in the information preserved at the time by the Trustee in accordance with Section 8.02(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.

 

If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of Securities of such series whose name and address appear in the information preserved at the time by the Trustee in accordance with Section 8.02(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders of such series or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.

 

(c)  Every Holder of Securities or Coupons, 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 the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 8.02(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 8.02(b).

 

SECTION 8.03. Reports by Trustee. (a)  Within 60 days after May 15 of each year commencing with the May 15 occurring after the initial issuance of Securities hereunder, the Trustee shall transmit by mail to the Holders of Securities, as provided in SubSection (c) of this

 

 

Section, a brief report dated as of such May 15 in accordance with and to the extent required under Section 313 of the TIA.

 

(b)  A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each United States stock exchange upon which any Securities are listed, with the Commission and with the Company.

 

(c)  Reports pursuant to Section 8.03(a) shall be transmitted by mail (i) to all Holders, as their names and addresses appear in the Security Register, (ii) to all Holders as have, within two years preceding such transmission, filed their names and addresses with the Trustee for such purpose, and (iii) to all Holders whose names and addresses have been furnished or received by the Trustee pursuant to Sections 8.01 and 8.02.

 

SECTION 8.04. Reports by Guarantor. The Guarantor shall file with the Trustee, within 15 days after the Guarantor is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Guarantor is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended and shall otherwise comply with Section 314(a) of the Trust Indenture Act. Reports, information and documents filed by the Guarantor with the Commission via EDGAR (or any successor system thereto) will be deemed filed with the Trustee for purposes of this Section 8.04 as of the time that such reports, information and documents are filed via EDGAR (or any successor system thereto). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Guarantor’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on a Guarantor’s Officers’ Certificate). Following a substitution of the Company by the Guarantor pursuant to Section 9.03, references to “Guarantor” in this Section 8.04 shall instead refer to the Company.

 

ARTICLE IX

 

Consolidation, Merger, Conveyance or Transfer

 

SECTION 9.01. Company and Guarantor May Consolidate, Etc., Only on Certain Terms. (a)   The Company shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless:

 

(i)  the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer the properties and assets of the Company substantially as an entirety shall be a Person organized and existing under the laws of the Republic of Singapore, the United States of America or any state or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest, if any, on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed;

 

 

(ii)  immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and

 

(iii)  the Company has delivered to the Trustee a Company Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

(b)  The Guarantor shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless:

 

(i)  the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or transfer the properties and assets of the Guarantor substantially as an entirety shall be a Person organized and existing under the laws of the United States of America or any state or the District of Columbia, and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest, if any, on all the Securities and the performance or observance of every covenant of this Indenture on the part of the Guarantor to be performed or observed;

 

(ii)  immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing; and

 

(iii)  the Guarantor has delivered to the Trustee a Guarantor Officers’ Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.

 

SECTION 9.02. Successor Person Substituted. Upon any consolidation or merger, or any conveyance or transfer of the properties and assets of the Company or Guarantor, as applicable, substantially as an entirety in accordance with Section 9.01, the successor Person formed by such consolidation or into which the Company or Guarantor, as applicable, is merged or to which such conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company or Guarantor, as applicable, under this Indenture with the same effect as if such successor Person had been named as the Company or Guarantor, as applicable, herein; and in the event of any such conveyance or transfer, the Company (which term shall for this purpose mean the Person named as the “Company” in the first paragraph of this instrument or any successor Person which shall have theretofore become such in the manner prescribed in Section 9.01(a)) or Guarantor (which term shall for this purpose mean the Person named as the “Guarantor” in the first paragraph of this instrument or any successor Person which shall have theretofore become such in the manner prescribed in Section 9.01(b)), as applicable, shall be discharged from all liability under this Indenture and in respect of the Securities and may be dissolved and liquidated.

 

 

SECTION 9.03. Substitution of the Company. (a)  The Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor (including any successor Guarantor pursuant to Section 9.02) in respect of each series of Securities then Outstanding, if, immediately after giving effect to such substitution, no Event of Default, or event which with notice or lapse of time or both would become an Event of Default, has occurred and is continuing (other than such an event or Event of Default that would be cured by such substitution); provided that such substitution shall be conditioned upon the Guarantor executing an indenture supplemental hereto in which it agrees to be bound by the terms of this Indenture and the Securities of each such series as fully as if the Guarantor had been named in this Indenture and on the Securities of each such series in place of the Company.

 

(b)  Upon the substitution of the Company by the Guarantor in accordance with this Section 9.03, the Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if the Guarantor had been named as the Company herein, and thereafter (i) the Company shall be relieved of all obligations and covenants under this Indenture and the Securities and (ii) the Guarantor shall be relieved of all obligations with respect to the Guarantee under Article XV.

 

ARTICLE X

 

Supplemental Indentures

 

SECTION 10.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by or pursuant to a Company Board Resolution, the Guarantor, when authorized by or pursuant to a Guarantor 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:

 

(i)  to evidence the succession of another Person to the Company or Guarantor and the assumption by any such successor of the covenants of the Company or Guarantor herein and in the Securities (including the substitution of the Company by the Guarantor (and simultaneous release of the Guarantee of the Guarantor) pursuant to Section 9.03);

 

(ii)  to add to the covenants of the Company or Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company or Guarantor;

 

(iii)  to add any additional Events of Default with respect to all or any series of the Securities (and, if such Event of Default is applicable to less than all series of Securities, specifying the series to which such Event of Default is applicable);

 

(iv)  to add to or change any of the provisions of this Indenture to such extent as shall be necessary to facilitate the issuance of Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons; to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer

 

 

Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations; provided that any such addition or change shall not adversely affect the interests of the Holders of Securities of any series or any related Coupons in any material respect;

 

(v)  to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is adversely affected by such change in or elimination of such provision;

 

(vi)  to establish the form or terms of Securities of any series as permitted by Sections 2.02 and 3.01;

 

(vii)  to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to 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, pursuant to the requirements of Section 7.11(b);

 

(viii)  if allowed under applicable laws and regulations, to permit payment in the United States of principal, premium or interest on Bearer Securities or Coupons, if any;

 

(ix)  to provide for the issuance of uncertificated Securities of one or more series in addition to or in place of certificated Securities;

 

(x)  to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein; or

 

(xi)  to make any other provisions with respect to matters or questions arising under this Indenture; provided such other provisions as may be made shall not adversely affect the interests of the Holders of outstanding Securities of any series in any material respect.

 

SECTION 10.02. Supplemental Indentures with Consent of Holders. (a)  With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of all series affected by such supplemental indenture (acting as one class), by Act of said Holders delivered to the Company, the Guarantor and the Trustee, the Company, when authorized by or pursuant to a Company Board Resolution, the Guarantor, when authorized by or pursuant to a Guarantor 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 of such series under this indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each outstanding Security affected thereby,

 

(i)  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 reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.02, or change any Place of Payment

 

 

where, or the currency, currencies or currency unit or units in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or affect adversely the terms, if any, of conversion of any Security into stock or other securities of the Company or of any other corporation,

 

(ii)  reduce the percentage in principal amount of the Outstanding Securities of any series, 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,

 

(iii)  change any obligation of the Company, with respect to Outstanding Securities of a series, to maintain an office or agency in the places and for the purposes specified in Section 11.02 for such series,

 

(iv)  release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with this Indenture, or

 

(v)  modify any of the provisions of this Section or Section 6.13, except to increase any such percentage or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the Holders of a specified percentage of the aggregate principal amount of Outstanding Securities of such series (which provision may be made pursuant to Section 2.02 or Section 3.01, as the case may be, without the consent of any Holder) 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, or the deletion of this proviso, in accordance with the requirements of Section 7.11(b) and 10.01(vii).

 

(b)  For purposes of this Section 10.02, if the Securities of any series are issuable upon the exercise of warrants, each holder of an unexercised and unexpired warrant with respect to such series shall be deemed to be a Holder of Outstanding Securities of such series in the amount issuable upon the exercise of such warrant. For such purposes, the ownership of any such warrant shall be determined by the Company in a manner consistent with customary commercial practices. The Trustee for such series shall be entitled to rely on a Company Officer’s Certificate as to the principal amount of Securities of such series in respect of which consents shall have been executed by holders of such warrants.

 

(c)  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.

 

 

SECTION 10.03. 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 (in addition to the opinion which the Trustee is entitled to receive pursuant to Section 2.02), and (subject to Section 7.01) 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 Trustee’s own rights, duties, immunities or liabilities under this Indenture or otherwise.

 

SECTION 10.04. 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 10.05. 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 10.06. 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.

 

ARTICLE XI

 

Covenants

 

SECTION 11.01. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities and Coupons, if any, that it will duly and punctually pay the principal of (and premium, if any, on) and interest, if any, on the Securities and Coupons, if any, of that series in accordance with the terms of the Securities and Coupons, if any, of such series and this Indenture.

 

SECTION 11.02. Maintenance of Office or Agency. (a)  If Securities of a series are issuable only as Registered Securities, the Company will maintain in each Place of Payment for such series 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. If Securities of a series are issuable as both Registered or Bearer Securities or only as Bearer Securities, the Company will maintain (i) in the Borough of Manhattan, The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered

 

 

Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related Coupons may be presented or surrendered for payment in the circumstances described in the proviso contained in the last sentence of this paragraph (a) of Section 11.02 (and not otherwise), (ii) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related Coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Securities of that series pursuant to Section 11.05); provided, however, that if the Securities of that series are listed on any stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in any required city located outside the United States, so long as the Securities of that series are listed on such exchange, and (iii) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States, an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for 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 and the Holders of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency in respect of any series of Securities or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders of Securities of that series may be made and notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of that series and the related Coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Bearer Securities of that series pursuant to Section 11.05) at the London office of the Trustee (or an agent with a London office appointed by the Trustee and acceptable to the Company), and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands. No payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; provided, however, that, if the Securities of a series are denominated and payable in Dollars, payment of principal of and any premium and interest on any Bearer Security (including any additional amounts payable on Securities of such series pursuant to Section 11.05) shall be made at the office of the Company’s Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium, interest or additional amounts, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.

 

(b)  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 accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the

 

 

Holders of any such designation or rescission and of any change in the location of any such other office or agency.

 

SECTION 11.03. Money for Securities Payments to be Held in Trust. (a)  If the Company or Guarantor shall at any time act as Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the relevant currency (or a sufficient number of currency units, as the case may be) sufficient to pay the principal (or premium, if any) or interest, if any, 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 to so act.

 

(b)  Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, at or prior to the opening of business on each due date of the principal of (and premium, if any, on) or interest, if any, on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.

 

(c)  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 Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:

 

(i)  hold all sums held by it for the payment of the principal of (and premium, if any, on) or interest, if any, on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

 

(ii)  give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in making of any payment of principal (and premium, if any, on) or interest, if any, on the Securities of that series; and

 

(iii)  at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

(d)  The Company may at any time, for the purpose of obtaining the satisfaction and charge 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.

 

(e)  Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any, on) or interest, if any, on any Security of any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security and Coupons, if any, 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; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense and at the direction of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified herein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company. All moneys payable to the Company by the Trustee or any Paying Agent as provided in the preceding sentence shall be paid to the Company on May 31 of each year.

 

SECTION 11.04. Statement by Officers as to Default. Each of the Company and Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year (which as of the date hereof ends on December 31), a written certificate signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company or Guarantor, as applicable, stating that:

 

(i)  a review of the activities of the Company or Guarantor, as applicable, during such year and of performance under this Indenture has been made under his supervision; and

 

(ii)  to his knowledge, based on such review, the Company or Guarantor, as applicable, has fulfilled all its obligations, and has complied with all conditions and covenants, under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, condition or covenant, specifying each such default known to him and the nature and status thereof. For purposes of this Section 11.04, compliance shall be determined without regard to any grace period or requirement of notice provided pursuant to the terms of this Indenture.

 

SECTION 11.05. Additional Amounts. (a)  If the Securities of a series provide for the payment of additional amounts, the Company will pay to the Holder of any Security of such series or any related Coupon additional amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or payment of any related Coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.

 

(b)  If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Company Officer’s Certificate, the Company will furnish the Trustee and the Company’s Paying Agent or Paying Agents, if other than the Trustee, with a Company Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents

 

 

whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related Coupons without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Company Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such Payments to such Holders of Securities or Coupons and the Company will pay to the Trustee or such Paying Agent the additional amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Company Officer’s Certificate furnished pursuant to this Section.

 

SECTION 11.06. Limitation on Secured Indebtedness. Unless specified, as contemplated by Section 2.02 or Section 3.01, as the case may be, not to be applicable to Securities of any series, this Section shall be applicable to Securities of each series for the benefit of the Securities of such series as long as any Securities of such series are Outstanding (subject to clause (a)(ii) of Section 5.03, as contemplated by subclause (x) thereof). The Guarantor will not, and will not permit any Restricted Subsidiary to, create, assume, incur or guarantee any Secured Indebtedness without making provision whereby the Guarantee of all the Securities (or, following the substitution of the Company by the Guarantor in accordance with Section 9.03, all the Securities) shall be secured equally and ratably with (or prior to) such Secured Indebtedness (together with, if the Guarantor shall so determine, any other indebtedness of the Guarantor or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) so long as such Secured Indebtedness shall be outstanding unless such Secured Indebtedness, when added to (a) the aggregate amount of all Secured Indebtedness then outstanding (not including in this computation Secured Indebtedness if the Guarantee is (or, following the substitution of the Company by the Guarantor in accordance with Section 9.03, the Securities are) secured equally and ratably with (or prior to) such Secured Indebtedness and further not including in this computation any Secured Indebtedness which is concurrently being retired) and (b) the aggregate amount of all Attributable Debt then outstanding pursuant to Sale and Leaseback Transactions entered into by the Guarantor after July 15, 1985, or, entered into by a Restricted Subsidiary after July 15, 1985, or, if later, the date on which it became a Restricted Subsidiary (not including in this computation any Attributable Debt which is concurrently being retired), would not exceed 10% of Consolidated Net Tangible Assets.

 

SECTION 11.07. Limitation on Sale and Leaseback Transactions. Unless specified, as contemplated by Section 2.02 or Section 3.01, as the case may be, not to be applicable to Securities of any series, this Section shall be applicable to Securities of each series for the benefit of the Securities of such series as long as any Securities of such series are Outstanding (subject to clause (a)(ii) of Section 5.03, as contemplated by subclause (x) thereof). The Guarantor will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction unless (a) the sum of (i) the Attributable Debt to be outstanding pursuant to such Sale and Leaseback Transaction, (ii) all Attributable Debt then outstanding pursuant to all other Sale and Leaseback Transactions entered into by the Guarantor after July 15, 1985, or entered into by a Restricted Subsidiary after July 15, 1985, or, if later, the date on which it became a Restricted Subsidiary, and (iii) the aggregate of all Secured Indebtedness then outstanding (not including in this computation Secured Indebtedness if the Guarantee is (or, following the

 

 

substitution of the Company by the Guarantor in accordance with Section 9.03, the Securities are) secured equally and ratably with (or prior to) such Secured Indebtedness) would not exceed 10% of Consolidated Net Tangible Assets or (b) an amount equal to the greater of (i) the net proceeds to the Guarantor or the Restricted Subsidiary of the sale of the Principal Property sold and leased back pursuant to such Sale and Leaseback Transaction and (ii) the amount of Attributable Debt to be outstanding pursuant to such Sale and Leaseback Transaction, is applied to the retirement of Funded Debt of the Guarantor or any Restricted Subsidiaries (other than Funded Debt which is subordinated to the Securities or which is owing to the Guarantor or any Restricted Subsidiaries) within 180 days after the consummation of such Sale and Leaseback Transaction.

 

SECTION 11.08. Waiver of Certain Covenants. The Company or Guarantor, as applicable, may omit in any particular instance to comply with any covenant or condition set forth in Section 8.04, Section 11.03, Section 11.04, Section 11.06 and Section 11.07 if, before or after the time for such compliance, the Holders of at least a majority in principal amount of the Outstanding Securities of all series affected thereby shall, by notice to the Trustee, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Guarantor and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.

 

ARTICLE XII

 

Redemption of Securities

 

SECTION 12.01. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, for Securities of any series) in accordance with this Article.

 

SECTION 12.02. Election to Redeem; Notice to Trustee. If the Company shall desire to exercise the right to redeem all, or, as the case may be, any part of the Securities of any series, the Company shall, at least 15 days prior to the date the notice of redemption is sent to the Holders of Securities (unless a shorter notice shall be satisfactory to the Trustee), notifying the Trustee of such Redemption Date and of the principal amount of Securities of such series 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 a Company Officer’s Certificate evidencing compliance with such restriction.

 

SECTION 12.03. Selection by Trustee of Securities to be Redeemed. (a)  If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that

 

 

series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.

 

(b)  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.

 

(c)  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 12.04. Notice of Redemption. (a)  Notice of redemption shall be given not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, by mail, electronic delivery or otherwise in accordance with the applicable depositary’s procedures.

 

(b)  Each such notice of redemption shall specify the Redemption Date, the Redemption Price, the Place or Places of Payment, that the Securities of such series are being redeemed at the option of the Company pursuant to provisions contained in the terms of the Securities of such series or in a supplemental indenture establishing such series, if such be the case, together with a brief statement of the facts permitting such redemption, that on the Redemption Date the Redemption Price will become due and payable upon each Security redeemed, that payment will be made upon presentation and surrender of the applicable Securities, that all Coupons, if any, maturing subsequent to the date fixed for redemption shall be void, that any interest accrued to the Redemption Date will be paid as specified in said notice, that the redemption is pursuant to the sinking fund, if such is the case, and that on and after said Redemption Date any interest thereon or on the portions thereof to be redeemed will cease to accrue. If less than all the Securities of any series are to be redeemed, the notice of redemption shall specify the registration and, if any, CUSIP numbers of the Securities of such series to be redeemed, and, if only Bearer Securities of any series are to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities, the last date on which exchanges of Bearer Securities for Registered Securities not subject to redemption may be made. In case any Security of any series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the Redemption Date, upon surrender of such Security and any Coupons appertaining thereto, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof and with appropriate Coupons will be issued, or, in the case of Registered Securities providing appropriate space for such notation, at the option of the Holders, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed portion thereof.

 

(c)  Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.

 

SECTION 12.05. Deposit of Redemption Price. On or before the opening of business on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the

 

 

Company or Guarantor is acting as Paying Agent, segregate and hold in trust as provided in Section 11.03) an amount of money in the relevant currency (or a sufficient number of currency units, as the case may be) 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 12.06. Securities Payable on Redemption Date. (a)  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 and the Coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all Coupons, if any, appertaining thereto maturing after the Redemption Date, 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 on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except otherwise provided in Section 11.02) and, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, only upon presentation and surrender of Coupons for such interest; provided further, that unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall 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 and the provisions of Section 4.06.

 

(b)  If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant Coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented by Coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 11.02) and, unless otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, only upon presentation and surrender of those coupons.

 

(c)  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 12.07. 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 make available for delivery to the Holder of such Security without service charge, a new Security or Securities (with appropriate Coupons) of the same series and Stated Maturity, 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 or, in the case of Registered Securities providing appropriate space for such notation, at the option of the Holder, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the Payment of the redeemed portion thereof.

 

ARTICLE XIII

 

Sinking Funds

 

SECTION 13.01. Applicability of Article. (a)  The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.02 or Section 3.01, as the case may be, for Securities of such series.

 

(b)  The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 13.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities. The Company (1) may deliver Outstanding Securities (including all unmatured Coupons appertaining thereto) of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided that such Securities have not been previously so credited. Such Securities shall be received and the outstanding principal amount thereof credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.

 

SECTION 13.03. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee a Company Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 13.02 and will also deliver to the Trustee any Securities (including all unmatured Coupons appertaining thereto) to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner

 

 

specified in Section 12.03 and cause notice of the redemption thereof to given in the name of and at the expense of the Company in the manner provided in Section 12.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 12.06 and 12.07.

 

ARTICLE XIV

 

Meetings of Holders of Securities

 

SECTION 14.01. Purposes for Which Meetings may be Called. A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.

 

SECTION 14.02. Call, Notice and Place of Meetings. (a)  The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 14.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London, as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 20 nor more than 180 days prior to the date fixed for the meeting.

 

(b)  In case at any time the Company, by or pursuant to a Company Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 14.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 20 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or in London, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in SubSection (a) of this Section.

 

SECTION 14.03. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (i) a Holder of one or more Outstanding Securities of such series or (ii) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.

 

SECTION 14.04. Quorum; Action. (a)  The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time

 

 

appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 14.02(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened.

 

(b)  Except as limited by the proviso to Section 10.02, and subject to the provisions described in the next succeeding paragraph, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is equal to or less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series. Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related Coupons, whether or not present or represented at the meeting.

 

(c)  With respect to any consent, waiver or other action which this Indenture expressly provides may be given by the Holders of a specified percentage of Outstanding Securities of all series affected thereby (acting as one class), only the principal amount of Outstanding Securities of any series represented at a meeting or adjourned meeting duly reconvened at which a quorum is present, held in accordance with this Section, and voting in favor of such action, shall be counted for purposes of calculating the aggregate principal amount of Outstanding Securities of all series affected thereby favoring such action.

 

SECTION 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings. (a)  Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section 1.04 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 1.04 to certify to the holder of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.04 or other proof.

 

 

(b)  The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 14.02(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the outstanding Securities of such series represented at the meeting.

 

(c)  At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 (or the equivalent thereof) principal amount of the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

 

(d)  Any meeting of Holders of Securities of any series duly called pursuant to Section 14.02 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.

 

SECTION 14.06. Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 14.02 and, if applicable, Section 14.04. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

 

SECTION 14.07. Action without Meeting. In lieu of a vote of Holders at a meeting as hereinabove contemplate in this Article, any request, demand, authorization, direction, notice, consent, waiver or other action may be made, given or taken by Holders by written instruments as provided in Section 1.04.

 

 

ARTICLE XV

 

Guarantee

 

SECTION 15.01. Guarantee.

 

(a)  Subject to the provisions of this Article XV, Guarantor hereby fully and unconditionally guarantees to each Holder of a Security authenticated by the Trustee and to the Trustee and its successors and assigns that:  the principal of, premium thereon (if any) and interest on each series of Securities will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise, and interest on any overdue principal and interest on any overdue interest on each series of Securities and all other obligations of the Company to the Holders or the Trustee under this Indenture or such series of Securities will be promptly paid in full or performed, all in accordance with the terms hereof and thereof. The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of this Indenture or any series of Securities, the absence of any action to enforce the same, any waiver or consent by any Holder or the Trustee with respect to any provisions of this Indenture or any series of Securities, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor.  The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require proceeding first against the Company, protest, notice and all demands whatsoever and covenants that the Guarantee will not be discharged except by complete performance of the obligations contained in this Indenture and each series of Securities.  If any Holder or Trustee is required by any court or otherwise to return to the Company or the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantor, any amount paid by the Company or Guarantor to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.

 

(b)  The Guarantor hereby agrees that any claim against the Company that arises from the payment, performance or enforcement of the Guarantor’s obligations under the Guarantee or this Indenture, including, without limitation, any right of subrogation, shall be subject and subordinate to, and no payment with respect to any such claim of the Guarantor shall be made before, the payment in full in cash of all outstanding Securities of each series in accordance with the provisions provided therefor in this Indenture.

 

(c)  The Guarantee shall be evidenced solely by the execution and delivery of this Indenture and no notation of the Guarantee need be endorsed on any Security. The Guarantor hereby agrees that the Guarantee set forth in this Section 15.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.

 

	IBM INTERNATIONAL CAPITAL PTE. LTD.
		By:	/s/ Mark William Hobbert
			Mark William Hobbert
			Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, President, Treasurer, Controller and Director

 

	INTERNATIONAL BUSINESS MACHINES CORPORATION, as Guarantor
		By:	/s/ Mark William Hobbert
			Mark William Hobbert
			Vice President and Assistant Treasurer

 

	THE BANK OF NEW YORK MELLON, as Trustee,
		By:	/s/ Francine Kincaid
			Francine Kincaid
			Vice President

 

 

EXHIBIT B
[FORMS OF CERTIFICATION]

 

EXHIBIT B.1

 

[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE

 

iBM INTERNATIONAL CAPITAL PTE. LTD.

 

[INSERT TITLE OR SUFFICIENT DESCRIPTION

 

OF SECURITIES TO BE DELIVERED]

 

This is to certify that the above-captioned Securities are not being acquired by or on behalf of a United States person, or for offer to resell or for resale to a United States person or any person inside the United States, or, if a beneficial interest in the Securities is being acquired by a United States person, that such United States person is a financial institution as defined in Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or is acquiring through a financial institution, and that the Securities were held by a financial institution that has agreed to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder and that it is not purchasing for offer to resell or for resale inside the United States.

 

As used herein, “United States person” means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States, or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source, and “United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

We undertake to advise you promptly if the above statement as to beneficial ownership is not correct on the date of delivery of the above-captioned Securities in bearer form as to all such Securities.

 

 

We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

 

Dated: __________, 20__
[To be dated on or after _____________, 20__ the date determined as provided in the Indenture]
		[Name of Person Entitled to Receive Bearer Security]
		(Authorized Signatory)
		Name:
		Title:

 

 

EXHIBIT B.2
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM Banking, société anonyme IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY]

 

CERTIFICATE
iBM INTERNATIONAL CAPITAL PTE. LTD.

 

[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]

 

This is to certify with respect to $_________ principal amount of the above-captioned Securities (i) that we have received from each of the persons appearing in our records as persons entitled to a portion of such principal amount (our “Qualified Account Holders”) a certificate with respect to such portion substantially in the form attached hereto and (ii) that we are not submitting herewith for exchange any portion of the temporary global Security representing the above-captioned Securities excepted in such certificates.

 

We further certify that as of the date hereof we have not received any notification from any of our Qualified Account Holders to the effect that the statements made by such Qualified Account Holders with respect to any portion of the part submitted herewith for exchange are no longer true and cannot be relied upon as of the date hereof.

 

Date: __________, 20__
[To be dated no earlier than The Exchange Date]

 

		[MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS OFFICE, as Operator of the Euroclear System]
		[CLEARSTREAM Banking, société anonyme]

 

			By

 

 

EXHIBIT B.3
[FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM Banking, société anonyme TO OBTAIN
INTEREST PRIOR TO AN EXCHANGE DATE]

 

CERTIFICATE

 

iBM INTERNATIONAL CAPITAL PTE. LTD.

 

[INSERT TITLE OR SUFFICIENT
DESCRIPTION OF SECURITIES]

 

We confirm that the interest payable on the Interest Payment Date on [Insert Date] will be paid to each of the persons appearing in our records as being entitled to interest payable on such date from whom we have received a written certification, dated not earlier than such Interest Payment Date, substantially in the form attached hereto. We undertake to retain certificates received from our member organizations in connection herewith for four years from the end of the calendar year in which such certificates are received.

 

We undertake that any interest received by us and not paid as provided above shall be returned to the Trustee for the above Securities immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid by such Trustee to the above issuer at the end of two years after such Interest Payment Date.

 

Date: __________, 20__
[To be dated on or after the relevant Interest Payment Date]

 

		[MORGAN GUARANTY TRUST COMPANY OF NEW YORK, BRUSSELS OFFICE, as Operator of the Euroclear System]
		[CLEARSTREAM Banking, société anonyme]

 

By

 

 

EXHIBIT B.4
[FORM OF CERTIFICATE TO BE GIVEN BY BENEFICIAL OWNERS
TO OBTAIN INTEREST PRIOR TO AN EXCHANGE DATE]

 

CERTIFICATE

 

iBM INTERNATIONAL CAPITAL PTE. LTD.

 

[INSERT TITLE OR SUFFICIENT
DESCRIPTION OF SECURITIES]

 

This is to certify that as of the Interest Payment Date on [Insert Date] and except as provided in the third paragraph hereof, the above-captioned Securities held by you for our account are not beneficially owned by a United States person, and have not been acquired by or on behalf of a United States person, or for offer to resell or for resale to a United States person or any person inside the United States, or, if any of such Securities held by you for our account are beneficially owned by a United States person, (i) such United States person is a financial institution within the meaning of Section 1.165-12(c)(1)(v) of the United States Treasury Regulations purchasing for its own account or has acquired such Securities through a financial institution and (ii) such Securities are held by a financial institution that has agreed to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder and that it did not purchase for offer to resell or for resale inside the United States.

 

As used herein, “United States person” means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source, and “United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

This certificate excepts and does not relate to U.S. $______________ principal amount of the above-captioned Securities appearing in your books as being held for our account as to which we are not yet able to certify and as to which we understand interest cannot be credited unless and until we are able to so certify.

 

 

We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

 

Date: __________, 20__
[To be dated on or after the 15th day before the relevant Interest Payment Date]
		[Name of Person Entitled to Receive Interest]
		(Authorized Signature)
		Name:
		Title:

 

 

EXHIBIT B.5

 

[FORM OF CONFIRMATION TO BE SENT TO
PURCHASERS OF BEARER SECURITIES]

 

By your purchase of the securities referred to in the accompanying confirmation (the “Securities”):

 

You represent that you are not a United States person or, if you are a United States person, you are a financial institution as that term is defined in Section 1.165-12(c)(1)(v) of the United States Treasury Regulations, or are acquiring through a financial institution, and that the Securities will be held by a financial institution that agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder and are not purchasing the Securities on behalf of any United States person other than such a financial institution or for offer to resell or for resale inside the United States.

 

If you are a dealer, (a) you also represent that you have not offered, sold or delivered, and agree that you will not offer, sell, resell or deliver, any of such Securities, directly or indirectly, in the United States or to any United States person other than such a financial institution and (b) you agree that you will deliver to all purchasers of such Securities from you a written statement in this form.

 

As used herein, “United States” means the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction and “United States person” means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States and an estate or trust the income of which is subject to United States Federal income taxation regardless of its source.

 

 

 

 

Exhibit 4.2

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

4.700% Note due 2026

 

CUSIP 449276 AA2

ISIN US449276AA20

 

No.: R-

 

IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (herein called the “Company”, which term includes any successor person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $      (      ), at the office or agency of the Company in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for that purpose, on February 5, 2026, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on February 5 and August 5 of each year, commencing August 5, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate of 4.700% per annum, from the February 5 or August 5 next preceding the date of this Note to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Note, or unless no interest has been paid on the Notes (as defined on the reverse hereof), in which case from February 5, 2024, until payment of said principal sum has been made or duly provided for. The interest so payable on February 5 or August 5 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth calendar day preceding such February 5 or August 5, unless the Company shall default in the payment of interest due on such interest payment date, in which case such defaulted interest, at the option of the Company, may be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established by notice to the registered holders of Notes not less than ten days preceding such special record date or may be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed. Payment of interest may, at the option of the Company, be made by check mailed

 

 

to the registered address of the person entitled thereto. Interest on this Note will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

[signatures follow]

 

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated:  February 5, 2024	IBM INTERNATIONAL CAPITAL PTE. LTD.
	by

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

 

This is one of the

Securities of the Series

designated herein issued

under the within-

mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee
by
	Authorized Signatory
Dated: February 5, 2024

 

[Authentication of IBM International Capital Pte. Ltd. 4.700% Note due 2026]

 

 

 

[REVERSE SIDE OF NOTE]

 

This security is one of a duly authorized issue of unsecured debentures, notes or other evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter specified, all issued or to be issued under an indenture (hereinafter called the “Indenture”) dated as of February 2, 2024, duly executed and delivered by the Company and International Business Machines Corporation, a New York corporation, as guarantor (hereinafter called the “Guarantor”), to The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights and duties thereunder of the Trustee, the Company, the Guarantor and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may have different conversion prices (if any), may be subject to different redemption provisions, may be subject to different sinking, purchase or analogous funds, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the 4.700% Notes due 2026 of the Company (hereinafter called the “Notes”) issued under the Indenture.

 

This Note is fully and unconditionally guaranteed by the Guarantor pursuant to the terms of the Indenture.

 

All payments in respect of this Note will be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, assessments or other governmental charges of whatever nature, unless such withholding or deduction is required by law. Specifically with respect to any withholding or deduction for any such taxes or governmental charges imposed or levied by Singapore or a political subdivision or taxing authority of or in Singapore, if such withholding or deduction is required by law, the Company will, subject to timely compliance by the holders or beneficial owners of this Note with any relevant administrative requirements, pay or cause to be paid to a holder or beneficial owner such additional amounts on this Note as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, this Note to such holder or beneficial owner, after such withholding or deduction (including any withholding or deduction on such additional amounts), will not be less than the amount provided in this Note to be then due and payable had no such withholding or deduction been required; provided, however, that the foregoing obligation to pay additional amounts will not apply:

 

(1) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that the holder or beneficial owner of this Note has or had some connection with Singapore or any other jurisdiction, including that the holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any other jurisdiction, or otherwise has or has had some connection with Singapore or any other jurisdiction, other than solely the holding or

 

 

ownership of this Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, this Note;

 

(2) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, this Note was presented more than thirty days after the date such payment became due or was provided for, whichever is later;

 

(3) to any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of this Note;

 

(4) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any other jurisdiction of the holder or beneficial owner of this Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the other jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

(5) to any present or future taxes (a) which would not have been so imposed, assessed, levied or collected if the beneficial owner of this Note had been the holder of this Note, or (b) which, if the beneficial owner of this Note had held this Note as the holder of this Note, would have been excluded pursuant to any one or combination of clauses (1) through (4) above;

 

(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;

 

(7) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other paying agent;

 

(9) to any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements entered into in connection with the implementation thereof; or

 

(10) in the case of any combination of the above listed items.

 

Except as specifically provided in this Note, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge of

 

 

whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of Singapore (or any political subdivision or taxing authority of or in Singapore), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after January 29, 2024, the Company becomes, or based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above with respect to this Note, then the Company may at its option redeem, in whole, but not in part, this Note on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of its principal amount, together with interest accrued but unpaid on this Note to the date fixed for redemption.

 

Pursuant to Section 9.03 of the Indenture, the Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor in respect of this Note in accordance with the provisions of such Section 9.03 (any such substitution, the “IBM Assumption”). Upon such IBM Assumption, the covenant to pay additional amounts on this Note with respect to withholding or deduction for any present or future tax, assessment or other governmental charge set forth in the third paragraph of the reverse side of this Note and the corresponding tax redemption provision with respect to the laws of Singapore set forth in the fifth paragraph of the reverse side of this Note will cease to apply.

 

The Notes may be redeemed, as a whole or in part, at the Company’s option, at any time or from time to time, upon notice (by mail, electronic delivery or otherwise in accordance with the depositary’s procedures) not less than 10 days nor more than 60 days prior to the date fixed for redemption to holders of the Notes. Prior to February 5, 2026, the redemption price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes will be equal to the greater of:

 

·

(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate, as defined below, plus 10 basis points less (b) interest accrued to the date of redemption, and

 

·

100% of the principal amount of the Notes to be redeemed,

 

plus, in either case, accrued interest, if any, to the redemption date.

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by

 

 

the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to February 5, 2026 (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to February 5, 2026 on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, February 5, 2026, as applicable. If there is no United States Treasury security maturing on February 5, 2026 but there are two or more United States Treasury securities with a maturity date equally distant from February 5, 2026, one with a maturity date preceding February 5, 2026 and one with a maturity date following February 5, 2026, the Company shall select the United States Treasury security with a maturity date preceding February 5, 2026. If there are two or more United States Treasury securities maturing on February 5, 2026 or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices, expressed as a percentage of principal amount, at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.

 

The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the redemption price promptly after the calculation thereof and the Trustee shall not be responsible or liable for any calculation of the redemption price or of any component thereof, or for determining whether manifest error has occurred.

 

 

On and after the redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a Paying Agent, or the Trustee, money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.

 

In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof together with interest accrued thereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series to be affected (acting as one class), to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities of such series to be affected; provided however, that no such supplemental indenture shall, among other things, (i) change the fixed maturity of the principal of, or any installment of principal of or interest on, or the currency of payment of, any Security; (ii) reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof; (iii) impair the right to institute suit for the enforcement of any such payment on or after the fixed maturity thereof (or, in the case of redemption, on or after the redemption date); (iv) reduce the percentage in principal amount of the outstanding Securities of any series, 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; (v) change any obligation of the Company, with respect to outstanding Securities of a series, to maintain an office or agency in the places and for the purposes specified in the Indenture for such series; (vi) release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with the Indenture; or (vii) modify any of the foregoing provisions or the provisions for the waiver of certain covenants and defaults, except to increase any applicable percentage of the aggregate principal amount of outstanding Securities the consent of the holders of which is required or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the holders of a specified percentage of the aggregate principal amount of outstanding Securities of such series or to provide that certain other provisions of the

 

 

Indenture cannot be modified or waived without the consent of the holder of each outstanding Security affected thereby. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the Securities of a series at the time outstanding may on behalf of the holders of all the Securities of such series waive any past default under the Indenture with respect to such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in respect of a covenant or provision which cannot be modified without the consent of the Holder of each outstanding Security of the series affected. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Pursuant to the Indenture, the Company shall be permitted to Discharge its and the Guarantor’s obligations with respect to the Notes in accordance with Section 5.03 of the Indenture following the satisfaction of the conditions set forth therein, which include the deposit with the Trustee of money or U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of (including premium, if any, on) and interest, if any, on the outstanding Notes.

 

If the Company shall, in accordance with Section 9.01(a) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Company” on the face of this Note, all on the terms set forth in the Indenture. If the Guarantor shall, in accordance with Section 9.01(b) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Guarantor” on the face of this Note, all on the terms set forth in the Indenture.

 

The Notes are issuable in registered form without coupons in denominations of $100,000 and any integral multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge, Notes may be exchanged for an equal aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company maintained for such purpose in the City of Pittsburgh and State of Pennsylvania.

 

Upon due presentation for registration of transfer of this Note at the office or agency of the Company for such registration in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for such purpose, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture,

 

 

without charge except for any tax or other governmental charge imposed in connection therewith.

 

Prior to due presentment for registration of transfer of this Note, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue) for the purpose of receiving payment of the principal of, premium, if any, and interest on this Note, as herein provided, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice of the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for moneys payable on this Note.

 

Individual certificates in respect of the Notes will not be issued in exchange for this Note, except in the limited circumstances set forth in the following sentence or as otherwise provided for in the Indenture. If DTC notifies the Company that it is unwilling or unable to continue as a clearing system in connection with this Note, or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor clearing system is not appointed by the Company within 90 days after receiving such notice from DTC or upon becoming aware that DTC is no longer so registered, the Company will issue or cause to be issued individual certificates in registered form on registration of transfer of, or in exchange for, book-entry interests in the Notes represented by this Note upon delivery of this Note for cancellation.

 

No recourse for the payment of the principal of, premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

Unless otherwise defined in this Note, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

 

Exhibit 4.3

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

4.600% Note due 2027

 

CUSIP 449276 AB0

ISIN US449276AB03

 

No.: R-

 

IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (herein called the “Company”, which term includes any successor person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $      (      ), at the office or agency of the Company in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for that purpose, on February 5, 2027, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on February 5 and August 5 of each year, commencing August 5, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate of 4.600% per annum, from the February 5 or August 5 next preceding the date of this Note to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Note, or unless no interest has been paid on the Notes (as defined on the reverse hereof), in which case from February 5, 2024, until payment of said principal sum has been made or duly provided for. The interest so payable on February 5 or August 5 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth calendar day preceding such February 5 or August 5, unless the Company shall default in the payment of interest due on such interest payment date, in which case such defaulted interest, at the option of the Company, may be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established by notice to the registered holders of Notes not less than ten days preceding such special record date or may be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed. Payment of interest may, at the option of the Company, be made by check mailed

 

 

to the registered address of the person entitled thereto. Interest on this Note will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

[signatures follow]

 

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated: February 5, 2024	IBM INTERNATIONAL CAPITAL PTE. LTD.
	by

 

 

 

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

 

This is one of the

Securities of the Series

designated herein issued

under the within-

mentioned Indenture.

THE BANK OF NEW YORK MELLON, as Trustee
	by
		Authorized Signatory
Dated: February 5, 2024

[Authentication of IBM International Capital Pte. Ltd. 4.600% Note due 2027]

 

 

[REVERSE SIDE OF NOTE]

 

This security is one of a duly authorized issue of unsecured debentures, notes or other evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter specified, all issued or to be issued under an indenture (hereinafter called the “Indenture”) dated as of February 2, 2024, duly executed and delivered by the Company and International Business Machines Corporation, a New York corporation, as guarantor (hereinafter called the “Guarantor”), to The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights and duties thereunder of the Trustee, the Company, the Guarantor and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may have different conversion prices (if any), may be subject to different redemption provisions, may be subject to different sinking, purchase or analogous funds, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the 4.600% Notes due 2027 of the Company (hereinafter called the “Notes”) issued under the Indenture.

 

This Note is fully and unconditionally guaranteed by the Guarantor pursuant to the terms of the Indenture.

 

All payments in respect of this Note will be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, assessments or other governmental charges of whatever nature, unless such withholding or deduction is required by law. Specifically with respect to any withholding or deduction for any such taxes or governmental charges imposed or levied by Singapore or a political subdivision or taxing authority of or in Singapore, if such withholding or deduction is required by law, the Company will, subject to timely compliance by the holders or beneficial owners of this Note with any relevant administrative requirements, pay or cause to be paid to a holder or beneficial owner such additional amounts on this Note as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, this Note to such holder or beneficial owner, after such withholding or deduction (including any withholding or deduction on such additional amounts), will not be less than the amount provided in this Note to be then due and payable had no such withholding or deduction been required; provided, however, that the foregoing obligation to pay additional amounts will not apply:

 

(1) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that the holder or beneficial owner of this Note has or had some connection with Singapore or any other jurisdiction, including that the holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any other jurisdiction, or otherwise has or has had some connection with Singapore or any other jurisdiction, other than solely the holding or

 

 

ownership of this Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, this Note;

 

(2) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, this Note was presented more than thirty days after the date such payment became due or was provided for, whichever is later;

 

(3) to any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of this Note;

 

(4) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any other jurisdiction of the holder or beneficial owner of this Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the other jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

(5) to any present or future taxes (a) which would not have been so imposed, assessed, levied or collected if the beneficial owner of this Note had been the holder of this Note, or (b) which, if the beneficial owner of this Note had held this Note as the holder of this Note, would have been excluded pursuant to any one or combination of clauses (1) through (4) above;

 

(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;

 

(7) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other paying agent;

 

(9) to any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements entered into in connection with the implementation thereof; or

 

(10) in the case of any combination of the above listed items.

 

Except as specifically provided in this Note, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge of

 

 

whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of Singapore (or any political subdivision or taxing authority of or in Singapore), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after January 29, 2024, the Company becomes, or based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above with respect to this Note, then the Company may at its option redeem, in whole, but not in part, this Note on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of its principal amount, together with interest accrued but unpaid on this Note to the date fixed for redemption.

 

Pursuant to Section 9.03 of the Indenture, the Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor in respect of this Note in accordance with the provisions of such Section 9.03 (any such substitution, the “IBM Assumption”). Upon such IBM Assumption, the covenant to pay additional amounts on this Note with respect to withholding or deduction for any present or future tax, assessment or other governmental charge set forth in the third paragraph of the reverse side of this Note and the corresponding tax redemption provision with respect to the laws of Singapore set forth in the fifth paragraph of the reverse side of this Note will cease to apply.

 

The Notes may be redeemed, as a whole or in part, at the Company’s option, at any time or from time to time, upon notice (by mail, electronic delivery or otherwise in accordance with the depositary’s procedures) not less than 10 days nor more than 60 days prior to the date fixed for redemption to holders of the Notes. Prior to the Par Call Date, the redemption price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes will be equal to the greater of:

 

·

(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate, as defined below, plus 10 basis points less (b) interest accrued to the date of redemption, and

 

·

100% of the principal amount of the Notes to be redeemed,

 

plus, in either case, accrued interest, if any, to the redemption date.

 

On and after the Par Call Date, the redemption price for the Notes will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued interest, if any, to the redemption date.

 

 

“Par Call Date” means January 5, 2027 (one month prior to the maturity date of the Notes).

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices, expressed as a percentage of principal amount, at 11:00 a.m.,

 

 

New York City time, of such United States Treasury security, and rounded to three decimal places.

 

The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the redemption price promptly after the calculation thereof and the Trustee shall not be responsible or liable for any calculation of the redemption price or of any component thereof, or for determining whether manifest error has occurred.

 

On and after the redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a Paying Agent, or the Trustee, money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.

 

In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof together with interest accrued thereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series to be affected (acting as one class), to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities of such series to be affected; provided however, that no such supplemental indenture shall, among other things, (i) change the fixed maturity of the principal of, or any installment of principal of or interest on, or the currency of payment of, any Security; (ii) reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof; (iii) impair the right to institute suit for the enforcement of any such payment on or after the fixed maturity thereof (or, in the case of redemption, on or after the redemption date); (iv) reduce the percentage in principal amount of the outstanding Securities of any series, 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; (v) change any obligation of the Company, with respect to outstanding Securities of a series, to maintain an office or agency in the places and for the purposes

 

 

specified in the Indenture for such series; (vi) release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with the Indenture; or (vii) modify any of the foregoing provisions or the provisions for the waiver of certain covenants and defaults, except to increase any applicable percentage of the aggregate principal amount of outstanding Securities the consent of the holders of which is required or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the holders of a specified percentage of the aggregate principal amount of outstanding Securities of such series or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding Security affected thereby. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the Securities of a series at the time outstanding may on behalf of the holders of all the Securities of such series waive any past default under the Indenture with respect to such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in respect of a covenant or provision which cannot be modified without the consent of the Holder of each outstanding Security of the series affected. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Pursuant to the Indenture, the Company shall be permitted to Discharge its and the Guarantor’s obligations with respect to the Notes in accordance with Section 5.03 of the Indenture following the satisfaction of the conditions set forth therein, which include the deposit with the Trustee of money or U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of (including premium, if any, on) and interest, if any, on the outstanding Notes.

 

If the Company shall, in accordance with Section 9.01(a) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Company” on the face of this Note, all on the terms set forth in the Indenture. If the Guarantor shall, in accordance with Section 9.01(b) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Guarantor” on the face of this Note, all on the terms set forth in the Indenture.

 

The Notes are issuable in registered form without coupons in denominations of $100,000 and any integral multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge,

 

 

Notes may be exchanged for an equal aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company maintained for such purpose in the City of Pittsburgh and State of Pennsylvania.

 

Upon due presentation for registration of transfer of this Note at the office or agency of the Company for such registration in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for such purpose, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.

 

Prior to due presentment for registration of transfer of this Note, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue) for the purpose of receiving payment of the principal of, premium, if any, and interest on this Note, as herein provided, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice of the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for moneys payable on this Note.

 

Individual certificates in respect of the Notes will not be issued in exchange for this Note, except in the limited circumstances set forth in the following sentence or as otherwise provided for in the Indenture. If DTC notifies the Company that it is unwilling or unable to continue as a clearing system in connection with this Note, or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor clearing system is not appointed by the Company within 90 days after receiving such notice from DTC or upon becoming aware that DTC is no longer so registered, the Company will issue or cause to be issued individual certificates in registered form on registration of transfer of, or in exchange for, book-entry interests in the Notes represented by this Note upon delivery of this Note for cancellation.

 

No recourse for the payment of the principal of, premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

Unless otherwise defined in this Note, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

 

Exhibit 4.4

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

4.600% Note due 2029

 

CUSIP 449276 AC8

ISIN US449276AC85

 

No.: R-

 

IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (herein called the “Company”, which term includes any successor person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $      (      ), at the office or agency of the Company in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for that purpose, on February 5, 2029, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on February 5 and August 5 of each year, commencing August 5, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate of 4.600% per annum, from the February 5 or August 5 next preceding the date of this Note to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Note, or unless no interest has been paid on the Notes (as defined on the reverse hereof), in which case from February 5, 2024, until payment of said principal sum has been made or duly provided for. The interest so payable on February 5 or August 5 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth calendar day preceding such February 5 or August 5, unless the Company shall default in the payment of interest due on such interest payment date, in which case such defaulted interest, at the option of the Company, may be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established by notice to the registered holders of Notes not less than ten days preceding such special record date or may be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed. Payment of interest may, at the option of the Company, be made by check mailed

 

 

to the registered address of the person entitled thereto. Interest on this Note will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

[signatures follow]

 

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated: February 5, 2024	IBM INTERNATIONAL CAPITAL PTE. LTD.
	by

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

 

This is one of the

Securities of the Series

designated herein issued

under the within-

mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee
	by
		Authorized Signatory
Dated: February 5, 2024

 

[Authentication of IBM International Capital Pte. Ltd. 4.600% Note due 2029]

 

 

[REVERSE SIDE OF NOTE]

 

This security is one of a duly authorized issue of unsecured debentures, notes or other evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter specified, all issued or to be issued under an indenture (hereinafter called the “Indenture”) dated as of February 2, 2024, duly executed and delivered by the Company and International Business Machines Corporation, a New York corporation, as guarantor (hereinafter called the “Guarantor”), to The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights and duties thereunder of the Trustee, the Company, the Guarantor and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may have different conversion prices (if any), may be subject to different redemption provisions, may be subject to different sinking, purchase or analogous funds, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the 4.600% Notes due 2029 of the Company (hereinafter called the “Notes”) issued under the Indenture.

 

This Note is fully and unconditionally guaranteed by the Guarantor pursuant to the terms of the Indenture.

 

All payments in respect of this Note will be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, assessments or other governmental charges of whatever nature, unless such withholding or deduction is required by law. Specifically with respect to any withholding or deduction for any such taxes or governmental charges imposed or levied by Singapore or a political subdivision or taxing authority of or in Singapore, if such withholding or deduction is required by law, the Company will, subject to timely compliance by the holders or beneficial owners of this Note with any relevant administrative requirements, pay or cause to be paid to a holder or beneficial owner such additional amounts on this Note as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, this Note to such holder or beneficial owner, after such withholding or deduction (including any withholding or deduction on such additional amounts), will not be less than the amount provided in this Note to be then due and payable had no such withholding or deduction been required; provided, however, that the foregoing obligation to pay additional amounts will not apply:

 

(1) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that the holder or beneficial owner of this Note has or had some connection with Singapore or any other jurisdiction, including that the holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any other jurisdiction, or otherwise has or has had some connection with Singapore or any other jurisdiction, other than solely the holding or

 

 

ownership of this Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, this Note;

 

(2) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, this Note was presented more than thirty days after the date such payment became due or was provided for, whichever is later;

 

(3) to any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of this Note;

 

(4) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any other jurisdiction of the holder or beneficial owner of this Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the other jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

(5) to any present or future taxes (a) which would not have been so imposed, assessed, levied or collected if the beneficial owner of this Note had been the holder of this Note, or (b) which, if the beneficial owner of this Note had held this Note as the holder of this Note, would have been excluded pursuant to any one or combination of clauses (1) through (4) above;

 

(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;

 

(7) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other paying agent;

 

(9) to any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements entered into in connection with the implementation thereof; or

 

(10) in the case of any combination of the above listed items.

 

Except as specifically provided in this Note, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge of

 

 

whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of Singapore (or any political subdivision or taxing authority of or in Singapore), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after January 29, 2024, the Company becomes, or based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above with respect to this Note, then the Company may at its option redeem, in whole, but not in part, this Note on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of its principal amount, together with interest accrued but unpaid on this Note to the date fixed for redemption.

 

Pursuant to Section 9.03 of the Indenture, the Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor in respect of this Note in accordance with the provisions of such Section 9.03 (any such substitution, the “IBM Assumption”). Upon such IBM Assumption, the covenant to pay additional amounts on this Note with respect to withholding or deduction for any present or future tax, assessment or other governmental charge set forth in the third paragraph of the reverse side of this Note and the corresponding tax redemption provision with respect to the laws of Singapore set forth in the fifth paragraph of the reverse side of this Note will cease to apply.

 

The Notes may be redeemed, as a whole or in part, at the Company’s option, at any time or from time to time, upon notice (by mail, electronic delivery or otherwise in accordance with the depositary’s procedures) not less than 10 days nor more than 60 days prior to the date fixed for redemption to holders of the Notes. Prior to the Par Call Date, the redemption price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes will be equal to the greater of:

 

·

(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate, as defined below, plus 10 basis points less (b) interest accrued to the date of redemption, and

 

·

100% of the principal amount of the Notes to be redeemed,

 

plus, in either case, accrued interest, if any, to the redemption date.

 

On and after the Par Call Date, the redemption price for the Notes will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued interest, if any, to the redemption date.

 

 

“Par Call Date” means January 5, 2029 (one month prior to the maturity date of the Notes).

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices, expressed as a percentage of principal amount, at 11:00 a.m.,

 

 

New York City time, of such United States Treasury security, and rounded to three decimal places.

 

The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the redemption price promptly after the calculation thereof and the Trustee shall not be responsible or liable for any calculation of the redemption price or of any component thereof, or for determining whether manifest error has occurred.

 

On and after the redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a Paying Agent, or the Trustee, money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.

 

In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof together with interest accrued thereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series to be affected (acting as one class), to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities of such series to be affected; provided however, that no such supplemental indenture shall, among other things, (i) change the fixed maturity of the principal of, or any installment of principal of or interest on, or the currency of payment of, any Security; (ii) reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof; (iii) impair the right to institute suit for the enforcement of any such payment on or after the fixed maturity thereof (or, in the case of redemption, on or after the redemption date); (iv) reduce the percentage in principal amount of the outstanding Securities of any series, 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; (v) change any obligation of the Company, with respect to outstanding Securities of a series, to maintain an office or agency in the places and for the purposes

 

 

specified in the Indenture for such series; (vi) release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with the Indenture; or (vii) modify any of the foregoing provisions or the provisions for the waiver of certain covenants and defaults, except to increase any applicable percentage of the aggregate principal amount of outstanding Securities the consent of the holders of which is required or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the holders of a specified percentage of the aggregate principal amount of outstanding Securities of such series or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding Security affected thereby. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the Securities of a series at the time outstanding may on behalf of the holders of all the Securities of such series waive any past default under the Indenture with respect to such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in respect of a covenant or provision which cannot be modified without the consent of the Holder of each outstanding Security of the series affected. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Pursuant to the Indenture, the Company shall be permitted to Discharge its and the Guarantor’s obligations with respect to the Notes in accordance with Section 5.03 of the Indenture following the satisfaction of the conditions set forth therein, which include the deposit with the Trustee of money or U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of (including premium, if any, on) and interest, if any, on the outstanding Notes.

 

If the Company shall, in accordance with Section 9.01(a) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Company” on the face of this Note, all on the terms set forth in the Indenture. If the Guarantor shall, in accordance with Section 9.01(b) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Guarantor” on the face of this Note, all on the terms set forth in the Indenture.

 

The Notes are issuable in registered form without coupons in denominations of $100,000 and any integral multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge,

 

 

Notes may be exchanged for an equal aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company maintained for such purpose in the City of Pittsburgh and State of Pennsylvania.

 

Upon due presentation for registration of transfer of this Note at the office or agency of the Company for such registration in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for such purpose, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.

 

Prior to due presentment for registration of transfer of this Note, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue) for the purpose of receiving payment of the principal of, premium, if any, and interest on this Note, as herein provided, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice of the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for moneys payable on this Note.

 

Individual certificates in respect of the Notes will not be issued in exchange for this Note, except in the limited circumstances set forth in the following sentence or as otherwise provided for in the Indenture. If DTC notifies the Company that it is unwilling or unable to continue as a clearing system in connection with this Note, or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor clearing system is not appointed by the Company within 90 days after receiving such notice from DTC or upon becoming aware that DTC is no longer so registered, the Company will issue or cause to be issued individual certificates in registered form on registration of transfer of, or in exchange for, book-entry interests in the Notes represented by this Note upon delivery of this Note for cancellation.

 

No recourse for the payment of the principal of, premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

Unless otherwise defined in this Note, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

 

Exhibit 4.5

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

4.750% Note due 2031

 

CUSIP 449276 AD6

ISIN US449276AD68

 

No.: R-

 

IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (herein called the “Company”, which term includes any successor person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $      (      ), at the office or agency of the Company in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for that purpose, on February 5, 2031, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on February 5 and August 5 of each year, commencing August 5, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate of 4.750% per annum, from the February 5 or August 5 next preceding the date of this Note to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Note, or unless no interest has been paid on the Notes (as defined on the reverse hereof), in which case from February 5, 2024, until payment of said principal sum has been made or duly provided for. The interest so payable on February 5 or August 5 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth calendar day preceding such February 5 or August 5, unless the Company shall default in the payment of interest due on such interest payment date, in which case such defaulted interest, at the option of the Company, may be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established by notice to the registered holders of Notes not less than ten days preceding such special record date or may be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed. Payment of interest may, at the option of the Company, be made by check mailed

 

 

to the registered address of the person entitled thereto. Interest on this Note will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

[signatures follow]

 

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated: February 5, 2024	IBM INTERNATIONAL CAPITAL PTE. LTD.
	by

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

 

This is one of the

Securities of the Series

designated herein issued

under the within-

mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee
by
	Authorized Signatory

 

Dated: February 5, 2024

 

[Authentication of IBM International Capital Pte. Ltd. 4.750% Note due 2031]

 

 

[REVERSE SIDE OF NOTE]

 

This security is one of a duly authorized issue of unsecured debentures, notes or other evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter specified, all issued or to be issued under an indenture (hereinafter called the “Indenture”) dated as of February 2, 2024, duly executed and delivered by the Company and International Business Machines Corporation, a New York corporation, as guarantor (hereinafter called the “Guarantor”), to The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights and duties thereunder of the Trustee, the Company, the Guarantor and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may have different conversion prices (if any), may be subject to different redemption provisions, may be subject to different sinking, purchase or analogous funds, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the 4.750% Notes due 2031 of the Company (hereinafter called the “Notes”) issued under the Indenture.

 

This Note is fully and unconditionally guaranteed by the Guarantor pursuant to the terms of the Indenture.

 

All payments in respect of this Note will be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, assessments or other governmental charges of whatever nature, unless such withholding or deduction is required by law. Specifically with respect to any withholding or deduction for any such taxes or governmental charges imposed or levied by Singapore or a political subdivision or taxing authority of or in Singapore, if such withholding or deduction is required by law, the Company will, subject to timely compliance by the holders or beneficial owners of this Note with any relevant administrative requirements, pay or cause to be paid to a holder or beneficial owner such additional amounts on this Note as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, this Note to such holder or beneficial owner, after such withholding or deduction (including any withholding or deduction on such additional amounts), will not be less than the amount provided in this Note to be then due and payable had no such withholding or deduction been required; provided, however, that the foregoing obligation to pay additional amounts will not apply:

 

(1) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that the holder or beneficial owner of this Note has or had some connection with Singapore or any other jurisdiction, including that the holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any other jurisdiction, or otherwise has or has had some connection with Singapore or any other jurisdiction, other than solely the holding or

 

 

 

ownership of this Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, this Note;

 

(2) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, this Note was presented more than thirty days after the date such payment became due or was provided for, whichever is later;

 

(3) to any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of this Note;

 

(4) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any other jurisdiction of the holder or beneficial owner of this Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the other jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

(5) to any present or future taxes (a) which would not have been so imposed, assessed, levied or collected if the beneficial owner of this Note had been the holder of this Note, or (b) which, if the beneficial owner of this Note had held this Note as the holder of this Note, would have been excluded pursuant to any one or combination of clauses (1) through (4) above;

 

(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;

 

(7) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other paying agent;

 

(9) to any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements entered into in connection with the implementation thereof; or

 

(10) in the case of any combination of the above listed items.

 

Except as specifically provided in this Note, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge of

 

 

whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of Singapore (or any political subdivision or taxing authority of or in Singapore), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after January 29, 2024, the Company becomes, or based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above with respect to this Note, then the Company may at its option redeem, in whole, but not in part, this Note on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of its principal amount, together with interest accrued but unpaid on this Note to the date fixed for redemption.

 

Pursuant to Section 9.03 of the Indenture, the Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor in respect of this Note in accordance with the provisions of such Section 9.03 (any such substitution, the “IBM Assumption”). Upon such IBM Assumption, the covenant to pay additional amounts on this Note with respect to withholding or deduction for any present or future tax, assessment or other governmental charge set forth in the third paragraph of the reverse side of this Note and the corresponding tax redemption provision with respect to the laws of Singapore set forth in the fifth paragraph of the reverse side of this Note will cease to apply.

 

The Notes may be redeemed, as a whole or in part, at the Company’s option, at any time or from time to time, upon notice (by mail, electronic delivery or otherwise in accordance with the depositary’s procedures) not less than 10 days nor more than 60 days prior to the date fixed for redemption to holders of the Notes. Prior to the Par Call Date, the redemption price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes will be equal to the greater of:

 

·

(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate, as defined below, plus 15 basis points less (b) interest accrued to the date of redemption, and

 

·

100% of the principal amount of the Notes to be redeemed,

 

plus, in either case, accrued interest, if any, to the redemption date.

 

On and after the Par Call Date, the redemption price for the Notes will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued interest, if any, to the redemption date.

 

 

“Par Call Date” means December 5, 2030 (two months prior to the maturity date of the Notes).

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices, expressed as a percentage of principal amount, at 11:00 a.m.,

 

 

New York City time, of such United States Treasury security, and rounded to three decimal places.

 

The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the redemption price promptly after the calculation thereof and the Trustee shall not be responsible or liable for any calculation of the redemption price or of any component thereof, or for determining whether manifest error has occurred.

 

On and after the redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a Paying Agent, or the Trustee, money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.

 

In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof together with interest accrued thereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series to be affected (acting as one class), to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities of such series to be affected; provided however, that no such supplemental indenture shall, among other things, (i) change the fixed maturity of the principal of, or any installment of principal of or interest on, or the currency of payment of, any Security; (ii) reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof; (iii) impair the right to institute suit for the enforcement of any such payment on or after the fixed maturity thereof (or, in the case of redemption, on or after the redemption date); (iv) reduce the percentage in principal amount of the outstanding Securities of any series, 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; (v) change any obligation of the Company, with respect to outstanding Securities of a series, to maintain an office or agency in the places and for the purposes

 

 

specified in the Indenture for such series; (vi) release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with the Indenture; or (vii) modify any of the foregoing provisions or the provisions for the waiver of certain covenants and defaults, except to increase any applicable percentage of the aggregate principal amount of outstanding Securities the consent of the holders of which is required or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the holders of a specified percentage of the aggregate principal amount of outstanding Securities of such series or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding Security affected thereby. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the Securities of a series at the time outstanding may on behalf of the holders of all the Securities of such series waive any past default under the Indenture with respect to such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in respect of a covenant or provision which cannot be modified without the consent of the Holder of each outstanding Security of the series affected. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Pursuant to the Indenture, the Company shall be permitted to Discharge its and the Guarantor’s obligations with respect to the Notes in accordance with Section 5.03 of the Indenture following the satisfaction of the conditions set forth therein, which include the deposit with the Trustee of money or U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of (including premium, if any, on) and interest, if any, on the outstanding Notes.

 

If the Company shall, in accordance with Section 9.01(a) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Company” on the face of this Note, all on the terms set forth in the Indenture. If the Guarantor shall, in accordance with Section 9.01(b) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Guarantor” on the face of this Note, all on the terms set forth in the Indenture.

 

The Notes are issuable in registered form without coupons in denominations of $100,000 and any integral multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge,

 

 

Notes may be exchanged for an equal aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company maintained for such purpose in the City of Pittsburgh and State of Pennsylvania.

 

Upon due presentation for registration of transfer of this Note at the office or agency of the Company for such registration in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for such purpose, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.

 

Prior to due presentment for registration of transfer of this Note, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue) for the purpose of receiving payment of the principal of, premium, if any, and interest on this Note, as herein provided, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice of the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for moneys payable on this Note.

 

Individual certificates in respect of the Notes will not be issued in exchange for this Note, except in the limited circumstances set forth in the following sentence or as otherwise provided for in the Indenture. If DTC notifies the Company that it is unwilling or unable to continue as a clearing system in connection with this Note, or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor clearing system is not appointed by the Company within 90 days after receiving such notice from DTC or upon becoming aware that DTC is no longer so registered, the Company will issue or cause to be issued individual certificates in registered form on registration of transfer of, or in exchange for, book-entry interests in the Notes represented by this Note upon delivery of this Note for cancellation.

 

No recourse for the payment of the principal of, premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

Unless otherwise defined in this Note, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

 

Exhibit 4.6

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

4.900% Note due 2034

 

CUSIP 449276 AE4

ISIN US449276AE42

 

No.: R-

 

IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (herein called the “Company”, which term includes any successor person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $      (      ), at the office or agency of the Company in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for that purpose, on February 5, 2034, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on February 5 and August 5 of each year, commencing August 5, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate of 4.900% per annum, from the February 5 or August 5 next preceding the date of this Note to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Note, or unless no interest has been paid on the Notes (as defined on the reverse hereof), in which case from February 5, 2024, until payment of said principal sum has been made or duly provided for. The interest so payable on February 5 or August 5 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth calendar day preceding such February 5 or August 5, unless the Company shall default in the payment of interest due on such interest payment date, in which case such defaulted interest, at the option of the Company, may be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established by notice to the registered holders of Notes not less than ten days preceding such special record date or may be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed. Payment of interest may, at the option of the Company, be made by check mailed

 

 

to the registered address of the person entitled thereto. Interest on this Note will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

[signatures follow]

 

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated: February 5, 2024	IBM INTERNATIONAL CAPITAL PTE. LTD.
	by

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

 

This is one of the

Securities of the Series

designated herein issued

under the within-

mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee
by
	Authorized Signatory

Dated: February 5, 2024

 

[Authentication of IBM International Capital Pte. Ltd. 4.900% Note due 2034]

 

 

[REVERSE SIDE OF NOTE]

 

This security is one of a duly authorized issue of unsecured debentures, notes or other evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter specified, all issued or to be issued under an indenture (hereinafter called the “Indenture”) dated as of February 2, 2024, duly executed and delivered by the Company and International Business Machines Corporation, a New York corporation, as guarantor (hereinafter called the “Guarantor”), to The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights and duties thereunder of the Trustee, the Company, the Guarantor and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may have different conversion prices (if any), may be subject to different redemption provisions, may be subject to different sinking, purchase or analogous funds, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the 4.900% Notes due 2034 of the Company (hereinafter called the “Notes”) issued under the Indenture.

 

This Note is fully and unconditionally guaranteed by the Guarantor pursuant to the terms of the Indenture.

 

All payments in respect of this Note will be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, assessments or other governmental charges of whatever nature, unless such withholding or deduction is required by law. Specifically with respect to any withholding or deduction for any such taxes or governmental charges imposed or levied by Singapore or a political subdivision or taxing authority of or in Singapore, if such withholding or deduction is required by law, the Company will, subject to timely compliance by the holders or beneficial owners of this Note with any relevant administrative requirements, pay or cause to be paid to a holder or beneficial owner such additional amounts on this Note as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, this Note to such holder or beneficial owner, after such withholding or deduction (including any withholding or deduction on such additional amounts), will not be less than the amount provided in this Note to be then due and payable had no such withholding or deduction been required; provided, however, that the foregoing obligation to pay additional amounts will not apply:

 

(1) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that the holder or beneficial owner of this Note has or had some connection with Singapore or any other jurisdiction, including that the holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any other jurisdiction, or otherwise has or has had some connection with Singapore or any other jurisdiction, other than solely the holding or

 

 

ownership of this Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, this Note;

 

(2) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, this Note was presented more than thirty days after the date such payment became due or was provided for, whichever is later;

 

(3) to any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of this Note;

 

(4) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any other jurisdiction of the holder or beneficial owner of this Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the other jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

(5) to any present or future taxes (a) which would not have been so imposed, assessed, levied or collected if the beneficial owner of this Note had been the holder of this Note, or (b) which, if the beneficial owner of this Note had held this Note as the holder of this Note, would have been excluded pursuant to any one or combination of clauses (1) through (4) above;

 

(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;

 

(7) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other paying agent;

 

(9) to any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements entered into in connection with the implementation thereof; or

 

(10) in the case of any combination of the above listed items.

 

Except as specifically provided in this Note, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge of

 

 

whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of Singapore (or any political subdivision or taxing authority of or in Singapore), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after January 29, 2024, the Company becomes, or based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above with respect to this Note, then the Company may at its option redeem, in whole, but not in part, this Note on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of its principal amount, together with interest accrued but unpaid on this Note to the date fixed for redemption.

 

Pursuant to Section 9.03 of the Indenture, the Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor in respect of this Note in accordance with the provisions of such Section 9.03 (any such substitution, the “IBM Assumption”). Upon such IBM Assumption, the covenant to pay additional amounts on this Note with respect to withholding or deduction for any present or future tax, assessment or other governmental charge set forth in the third paragraph of the reverse side of this Note and the corresponding tax redemption provision with respect to the laws of Singapore set forth in the fifth paragraph of the reverse side of this Note will cease to apply.

 

The Notes may be redeemed, as a whole or in part, at the Company’s option, at any time or from time to time, upon notice (by mail, electronic delivery or otherwise in accordance with the depositary’s procedures) not less than 10 days nor more than 60 days prior to the date fixed for redemption to holders of the Notes. Prior to the Par Call Date, the redemption price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes will be equal to the greater of:

 

·

(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate, as defined below, plus 15 basis points less (b) interest accrued to the date of redemption, and

 

·

100% of the principal amount of the Notes to be redeemed,

 

plus, in either case, accrued interest, if any, to the redemption date.

 

On and after the Par Call Date, the redemption price for the Notes will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued interest, if any, to the redemption date.

 

 

“Par Call Date” means November 5, 2033 (three months prior to the maturity date of the Notes).

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices, expressed as a percentage of principal amount, at 11:00 a.m.,

 

 

New York City time, of such United States Treasury security, and rounded to three decimal places.

 

The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the redemption price promptly after the calculation thereof and the Trustee shall not be responsible or liable for any calculation of the redemption price or of any component thereof, or for determining whether manifest error has occurred.

 

On and after the redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a Paying Agent, or the Trustee, money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.

 

In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof together with interest accrued thereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series to be affected (acting as one class), to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities of such series to be affected; provided however, that no such supplemental indenture shall, among other things, (i) change the fixed maturity of the principal of, or any installment of principal of or interest on, or the currency of payment of, any Security; (ii) reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof; (iii) impair the right to institute suit for the enforcement of any such payment on or after the fixed maturity thereof (or, in the case of redemption, on or after the redemption date); (iv) reduce the percentage in principal amount of the outstanding Securities of any series, 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; (v) change any obligation of the Company, with respect to outstanding Securities of a series, to maintain an office or agency in the places and for the purposes

 

 

specified in the Indenture for such series; (vi) release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with the Indenture; or (vii) modify any of the foregoing provisions or the provisions for the waiver of certain covenants and defaults, except to increase any applicable percentage of the aggregate principal amount of outstanding Securities the consent of the holders of which is required or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the holders of a specified percentage of the aggregate principal amount of outstanding Securities of such series or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding Security affected thereby. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the Securities of a series at the time outstanding may on behalf of the holders of all the Securities of such series waive any past default under the Indenture with respect to such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in respect of a covenant or provision which cannot be modified without the consent of the Holder of each outstanding Security of the series affected. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Pursuant to the Indenture, the Company shall be permitted to Discharge its and the Guarantor’s obligations with respect to the Notes in accordance with Section 5.03 of the Indenture following the satisfaction of the conditions set forth therein, which include the deposit with the Trustee of money or U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of (including premium, if any, on) and interest, if any, on the outstanding Notes.

 

If the Company shall, in accordance with Section 9.01(a) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Company” on the face of this Note, all on the terms set forth in the Indenture. If the Guarantor shall, in accordance with Section 9.01(b) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Guarantor” on the face of this Note, all on the terms set forth in the Indenture.

 

The Notes are issuable in registered form without coupons in denominations of $100,000 and any integral multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge,

 

 

Notes may be exchanged for an equal aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company maintained for such purpose in the City of Pittsburgh and State of Pennsylvania.

 

Upon due presentation for registration of transfer of this Note at the office or agency of the Company for such registration in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for such purpose, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.

 

Prior to due presentment for registration of transfer of this Note, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue) for the purpose of receiving payment of the principal of, premium, if any, and interest on this Note, as herein provided, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice of the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for moneys payable on this Note.

 

Individual certificates in respect of the Notes will not be issued in exchange for this Note, except in the limited circumstances set forth in the following sentence or as otherwise provided for in the Indenture. If DTC notifies the Company that it is unwilling or unable to continue as a clearing system in connection with this Note, or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor clearing system is not appointed by the Company within 90 days after receiving such notice from DTC or upon becoming aware that DTC is no longer so registered, the Company will issue or cause to be issued individual certificates in registered form on registration of transfer of, or in exchange for, book-entry interests in the Notes represented by this Note upon delivery of this Note for cancellation.

 

No recourse for the payment of the principal of, premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

Unless otherwise defined in this Note, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

 

 

Exhibit 4.7

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

5.250% Note due 2044

 

CUSIP 449276 AF1

ISIN US449276AF17

 

No.: R-

 

IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (herein called the “Company”, which term includes any successor person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $      (      ), at the office or agency of the Company in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for that purpose, on February 5, 2044, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on February 5 and August 5 of each year, commencing August 5, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate of 5.250% per annum, from the February 5 or August 5 next preceding the date of this Note to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Note, or unless no interest has been paid on the Notes (as defined on the reverse hereof), in which case from February 5, 2024, until payment of said principal sum has been made or duly provided for. The interest so payable on February 5 or August 5 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth calendar day preceding such February 5 or August 5, unless the Company shall default in the payment of interest due on such interest payment date, in which case such defaulted interest, at the option of the Company, may be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established by notice to the registered holders of Notes not less than ten days preceding such special record date or may be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed. Payment of interest may, at the option of the Company, be made by check mailed

 

 

 

to the registered address of the person entitled thereto. Interest on this Note will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

[signatures follow]

 

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated: February 5, 2024

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

by

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

 

This is one of the

Securities of the Series

designated herein issued

under the within-

mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee

 

by

Authorized Signatory

 

Dated: February 5, 2024

 

[Authentication of IBM International Capital Pte. Ltd. 5.250% Note due 2044]

 

 

[REVERSE SIDE OF NOTE]

 

This security is one of a duly authorized issue of unsecured debentures, notes or other evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter specified, all issued or to be issued under an indenture (hereinafter called the “Indenture”) dated as of February 2, 2024, duly executed and delivered by the Company and International Business Machines Corporation, a New York corporation, as guarantor (hereinafter called the “Guarantor”), to The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights and duties thereunder of the Trustee, the Company, the Guarantor and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may have different conversion prices (if any), may be subject to different redemption provisions, may be subject to different sinking, purchase or analogous funds, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the 5.250% Notes due 2044 of the Company (hereinafter called the “Notes”) issued under the Indenture.

 

This Note is fully and unconditionally guaranteed by the Guarantor pursuant to the terms of the Indenture.

 

All payments in respect of this Note will be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, assessments or other governmental charges of whatever nature, unless such withholding or deduction is required by law. Specifically with respect to any withholding or deduction for any such taxes or governmental charges imposed or levied by Singapore or a political subdivision or taxing authority of or in Singapore, if such withholding or deduction is required by law, the Company will, subject to timely compliance by the holders or beneficial owners of this Note with any relevant administrative requirements, pay or cause to be paid to a holder or beneficial owner such additional amounts on this Note as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, this Note to such holder or beneficial owner, after such withholding or deduction (including any withholding or deduction on such additional amounts), will not be less than the amount provided in this Note to be then due and payable had no such withholding or deduction been required; provided, however, that the foregoing obligation to pay additional amounts will not apply:

 

(1) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that the holder or beneficial owner of this Note has or had some connection with Singapore or any other jurisdiction, including that the holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any other jurisdiction, or otherwise has or has had some connection with Singapore or any other jurisdiction, other than solely the holding or

 

 

ownership of this Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, this Note;

 

(2) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, this Note was presented more than thirty days after the date such payment became due or was provided for, whichever is later;

 

(3) to any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of this Note;

 

(4) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any other jurisdiction of the holder or beneficial owner of this Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the other jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

(5) to any present or future taxes (a) which would not have been so imposed, assessed, levied or collected if the beneficial owner of this Note had been the holder of this Note, or (b) which, if the beneficial owner of this Note had held this Note as the holder of this Note, would have been excluded pursuant to any one or combination of clauses (1) through (4) above;

 

(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;

 

(7) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other paying agent;

 

(9) to any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements entered into in connection with the implementation thereof; or

 

(10) in the case of any combination of the above listed items.

 

Except as specifically provided in this Note, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge of

 

 

whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of Singapore (or any political subdivision or taxing authority of or in Singapore), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after January 29, 2024, the Company becomes, or based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above with respect to this Note, then the Company may at its option redeem, in whole, but not in part, this Note on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of its principal amount, together with interest accrued but unpaid on this Note to the date fixed for redemption.

 

Pursuant to Section 9.03 of the Indenture, the Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor in respect of this Note in accordance with the provisions of such Section 9.03 (any such substitution, the “IBM Assumption”). Upon such IBM Assumption, the covenant to pay additional amounts on this Note with respect to withholding or deduction for any present or future tax, assessment or other governmental charge set forth in the third paragraph of the reverse side of this Note and the corresponding tax redemption provision with respect to the laws of Singapore set forth in the fifth paragraph of the reverse side of this Note will cease to apply.

 

The Notes may be redeemed, as a whole or in part, at the Company’s option, at any time or from time to time, upon notice (by mail, electronic delivery or otherwise in accordance with the depositary’s procedures) not less than 10 days nor more than 60 days prior to the date fixed for redemption to holders of the Notes. Prior to the Par Call Date, the redemption price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes will be equal to the greater of:

 

·

(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate, as defined below, plus 15 basis points less (b) interest accrued to the date of redemption, and

 

·

100% of the principal amount of the Notes to be redeemed,

 

plus, in either case, accrued interest, if any, to the redemption date.

 

On and after the Par Call Date, the redemption price for the Notes will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued interest, if any, to the redemption date.

 

 

“Par Call Date” means August 5, 2043 (six months prior to the maturity date of the Notes).

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices, expressed as a percentage of principal amount, at 11:00 a.m.,

 

 

New York City time, of such United States Treasury security, and rounded to three decimal places.

 

The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the redemption price promptly after the calculation thereof and the Trustee shall not be responsible or liable for any calculation of the redemption price or of any component thereof, or for determining whether manifest error has occurred.

 

On and after the redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a Paying Agent, or the Trustee, money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.

 

In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof together with interest accrued thereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series to be affected (acting as one class), to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities of such series to be affected; provided however, that no such supplemental indenture shall, among other things, (i) change the fixed maturity of the principal of, or any installment of principal of or interest on, or the currency of payment of, any Security; (ii) reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof; (iii) impair the right to institute suit for the enforcement of any such payment on or after the fixed maturity thereof (or, in the case of redemption, on or after the redemption date); (iv) reduce the percentage in principal amount of the outstanding Securities of any series, 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; (v) change any obligation of the Company, with respect to outstanding Securities of a series, to maintain an office or agency in the places and for the purposes

 

 

specified in the Indenture for such series; (vi) release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with the Indenture; or (vii) modify any of the foregoing provisions or the provisions for the waiver of certain covenants and defaults, except to increase any applicable percentage of the aggregate principal amount of outstanding Securities the consent of the holders of which is required or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the holders of a specified percentage of the aggregate principal amount of outstanding Securities of such series or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding Security affected thereby. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the Securities of a series at the time outstanding may on behalf of the holders of all the Securities of such series waive any past default under the Indenture with respect to such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in respect of a covenant or provision which cannot be modified without the consent of the Holder of each outstanding Security of the series affected. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Pursuant to the Indenture, the Company shall be permitted to Discharge its and the Guarantor’s obligations with respect to the Notes in accordance with Section 5.03 of the Indenture following the satisfaction of the conditions set forth therein, which include the deposit with the Trustee of money or U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of (including premium, if any, on) and interest, if any, on the outstanding Notes.

 

If the Company shall, in accordance with Section 9.01(a) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Company” on the face of this Note, all on the terms set forth in the Indenture. If the Guarantor shall, in accordance with Section 9.01(b) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Guarantor” on the face of this Note, all on the terms set forth in the Indenture.

 

The Notes are issuable in registered form without coupons in denominations of $100,000 and any integral multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge,

 

 

Notes may be exchanged for an equal aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company maintained for such purpose in the City of Pittsburgh and State of Pennsylvania.

 

Upon due presentation for registration of transfer of this Note at the office or agency of the Company for such registration in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for such purpose, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.

 

Prior to due presentment for registration of transfer of this Note, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue) for the purpose of receiving payment of the principal of, premium, if any, and interest on this Note, as herein provided, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice of the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for moneys payable on this Note.

 

Individual certificates in respect of the Notes will not be issued in exchange for this Note, except in the limited circumstances set forth in the following sentence or as otherwise provided for in the Indenture. If DTC notifies the Company that it is unwilling or unable to continue as a clearing system in connection with this Note, or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor clearing system is not appointed by the Company within 90 days after receiving such notice from DTC or upon becoming aware that DTC is no longer so registered, the Company will issue or cause to be issued individual certificates in registered form on registration of transfer of, or in exchange for, book-entry interests in the Notes represented by this Note upon delivery of this Note for cancellation.

 

No recourse for the payment of the principal of, premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

Unless otherwise defined in this Note, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

 

 

Exhibit 4.8

 

Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.

 

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

5.300% Note due 2054

 

CUSIP 449276 AG9

ISIN US449276AG99

 

No.: R-

 

IBM INTERNATIONAL CAPITAL PTE. LTD., a private company limited by shares incorporated under the laws of the Republic of Singapore (herein called the “Company”, which term includes any successor person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $      (      ), at the office or agency of the Company in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for that purpose, on February 5, 2054, in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semi-annually on February 5 and August 5 of each year, commencing August 5, 2024, on said principal sum at said office or agency, in like coin or currency, at the rate of 5.300% per annum, from the February 5 or August 5 next preceding the date of this Note to which interest has been paid, unless the date hereof is a date to which interest has been paid, in which case from the date of this Note, or unless no interest has been paid on the Notes (as defined on the reverse hereof), in which case from February 5, 2024, until payment of said principal sum has been made or duly provided for. The interest so payable on February 5 or August 5 will, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the fifteenth calendar day preceding such February 5 or August 5, unless the Company shall default in the payment of interest due on such interest payment date, in which case such defaulted interest, at the option of the Company, may be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest established by notice to the registered holders of Notes not less than ten days preceding such special record date or may be paid in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed. Payment of interest may, at the option of the Company, be made by check mailed

 

 

to the registered address of the person entitled thereto. Interest on this Note will be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

[signatures follow]

 

 

This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.

 

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.

 

Dated: February 5, 2024

IBM INTERNATIONAL CAPITAL PTE. LTD.

 

by

 

 

TRUSTEE’S CERTIFICATE
OF AUTHENTICATION

 

This is one of the

Securities of the Series

designated herein issued

under the within-

mentioned Indenture.

 

THE BANK OF NEW YORK MELLON, as Trustee

 

by

Authorized Signatory

 

Dated: February 5, 2024

 

[Authentication of IBM International Capital Pte. Ltd. 5.300% Note due 2054]

 

 

[REVERSE SIDE OF NOTE]

 

This security is one of a duly authorized issue of unsecured debentures, notes or other evidences of indebtedness of the Company (hereinafter called the “Securities”), of the series hereinafter specified, all issued or to be issued under an indenture (hereinafter called the “Indenture”) dated as of February 2, 2024, duly executed and delivered by the Company and International Business Machines Corporation, a New York corporation, as guarantor (hereinafter called the “Guarantor”), to The Bank of New York Mellon, a New York banking corporation, as trustee (hereinafter called the “Trustee”), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the respective rights and duties thereunder of the Trustee, the Company, the Guarantor and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest at different rates, may have different conversion prices (if any), may be subject to different redemption provisions, may be subject to different sinking, purchase or analogous funds, may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Security is one of a series designated as the 5.300% Notes due 2054 of the Company (hereinafter called the “Notes”) issued under the Indenture.

 

This Note is fully and unconditionally guaranteed by the Guarantor pursuant to the terms of the Indenture.

 

All payments in respect of this Note will be made by or on behalf of the Company without withholding or deduction for, or on account of, any present or future taxes, assessments or other governmental charges of whatever nature, unless such withholding or deduction is required by law. Specifically with respect to any withholding or deduction for any such taxes or governmental charges imposed or levied by Singapore or a political subdivision or taxing authority of or in Singapore, if such withholding or deduction is required by law, the Company will, subject to timely compliance by the holders or beneficial owners of this Note with any relevant administrative requirements, pay or cause to be paid to a holder or beneficial owner such additional amounts on this Note as are necessary in order that the net payment of the principal of, and premium or redemption price, if any, and interest on, this Note to such holder or beneficial owner, after such withholding or deduction (including any withholding or deduction on such additional amounts), will not be less than the amount provided in this Note to be then due and payable had no such withholding or deduction been required; provided, however, that the foregoing obligation to pay additional amounts will not apply:

 

(1) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that the holder or beneficial owner of this Note has or had some connection with Singapore or any other jurisdiction, including that the holder or beneficial owner is or has been a domiciliary, national or resident of, engages or has been engaged in a trade or business, is or has been organized under, maintains or has maintained an office, a branch subject to taxation, or a permanent establishment, or is or has been physically present in Singapore or any other jurisdiction, or otherwise has or has had some connection with Singapore or any other jurisdiction, other than solely the holding or

 

 

ownership of this Note, or the collection of principal of, premium, if any, and interest on, or the enforcement of, this Note;

 

(2) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the fact that, where presentation is required, this Note was presented more than thirty days after the date such payment became due or was provided for, whichever is later;

 

(3) to any present or future taxes which are payable otherwise than by deduction or withholding on or in respect of this Note;

 

(4) to any present or future taxes which would not have been so imposed, assessed, levied or collected but for the failure to comply, on a sufficiently timely basis, with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with Singapore or any other jurisdiction of the holder or beneficial owner of this Note, if such compliance is required by a statute or regulation or administrative practice of Singapore, the other jurisdiction or any other relevant jurisdiction, or by a relevant treaty, as a condition to relief or exemption from such taxes;

 

(5) to any present or future taxes (a) which would not have been so imposed, assessed, levied or collected if the beneficial owner of this Note had been the holder of this Note, or (b) which, if the beneficial owner of this Note had held this Note as the holder of this Note, would have been excluded pursuant to any one or combination of clauses (1) through (4) above;

 

(6) to any estate, inheritance, gift, sales, excise, transfer, wealth or personal property tax or similar tax, assessment or other governmental charge;

 

(7) to any tax, assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;

 

(8) to any tax, assessment or other governmental charge required to be withheld by any paying agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other paying agent;

 

(9) to any taxes that are imposed or withheld pursuant to Sections 1471 through 1474 of the United States Internal Revenue Code of 1986, as amended (or any amended or successor version of such Sections), any Treasury regulations promulgated thereunder, any official interpretations thereof or any agreements entered into in connection with the implementation thereof; or

 

(10) in the case of any combination of the above listed items.

 

Except as specifically provided in this Note, the Company shall not be required to make any payment with respect to any tax, assessment or other governmental charge of

 

 

whatever nature imposed by any government or a political subdivision or taxing authority of or in any government or political subdivision.

 

If, as a result of any change in, or amendment to, the laws (or any regulations or rulings promulgated under the laws) of Singapore (or any political subdivision or taxing authority of or in Singapore), or any change in, or amendments to, an official position regarding the application or interpretation of such laws, regulations or rulings, which change or amendment is announced or becomes effective on or after January 29, 2024, the Company becomes, or based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above with respect to this Note, then the Company may at its option redeem, in whole, but not in part, this Note on not less than 30 nor more than 60 days prior notice, at a redemption price equal to 100% of its principal amount, together with interest accrued but unpaid on this Note to the date fixed for redemption.

 

Pursuant to Section 9.03 of the Indenture, the Company and the Guarantor may at any time, without the consent of any Holders, arrange for and cause the substitution of the Company as the principal obligor by the Guarantor in respect of this Note in accordance with the provisions of such Section 9.03 (any such substitution, the “IBM Assumption”). Upon such IBM Assumption, the covenant to pay additional amounts on this Note with respect to withholding or deduction for any present or future tax, assessment or other governmental charge set forth in the third paragraph of the reverse side of this Note and the corresponding tax redemption provision with respect to the laws of Singapore set forth in the fifth paragraph of the reverse side of this Note will cease to apply.

 

The Notes may be redeemed, as a whole or in part, at the Company’s option, at any time or from time to time, upon notice (by mail, electronic delivery or otherwise in accordance with the depositary’s procedures) not less than 10 days nor more than 60 days prior to the date fixed for redemption to holders of the Notes. Prior to the Par Call Date, the redemption price (expressed as a percentage of principal amount and rounded to three decimal places) for the Notes will be equal to the greater of:

 

·

(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate, as defined below, plus 15 basis points less (b) interest accrued to the date of redemption, and

 

·

100% of the principal amount of the Notes to be redeemed,

 

plus, in either case, accrued interest, if any, to the redemption date.

 

On and after the Par Call Date, the redemption price for the Notes will be equal to 100% of the principal amount of the Notes to be redeemed, plus accrued interest, if any, to the redemption date.

 

 

“Par Call Date” means August 5, 2053 (six months prior to the maturity date of the Notes).

 

“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.

 

The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.

 

If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices, expressed as a percentage of principal amount, at 11:00 a.m.,

 

 

New York City time, of such United States Treasury security, and rounded to three decimal places.

 

The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Company will notify the Trustee of the redemption price promptly after the calculation thereof and the Trustee shall not be responsible or liable for any calculation of the redemption price or of any component thereof, or for determining whether manifest error has occurred.

 

On and after the redemption date, interest will cease to accrue on the Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a Paying Agent, or the Trustee, money sufficient to pay the redemption price of and accrued interest on the Notes to be redeemed on such date. In the case of a partial redemption, selection of the Notes for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair. No Notes of a principal amount of $100,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.

 

In case an Event of Default with respect to the Notes, as defined in the Indenture, shall have occurred and be continuing, the principal hereof together with interest accrued thereon, if any, may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.

 

The Indenture contains provisions permitting the Company, the Guarantor and the Trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time outstanding of all series to be affected (acting as one class), to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the holders of the Securities of such series to be affected; provided however, that no such supplemental indenture shall, among other things, (i) change the fixed maturity of the principal of, or any installment of principal of or interest on, or the currency of payment of, any Security; (ii) reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof; (iii) impair the right to institute suit for the enforcement of any such payment on or after the fixed maturity thereof (or, in the case of redemption, on or after the redemption date); (iv) reduce the percentage in principal amount of the outstanding Securities of any series, 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 the Indenture or certain defaults thereunder and their consequences) provided for in the Indenture; (v) change any obligation of the Company, with respect to outstanding Securities of a series, to maintain an office or agency in the places and for the purposes

 

 

specified in the Indenture for such series; (vi) release the Guarantor from its obligations in respect of the Guarantee or adversely modify in any material respect the Guarantee other than in accordance with the Indenture; or (vii) modify any of the foregoing provisions or the provisions for the waiver of certain covenants and defaults, except to increase any applicable percentage of the aggregate principal amount of outstanding Securities the consent of the holders of which is required or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the holders of a specified percentage of the aggregate principal amount of outstanding Securities of such series or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding Security affected thereby. It is also provided in the Indenture that the holders of a majority in aggregate principal amount of the Securities of a series at the time outstanding may on behalf of the holders of all the Securities of such series waive any past default under the Indenture with respect to such series and its consequences, except a default in the payment of the principal of, premium, if any, or interest, if any, on any Security of such series or in respect of a covenant or provision which cannot be modified without the consent of the Holder of each outstanding Security of the series affected. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.

 

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the respective times, at the rate and in the coin or currency herein prescribed.

 

Pursuant to the Indenture, the Company shall be permitted to Discharge its and the Guarantor’s obligations with respect to the Notes in accordance with Section 5.03 of the Indenture following the satisfaction of the conditions set forth therein, which include the deposit with the Trustee of money or U.S. Government Obligations or a combination thereof sufficient to pay and discharge each installment of principal of (including premium, if any, on) and interest, if any, on the outstanding Notes.

 

If the Company shall, in accordance with Section 9.01(a) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Company” on the face of this Note, all on the terms set forth in the Indenture. If the Guarantor shall, in accordance with Section 9.01(b) of the Indenture, consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, the successor shall succeed to, and be substituted for, the Person named as the “Guarantor” on the face of this Note, all on the terms set forth in the Indenture.

 

The Notes are issuable in registered form without coupons in denominations of $100,000 and any integral multiple of $1,000 in excess thereof. In the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge,

 

 

Notes may be exchanged for an equal aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company maintained for such purpose in the City of Pittsburgh and State of Pennsylvania.

 

Upon due presentation for registration of transfer of this Note at the office or agency of the Company for such registration in the City of Pittsburgh and State of Pennsylvania, or any other office or agency designated by the Company for such purpose, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange herefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.

 

Prior to due presentment for registration of transfer of this Note, the Company, the Trustee and any agent of the Company or the Trustee may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue) for the purpose of receiving payment of the principal of, premium, if any, and interest on this Note, as herein provided, and for all other purposes, and neither the Company nor the Trustee nor any agent of the Company or the Trustee shall be affected by any notice of the contrary. All payments made to or upon the order of such registered holder shall, to the extent of the sum or sums paid, effectually satisfy and discharge liability for moneys payable on this Note.

 

Individual certificates in respect of the Notes will not be issued in exchange for this Note, except in the limited circumstances set forth in the following sentence or as otherwise provided for in the Indenture. If DTC notifies the Company that it is unwilling or unable to continue as a clearing system in connection with this Note, or ceases to be a clearing agency registered under the Securities Exchange Act of 1934, and a successor clearing system is not appointed by the Company within 90 days after receiving such notice from DTC or upon becoming aware that DTC is no longer so registered, the Company will issue or cause to be issued individual certificates in registered form on registration of transfer of, or in exchange for, book-entry interests in the Notes represented by this Note upon delivery of this Note for cancellation.

 

No recourse for the payment of the principal of, premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or any indenture supplemental thereto or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.

 

Unless otherwise defined in this Note, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

 

 

THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 

 

 

 

Exhibit 5.1

 

INTERNATIONAL BUSINESS MACHINES CORPORATION
Office of the Vice President, Assistant General Counsel and Secretary
Armonk, New York 10504

  

February 2, 2024

 

International Business Machines Corporation
One New Orchard Road
Armonk, NY 10504

 

IBM International Capital Pte. Ltd.

10 Collyer Quay

#10-01, Ocean Financial Centre

Singapore 049315

 

Ladies and Gentlemen:

 

I am the Vice President, Assistant General Counsel and Secretary of International Business Machines Corporation (herein called the “Company”) and an attorney duly admitted to practice in the State of New York.

 

The Company, IBM International Capital Pte. Ltd. (“IIC”) and IBM International Group Capital LLC have filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (File Nos. 333-276739, 333-276739-01 and 333-276739-02) (the “Registration Statement”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), among other securities, debt securities to be issued from time to time by IIC and the related guarantee to be issued by the Company, including $600,000,000 aggregate principal amount of IIC’s 4.700% Notes due 2026, $500,000,000 aggregate principal amount of IIC’s 4.600% Notes due 2027, $500,000,000 aggregate principal amount of IIC’s 4.600% Notes due 2029, $500,000,000 aggregate principal amount of IIC’s 4.750% Notes due 2031, $1,000,000,000 aggregate principal amount of IIC’s 4.900% Notes due 2034, $1,000,000,000 aggregate principal amount of IIC’s 5.250% Notes due 2044 and $1,400,000,000 aggregate principal amount of IIC’s 5.300% Notes due 2054 (together, the “Securities”), which are fully and unconditionally guaranteed by the Company (the “Guarantee”). The Securities and the Guarantee are to be issued pursuant to the Indenture dated as of February 2, 2024 (the “Indenture”), between IIC, the Company and The Bank of New York Mellon, as trustee (the “Trustee”). The Notes and the Guarantee are to be sold pursuant to the Underwriting Agreement dated January 29, 2024 (the “Underwriting Agreements”) among IIC, the Company and the several underwriters named therein (the “Underwriters”).

 

I, working together with members of the Company’s legal department, have reviewed such documents and records as I have deemed necessary or appropriate to enable me to express an informed and reasoned legal opinion with respect to the matters covered hereby.

 

In rendering this opinion, I have assumed that (A) IIC has been duly incorporated and is validly existing under the laws of the Republic of Singapore, (B) the Indenture has been duly authorized and validly executed and delivered by IIC, (C) the Board of Directors of IIC or a duly constituted

 

 

and acting committee thereof had taken all necessary action to approve the issuance and terms of such Securities, the terms of the offering thereof and related matters and (D) IIC has the applicable power and authority to execute, deliver and perform all its obligations under the Indenture and the Securities.

 

Based on the foregoing, and subject to the qualifications and assumptions stated herein, I am of the opinion that:

 

(1)

when the Securities are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreements, and assuming that the Securities are duly authenticated by the Trustee, the Securities will be validly issued and will constitute valid and binding obligations of IIC, enforceable against IIC in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws in effect and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and

 

(2)

the Guarantee has been duly authorized by the Company, and when the Securities are executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreements, and assuming that the Securities are duly authenticated by the Trustee, the Guarantee will be validly issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws in effect and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law).

 

In giving these opinions, I express no opinion as to: (i) any laws other than the laws of the State of New York and the Federal Laws of the United States of America, (ii) whether a state court outside the State of New York or a Federal court of the United States would give effect to the choice of New York law provided for in the Indenture or the Securities or (iii) the irrevocability of the appointment of the agent upon whom process may be served. In particular, I do not purport to pass on any matter governed by the laws of Singapore.

 

I hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Company’s Current Report on Form 8-K dated February 2, 2024, its incorporation into the Registration Statement and to the use of my name under the caption “Legal Opinions” in the prospectus supplements relating to the Securities and the Guarantee included in the Registration Statement. In giving this consent, I do not admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act.

 

	Very truly yours,
	/s/ Frank Sedlarcik
	Frank Sedlarcik

 

 

 

Exhibit 5.2

 

 

2 February 2024	We do not accept service
	of court documents by fax

 

BY EMAIL
No. of pages: 16 (excluding enclosures)
International Business Machines Corporation
One New Orchard Road
Armonk, New York 10504
IBM International Capital Pte. Ltd.
10 Collyer Quay
#10-01, Ocean Financial Centre
Singapore 049315

 

Dear Sirs,

 

IBM International Capital Pte. Ltd. (Company Reg. No.: 202345465D) (Company) – Legal Opinion in respect of the Notes Certificates

 

1.	Background

 

1.1           We have acted as advisers as to Singapore law to the Company in connection with the issuance and sale of US$600,000,000 aggregate principal amount of 4.700% Notes due 2026, US$500,000,000 aggregate principal amount of 4.600% Notes due 2027, US$500,000,000 aggregate principal amount of 4.600% Notes due 2029, US$500,000,000 aggregate principal amount of 4.750% Notes due 2031, US$1,000,000,000 aggregate principal amount of 4.900% Notes due 2034, US$1,000,000,000 aggregate principal amount of 5.250% Notes due 2044 and US$1,400,000,000 aggregate principal amount of 5.300% Notes due 2054 (collectively, the Debt Securities) of the Company, which are fully and unconditionally guaranteed on a unsecured basis by International Business Machines Corporation (Guarantor), a State of New York corporation. The Debt Securities will be issued pursuant to the Indenture, dated as of 2 February 2024 (the Indenture), between the Company, the Guarantor and The Bank of New York Mellon, as trustee (the Trustee), and the pricing term sheet(s) (appended to a certificate given by the treasurer of the Company dated as of 29 January 2024 (Issuance Certificate). The Company has also entered into an Underwriting Agreement, dated as of 29 January 2024 (the Underwriting Agreement), with the Guarantor and the representatives named in Schedule I therein of the several underwriters named in Schedule II therein (the Underwriters), relating to the sale by the Company to the Underwriters of the Debt Securities. The Underwriting Agreement, the Issuance Certificate, the Indenture and the Notes Certificates (as defined in Schedule 1) are referred to herein collectively as the Transaction Agreements.

 

1.2           This opinion is being furnished to you in connection with the filing of the registration statement on Form S-3ASR (File No. 333-276739-01) of the Company relating to, among other securities, the Debt Securities of the Company filed with the Securities and Exchange Commission (the Commission) on 29 January 2024 under the Securities Act of 1933, as amended (Securities Act), allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (Rules and Regulations), including information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement being hereinafter referred to as the Registration Statement).

 

 

DREW & NAPIER LLC 10 Collyer Quay, #10-01 Ocean Financial Centre, Singapore 049315

T:+65 6535 0733  T:+65 9726 0573 (After Hours)  F:+65 6535 4906  E: mail@drewnapier.com www.drewnapier.com

Drew & Napier LLC (UEN 200102509E) is a law corporation with limited liability.

 

 

2 February 2024 Page 2

 

2.	Definitions

 

2.1           The headings in this opinion do not affect its interpretation.

 

2.2           Unless otherwise defined in this opinion, terms defined or given a particular construction in the Registration Statement have the same meaning in this opinion.

 

2.3           References to paragraphs and schedules are to paragraphs of, and schedules to, this opinion.

 

3.	Documents examined and enquiries made

 

For the purposes of giving this opinion, we have only examined the documents listed in Schedule 1 and only made the searches and enquiries listed in Schedule 2. We have relied upon the statements as to factual matters contained in or made pursuant to each of the documents mentioned in this paragraph 3.

 

4.	Assumptions and qualifications

 

The opinions in this opinion are given on the basis of the assumptions set out in Schedule 3 and are subject to the qualifications set out in Schedule 4 and to any other matters not disclosed to us. The opinions in this opinion are strictly limited to the matters stated in paragraph 5 and do not extend to any other matters.

 

5.

Opinion

 

On the basis of, and subject to, the foregoing and the matters set out in paragraph 6 below and having regard to such considerations of Singapore law in force as at the date of this opinion as we consider relevant, we are of the opinion that:

 

(a)	the Company has been duly incorporated as a private company limited by shares and is validly existing under the laws of Singapore;

 

(b)	the Company has the requisite corporate power and capacity to enter into the Indenture and to enter into and issue the Notes Certificates and to perform its obligations thereunder; and

 

(c)	the execution, delivery and the performance of the Company's obligations under the Indenture and each of the Notes Certificates have been duly authorised by all necessary corporate action on the part of the Company, and the Indenture has been duly executed by the Company.

 

6.	Scope of opinion

 

6.1           This opinion is confined to the laws of Singapore of general application as at the date of this opinion as applied by the Singapore courts, and is given on the basis that it will be governed by and construed in accordance with the laws of Singapore.

 

6.2           We express no opinion with respect to the laws of any other jurisdiction. Insofar as any law other than the laws of Singapore may be relevant to this opinion, we have taken no account of, and have made no investigation of, such law and have assumed that no such law would affect the opinion stated herein.

 

6.3           We express no opinion on matters of fact.

 

 

2 February 2024 Page 3

 

6.4           By giving this opinion, we do not assume any obligation to notify you of future changes in law which may affect the opinions expressed in this opinion, or otherwise to update this opinion in any respect.

 

6.5           We should also like to make the following observations:

 

(a)

it should be understood that we have not been responsible and do not assume any responsibility for investigating or verifying the accuracy or completeness of the facts or any of the statements of foreign law, or the reasonableness or fairness of any of the statements of opinion or intention, contained in or relevant to the Registration Statement, the Transaction Agreements or the Debt Securities, or that no material information has been omitted therefrom. Except for the documents listed in Schedule 1, we have not examined any contracts or other documents entered into by or affecting the Company or any corporate records of the Company. We have also not made any other enquiries or searches concerning the Company (whether within our law corporation or otherwise) except as mentioned in Schedule 2;

 

(b)

we have not considered the particular circumstances of any party (save for the Company to the extent expressly stated in this opinion) nor the effect of any such particular circumstances on the Registration Statement, the Transaction Agreements or the Debt Securities or the effect of the transaction contemplated by any document referred to herein on any such particular circumstances and we express no opinion as to the correctness of any factual matters, or, any representation or warranty given by the Company (expressly or impliedly) under or by virtue of the Registration Statement, the Transaction Agreements or the Debt Securities, save if and insofar as the matters warranted are the subject matter of specific opinions in this opinion; and

 

(c)

we have not been involved in the detailed preparation of the Transaction Agreements and have reviewed such documents only for the limited purpose of giving this opinion in relation to the Company. Accordingly, we express no view as to the suitability of the Transaction Agreements or of their provisions or their general compliance with market practice or any commercial aspects of such documents.

 

7.	Benefit of opinion

 

This opinion is addressed to you solely for your own benefit in relation to the Registration Statement and, except with our prior written consent, is not to be transmitted or furnished to or quoted or used or relied upon by any other person or used or relied upon by you for any other purpose. Please note that this opinion is intended to be strictly limited to the matters stated herein and is not to be read as extending by implication to any other matter in connection with the Transaction Agreements or the Registration Statement or otherwise.

 

8.

Consent

 

We consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on Form 8-K being filed on the date hereof, and incorporated by reference into the Registration Statement. We also hereby consent to the reference to our name under the heading “Legal Opinions” in the prospectus supplement dated as of 29 January 2024 in relation to the Debt Securities and filed with the Commission (the Prospectus Supplement). In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

 

 

2 February 2024 Page 4

 

Yours faithfully

 

/s/ DREW & NAPIER LLC

 

DREW & NAPIER LLC

 

 

2 February 2024 Page 5

 

Schedule 1 – Documents examined

 

(a)	a copy of the Registration Statement;

 

(b)	a copy of the Indenture;

 

(c)	copies of the forms of the global notes in respect of each of the:

 

(i)

US$600,000,000 aggregate principal amount of 4.700% Notes due 2026;

 

(ii)

US$500,000,000 aggregate principal amount of 4.600% Notes due 2027;

 

(iii)

US$500,000,000 aggregate principal amount of 4.600% Notes due 2029;

 

(iv)

US$500,000,000 aggregate principal amount of 4.750% Notes due 2031;

 

(v)

US$1,000,000,000 aggregate principal amount of 4.900% Notes due 2034;

 

(vi)

US$1,000,000,000 aggregate principal amount of 5.250% Notes due 2044; and

 

(vii)

US$1,400,000,000 aggregate principal amount of 5.300% Notes due 2054,

 

(collectively, the Notes Certificates); and

 

(d)	a copy of the director’s certificate signed by a director of the Company dated as of 29 January 2024 (Director’s Certificate), together with the following documents attached thereto:

 

(i)

the Certificate of Incorporation of the Company;

 

(ii)

the Constitution of the Company;

 

(iii)

the directors’ resolutions in writing of the Company dated as of 29 January 2024; and

 

(iv)

the directors’ resolutions in writing of the Company dated as of 29 January 2024 (paragraph (d)(iii) and (d)(iv) collectively, the Resolutions).

 

 

2 February 2024 Page 6

 

Schedule 2 – Searches and enquiries

 

We have only made the following searches and enquiries in Singapore for the purpose of this opinion:

 

(a)	a Bizfile instant information search against the name “IBM International Capital Pte. Ltd.” via the electronic search service on 2 February 2024; and

 

(b)	electronic company winding up and composite litigation searches against the Company based on the databases of the Singapore Supreme Court and the State Court registries for the period from 17 November 2023 to 2 February 2024 on 2 February 2024.

 

 

2 February 2024 Page 7

 

Schedule 3 – Assumptions

 

We have with your consent and without any further enquiry assumed:

 

(a)

the genuineness of all signatures and seals on, and the authenticity and completeness of, all documents submitted to us whether as originals or copies and that no amendments or variations have been made to such documents and, in the case of any document which is a deed, that the signatures and seals pertaining to such deed were made or affixed on a single, complete, physical version of that deed which has remained intact since those signatures or seals were made or affixed;

 

(b)	the conformity to originals of all documents supplied to us as copies, electronic copies (including PDFs) or facsimile copies;

 

(c)	that, where a document has been examined by us in draft or specimen form, it will be or has been executed in the form of that draft or specimen;

 

(d)	that each party to the Transaction Agreements (other than the Company) has been duly incorporated in its jurisdiction of incorporation;

 

(e)

that the Company has not breached and is not in breach of, and following the execution of the Notes Certificates or the Indenture, was not as a consequence thereof in breach or will not as a consequence thereof be in breach, as applicable, of any obligations binding on it (other than the Constitution of the Company);

 

(f)	that no steps have been taken for the striking off, winding-up, liquidation, receivership, judicial management, moratorium or analogous circumstances of the Company (other than as revealed by the results of the searches referred to in paragraph (b) of Schedule 2);

 

(g)	that the Constitution referred to in paragraph (d)(ii) of Schedule 1 is a true, complete and up-to-date copy of the Constitution of the Company as in force as at the date hereof;

 

(h)

that each of the names of the authorised signatories as set out in the Director’s Certificate is a duly appointed officer, director, company secretary and/or authorised signatory of the Company and the persons who will execute or who executed, as applicable, the Indenture and the Notes Certificates on behalf of the Company are, in each case, the people authorised to do so by the Resolutions;

 

(i)	the Resolutions were duly passed at properly convened meetings of the directors of the Company and have not been amended, modified or revoked and are in full force and effect and such minutes are true, complete and correct records of the proceedings described therein;

 

(j)

each of the directors of the Company having any interest in the transactions contemplated by the Registration Statement, the Indenture or the Notes Certificates has duly disclosed his interest therein and was entitled to be counted in the quorum for such meeting and to vote on the resolutions proposed thereat;

 

(k)

the capacity, power and authority of each of the parties (other than the Company) to execute the Indenture and the Notes Certificates, in each case, to which it is a party and the due, proper and effective execution and unconditional delivery of the Indenture and the Notes Certificates by such parties;

 

 

2 February 2024 Page 8

 

(l)

the capacity, power and authority of each of the parties (other than the Company) to exercise its rights and perform its obligations under the Indenture and the Notes Certificates to which it is a party;

 

(m)

that all consents, licences, permits, approvals, authorisations, exemptions or orders necessary under any applicable laws whether in or outside Singapore and all other requirements whether in or outside Singapore for the execution, delivery and performance of each of the Indenture and the Notes Certificates by each of the parties thereto (other than, in the case of the Company, the laws of Singapore) or for the legality, validity and enforceability of each of the Indenture and the Notes Certificates have been or will be, as applicable, duly obtained or fulfilled and are and will remain in full force and effect and that any conditions to which they are subject have been or will be, as applicable, satisfied;

 

(n)

that all registration, recording, lodging or filing requirements of any governmental or other authority or agency for the legality, validity and enforceability of each of the Indenture, the Notes Certificates and the Debt Securities and the offering, issue, sale and delivery of the Debt Securities, have been or will be, as applicable, duly fulfilled;

 

(o)

that where the Registration Statement has been executed and/or filed on behalf of the Company by attorneys appointed under powers of attorney, such powers of attorney are legal, valid and binding under the laws of the United States;

 

(p)

with respect to any Debt Securities, that:

 

(i)

the Registration Statement, the Issuance Certificate and the Underwriting Agreement have been duly authorised, executed and (where applicable) delivered on behalf of the Company, the Indenture has been duly delivered on behalf of the Company, and the Notes Certificates will be duly executed and delivered on behalf of the Company;

 

(ii)

all terms of such Debt Securities not provided for in the Indenture are reflected in the Prospectus Supplement and Issuance Certificate;

 

(iii)

the Registration Statement in the form examined by us, and any amendments thereto, became effective prior to the time of issuance of any Debt Securities in connection therewith (and will remain effective at the time of issuance of any Debt Securities in connection therewith);

 

(iv)

the Prospectus Supplement, which describes each class or series of Debt Securities offered in connection with the Registration Statement, to the extent required by applicable laws and relevant rules and regulations of the Commission, has been timely filed with the Commission;

 

(v)

such Debt Securities have been duly prepared and will be duly executed, authenticated (where applicable), issued and delivered on behalf of the Company in accordance with the terms and subject to the conditions set out in the Resolutions and the provisions of the Registration Statement, the Prospectus Supplement and the relevant Transaction Agreements under which the Debt Securities are created, issued and delivered; and

 

(vi)

such Debt Securities, the Registration Statement, the Prospectus Supplement and each Transaction Agreement relating to such Debt Securities, as have been or will be executed and delivered, as applicable, do not or will not, as applicable, at the relevant time, violate any law applicable to the Company or result in a default under or breach of any agreement or instrument binding upon the Company;

 

 

2 February 2024 Page 9

 

(q)

that none of the Debt Securities has been or will be offered for subscription in Singapore and no invitation to subscribe for or purchase any of the Debt Securities shall be issued, circulated or distributed in Singapore unless all relevant laws in Singapore (including but not limited to the provisions of the Securities and Futures Act 2001 of Singapore (SFA1)) have been complied with and such offer or (as the case may be) invitation will not be in breach of any rules, regulations or directives issued by any regulatory body or agency or supervisory authority in Singapore;

 

(r)

that any offer and sale of any Debt Securities in Singapore will be made only in accordance with the applicable provisions of the SFA (i) to an institutional investor (as defined in Section 4A of the SFA) pursuant to Section 274 of the SFA, or (ii) to an accredited investor (as defined in Section 4A of the SFA) pursuant to and in accordance with the conditions specified in Section 275 of the SFA and, (where applicable) Regulation 3 of the Securities and Futures (Classes of Investors) Regulations 2018;

 

(s)

that, where the Indenture and the Notes Certificates were or will be, as applicable, executed outside Singapore, formalities for such execution required by the laws of the place of execution have been or will be, as applicable, complied with;

 

(t)

that the Indenture and the Notes Certificates and all other documents relevant to this transaction, as executed or to be executed, as applicable, by the respective parties thereto, constitute or will constitute, as applicable, legal, valid and binding obligations of each of the parties thereto enforceable under all applicable laws;

 

(u)

that the choice of the laws of the State of New York to govern the Indenture and each of the Notes Certificates, to the extent applicable, and the submission by the parties to the Indenture and each of the Notes Certificates to the competent courts in the State of New York with regard to any disputes under the Indenture and each of the Notes Certificates (as the case may be), is valid and binding under the laws of any applicable jurisdiction (other than, in the case of the Company, Singapore) and that such choice and submission would be recognised and given effect by the courts of any such jurisdiction and that such choice is bona fide and legal and there are no reasons for avoiding the choice on grounds of public policy;

 

(v)

that there are no provisions of law of any jurisdiction which have been or will be, as applicable, contravened by the execution or delivery of the Indenture, the Notes Certificates and/or the offering, issue, sale and delivery of the Debt Securities;

 

(w)

that the Indenture and each of the Notes Certificates have been or will be, as applicable, unconditionally delivered by the Company and is not or will not be, as applicable, subject to any escrow or other similar arrangement;

 

(x)

that each Transaction Agreement has been or will be, as the case may be, entered into for bona fide commercial reasons and on arm’s length terms by each of the parties thereto;

 

(y)

that the directors of the Company have acted in good faith and in the best interests and to the benefit of the Company in approving the preparation, execution and filing of the Registration Statement with the Commission, the entry into each Transaction Agreement and the transactions contemplated thereby, and without intention to defraud any of the creditors of the Company;

 

¹ Any reference to the SFA is a reference to the Securities and Futures Act 2001 of Singapore and a reference to any term as defined in the SFA or any provision in the SFA is a reference to that term as modified or amended from time to time including by such of its subsidiary legislation as may be applicable at the relevant time.

 

2 February 2024 Page 10

 

 

 

(z)

that the directors of the Company in authorising execution of the Indenture and the Notes Certificates have exercised their powers in accordance with their duties under all applicable laws and the Constitution of the Company and that no regulation or resolution has been, or will be, passed at any general meeting of shareholders of the Company which has the effect of limiting the powers of the board of directors of the Company in relation to the said directors’ resolutions;

 

(aa)

that the Debt Securities have been or will be, as applicable, offered, sold, issued and delivered in compliance with all applicable laws (other than the laws of Singapore);

 

(bb)

that all parties have complied with all laws, rules and regulations relating to their respective businesses which are relevant to the Notes Certificates;

 

(cc)

that in so far as any of the obligations under the Indenture or the Notes Certificates are to be performed in any jurisdiction outside Singapore, its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction;

 

(dd)

that no party is, or will be, engaging in misleading or unconscionable conduct or seeking to conduct any relevant transaction or associated activity in a manner or for a purpose not evident on the face of the Indenture and the Notes Certificates which might render the Indenture or any of the Notes Certificates or any relevant transaction or associated activity illegal, void or voidable;

 

(ee)

that the information disclosed by our searches on the Company is accurate, complete and up-to-date in all respects and since the time of such searches to the date of this opinion there has been no alteration to such information or to the state or condition of the Company and that such searches did not fail to disclose any information which had been submitted for filing or registration but was not disclosed or, as the case may be, did not appear on the public file at the time of the searches;

 

(ff)

that all documents, forms and notices which should have been delivered to, filed and/or registered with the Accounting and Corporate Regulatory Authority of Singapore (ACRA) on behalf of or relating to the Company have been so delivered, filed or registered within the time limits prescribed for such delivery, filing or registration;

 

(gg)

that there is no prohibition or restriction, whether contractual or otherwise, binding on the Company (other than its Constitution) which may in any way have prohibited or restricted it, or prohibit or restrict it, as applicable, from entering into and performing its obligations under the Indenture and the Notes Certificates;

 

(hh)

that the Company was, is and will be solvent and able to pay its debts (including contingent and prospective liabilities) at the time of, and immediately after, the execution and delivery of the Indenture and the Notes Certificates and that the Company was not or will not be, as applicable, rendered insolvent or unable to pay its debts within the meaning of Section 125(2) of the Insolvency, Restructuring and Dissolution Act 2018 of Singapore (IRDA) as a result of its execution and delivery of the Indenture or the Notes Certificates or the transactions contemplated under the Indenture or the Notes Certificates, and further that:

 

(i)

the Company’s execution and delivery of the Indenture and the Notes Certificates or its performance of any of the transactions contemplated thereby do not or will not, as applicable, constitute:

 

(A)

a transaction at an undervalue (within the meaning of Section 224 of the IRDA or any analogous provision);

 

 

2 February 2024 Page 11

 

(B)

an unfair preference (within the meaning of Section 225 of the IRDA or any analogous provision);

 

(C)

an extortionate transaction (within the meaning of Section 228 of the IRDA or any analogous provision);

 

(D)

a transaction at an undervalue (within the meaning of Section 438 of the IRDA or any analogous provision);

 

(E)

a breach of the anti-deprivation principle at common law; or

 

(F)

a breach of the rule in British Eagle International Airlines Limited v Compagnie National Air France [1975] 1 WLR 758;

 

(ii)

the Indenture and the Notes Certificates or any transaction contemplated thereby are not or will not, as applicable, be disclaimed by a liquidator under Section 230 of the IRDA or any analogous provision; and

 

(iii)

any exercise of rights under the Indenture and the Notes Certificates or any transaction contemplated thereby are not or will not, as applicable, be affected by Section 440 of the IRDA;

 

(ii)

that the Company has received or will receive, as applicable, valuable and valid consideration under the Indenture and under the Notes Certificates

 

(jj)

that none of the parties to the Indenture and the Notes Certificates and none of their assets, has any immunity from suit, execution, attachment prior to award or on award or any other proceedings or the enforcement of any judgement (whether on the grounds of sovereign immunity or otherwise) under the laws of any jurisdiction;

 

(kk)

that each of the Indenture and each Notes Certificate has not been or will not be, as applicable, varied, amended or modified in any way, whether by any other document, by parole agreement or by any course of conduct of the parties inconsistent with the terms of the Indenture or the Notes Certificates, as applicable, and that no party has waived or will waive, as applicable, whether expressly or by implication, compliance by any other party of all or any part of its respective obligations under the Indenture or the relevant Notes Certificate;

 

(ll)

that the parties have complied (and will continue to comply) with all applicable anti-terrorism, anti-corruption and anti-money laundering laws and regulations, and that there is nothing in any transaction or associated activity connected with the Indenture or the Notes Certificates that is inconsistent with all such laws and regulations;

 

(mm)

that there has been no (and there will not be) bad faith or fraud, coercion, duress or undue influence on the part of any of the parties to each of the Indenture and the Notes Certificates and/or their respective directors, employees, agents and advisers;

 

(nn)

that the transactions contemplated under each of the Indenture and the Notes Certificates have not been or will not be, as applicable, rescinded or terminated and the relevant parties thereto have not breached or will not breach, as applicable, and are not in or will not be in default of any provisions of the Indenture and the Notes Certificates;

 

(oo)

the correctness of all facts stated or to be stated, as applicable, in the Registration Statement, each Notes Certificate and each of the other Transaction Agreements;

 

 

2 February 2024 Page 12

 

 

(pp)

that the Company is not a company whose holding company or ultimate holding company is a public company incorporated in Singapore; and

 

(qq)

there are no provisions of the laws of any jurisdiction outside Singapore which would have any implication for the opinions we express and, insofar as the laws of any jurisdiction outside Singapore may be relevant, such laws have been or will be complied with.

 

 

2 February 2024 Page 13

 

Schedule 4 – Qualifications

 

Our opinion is subject to the following qualifications:

 

(a)

the term enforceable as used in this opinion means that the obligations assumed by the relevant party under the relevant document are of a type which the Singapore courts generally enforce. This opinion is not to be taken to imply that any obligation would necessarily be capable of enforcement in all circumstances in accordance with its terms. In particular:

 

(i)

a Singapore court will not necessarily grant any remedy the availability of which is subject to equitable considerations or which is otherwise in the discretion of the court. In particular, orders for specific performance and injunctions are, in general, discretionary remedies under Singapore law and specific performance is not available where damages are considered by the court to be an adequate alternative remedy;

 

(ii)

claims may become barred under the Limitation Act 1959 of Singapore or may be or become subject to the defence of set-off or to counterclaim;

 

(iii)

enforcement of the obligations of the Company under each of the Indenture and Notes Certificates may be affected by bankruptcy, insolvency, liquidation, judicial management, moratorium, reorganisation, reconstruction or similar laws generally relating to or affecting creditors' rights;

 

(iv)

where obligations are to be performed in a jurisdiction outside Singapore, they may not be enforceable in Singapore to the extent that performance would be illegal under the laws, or contrary to the exchange control regulations, of the other jurisdiction;

 

(v)

no opinion is expressed as to the enforceability of any waiver in the Indenture or in the Notes Certificates in which the Company purports to waive any and all of its defences or rights or terms;

 

(vi)

the enforcement of obligations may be limited by the provisions of Singapore law applicable to agreements held to have been frustrated by events happening after their execution;

 

(vii)

enforcement of obligations may be subject to the availability of defences such as, without limitation, fraud, misrepresentation, unforeseen circumstances, undue influence, duress, mistake and counter-claim, and failure to exercise any right may constitute a waiver thereof, notwithstanding any contrary provisions in the Indenture or in the Notes Certificates; and

 

(viii)

where a judgment is obtained against a State, the State may, even where it has submitted to the jurisdiction of the Singapore courts in relation to the substantive dispute, be able to resist the enforcement of the judgment on grounds of State immunity;

 

(b)

the term validly existing as used in this opinion means that a company is a “live” company as reflected in the records of ACRA;

 

(c)

the searches referred to in paragraph (a) of Schedule 2 may not contain accurate information with respect to a company as of the date of the Bizfile instant information search as Singapore company law allows for a statutorily prescribed period within which companies are to update such information with ACRA. In addition, the onus is on the company to update such information and a company may not have done so within the statutorily prescribed period;

 

 

2 February 2024 Page 14

 

(d)

the searches referred to in paragraph (b) of Schedule 2 are not capable of conclusively revealing whether or not:

 

(i)

a winding-up order has been made or a resolution passed for the winding up of a company; or

 

(ii)

a judicial manager, receiver or liquidator has been appointed or a resolution passed for such appointment,

 

as notice of these matters may not be updated in the relevant databases of the Singapore Supreme Court and the State Court registries immediately. In addition, the searches are not capable of revealing, prior to the making of the relevant order, whether or not a winding-up petition or an application for judicial management has been presented;

 

(e)

a certificate, determination, notification or opinion as to any matter provided for in the Indenture or in the Notes Certificates might be held by the Singapore courts not to be conclusive if it could be shown to have an unreasonable or arbitrary basis or in the event of manifest error and will not necessarily prevent judicial enquiry into the merits of any claim by an aggrieved party;

 

(f)

a judgment debt may carry interest at a rate fixed by the court, notwithstanding any contractual stipulation to the contrary;

 

(g)

any term of an agreement may be varied orally by the parties notwithstanding any contrary provisions in the Indenture or in the Notes Certificates;

 

(h)

where, under the Indenture or under the Notes Certificates, any party is vested with a discretion or may determine a matter in its opinion, the laws of Singapore may require that such discretion is exercised reasonably, in good faith and for a proper purpose, or that such opinion is based upon reasonable grounds;

 

(i)

it is possible that a Singapore court would hold that a judgment on the Indenture or on any Notes Certificate, whether given in a Singapore court or elsewhere, would supersede such Indenture or such Notes Certificate to all intents and purposes, so that any obligations which would, by their terms, survive such a judgment might not in fact be held to do so;

 

(j)

the effectiveness of provisions excusing a party from, or limiting a person's liability in respect of, a liability or duty otherwise owed may be limited by law;

 

(k)

any provision in the Indenture or in any Notes Certificate (as the case may be) purporting to sever any provision of the Indenture or such Notes Certificate (as the case may be) that is illegal, invalid or unenforceable in any jurisdiction without affecting or impairing the validity, legality or enforceability of the remaining provisions thereof, would be enforced only to the extent that a court determined that such illegal, invalid or unenforceable provision could be severed without impairing the interpretation and application of the remainder of the Indenture or such Notes Certificate (as the case may be) and a court would have discretion on whether to allow the severance of an invalid or unenforceable provision in the Indenture or such Notes Certificate (as the case may be);

 

(l)

in some circumstances a Singapore court would not give effect to clauses providing for severability of any provisions held to be invalid or unenforceable, in particular if to do so would not accord with public policy or would involve the court in making a new contract for the parties;

 

(m)

the scope of public policy has not been conclusively established or settled by the courts of Singapore and is uncertain;

 

 

2 February 2024 Page 15

 

(n)

any clause in the Indenture or in the Notes Certificates providing for legality, validity or enforceability in the event that the Indenture or the Notes Certificates or any of the provisions therein are illegal, invalid or unenforceable for any reason, may not be effective as it depends on the nature of the illegality, invalidity or unenforceability in question;

 

(o)

any clause in the Indenture or in the Notes Certificates would be unenforceable if the provisions of that clause were held to constitute a penalty and not a genuine and reasonable pre-estimate of the loss likely to be suffered as a result of the default in payment of the amount in question. We express no opinion on whether any such provision does constitute such a genuine and reasonable pre-estimate;

 

(p)

a Singapore court may refuse to give effect to any provision in an agreement (i) for the payment of expenses in respect of the costs of enforcement (actual or contemplated) or of unsuccessful litigation brought before a Singapore court or where the court has itself made an order for costs or (ii) which would involve the enforcement of foreign revenue or penal laws;

 

(q)

notwithstanding that each of the Indenture and the Notes Certificates are or will be, as applicable, expressed to be governed by the laws of the State of New York, Singapore law may prevail in respect of certain matters including the following:

 

(i)

the laws of the State of New York will be disregarded if its application will be illegal or contrary to the public policy of Singapore; and

 

(ii)

in relation to proceedings in the Singapore courts, matters of procedure, including questions of set-off and counter-claim, interest chargeable on judgment debts, priorities, measure of damages, time bar on actions and submission to the jurisdiction of foreign courts are as a general rule governed by Singapore law;

 

(r)

notwithstanding that the parties to the Indenture will agree or have agreed, as applicable, to submit to the jurisdiction of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of Manhattan in the City of New York, a Singapore court may, in exceptional circumstances where there is strong cause, assume jurisdiction or proceedings in a Singapore court may be stayed or struck out on grounds of:

 

(i)

forum non conveniens (where there is some other forum with competent jurisdiction which is more appropriate for the trial) or there are other exceptional circumstances for choosing another forum;

 

(ii)

lis alibi pendens (where proceedings are pending in another jurisdiction); or

 

(iii)

res judicata (where the merits of the issues in dispute have already been judicially determined or should have been raised in previous proceedings between the parties);

 

(s)

where the Indenture does not, or the Notes Certificates do not, provide for submission by the parties thereto to the jurisdiction of the Singapore courts, in order for the Singapore courts to assume jurisdiction, originating process of a legal proceeding commenced in Singapore relating thereto may have to be served personally, that is, by leaving a copy of the document with an officer of the relevant company or by leaving it at, or sending it by registered post to, the registered office of such company;

 

(t)

any indemnity provision in the Indenture or in the Notes Certificates may not be enforceable in the Singapore courts in relation to any judgment delivered by any court and expressed in a currency other than that in which the relevant sum is payable;

 

 

2 February 2024 Page 16

 

 

(u)

a Singapore court may give judgement in currencies other than Singapore Dollars if, subject to the terms of the Indenture or the Notes Certificates, as applicable, it is the currency which most fairly expresses the claimant’s loss, but such judgements may be required to be converted into Singapore Dollars for enforcement purposes;

 

(v)

any provision in the Indenture or in the Notes Certificates stating that any rights and obligations thereunder shall bind successors and assigns of any party thereto may not be enforceable in Singapore in the absence of any further agreements to that effect with such successors or assigns;

 

(w)

save for statements of Singapore law set out in the Registration Statement, we express no opinion on disclosure or other applicable requirements in the context of an offer of securities under Singapore law;

 

(x)

save for statements of Singapore law set out in the Registration Statement, we express no opinion on tax matters and in particular, express no opinion on tax matters affecting the Indenture or the Notes Certificates or any related document or the parties thereto or the tax consequences of any of the transactions contemplated thereby;

 

(y)

regulations in Singapore restrict or prohibit payments, transactions and dealings with assets having a prescribed connection with certain countries or named individuals or entities subject to international sanctions or associated with terrorism;

 

(z)

any provision in the Indenture or in the Notes Certificates purporting to restrict the exercise of any statutory power by any person may be void;

 

(aa)

a provision requiring payments to be made without deduction or withholding will not be enforced if a deduction or withholding is made pursuant to a legal obligation;

 

(bb)

despite any provision in the Indenture or in the Notes Certificates to the effect that the written terms of the Indenture or that Notes Certificate, as applicable, constitute the entire agreement between the parties to it, a court may hold that oral or other assurances given in the course of negotiations may be binding;

 

(cc)

the enforcement in Singapore of the Indenture, of the Notes Certificates and of foreign judgements will be subject to Singapore rules of civil procedure and laws in relation to the recognition and enforcement of foreign judgments, including, without limitation, the Choice of Court Agreements Act 2016 of Singapore;

 

(dd)

under the rules of procedure, a Singapore court may, in certain circumstances, order a claimant in an action, to provide security for costs; and

 

(ee)

an agreement, if any, between the parties to the Indenture or to the Notes Certificates to discuss, negotiate or agree on a certain matter or thing may not be enforced by the Singapore courts.

 

v3.24.0.1

Cover	Jan. 29, 2024
Document Information [Line Items]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jan. 29, 2024
Entity File Number	1-2360
Entity Registrant Name	INTERNATIONAL BUSINESS MACHINES CORPORATION
Entity Central Index Key	0000051143
Entity Tax Identification Number	13-0871985
Entity Incorporation, State or Country Code	NY
Entity Address, Address Line One	One New Orchard Road
Entity Address, City or Town	Armonk
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10504
City Area Code	914
Local Phone Number	499-1900
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false
Common Stock | NYSE CHICAGO, INC. [Member]
Document Information [Line Items]
Title of 12(b) Security	Capital stock, par value $.20 per share
Trading Symbol	IBM
Security Exchange Name	CHX
Common Stock | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	Capital stock, par value $.20 per share
Trading Symbol	IBM
Security Exchange Name	NYSE
1.125% Notes due 2024 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	1.125% Notes due 2024
Trading Symbol	IBM 24A
Security Exchange Name	NYSE
2.875% Notes due 2025 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	2.875% Notes due 2025
Trading Symbol	IBM 25A
Security Exchange Name	NYSE
0.950% Notes due 2025 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	0.950% Notes due 2025
Trading Symbol	IBM 25B
Security Exchange Name	NYSE
0.875% Notes due 2025 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	0.875% Notes due 2025
Trading Symbol	IBM 25C
Security Exchange Name	NYSE
0.300% Notes due 2026 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	0.300% Notes due 2026
Trading Symbol	IBM 26B
Security Exchange Name	NYSE
1.250% Notes due 2027 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	1.250% Notes due 2027
Trading Symbol	IBM 27B
Security Exchange Name	NYSE
Notes 3. 375 Percent Due 2027 [Member] | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	3.375% Notes due 2027
Trading Symbol	IBM 27F
Security Exchange Name	NYSE
0.300% Due 2028 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	0.300% Notes due 2028
Trading Symbol	IBM 28B
Security Exchange Name	NYSE
1.750% Notes due 2028 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	1.750% Notes due 2028
Trading Symbol	IBM 28A
Security Exchange Name	NYSE
1.500% Notes due 2029 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	1.500% Notes due 2029
Trading Symbol	IBM 29
Security Exchange Name	NYSE
0.875% Notes due 2030 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	0.875% Notes due 2030
Trading Symbol	IBM 30A
Security Exchange Name	NYSE
1.750% Notes due 2031 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	1.750% Notes due 2031
Trading Symbol	IBM 31
Security Exchange Name	NYSE
3.625% Notes due 2031 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	3.625% Notes due 2031
Trading Symbol	IBM 31B
Security Exchange Name	NYSE
0.650% Notes due 2032 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	0.650% Notes due 2032
Trading Symbol	IBM 32A
Security Exchange Name	NYSE
1.250% Notes due 2034 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	1.250% Notes due 2034
Trading Symbol	IBM 34
Security Exchange Name	NYSE
Notes 3. 750 Percent Due 2035 [Member] | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	3.750% Notes due 2035
Trading Symbol	IBM 35
Security Exchange Name	NYSE
Notes 4. 875 Percent Due 2038 [Member] | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	4.875% Notes due 2038
Trading Symbol	IBM 38
Security Exchange Name	NYSE
1.200% Notes due 2040 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	1.200% Notes due 2040
Trading Symbol	IBM 40
Security Exchange Name	NYSE
Notes 4. 000 Percent Due 2043 [Member] | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	4.000% Notes due 2043
Trading Symbol	IBM 43
Security Exchange Name	NYSE
Debentures 7.00 Percent Due 2025 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	7.00% Debentures due 2025
Trading Symbol	IBM 25
Security Exchange Name	NYSE
Debentures 6.22 Percent Due 2027 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	6.22% Debentures due 2027
Trading Symbol	IBM 27
Security Exchange Name	NYSE
Debentures 6.50 Percent Due 2028 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	6.50% Debentures due 2028
Trading Symbol	IBM 28
Security Exchange Name	NYSE
Debentures 5.875 Percent Due 2032 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	5.875% Debentures due 2032
Trading Symbol	IBM 32D
Security Exchange Name	NYSE
Debentures 7.00 Percent Due 2045 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	7.00% Debentures due 2045
Trading Symbol	IBM 45
Security Exchange Name	NYSE
Debentures 7.125 Percent Due 2096 | New York Stock Exchange
Document Information [Line Items]
Title of 12(b) Security	7.125% Debentures due 2096
Trading Symbol	IBM 96
Security Exchange Name	NYSE

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