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Exhibit 4.8.3
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FORM OF FIRST SUPPLEMENTAL INDENTURE
DATED AS OF ________ , 1997
BETWEEN
XXXXX CORNING,
AS ISSUER
AND
WILMINGTON TRUST COMPANY,
AS TRUSTEE
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms....................................................................1
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount ......................................................2
SECTION 2.2. Maturity .............................................................................2
SECTION 2.3. Form of Payment........................................................................3
SECTION 2.4. Global Debenture.......................................................................3
SECTION 2.5. Interest ..............................................................................4
SECTION 2.6 No Sinking Fund........................................................................5
ARTICLE III
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 3.1. Extension of Interest Payment Period...................................................5
SECTION 3.2 Notice of Extension....................................................................6
SECTION 3.3. Limitation of Transactions.............................................................6
SECTION 3.4 Option to Put Debentures...............................................................6
SECTION 3.5 Repurchase Procedure for Debentures....................................................7
ARTICLE IV
EXPENSES
SECTION 4.1 Payment of Expenses....................................................................8
SECTION 4.2 Payment Upon Resignation or Removal....................................................8
ARTICLE V
NOTICE
SECTION 5.1 Notice by the Company..................................................................8
ARTICLE VI
FORM OF DEBENTURE
SECTION 6.1. Form of Debenture......................................................................9
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. Original Issue of Debentures..........................................................15
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Ratification of Indenture.............................................................15
SECTION 8.2. Trustee Not Responsible for Recitals..................................................15
SECTION 8.3. Governing Law.........................................................................15
SECTION 8.4. Separability..........................................................................15
SECTION 8.5. Counterparts .........................................................................15
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FIRST SUPPLEMENTAL INDENTURE, dated as of , 1997 (the "First Supplemental
Indenture"), between XXXXX CORNING, a corporation duly organized and existing
under the laws of the State of Delaware, having its principal office at Xxxxx
Corning World Headquarters, Xxxxxx, Xxxx 00000 (the "Company" ), and Wilmington
Trust Company, as trustee (the "Trustee").
WHEREAS, the Company executed and delivered the indenture dated as of ,
1997 (the "Base Indenture"), to the Trustee to provide for the future issuance
of the Company's unsecured debentures, notes or other evidence of indebtedness
(the "Securities" ), to be issued from time to time in one or more series as
might be determined by the Company under the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its Debentures due _______ (the "Debentures"), the form and substance of such
Debentures and the terms, provisions and conditions thereof to be set forth as
provided in the Base Indenture and this First Supplemental Indenture (together,
the "Indenture");
WHEREAS, Xxxxx Corning Capital Trust II, a Delaware statutory business
trust (the "Trust"), has offered to the public $___ million aggregate
liquidation amount of its __% Trust Originated Preferred Securities (the
"Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to the Company
of $___ million aggregate liquidation amount of its __% Trust Originated Common
Securities (the "Common Securities" and together with the Preferred Securities,
the "Trust Securities"), in $___ million aggregate principal amount of the
Debentures; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its terms,
and to make the Debentures, when executed by the Company and authenticated and
delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this First Supplemental Indenture
has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Holders thereof, and for the purpose of setting forth, as
provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental Indenture has the
same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) headings are for convenience of reference only and do not affect
interpretation;
(e) the following terms have the meanings given to them in the
Declaration: (i) Authorized Newspaper; (ii) Business Day; (ii) Clearing Agency;
(iii) Delaware Trustee; (iv) DTC; (v) Growth PRIDES; (vi) Income PRIDES; (vii)
Institutional Trustee; (viii) Investment Company Event; (ix) Preferred Security
Certificate; (x) Pricing
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Agreement; (xi) Regular Trustees; (xii) Reset Agent; (xiii) Reset Announcement
Date; (xiv) Reset Spread; (xv) Two-Year Benchmark Treasury; and (xvi)
Underwriting Agreement;
(f) the following terms have the meanings given to them in this Section
1.11(f):
"Additional Interest" shall have the meaning set forth in Section 2.5.
"Compounded Interest" shall have the meaning set forth in Section 3.1.
"Coupon Rate" shall have the meaning set forth in Section 2.5.
"Debenture Repayment Price" shall have the meaning set forth in Section
3.4.
"Declaration" means the Amended and Restated Declaration of Trust of Xxxxx
Corning Capital Trust II, a Delaware statutory business trust, dated as of
_____________, 1997.
"Deferred Interest" shall have the meaning set forth in Section 3.1
hereof.
"Dissolution Event" means that, as a result of the occurrence and
continuation of an Investment Company Event, the Trust is to be dissolved in
accordance with the Declaration, and the Debentures held by the Institutional
Trustee are to be distributed to the holders of the Trust Securities issued by
the Trust pro rata in accordance with the Declaration.
"Extended Interest Payment Period" shall have the meaning set forth in
Section 3.1.
"Global Debentures" shall have the meaning set forth in Section 2.4.
"Maturity Date" means the date on which the Debentures mature and on which
the principal shall be due and payable together with all accrued and unpaid
interest thereon including Compounded Interest and Additional Interest, if any.
"Non Book-Entry Preferred Securities" shall have the meaning set forth in
Section 2.4.
"Purchase Contract" means the Purchase Contract Agreement, dated as of
_______, 1997, between the Company and Wilmington Trust Company, as purchase
contract agent.
"Put Option" shall have the meaning set forth in Section 3.4.
(g) the following terms shall have the meanings given to them in the
Purchase Contract: (i) Collateral Agent and (ii) Purchase Contract Settlement
Date.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. DESIGNATION AND PRINCIPAL AMOUNT.
There is hereby authorized a series of Securities designated the
Debentures due _______, 2002", limited in aggregate principal amount to $___
million, which amount shall be as set forth in any written order of the Company
for the authentication and delivery of Debentures pursuant to Section 303 of the
Indenture.
SECTION 2.2. MATURITY. The Maturity Date will be , 2002.
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SECTION 2.3. FORM AND PAYMENT.
Except as provided in Section 2.4, the Debentures shall be issued in fully
registered certificated form without interest coupons. Principal and interest on
the Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Institutional Trustee; provided, however, that payment of interest may be made
at the option of the Company by check mailed to the Holder at such address as
shall appear in the Security Register. Notwithstanding the foregoing, so long as
the Holder of any Debentures is the Institutional Trustee, the payment of the
principal of and interest (including Compounded Interest and Additional
Interest, if any) on such Debentures held by the Institutional Trustee will be
made at such place and to such account as may be designated by the Institutional
Trustee.
SECTION 2.4. GLOBAL DEBENTURE.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee in exchange for a global Debenture in an
aggregate principal amount equal t the aggregate principal amount of all
outstanding Debentures (a "Global Debenture"), to be registered in the name of
the DTC, or its nominee, and delivered by the Institutional Trustee to the DTC
for crediting to the accounts of its participants pursuant to the instructions
of the Regular Trustees. The Company upon any such presentation shall execute a
Global Debenture in such aggregate principal amount and deliver the same to the
Trustee for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. Payments on the Debentures issued as a Global
Debenture will be made to the DTC; and
(ii) if any Preferred Securities are held in non book-entry
certificated form, the Debentures in certificated form may be presented to the
Trustee by the Institutional Trustee and any Preferred Security Certificate
which represents Preferred Securities other than Preferred Securities held by
the Clearing Agency or its nominee ("Non Book-Entry Preferred Securities") will
be deemed to represent beneficial interests in Debentures presented to the
Trustee by the Institutional Trustee having an aggregate principal amount equal
to the aggregate liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security Certificates are presented to the Security
Registrar for transfer or reissuance at which time such Preferred Security
Certificates will be cancelled and a Debenture, registered in the name of the
holder of the Preferred Security Certificate or the transferee of the holder of
such Preferred Security Certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Security Certificate cancelled, will be executed by the Company and delivered to
the Trustee for authentication and delivery in accordance with the Indenture and
this First Supplemental Indenture. On issue of such Debentures, Debentures with
an equivalent aggregate principal amount that were presented by the
Institutional Trustee to the Trustee will be deemed to have been cancelled.
(b) Unless and until it is exchanged for the Debentures in registered
form, a Global Debenture may be transferred, in whole but not in part, only to
another nominee of the DTC, or to a successor DTC selected or approved by the
Company or to a nominee of such successor DTC.
(c) If at any time the DTC notifies the Company that it is unwilling or
unable to continue as DTC or if at any time the DTC for such series shall no
longer be registered or in good s xxxxxx under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, and a successor DTC
for such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, as the case may be, the
Company will execute, and, subject to Article III of the Indenture, the Trustee,
upon written notice from the Company, will authenticate and deliver the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. In
addition, the Company may at any time determine
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that the Debentures shall no longer be represented by Global Debenture. In such
event the Company will execute, and subject to Section 301 of the Indenture, the
Trustee, upon receipt of an Officers Certificate evidencing such determination
by the Company, will authenticate and deliver the Debentures in definitive
registered form without coupons, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. Upon the exchange of the Global Debenture
for such Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be cancelled by the Trustee. Such
Debentures in definitive registered form issued in exchange for the Global
Debenture shall be registered in such names and in such authorized denominations
as the DTC, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities
to the DTC for delivery to the Persons in whose names such Securities are so
registered.
SECTION 2.5. INTEREST.
(a) Each Debenture will bear interest initially at the rate of __% per
annum (the Coupon Rate") from the original date of issuance until November 15,
2000, and at the Reset Rate thereafter until the principal thereof becomes due
and payable, and on any overdue principal and (to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest at the rate of ____% until November 15, 2000 and at the Reset Rate
thereafter, compounded quarterly, payable (subject to the provisions of Article
IV) quarterly in arrears on March 31, June 30, September 30, and December 31 of
each year (each, an "Interest Payment Date," commencing on _______, 1997), to
the Person in whose name such Debenture or any predecessor Debenture is
registered, at the close of business on the regular record date for such
interest installment, which, in respect of (i) Debentures of which the
Institutional Trustee is the Holder and the Preferred Securities are in
book-entry only form or (ii) a Global Debenture, shall be the close of business
on the Business Day next preceding that Interest Payment Date. Notwithstanding
the foregoing sentence, if (i) the Debentures are held by the Institutional
Trustee and the Preferred Securities are no longer in book-entry only form or
(ii) the Debentures are not represented by a Global Debenture, the Company may
select a regular record date for such interest installment which shall be any
date at least ten Business Days before an Interest Payment Date.
(b) The Coupon Rate on the Debentures will be reset on November 16, 2000
to the Reset Rate. On the fifth (5) Business Day immediately preceding the
Purchase Contract Settlement Date, the Reset Announcement Date, the Reset Spread
and the relevant Two-Year Benchmark Treasury will be announced by the Company.
On the Business Day immediately following such Reset Announcement Date, the
Holders of Debenture will be notified of such Reset Spread and Two-Year
Benchmark Treasury by the Company. Such notice shall be sufficiently given to
such Holders of Debentures if published in an Authorized Newspaper.
(c) Not later than 7 calendar days nor more than 15 calendar days
immediately preceding the Purchase Contract Settlement Date the Company will
notify the DTC or its nominee (or any Successor Clearing Agency or its nominee)
or the Institutional Trustee, to notify the Holders of Debentures of such Reset
Announcement Date and the procedures to be followed by such Holders of Debenture
who do not intend to exercise their Put Option.
(d) The amount of interest payable for any period will be computed on the
basis of a 360-day year consisting of twelve 30-day months. Except as provided
in the following sentence, the amount of interest payable for any period shorter
than a full quarterly period for which interest is computed, will be computed on
the basis of the actual number of days elapsed in such a 90-day period. In the
event that any date on which interest is payable on the Debentures is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(e) If, at any time while the Institutional Trustee is the Holder of any
Debentures, the Trust or the Institutional Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
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withholding taxes) imposed by the United States, or any other taxing authority,
then, in any case, the Company will pay as additional interest ("Additional
Interest") on the Debentures held by the Institutional Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Institutional Trustee after paying such taxes, duties,
assessments or other governmental charges will be equal to the amounts the Trust
and the Institutional Trustee would have received had no such taxes, duties,
assessments or other government charges been imposed.
SECTION 2.6. NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
ARTICLE III
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 3.1. EXTENSION OF INTEREST PAYMENT PERIOD.
The Company shall have the right at any time, and from time to time,
during the term of the Debentures, to defer payments of interest by extending
the interest payment period of such Debentures for a period not extending, in
the aggregate, beyond the Maturity Date of the Debentures (the "Extended
Interest Payment Period"), during which Extended Interest Payment Period no
interest shall be due and payable. To the extent permitted by applicable law,
interest, the payment of which has been deferred because of the extension of the
interest payment period pursuant to this Section 3.1, will bear interest thereon
at the rate of __% until November 15, 2000, and at the Reset Rate thereafter
compounded quarterly for each quarter of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest Payment Period, the
Company shall pay all interest accrued and unpaid on the Debentures, including
any Additional Interest and Compounded Interest (together, "Deferred Interest")
that shall be payable to the Holders of the Debentures in whose names the
Debentures are registered in the Security Register on the first record date
after the end of the Extended Interest Payment Period; provided, however, that
during any such Extended Interest Payment Period, (a) the Company shall not
declare or pay dividends or make any distribution with respect to, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of its
capital stock (other than (i) purchases or acquisitions of capital stock of the
Company in connection with the satisfaction by the Company of its obligations
under any employee benefit plans or the satisfaction by the Company of its
obligations pursuant to any contract or security outstanding on the date of such
event requiring the Company to purchase capital stock of the Company, (ii) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the Company and
(v) redemptions or purchases of any rights pursuant to the Rights Agreement or
any successor to the Rights Agreement, and the declaration thereunder of a
dividend of rights in the future), (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank junior to the Debentures, and
(c) the Company shall not make any guarantee payments with respect to the
foregoing (other than payments pursuant to the Guarantee or the Common
Securities Guarantee). Prior to the termination of any Extended Interest Payment
Period, the Company may further extend such period, provided that such period
together with all such previous and further extensions thereof shall not extend
beyond the maturity date of the Debentures. Upon the termination of any Extended
Interest Payment Period and upon the payment of all Deferred Interest then due,
the Company may commence a new Extended Interest Payment Period, subject to the
foregoing requirements. No interest shall be due and payable during an Extended
Interest Payment Period, except at the end thereof, but the Company may prepay
at any time all or any portion of the interest accrued during an Extended
Interest Payment Period.
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SECTION 3.2. NOTICE OF EXTENSION.
(a) If the Institutional Trustee is the only registered Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give written notice to the Regular Trustees, the Institutional
Trustee and the Trustee of its selection of such Extended Interest Payment
Period one Business Day before the earlier of (i) the next succeeding date on
which Distributions on the Trust Securities issued by the Trust are payable, or
(ii) the date the Trust is required to give notice of the record date, or the
date such Distributions are payable, to the New York Stock Exchange or other
applicable self-regulatory organization or to holders of the Preferred
Securities issued by the Trust, but in any event at least one Business Day
before such record date.
(b) If the Institutional Trustee is not the only Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the Company
shall give the Holders of the Debentures and the Trustee written notice of its
selection of such Extended Interest Payment Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment Date, or (ii) the
date the Company is required to give notice of the record or payment date of
such interest payment to the New York Stock Exchange or other applicable
self-regulatory organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to paragraphs (a) or
(b) of this Section 3.2 shall be counted as one of the 20 quarters permitted in
the maximum Extended Interest Payment Period permitted under Section 3.1.
SECTION 3.3. LIMITATION OF TRANSACTIONS.
If (i) the Company shall exercise its right to defer payment of interest
as provided in Section 3.1, or (ii) there shall have occurred any Event of
Default, as defined in the Indenture, then (a) the Company shall not declare or
pay dividends or make any distribution with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than (i) purchases or acquisitions of capital stock of the Company in
connection with the satisfaction by the Company of its obligations under any
employee benefit plans or the satisfaction by the Company of its obligations
pursuant to any contract or security outstanding on the date of such event
requiring the Company to purchase capital stock of the Company, (ii) as a result
of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company capital stock, (iii) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (iv) dividends or distributions in capital stock of the Company and
(v) redemptions or purchases of any rights pursuant to the Rights Agreement or
any successor to the Rights Agreement, and the declaration thereunder of a
dividend of rights in the future), (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Company that rank junior to the Debentures, and
(c) the Company shall not make any guarantee payments with respect to the
foregoing (other than payments pursuant to the Guarantee or the Common
Securities Guarantee).
SECTION 3.4. OPTION TO PUT DEBENTURES.
(a) Each Holder of Debentures, including the Institutional Trustee and the
Collateral Agent, shall have the right to require the Company to repurchase the
Debentures on the Purchase Contract Settlement Date (the "Put Option"), either
in whole r in part, at an amount per Debenture equal to $50, plus accumulated
and unpaid distributions, if any (the "Debenture Repayment Price").
(b) On the Business Day immediately preceding the Purchase Contract
Settlement Date, each holder of Debentures that has not settled its Purchase
Contract with cash will be deemed to have requested the Trust to put the
aggregate principal amount of its Debentures to the Company for an mount equal
to the Debenture Repayment Price. Upon such repurchase by the Company, the Trust
shall use simultaneously the proceeds from such
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repurchase to redeem the Preferred Securities of such holder having an aggregate
Stated Amount equal to the aggregate principal amount of the Debentures so
repurchased and shall be applied to satisfy in full such holder's obligation to
purchase Common Securities under the Purchase Contract and any accumulated and
unpaid distributions with respect to the Debentures so repurchased shall be paid
to the holder thereof in cash.
(c) Each holder of Debentures that has settled its Purchase Contract with
cash shall have the right to require the Company to repurchase the Debentures on
the Business Day immediately preceding the Purchase Contract Settlement Date for
an amount equal to the Debenture Repayment Price. Upon such repurchase by the
Company the Trust shall use simultaneously the proceeds from such repurchase to
redeem in cash of such holder having an aggregate Stated Amount equal to the
aggregate principal amount of the Debentures so repurchased and shall pay in
cash any accumulated and unpaid distributions to the holder thereof.
SECTION 3.5. REPURCHASE PROCEDURE FOR DEBENTURES.
(a) In order for the Debentures to be repurchased on the Business Day
immediately preceding the Purchase Contract Settlement Date, the Company must
receive at the Corporate Trust Office in the City of Wilmington, Delaware the
Debentures to be repurchased with the form entitled "Option to Elect Repayment"
on the reverse of or otherwise accompanying such Debentures duly completed. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of the Debentures for repayment shall be determined by the Company,
whose determination shall be final and binding. Notwithstanding the foregoing,
so long as the Holder is the Institutional Trustee or the Collateral Agent, such
Debentures may be received at the Corporate Trust Office at any time prior to
11:00 a.m., New York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date, in the form and manner as may be designated
by the Institutional Trustee or the Collateral Agent and acceptable to the
Trustee.
(b) Payment of the Debentures Repayment Price to Holders of Debentures
shall be made through the Trustee, subject to the Trustee's receipt of payment
from the Company in accordance with the terms of the Indenture. Notwithstanding
the foregoing, so long as the Holder of any Debentures presented for repayment
is the Institutional Trustee or the Collateral Agent, the payment of the
Debentures Repayment Price in respect of such Debentures shall be made, either
through the Trustee or the Company acting as Paying Agent, no later than 12:00
noon, New York City time, on the Business Day immediately preceding the Purchase
Contract Settlement Date, and to such account as may be designated by the
Institutional Trustee or the Collateral Agent, as the case may be. If the
Trustee holds immediately available funds sufficient to pay the Debentures
Repayment Price of the Debentures presented for repayment (or, if the Company is
acting as Paying Agent or the Institutional Trustee has received the Debentures
Repayment Price), then, immediately prior to the close of business on the
Business Day immediately preceding the Purchase Contract Settlement Date, such
Debentures will cease to be outstanding and interest thereon will cease to
accrue, whether or not such Debentures have been received by the Company, and
all other rights of the Holder in respect of the Debentures, including the
Holder's right to require the Company to repay such Debentures, shall terminate
and lapse (other than the right to receive the Debentures Repayment Price upon
delivery of such debentures but without interest on such Debentures Repayment
Price). Neither the Institutional Trustee nor the Company will be required to
register or cease to be registered the transfer of any Debentures for which
repayment has been elected.
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ARTICLE IV
EXPENSES
SECTION 4.1. PAYMENT OF EXPENSES.
In connection with the offering, sale and issuance of the Debentures to
the Institutional Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering, sale and issuance
of the Debentures, including commissions to the underwriters payable pursuant to
the Underwriting Agreement and the Pricing Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section 607 of
the Indenture;
(b) pay all costs and expenses of the Trust (including, but not limited
to, costs and expenses relating to the organization of the Trust, the offering,
sale and issuance of the Trust Securities (including commissions to the
underwriters in connection therewith), the fees and expenses of the
Institutional Trustee and the Delaware Trustee, the costs and expenses relating
to the operation of the Trust, including without limitation, costs and expenses
of accountants, attorneys, statistical or bookkeeping services, expenses for
printing and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and other
telecommunications expenses and costs and expenses incurred in connection with
the acquisition, financing, and disposition of Trust assets).
(c) be primarily liable for any indemnification obligations arising with
respect to the Declaration; and
(d) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets) a d all liabilities, costs and expenses
with respect to such taxes of the Trust.
SECTION 4.2. PAYMENT UPON RESIGNATION OR REMOVAL.
Upon termination of this First Supplemental Indenture or the Indenture or
the removal or resignation of the Trustee pursuant to this Section 4.2, the
Company shall pay to the Trustee all amounts accrued to the date of such
termination, removal or resignation. Upon termination of the Declaration or the
removal or resignation of the Delaware Trustee or the Institutional Trustee, as
the case may be, pursuant to Section 4.6 of the Declaration, the Company shall
pay to the Delaware Trustee or the Institutional Trustee, as the case may be,
all amounts accrued to the date of such termination, removal or resignation.
ARTICLE V
NOTICE
SECTION 5.1. NOTICE BY THE COMPANY.
The Company shall give prompt written notice to a Responsible Officer of
the Trustee of any fact known to the Company that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Debentures pursuant
to the provisions of this Article V. Notwithstanding the provisions of Article
Fourteen of the Indenture or any other provision of the Indenture and this First
Supplemental Indenture, the Trustee shall not be charged with knowledge of the
existence of any facts that would prohibit the making of any payment of monies
to or by the Trustee in respect of the Debentures pursuant to the provisions of
Article Fourteen of the Indenture, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from any trustee therefor and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601 of the Indenture, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided
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for in this Article V at least two Business Days prior to the date upon which by
the terms hereof any money may become payable for any purpose (including,
without limitation, the payment of the principal of (or premium, if any) or
interest on any Debenture), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purposes for which they were received, and
shall not be affected by any notice to the contrary that may be received by it
within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 601 of the Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness of the
Company, as the case may be (or a trustee on behalf of such holder), to
establish that such notice has been given by a holder of such Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article V, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article V, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
ARTICLE VI
FORM OF DEBENTURE
SECTION 6 1. FORM OF DEBENTURE.
The Debentures and the Trustee's Certificate of Authentication to be
endorsed thereon are to be substantially in the following forms:
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(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This Debenture is
a Global Debenture within the meaning of the Indenture hereinafter referred to
and is registered in the name of a DTC or a nominee of a DTC. This Debenture is
exchangeable for Debentures registered in the name of a person other than the
DTC or its nominee only in the limited circumstances described in the Indenture,
and no transfer of this Debenture (other than a transfer of this Debenture as a
whole by the DTC to a nominee of the DTC or by a nominee of the DTC to the DTC
or another nominee of the DTC) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized representative of The
Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) to the issuer or
its agent for registration of transfer, exchange or payment, and any Debenture
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL since the registered owner hereof, Cede &
Co., has an interest herein.]
No. _____________________
$________________________
CUSIP No._______________
XXXXX CORNING
% DEBENTURE
DUE
XXXXX CORNING, a Delaware corporation (the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to, or registered assigns, the principal
sum of _______ Dollars ($______ ) on _______, 2002, and to pay interest on said
principal sum from _____, 1997, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on March 31, June 30, September 30 and December 31 of each year
commencing _______, 1997, initially at the rate of __% per annum until November
15, 2000, and at the Reset Rate thereafter until the principal hereof shall
have become due and payable, and on any overdue principal and premium, if any,
and (without duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
rate of __% until November 5, 2000 and at the Reset Date thereafter, compounded
quarterly. The interest rate will be reset on November 16, 2000 to the Reset
Rate (as determined by the Reset Agent). The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. In the event that any date on which
interest is payable on this Debenture is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the regular record
date for such interest installment which shall be the close of business on the
business day next preceding such Interest Payment Date. [IF PURSUANT TO THE
PROVISIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER REPRESENTED BY A
GLOBAL Debenture -- which shall be the close of business on the ___ business
day next preceding such Interest Payment Date.] Any such interest installment
not punctually paid or duly provided for shall forthwith cease to be payable to
the registered Holders on such regular record date and may be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of this series of
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Debentures not less than 10 days prior to such special record date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; provided, however, that payment of interest may be made at the
option of the Company by check mailed to the registered Holder at such address
as shall appear in the Security Register. Notwithstanding the foregoing, so long
as the Holder of this Debenture is the Institutional Trustee or the Collateral
Agent, the payment of the principal of (and premium, if any) and interest on
this Debenture will be made at such place and to such account as may be
designated in writing by the Institutional Trustee or the Collateral Agent.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Debenture
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each Holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall for all purposes have the same effect as
though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated______________________________
XXXXX CORNING
By:_____________________________________________
Name:
Title:
Attest:
By:________________________________
Name:
Title:
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series of Debentures described in the
within-mentioned Indenture.
Dated_________________________
WILMINGTON TRUST COMPANY
as Trustee
By___________________________
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Securities of the
Company (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued in one or more series under and pursuant
to an Indenture dated as of _______, 1997 (the "Base Indenture"), duly executed
and delivered between the Company and Wilmington Trust Company, as Trustee (the
"Trustee") (as supplemented by a First Supplemental Indenture, dated _______,
1997, (the Base Indenture as so supplemented, the "Indenture"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities. By the terms of the Indenture, the Securities are issuable in series
that may vary as to amount, date of maturity, rate of interest and in other
respects as provided in the Indenture. This series of Securities is limited in
aggregate principal amount as specified in said First Supplemental Indenture.
The Debentures are not entitled to the benefit of any sinking fund.
The Holder of this Debenture, including the Institutional Trustee and the
Collateral Agent, shall have the right to require the Company to repurchase this
Debenture on the Business Day immediately preceding the Purchase Contract
Settlement Date (the "Put Option"), either in whole or in part, at an amount per
Debenture equal to $50, plus accumulated and unpaid distributions, if any (the
"Debenture Repurchase Price"). On the Business Day immediately preceding the
Purchase Contract Settlement Date, each Holder of Debentures that has not
settled its Purchase Contract with cash will be deemed to have requested the
Trust to put the aggregate principal amount of its Debentures to the Company for
an amount equal to the Debenture Repayment Price. Upon such repurchase by the
Company, the Trust shall use simultaneously the proceeds from such repurchase to
redeem the Preferred Securities of such Holder having an aggregate Stated Amount
equal to the aggregate principal amount of the Debentures so repurchased and
shall be applied to satisfy in full such Holder's obligation to purchase Common
Securities under the Purchase Contract and any accumulated and unpaid
distributions with respect to the Debentures so repurchased shall be paid to the
Holder thereof in cash. Each Holder of Debentures that has settled its Purchase
Contract with cash shall have the right to request the Company to repurchase the
Debentures on the Purchase Contract Settlement Date for an amount equal to the
Debenture Repayment Price. Upon such repurchase by the Company the Trust shall
use simultaneously the proceeds from such repurchase to redeem in cash the
Preferred Securities of such Holder having an aggregate Stated Amount equal to
the aggregate principal amount of the Debentures so repurchased and shall pay in
cash any accumulated and unpaid distributions to the Holder thereof. In order
for the Debentures to be repurchased on the Purchase Contract Settlement Date or
for a period of ninety days thereafter, the Company must receive at the
Corporate Trust Office in the City of Wilmington, Delaware the
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Debentures to be repurchased with the form entitled "Option to Elect Repayment"
on the reverse of or otherwise accompanying such Debentures duly completed. All
questions as to the validity, eligibility (including time of receipt) and
acceptance of the Debentures for repurchase shall be determined by the Company,
whose determination shall be final and binding. Notwithstanding the foregoing,
so long as the Holder is the Institutional Trustee or the Collateral Agent this
Debenture may be received at the Corporate Trust Office at any time prior to
11:00 a.m., New York City time, on the Business Day immediately preceding the
Purchase Contract Settlement Date in the form and manner as may be designated by
the Institutional Trustee or the Collateral Agent and acceptable to the Trustee.
So long as the Holder of any Debentures presented for repayment is the
Institutional Trustee or the Collateral Agent, the payment of the Debentures
Repayment Price in respect of such Debentures shall be made, either through the
Trustee or the Company acting as Paying Agent, no later than 12:00 noon, New
York City time, on the Business Day immediately preceding the Purchase Contract
Settlement Date.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Debentures 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 and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal mount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debentures; provided,
however, that no such supplemental indenture shall (i) reduce the principal
amount thereof, or reduce the rate or extend the time of payment of interest
thereon, or reduce any premium payable upon the redemption thereof, without the
consent of the Holder of each Debenture so affected, or (ii) reduce the
aforesaid percentage of Debentures, the Holders of which are required to consent
to any such supplemental indenture, without the consent of the Holders of each
Debenture then outstanding and affected thereby. The Indenture also contains
provisions permitting the Holders of a majority in aggregate principal amount of
the Securities of any series at the time outstanding affected thereby, on behalf
of all of the Holders of the Debentures of such series, to waive Default or
Event of Default with respect to such series, and its consequences, except a
Default or Event of Default in the payment of the principal of or premium, if
any, or interest on any of the Securities of such series. Any such consent or
waiver by the registered Holder of this Debenture (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Debenture and of any Debenture issued in
exchange he for or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
money herein prescribed.
So long as the Company is not in default in the payment of interest on the
Debenture, the Company shall have the right at any time during the term of the
Debentures from time to time to extend the interest payment period of such
Debentures for a period not extending, in the aggregate, beyond the maturity
date of the Debentures (an "Extended Interest Payment Period"). At the end of an
Extended Interest Payment Period, the Company shall pay all interest then
accrued and unpaid (together with the interest thereon at the rate of ___% until
November 15, 2000 and at the Reset Rate thereafter to the extent that payment of
such interest is enforceable under applicable law). In the event that the
Company exercises this right, then (a) the Company shall not declare or pay
dividends or make any distribution with respect to, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of its capital stock (other
than (i) purchases or acquisitions of capital stock of the Company in connection
with the satisfaction by the Company of its obligations under any employee
benefit plans or the satisfaction by the Company of its obligations pursuant to
any contract or security outstanding on the date of such event requiring the
Company to purchase capital stock of the Company, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the
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Company capital stock, (iii) the purchase of fractional interests in shares of
the Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged, (iv) dividends
or distributions in capital stock of the Company and (v) redemptions or
purchases of any rights pursuant to the Rights Agreement or any successor to the
Rights Agreement, and the declaration thereunder of a dividend of rights in the
future), (b) the Company shall not make any payment of interest, principal or
premium, if any, on or repay, repurchase or redeem any debt securities issued by
the Company that rank junior to the Debentures, and (c) the Company shall not
make any guarantee payments with respect to the foregoing (other than payments
pursuant to the Guarantee or the Common Securities Guarantee). Prior to the
termination of any such Extended Interest Payment Period, the Company may
further extend the interest payment period; provided, that such Extended
Interest Payment Period, together with all such previous and further extensions
thereof, may not extend beyond the maturity date of the Debenture. At the
termination of any such Extended Interest Payment Period and upon the payment of
all accrued and unpaid interest and any additional amount then due, the Company
may commence a new Extended Interest Payment Period, subject to the above
requirements.
As provided in the Indenture and subject to certain limitations therein
set forth, this Debenture is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency of the Trustee in the City of
Wilmington and State of Delaware accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of his Debenture,
the Company, the Trustee, any paying agent and the Security Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Security Registrar
shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, shareholder, off cer or director, past, present or future, as
such, of the Company or of any predecessor or 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 issuance hereof, expressly
waived and released.
The Indenture imposes certain limitations on the ability of the Company
to, among other things, merge or consolidate with any other Person or sell,
assign, transfer or lease all or substantially all of its properties or assets.
All such covenants and limitations are subject to a number of important
qualifications and exceptions. The Company must report periodically to the
Trustee on compliance with the covenants in the Indenture.
The Debentures of this series a e issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. This Global
Debenture is exchangeable for Debentures in definitive form only under certain
limited circumstances set forth in the Indenture. Debentures of this series so
issued are issuable only in registered form without coupons in denominations of
$50 and any integral multiple thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Debentures of this series so issued
are exchangeable for a like aggregate principal amount of Debentures of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
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All terms used in this Debenture that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ARTICLE VII
ORIGINAL ISSUE OF DEBENTURES
SECTION 7.1. ORIGINAL ISSUE OF DEBENTURES.
Debentures in the aggregate principal amount of $______ may, upon
execution of this First Supplemental Indenture, be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Debentures to or upon the written order of the
Company, signed by its Chairman, its Vice Chairman, its President, or any Vice
President and its Treasurer or an Assistant Treasurer, without any further
action by the Company.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. RATIFICATION OF INDENTURE. The Indenture as supplemented by this
First Supplemental Indenture, is in all respects ratified and confirmed, and
this First Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein provided.
SECTION 8.2. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 8.3. GOVERNING LAW.
This First Supplemental Indenture and each Debenture shall be deemed to be
a contract made under the internal laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of said State.
SECTION 8.4 SEPARABILITY.
In case any one or more of the provisions contained in this First
Supplemental Indenture or in the Debentures shall for any reason be held to be
invalid illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First
Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
SECTION 8.5. COUNTERPARTS.
This First Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original; but 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
berwind affixed and attested, on the date or dates indicated in the
acknowledgments and as of the day and year first above written.
XXXXX CORNING
as Issuer
By_________________________________________
Name:
Title:
Attest:
By:___________________________________
WILMINGTON TRUST COMPANY
as Trustee
By_________________________________________
Name:
Title:
Attest:
By:___________________________________
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