EXHIBIT (4)(b)
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EASTMAN KODAK COMPANY
TO
THE BANK OF NEW YORK
Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of September 6, 1991
To
INDENTURE
Dated as of January 1, 1988
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FIRST SUPPLEMENTAL INDENTURE, dated as of September 6, 1991,
between EASTMAN KODAK COMPANY, a corporation duly organized and existing under
the laws of the State of New Jersey (the "Company"), having its principal
offices at 343 State Street, Rochester, New York 14650, and THE BANK OF NEW
YORK, a corporation duly organized and existing under the laws of the State of
New York, as Trustee (the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture, dated as of January 1, 1988 (the "Indenture"),
providing for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein and therein called the "Securities"),
to be issued in one or more series as the Indenture provided;
WHEREAS, Section 901(9) of the Indenture provides that, without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental to the Indenture for the purpose of curing any
ambiguity, correcting or supplementing any provision in the Indenture which may
be inconsistent with any other provision therein, or making any other provisions
with respect to matters or questions arising under the Indenture, provided such
action shall not adversely affect the interests of the Holders of Securities of
any series in any material respect;
WHEREAS, the Company, pursuant to the foregoing authority,
proposes in and by this First Supplemental Indenture to amend and supplement the
Indenture in certain respects with respect to the Securities of series that may
be created on or after the date hereof; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid agreement of the Company, and a valid amendment of and
supplement to the Indenture, have been done.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the promises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
1. Section 301 of the Indenture is hereby amended by:
(i) redesignating clauses (12) and (13) as clauses
(13) and (14); and
(ii) inserting after clause (11) the following new
clause:
"(12) whether the Securities may be exchanged at
the option of the Holders thereof for equity or debt
securities of an issuer other than the Company and, if
so, the issuer and the class of such equity or debt
securities, the rate or rates of such exchange, the
period or periods within which such exchange may be
made, the manner of exchange, and the other terms and
provisions relating to any such exchange;"
2. The Indenture is hereby amended by adding after Article
Twelve the following new Article:
"ARTICLE THIRTEEN
EXCHANGE OF SECURITIES"
Section 1301. Exchange of Securities.
Securities of any series which are exchangeable
at the option of the Holders thereof for equity or debt
securities of an issuer other than the Company shall be so
exchangeable as specified as contemplated by Section 301 for
Securities of such series. Without limiting the generality of
the foregoing, (a) Securities of such series shall be
exchangeable for equity or debt securities of such issuer (other
than the Company) as shall be specified in the manner
contemplated by Section 301, (b) Securities of such series shall
be exchangeable during such time period or periods and at such
exchange rate or rates as shall be determined as specified in
the manner contemplated by Section 301, (c) if specified in the
manner contemplated by Section 301, in lieu of delivering such
equity or debt securities upon exchange, the Company may elect
to pay to the Holders in cash an amount representing the market
value of such equity or debt securities, such market value to be
determined as specified in the manner contemplated by Section
301, and (d) if specified in the manner
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contemplated by Section 301, the Company shall deposit any such
equity or debt securities with an escrow agent pursuant to the
terms of an escrow agreement to be entered into between the
Company and the escrow agent."
3. The Trustee accepts the trusts created by the Indenture,
as supplemented by this First Supplemental Indenture, and agrees to perform the
same upon the terms and conditions of the Indenture, as supplemented by this
First Supplemental Indenture.
4. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
5. All capitalized terms used and not defined herein shall
have the respective meanings assigned to them in the Indenture.
6. Each of the Company and the Trustee makes and reaffirms
as of the date of execution of this First Supplemental Indenture all of its
respective representations, warranties, covenants and agreements set forth in
the Indenture.
7. All covenants and agreements in this First Supplemental
Indenture by the Company or the Trustee shall bind its respective successors and
assigns, whether so expressed or not.
8. In case any provision in this First Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
9. Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto and their
successors under the Indenture and the Holders, any benefit or any legal or
equitable right, remedy or claim under the Indenture.
10. If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act of 1939, as may be amended from time
to time, that is required under such Act to be a part of and govern this First
Supplemental Indenture, the later provision shall control. If any provision
hereof modifies or excludes any provision
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of such Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this First Supplemental Indenture as so modified or excluded,
as the case may be.
11. This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
12. All amendments to the Indenture made hereby shall have
effect only with respect to the Securities of any series originally issued on or
after the date hereof, and not with respect to the Securities of any series
originally issued prior to the date hereof.
13. All provisions of this First Supplemental Indenture
shall be deemed to be incorporated in, and made a part of, the Indenture; and
the Indenture, as supplemented by this First Supplemental Indenture, shall be
read, taken and construed as one and the same instrument.
* * * * *
This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
EASTMAN KODAK COMPANY
By ------------------------
Title:
Attest:
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Title: THE BANK OF NEW YORK
By ------------------------
Title:
Attest:
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Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF MONROE )
On the 18th day of September, 1991, before me personally came C.
Michael Hamilton, to me known, who, being duly sworn, did depose and say that
he is Treasurer of EASTMAN KODAK COMPANY, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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STATE OF NEW YORK )
) ss.:
COUNTY OF MONROE )
On the _____ day of September, 1991, before me personally came
___________________, to me known, who, being duly sworn, did depose and say that
he is __________________ of THE BANK OF NEW YORK, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
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