EXHIBIT 17
NEW YORK STATE ELECTRIC & GAS CORPORATION
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DIRECTOR BENEFIT TRUST AGREEMENT
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AGREEMENT made as of July 1, 1994, by and between NEW YORK STATE
ELECTRIC & GAS CORPORATION (the "Corporation"), as Grantor, and BANKERS TRUST
COMPANY, a New York Banking Corporation, as Trustee. As used in the Agreement,
"Corporation" shall include New York State Electric & Gas Corporation and any
successor thereto.
WITNESSETH:
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WHEREAS, the Corporation adopted a Deferred Compensation Plan for
Directors, effective as of October 12, 1979, for the benefit of the non-employee
members (the "Directors") of its Board of Directors (the "Board") to permit
deferral of a Director's compensation (including compensation as a committee
member); and
WHEREAS, the Corporation adopted a Retirement Plan for Directors
effective as of January 1, 1992 to provide a retirement benefit to eligible
Directors (hereinafter the Deferred Compensation Plan for Directors and the
Retirement Plan for Directors, each as amended and as may be amended from time
to time, are called the "Plans"); and
WHEREAS, the Plans provide for the payment of certain deferred
compensation and retirement benefits
(together, hereinafter the "Benefits") to participating Directors (or their
beneficiaries in the event of their death before full payment of the
Benefits); and
WHEREAS, the Corporation has incurred and will incur liability under
the terms of the Plans with respect to the individuals participating in the
Plans (sometimes called, until their respective Benefits have been completely
paid, the "Participants");
WHEREAS, the amount and timing of payment of the Benefits to
Participants and their beneficiaries are specified in the Plans and documents
executed by the Participants pursuant to the Plans designating beneficiaries
and/or timing of payment of Benefits ("Participant Designations"); and
WHEREAS, the Corporation is hereby establishing a trust (the "Trust")
for the purpose of accumulating assets to assist it in fulfilling its
obligations under the Plans, to which Trust the Corporation is transferring, and
will in the future transfer, cash and/or other property acceptable to the
Trustee, and any such contributions together with earnings (including income and
appreciation) thereon (hereinafter called the "Trust Fund") shall be held in
trust, subject only to the claims of the Corporation's creditors in the event of
the
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Corporation's becoming Insolvent (as defined in Section 5.1 hereof), until
the entire Trust Fund has been paid to Participants (or their beneficiaries) in
such manner and at such times as specified in the Plans and Participant
Designations; and
WHEREAS, the Corporation desires that the Trustee hold and administer
all assets transferred to the Trust by the Corporation and the Trustee is
willing to hold, administer and dispose of such assets pursuant to the terms of
this Agreement; and
WHEREAS, it is the intention of the parties that this Trust shall not
affect the status of the Plans as unfunded plans (within the meaning of Revenue
Procedure 92-64) maintained to provide deferred compensation, including
retirement benefits, for Directors; and
WHEREAS, it is the intention of the Corporation to make contributions
to the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plans;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the Corporation and the Trustee hereby agree as
follows:
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I.
Establishment of Trust
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1.1 The Trust hereby established is revocable by the Corporation;
it shall become irrevocable upon a Change in Control, as defined herein.
1.2 The Trust is intended to be a grantor trust, of which the
Corporation is the grantor, within the meaning of subpart E, part I, subchapter
J, Chapter 1, subtitle A of the Internal Revenue Code of 1986, as amended from
time to time (the "Code"), and shall be construed accordingly.
1.3 The principal of the Trust, and any earnings thereon, shall
be held separate and apart from other funds of the Corporation by the Trustee
in trust and shall be used exclusively for the uses and purposes of
Participants (and their beneficiaries) and the Corporation's general
creditors as herein set forth. Participants and their beneficiaries shall
have no preferred claim on any assets of the Trust. Any rights created under
the Plans shall be mere unsecured contractual rights of Participants and
their beneficiaries against the Corporation. Any assets held by the Trust
will be subject to the claims of the Corporation's general creditors under
federal and state law, if the Corpora
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tion shall become Insolvent, as defined in Section 5.1 hereof.
1.4 Administrator. (a) The Corporation hereby designates Towers,
Perrin, Xxxxxxx & Xxxxxx, Inc., subject to its acceptance, as the Administrator
under this Trust (the "Administrator"). Except for records dealing solely with
the Trust, contributions to the Trust, and its investments, earnings and
disbursements, which shall be maintained by the Trustee, the Administrator shall
maintain all the records contemplated by the Plans and Participant Designations,
and make all determinations of Benefits to be paid from the Trust to any
Participant.
(b) Upon the establishment of the Trust or as soon
thereafter as practicable, the Corporation shall report to the Administrator
all of the information necessary to determine the Benefits payable to or with
respect to each Participant in accordance with the Plans and Participant
Designations, including any Benefits payable after each Participant's death
and the properly designated beneficiary (if any) of any Benefits payable
hereunder with respect to any such deceased Participant. Thereafter, and
until the occurrence of any Change in Control (as defined in Section 2.5
hereof) of
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the Corporation, the Corporation shall regularly (at least
annually as of the end of each calendar year) revise and update such
information and report it to the Administrator. After the occurrence of a
Change in Control, the Corporation shall promptly revise and update such
information (i) as of the date of such Change in Control and (ii) as of the
end of each calendar year following such Change in Control. The Corporation
shall report such revised and updated information to the Administrator within
the twenty (20) days following the date of the Change in Control or the
respective calendar year-end, as the case may be. In the event that the
Administrator fails to receive revised and updated information from the
Corporation as provided in this paragraph (b), the Administrator may rely and
act upon the latest information received from the Corporation, without any
duty of further inquiry. However, if the Administrator has reason to believe
that any part or all of the existing information is no longer accurate and
decides in good faith not to rely and act upon such information, the
Administrator shall be under no obligation to take any action with respect to
such information or with respect to acquiring updated information.
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(c) If Towers, Perrin, Xxxxxxx & Xxxxxx, Inc. or any
subsequently designated Administrator does not accept its designation as
Administrator or accepts such designation and subsequently resigns, a new
Administrator shall be designated. If the need for such a designation arises
prior to a Change in Control, the Corporation shall make the designation. If
the need for such a designation arises after a Change in Control, the
designation shall be made by the Corporation with the written consent of at
least forty percent (40%) of the Participants (or in the event of the death
of a Participant, his or her beneficiary). An Administrator may resign by
written notice to the Corporation and the Trustee, which resignation shall be
effective ninety (90) days after receipt of such notice by both the
Corporation and the Trustee, unless both the Corporation and the Trustee
agree otherwise. Notwithstanding the foregoing provisions of this paragraph
(c), any Administrator which resigns shall continue to serve until its
successor Administrator accepts the appointment. Any successor Administrator
shall be independent of the Corporation and its actuarial expertise, stature
and reputation shall be at least substantially similar to that of Towers,
Perrin, Xxxxxxx & Xxxxxx, Inc. The Administrator shall be xxxx
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bursed by the Trustee for its reasonable expenses incurred in connection with
the performance of its duties hereunder (and the Trustee shall use the assets
of the Trust Fund for such purpose unless the Trustee has been promptly
reimbursed by the Corporation for such expenses) and shall be paid reasonable
fees determined in accordance with Section 8.2 from the Trust Fund for the
performance of such duties, to the extent such expenses and fees are not paid
directly by the Corporation to the Administrator.
(d) The Administrator shall not be liable for any act taken
or omitted to be taken hereunder if taken or omitted to be taken by it in good
faith. The Administrator shall also be fully protected in relying upon any
notice given hereunder which it in good faith believes to be genuine and
executed and delivered in accordance with this Trust.
(e) The Administrator may consult with legal counsel to be
selected by it, and the Administrator shall not be liable for any action taken
or suffered by it in accordance with the advice of such counsel.
(f) The Corporation agrees to indemnify and hold harmless
on an after-tax basis the Administrator from and against any and all damages,
losses, claims or
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expenses (including expenses of investigation and reasonable fees and
disbursements of counsel to the Administrator) arising out of or in
connection with the performance by the Administrator of its duties hereunder,
unless it is determined, in a final adjudication, to have been guilty of
willful misconduct or gross negligence in the performance (or
non-performance) of such duties. Any amount payable to the Administrator
under this paragraph (f) and not previously paid directly by the Corporation
shall be paid by the Trustee from the Trust Fund promptly upon demand
therefor by the Administrator. In the event that payment is made hereunder
to the Administrator from the Trust Fund, the Trustee shall promptly notify
the Corporation in writing of the amount of such payment.
The Corporation agrees that, upon receipt of such notice, it will deliver to the
Trustee to be held in the Trust an amount in cash (or in marketable securities
or in some combination thereof) equal to any payments made from the Trust Fund
to the Administrator pursuant to this paragraph (f). The failure of the
Corporation to transfer any such amount shall not in any way impair the right of
the Administrator to indemnification, reimbursement and payment pursuant to this
paragraph (f).
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II.
Funding of Trust
2.1 The Corporation hereby deposits with Trustee in trust the sum
of One Thousand Dollars ($1,000), which becomes the initial principal of the
Trust to be held, administered and disposed of by Trustee as provided in this
Agreement. The Corporation, in its sole discretion, may at any time, or from
time to time, make additional deposits of cash or other property acceptable to
the Trustee with the Trustee in trust to augment the principal to be held,
administered and disposed of by Trustee as provided in this Agreement. Neither
Trustee nor any Participant or beneficiary shall have any right to compel such
additional deposits.
2.2 Upon a Change in Control, the Corporation shall, as soon as
possible, but in no event later than forty-five (45) business days following
the Change in Control, make a contribution (which contribution shall be,
except as otherwise provided in Section 6.2 hereof, an irrevocable
contribution) to the Trust in an amount which (when aggregated with the
assets then held by the Trust, valued at their then fair market value) is
equal to (i) the present value of the Benefits to which Participants or their
beneficiaries would be entitled pursuant
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to the terms of the Plans and Participant Designations as of the date on
which the Change in Control occurred, plus (ii) a reasonable estimated amount
for the Trust's expenses during its term (such estimate not to exceed one
percent (1%) of such present value). The sum of the amounts described in
items (i) and (ii) of the immediately preceding sentence is hereinafter
called the "Required Funding Amount." The Corporation hereby authorizes and
directs its chief executive officer, and its chief financial officer, or
either of them acting alone, to contribute the Required Funding Amount
without the further approval of the Board. Immediately after the Corporation
makes such contribution, the Corporation shall provide the Administrator with
copies of all Plans and Participant Designations, to the extent not
previously provided, and other information used in the Corporation's
calculation of the Required Funding Amount, as well as its worksheets for
such calculation.
2.3 Following the end of each calendar year which ends after a
Change in Control has occurred, unless Trust Fund assets shall have
previously been returned to the Corporation pursuant to Section 6.2 hereof or
the Trust shall have previously terminated pursuant to Section 6.1 or Article
XIII hereof, the
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marketable securities or any combination thereof) equal to such excess. The
Corporation hereby authorizes and directs its chief executive officer, and
its chief financial officer, or either of them acting alone, to make such
additional contributions without the further approval of the Board.
2.4 For the purpose of determining the amount of the Corporation's
contributions under Sections 2.2 and 2.3 hereof, the present value of Benefits
under the Retirement Plan for Directors shall be determined using the 1983 Group
Annuity Mortality Table and an interest rate equal to the yield on a 10-Year
Treasury Constant Maturity Bond. For purposes of the preceding sentence, the
applicable yield on a 10-Year Treasury Constant Maturity Bond shall be the yield
published by the Federal Reserve for the last business day immediately preceding
(a) the Change in Control or (b) the most recent January 1 following such Change
in Control, whichever produces the higher present value. The present value of
Benefits under the Deferred Compensation Plan for Directors shall be the total
amount of each deferred compensation account, including accrued interest, as of
the Change in Control, in the case of a determination under Section
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2.2, or the most recent December 31, in the case of a determination under
Section 2.3.
2.5 Change in Control.
(a) For purposes of this Agreement, a "Change in Control"
shall be deemed to have occurred if the conditions set forth in any one of the
following paragraphs (i), (ii), (iii) or (iv) shall have been satisfied:
(i) the Corporation enters into an agreement, the
consummation of which would result in the occurrence of a
"Transfer" (as defined in Section 2.5(b) hereof);
(ii) the Corporation or any Person (as defined in Section
2.5(c) hereof) publicly announces an intention to take or to
consider taking actions which, if consummated, would
constitute a Transfer;
(iii) any Person (x) is or becomes the "Beneficial Owner" (as
defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended from time to time (the "Exchange Act"),
directly or indirectly, (y) discloses directly or indirectly
to the Corporation (or publicly) a plan or intention to become
the Beneficial
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Owner, directly or indirectly, or (z) makes a filing under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, with respect to securities to become the Beneficial
Owner, directly or indirectly, of securities of the
Corporation representing 9.9% or more of the combined voting
power of the Corporation's then outstanding securities; or
(iv) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Change in Control has occurred.
(b) A "Transfer" shall be deemed to have occurred if the
conditions set forth in any one of the following paragraphs (i), (ii), (iii) or
(iv) shall have been satisfied:
(i) any Person is or becomes the Beneficial Owner, directly
or indirectly, of securities of the Corporation (not including
in the securities beneficially owned by such Person any
securities acquired directly from the Corporation or its
affiliates) representing 25% or more of the combined voting
power of the Corporation's then outstanding securities; or
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(ii) during any period of two consecutive years (not
including any period prior to the date of this Agreement),
individuals who at the beginning of such period constitute the
Board and any new director (other than a director designated
by a Person who has entered into an agreement with the
Corporation to effect a transaction described in paragraph
(i), (iii) or (iv) of this Section 2.5(b)) whose election by
the Board or nomination for election by the Corporation's
stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or
nomination for election was previously so approved, cease for
any reason to constitute a majority thereof; or
(iii) the shareholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation,
other than (i) a merger or consolidation which would result in
the voting securities of the Corporation outstanding
immediately prior thereto continuing to represent (either by
remaining
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outstanding or by being converted into voting securities of
the surviving entity), in combination with the ownership of
any trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation, at least 60% of the
combined voting power of the voting securities of the
Corporation or such surviving entity outstanding immediately
after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person
acquires more than 50% of the combined voting power of the
Corporation's then outstanding securities; or
(iv) the shareholders of the Corporation approve a plan of
complete liquidation of the Corporation or an agreement for
the sale or disposition by the Corporation of all or
substantially all the Corporation's assets.
(c) "Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d)
thereof; however, a Person shall not include (i) the Corporation or any of its
subsidiaries, (ii) a trustee or other fiduciary holding
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securities under an employee benefit plan of the Corporation or any of its
subsidiaries, (iii) an underwriter temporarily holding securities pursuant to
an offering of such securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Corporation in substantially the same
proportions as their ownership of stock of the Corporation.
(d) The Corporation shall notify the Trustee of the
occurrence of a Change in Control or Transfer, and the Trustee may rely on such
notice or on any other actual notice, satisfactory to the Trustee, of such a
change or transfer which the Trustee may receive.
2.6 Notwithstanding anything else to the contrary contained
herein, the Trustee shall be responsible only for contributions actually
received by it hereunder, and shall have no responsibility for determining the
sufficiency, amount or calculation of any contribution required hereunder.
III.
Disposition of Income
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During the term of this Trust, all income received by the Trust, net
of expenses and taxes, shall be accumulated and reinvested, to the extent that
it is not
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used by Trustee to make payments or distributions required by this Agreement.
IV.
Payments to Plan Participants
-----------------------------
4.1 After the Trust Fund is funded pursuant to Section 2.2
and/or the second sentence of Section 2.1 hereof, the Trustee shall from time
to time, in accordance with the Payment Schedules then in effect (and, in the
event of funding pursuant to the second sentence of Section 2.1 hereof,
written instructions of the Corporation given prior to any Change in
Control), make distributions or payments out of the Trust Fund, in cash or in
property, to such persons, in such manner and in such amounts as are set
forth in the most recent Payment Schedule provided to the Trustee under
Section 4.2 hereof (or such written instructions), but only to the extent
that there are sufficient assets in the Trust Fund to make such distributions
or payments.
4.2 Concurrently with each delivery of the Corporation's
contributions pursuant to Section 2.3 hereof (and as soon as possible, but not
later than 30 days, after delivery of the Corporation's contribution pursuant to
Section 2.2 hereof), the Administrator shall deliver to the Trustee a schedule
(the "Payment Sched-
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ule") that indicates the amounts payable in respect of each Participant (and
his or her beneficiaries), the form in which such amounts are to be paid and
the time for payment of such amounts. Concurrently, the Administrator shall
also deliver a copy of such Payment Schedule to the Corporation and shall
deliver a copy of the portion thereof relating to each respective Participant
to such Participant. Additionally, whenever a Participant's death, a
Participant's revision of his or her Participant Designations or other
circumstances require a change in the portion of the Payment Schedule
respecting such Participant, the Corporation and the affected Participant
shall each have the right to notify the Administrator of such circumstances.
Upon receiving such notice from either the Corporation or such Participant,
the Administrator shall within ten (10) days deliver to the Trustee, the
Corporation and such Participant, an appropriately revised Payment Schedule.
Upon the receipt of such revised Payment Schedule, except as otherwise
provided in Article V hereof, the Trustee shall make payments to the
Participants and their beneficiaries in accordance with the Payment Schedule
(or relevant portion thereof) most recently received, provided, however, that
any revised Payment Schedule delivered to the Trustee shall not be
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effective until ten (10) days after such Payment Schedule has been
received by the Trustee. The Trustee may rely on any Payment Schedule or
withholding instructions delivered to Trustee by the Administrator. The Trustee
shall make provision for the reporting and withholding of any federal, state or
local taxes that the Administrator instructs the Trustee in writing to withhold
from any distribution or payment to a Participant or beneficiary hereunder, and
shall pay amounts so withheld to the appropriate taxing authorities.
4.3 In the event that a Participant (or a beneficiary in the event
of a Participant's death) or the Corporation reasonably believes that the most
recent Payment Schedule does not properly reflect the amount payable to such
Participant or beneficiary (or the time or form of payment), such Participant
(or beneficiary) or the Corporation shall be entitled to deliver to the
Administrator a written notice of any objections to the Payment Schedule (the
"Notice of Objections") within ten (10) business days of receipt thereof;
provided, however, that the objector shall also deliver (within the same time
period) a copy of such Notice of Objections (i) to the Trustee and (ii) if the
objector is the Participant, to the Corporation, or, if the objector is the
Corpora-
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tion, to the Participant. Any Notice of Objections shall set forth
payment instructions including the amounts believed to be due under the terms of
the Plans and Participant Designations. If such Participant or beneficiary (but
not the Corporation) delivers a Notice of Objections to the Administrator
pursuant to the first sentence of this Section 4.3 (together with satisfactory
proof of delivery of said Notice of Objections to the Corporation) and the
Corporation does not deliver to the Administrator and the Trustee a responsive
Notice of Objections to the Participant's Notice of Objections within ten (10)
business days after receipt by the Administrator of the Participant's Notice of
Objections and the Participant after consultation with the Administrator does
not rescind its Notice of Objections within said ten (10) business day period,
the Administrator shall certify to the Trustee and the Corporation the payment
instructions with respect to such Participant's Benefits as set forth in the
Participant's Notice of Objections and the Trustee shall make payment in
accordance therewith, to the extent that there are sufficient assets in the
Trust Fund to make such payments. Except as otherwise provided herein, if the
Corporation either delivers an initial Notice of Objections to the Administrator
pursuant to the
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first sentence of this Section 4.3 or delivers a responsive Notice of
Objections during the ten (10) business days referred to in the immediately
preceding sentence, the Trustee shall initially make payments to such
Participant in accordance with the Corporation's Notice of Objections (to the
extent that there are sufficient assets in the Trust Fund to make such
payments), which payments shall be on account of Benefits finally determined
under the respective Plans and Participant Designations in accordance with
Article XIV hereof. In the event that the Administrator reasonably
determines that any Notice of Objection submitted by the Corporation has not
been made in good faith, the Administrator shall promptly, but no later than
ten (10) days after receipt of said Notice of Objection, inform the affected
Participant or Participants, the Corporation and the Trustee of this
determination, and the Trustee shall make payments to each affected
Participant in accordance with the provisions of this Section as if the
Corporation's Notice of Objection had not been filed, subject to final
determination of Benefits in accordance with Article XIV hereof.
4.4 Nothing in this Agreement shall relieve the Corporation of its
obligation to pay the Benefits as
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and when due under the Plans. The Corporation may make payment of Benefits
directly to Participants or their beneficiaries as they become due under the
terms of the Plans. The Corporation shall notify the Trustee and the
Administrator of its decision to make payment of Benefits directly by
delivering a revised Payment Schedule to the Trustee and the Administrator at
least ten (10) days prior to the time amounts are payable to Participants or
their beneficiaries. In addition, if the principal of the Trust, and any
earnings thereon, are not sufficient to make payments of Benefits in
accordance with the terms of the Plans, the Corporation shall make the
balance of each such payment as it falls due. The Trustee shall notify the
Corporation when principal and earnings are not sufficient, and shall only
make payments or distributions to the extent that there are sufficient assets
in the Trust Fund. Distributions made from the Trust Fund to Participants
(or their beneficiaries) shall, to the extent of such distributions, satisfy
the Corporation's obligation to pay Benefits to such Participants (or their
beneficiaries) under the Plans.
4.5 In the event that either (i) the Corporation or the
Administrator delivers a written notice to the Trustee that there has been a
final determination by
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the Internal Revenue Service or a court of competent jurisdiction, which
determination is not appealable or the time for appeal or protest of which
has expired, or (ii) the Administrator, having received written requests for
such action from three or more Participants (or their beneficiaries), makes a
written request to the Trustee that the Trustee obtain an opinion of tax
counsel and the Trustee receives a substantially unqualified opinion of tax
counsel selected by the Trustee, (the reasonable fees and disbursements of
such tax counsel to be paid by the Corporation or, if not promptly paid by
the Corporation, to be paid by the Trustee with assets of the Trust Fund)
which determination determines, or which opinion opines, that any Participant
(or beneficiary) is subject to Federal income taxation on amounts held in
Trust hereunder prior to the distribution to the Participant (or beneficiary)
of such amounts, the Trustee shall, on receipt by the Trustee of such opinion
or notice of such determination, pay to such Participant (or beneficiary) the
portion of the Trust Fund allocable to the Benefits of such Participant (or
beneficiary), and, to the extent of such payment, the Corporation's
obligation to the Participant (or beneficiary) for his or her Benefits under
the Plans shall be cancelled. The Trustee shall be
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advised in writing by the Administrator as to the amount(s) to be allocated
and paid to each such Participant (or beneficiary), the time(s) of the
payment of such amount(s), and the valuation date(s) to be used in
determining the assets then remaining in the Trust Fund, which amount(s),
time(s) and date(s) shall be determined in the discretion and good faith of
the Administrator, in order to provide as prompt a distribution of such
Participant's (or beneficiary's) total Benefits as is practicable. The
Corporation and the Trustee shall co-operate fully and promptly with the
Administrator to provide the information needed for the Administrator's
determinations (and which in the case of the Trustee, is in the Trustee's
possession). The aggregate amount paid to each such Participant (or
beneficiary) shall be the lesser of (i) the present value of the Benefits of
such Participant (or beneficiary) which then remain unpaid or (ii) such
Participant's (or beneficiary's) pro-rata portion of the assets of the Trust
Fund then remaining, based on the ratio of the present value of the
Participant's (or beneficiary's) Benefits which then remain unpaid to the
present value of all such unpaid Benefits. Such present values shall be
determined in accordance with Section 2.4 hereof. Notwithstanding anything
else contained herein
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to the contrary, Trustee shall have no duty or obligation to make any
determinations as to whether amounts held in the Trust are taxable to any
Participant (or beneficiary) other than requesting an opinion of tax counsel
pursuant to the terms of this Section 4.5.
V.
Trustee Responsibility
----------------------
If the Corporation Becomes Insolvent
------------------------------------
5.1 Trustee shall cease payment of Benefits to Participants and
their beneficiaries if the Corporation becomes Insolvent. The Corporation shall
be considered to be "Insolvent" for purposes of this Agreement if (i) the
Corporation is unable to pay its debts as they become due, or (ii) the
Corporation is subject to a pending proceeding as a debtor under the United
States Bankruptcy Code.
5.2 At all times during the continuance of this Trust, the
principal and income of the Trust shall be subject to claims of general
creditors of the Corporation under federal and state law as set forth below.
(a) The Chief Executive Officer of the Corporation shall
have the duty to inform Trustee in writing of the Corporation's Insolvency. If
a person claiming to be a creditor of the Corporation alleges in
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writing to Trustee that the Corporation has become Insolvent, Trustee shall
determine whether the Corporation is Insolvent and, pending such
determination, Trustee shall discontinue payment of Benefits to Participants
or their beneficiaries.
(b) Unless Trustee has actual knowledge of the
Corporation's Insolvency, or has received notice from the Corporation or a
person claiming to be a creditor alleging that the Corporation is Insolvent,
Trustee shall have no duty to inquire whether the Corporation is Insolvent.
Trustee may in all events rely on such evidence concerning the Corporation's
solvency as may be furnished to Trustee which provides Trustee with a reasonable
basis for making a determination concerning the Corporation's solvency.
(c) If at any time Trustee has determined that the
Corporation is Insolvent, Trustee shall discontinue payments to Participants
(and their beneficiaries) and shall hold the assets of the Trust for the benefit
of the Corporation's general creditors, to be distributed only as a court of
competent jurisdiction, or duly appointed receiver or other person authorized to
act by such a court, may direct. Nothing in this Agreement shall in any way
diminish any rights of Participants or
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their beneficiaries to pursue their rights as general creditors of the
Corporation with respect to Benefits due under the Plans or otherwise.
(d) Trustee shall resume the payment of Benefits to
Participants (and their beneficiaries) in accordance with Article IV of this
Agreement only after Trustee has determined that the Corporation is not
Insolvent (or is no longer Insolvent).
5.3 Provided that there are sufficient assets, if Trustee
discontinues the payment of Benefits from the Trust pursuant to Section 5.2
hereof and subsequently determines that the Corporation is not Insolvent (or is
no longer Insolvent), then, upon request, the Administrator shall prepare (and
the Corporation shall promptly comply with the Administrator's reasonable
requests for information in connection with such preparation) and deliver a
revised Payment Schedule to the Trustee which shall take into account the
aggregate amount of all payments due to Participants (and their beneficiaries)
under the terms of the Plans for the period of such discontinuance, less the
aggregate amount of any payments made to Participants and their beneficiaries by
the Corporation in lieu of the payments provided for hereunder during any such
period of discontinuance.
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VI.
Payments to the Corporation
---------------------------
6.1 Except as provided in this Article, and Articles V and XIII,
after the Trust has become irrevocable, the Corporation shall have no right
to receive, and no power to direct Trustee to return to the Corporation or to
divert to others, any of the Trust assets before payment of all Benefits
under the Plans has been made to Participants and their beneficiaries
pursuant to the terms of the Plans. On the date on which the Trustee
receives notice under Section 13.1 hereof that Participants (and their
beneficiaries) are no longer entitled to receive Benefits pursuant to the
Plans (all payments of such Benefits having been completed), this Agreement
and Trust shall terminate and any remaining Trust Fund assets shall be
returned to the Corporation.
6.2 In the event the Corporation delivers an amount to the Trustee
upon a Change in Control pursuant to Section 2.2 hereof, the Trust Fund (except
for the initial $1,000 contribution by the Corporation) may (in the Trustee's
sole discretion) be returned to the Corporation one (1) year after such delivery
to the Trustee unless a Transfer shall have occurred during such one (1) year
period; provided, however, that in the event that
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the Transfer would require that the Corporation's shareholders approve a
merger or consolidation described in Section 2.5(b)(iii) hereof, such Trust
Fund may (in the Trustee's sole discretion) be returned to the Corporation
three (3) years after such delivery to the Trustee unless the merger or
consolidation shall have been consummated during such three (3) year period.
Such one (1) or three (3) year period shall be begun anew (thus postponing
any such discretionary return of Trust Fund assets) in the event of any
subsequent Change in Control occurring during such initial period or any
subsequent period.
VII.
Powers, Duties and Responsibility of Trustee
--------------------------------------------
7.1 All rights associated with assets of the Trust shall be
exercised by Trustee or the person designated by Trustee, and shall in no event
be exercisable by or rest with Participants or their beneficiaries.
7.2 Notwithstanding any other provision hereof, the Trust Fund
shall be held, invested and reinvested by the Trustee only in cash or marketable
securities in accordance with this Section 7.2. The Trustee shall use its good
faith efforts to invest or reinvest from time to time all or such part of the
Trust Fund as it believes prudent under the circumstances (taking into account,
-30-
among other things, anticipated cash requirements for the payment of Plan
Benefits) in either one or a combination of the following investments:
(i) investments in direct obligations of the United States
of America or agencies of the United States of America or
obligations unconditionally and fully guaranteed as to
principal and interest by the United States of America; and
(ii) investments in negotiable certificates of deposit
issued by a commercial bank organized and existing under the
laws of the United States of America or any state thereof
having a combined capital and surplus of at least
$1,000,000,000;
provided, however, that the Trustee shall not be liable for any failure to
maximize the income earned on that portion of the Trust Fund as is from time to
time invested or reinvested as set forth above, nor for any loss of income or
principal due to liquidation of any investment which the Trustee, in its sole
discretion, believes necessary to make payments or to reimburse expenses under
the terms of this Agreement.
7.3 Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity
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and familiar with such matters would use in the conduct of an enterprise of a
like character and with like aims, provided, however, that Trustee shall
incur no liability to any person for any action taken pursuant to a
direction, request or approval given by the Corporation or the Administrator
which is in conformity with the terms of this Agreement and is given in
writing by the Corporation or Administrator. In the event of a dispute,
Trustee may apply to a court of competent jurisdiction to resolve the dispute.
7.4 If Trustee undertakes or defends any litigation arising in
connection with this Trust, the Corporation agrees to indemnify Trustee on an
after-tax basis against Trustee's costs, expenses and liabilities (including,
without limitation, reasonable attorneys' fees and expenses) relating thereto
and to be primarily liable for such payments unless the Trustee is
determined, in a final adjudication, to have been guilty of willful
misconduct or gross negligence in the performance (or non-performance) of its
duties under the Trust. If the Corporation does not pay such costs, expenses
and liabilities in a reasonably timely manner, Trustee may pay such costs,
expenses and liabilities with assets of the Trust.
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7.5 Trustee may consult with legal counsel (who may also be
counsel for the Corporation generally) with respect to any of its duties or
obligations hereunder, and the reasonable fees and expenses of such legal
counsel will be paid by the Corporation, provided that if the Corporation does
not promptly pay such fees and expenses, the Trustee may pay such fees and
expenses with assets of the Trust.
7.6 Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder, and the reasonable fees
and expenses of such professionals shall be paid by the Corporation, provided
that if such fees and expenses are not promptly paid by the Corporation, the
Trustee may pay such fees and expenses with assets of the Trust.
7.7 Subject to Sections 7.1 and 7.2 hereof, the Trustee shall
have, without exclusion, all powers conferred on Trustees by applicable law,
unless expressly provided otherwise herein.
7.8 Subject to Sections 7.1 and 7.2 hereof, but in amplification
of (and not in limitation of) the powers given in Section 7.7 hereof, the
Trustee shall
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have the following powers and authority in the administration of
the Trust Fund:
(a) To invest all contributions, investments, and
reinvestments thereof and all additions thereto by way of contributions,
earnings and increments.
(b) To sell for cash or on credit, to grant options,
convert, redeem, exchange for other securities or other property, or otherwise
to dispose of any securities or other property at any time held.
(c) To settle, compromise or submit to arbitration, any
claims, debts or damages, due or owing to or from the Trust, to commence or
defend suits or legal proceedings and to represent the Trust in all suits or
legal proceedings.
(d) To exercise any conversion privilege and/or
subscription right available in connection with any securities or other
property at any time held; to oppose or to consent to the reorganization,
consolidation, merger, or readjustment of the finances of any corporation,
company or association or to the sale, mortgage, pledge or lease of the
property of any corporation, company or association any of the securities of
which may at any time be held and to do any act with reference thereto,
including the exercise of options, the
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making of agreements or subscriptions, which may be deemed necessary or
advisable in connection therewith, and to hold and retain any securities or
other property so acquired.
(e) To exercise, personally or by general or by limited
power of attorney, any right, including the right to vote, appurtenant to any
securities or other property held at any time.
(f) To borrow money from any lender in such amounts and
upon such terms and conditions as shall be deemed advisable or proper to carry
out the purposes of the Trust and to pledge any securities or other property for
the repayment of any such loan.
(g) To hold cash uninvested for a reasonable period of time
under the circumstances without liability for interest, pending investment
thereof or the payment of expenses or making distributions therewith.
(h) To register any securities held hereunder in the name
of the Trustee or in the name of a nominee with or without the addition of words
indicating that such securities are held in a fiduciary capacity and to hold any
securities in bearer form.
(i) To make, execute and deliver, as Trustee, any and all
conveyances, contracts, waivers,
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releases or other instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers.
(j) Subject to the express provisions of this Agreement, to
invest and reinvest all or any portion of the Trust Fund collectively through
the medium of any common, collective or commingled trust fund that may be
established and maintained by the Trustee, subject to the instrument or
instruments establishing such trust fund or funds and with the terms of such
instrument or instruments, as from time to time amended, being incorporated into
this Agreement to the extent of the equitable share of the Trust Fund in any
such common, collective or commingled trust fund.
VIII.
Taxes, Trustee and Administrator Compensation
---------------------------------------------
8.1 The Trustee shall pay out of the Trust Fund all taxes of any
and all kinds levied or assessed under existing or future laws against the
Trustee in its capacity as such or against the Trust Fund.
8.2 The Trustee and the Administrator shall be paid such
reasonable compensation as shall from time to time be agreed upon by each of
them with the Corporation; provided, however, that, after the occurrence of a
Change
-36-
in Control, the Corporation shall not withhold its consent and agreement to
any reasonable fee arrangement requested by the Trustee or the Administrator.
Such compensation and all expenses of administration of the Trust, including
(without limitation) recordkeeping and reasonable counsel fees, shall be
withdrawn by the Trustee out of the Trust Fund unless paid by the Corporation
in a reasonably timely manner.
IX.
Accounting by Trustee After Fundinq
-----------------------------------
9.1 The Trustee shall keep accurate and detailed accounts of all
investments, receipts, disbursements and all other transactions hereunder, and
all accounts, books and records relating thereto shall be open to inspection and
audit at all reasonable times by any person designated by the Corporation.
Within 90 days after the close of each fiscal year (or such other date as may be
agreed upon in writing among the Corporation, the Administrator and the
Trustee), and within 120 days after the effective date of the resignation (or
other termination of service) of the Trustee, the Trustee shall file with the
Corporation and the Administrator a written account of its administration of the
Trust during such year (or during the period from the close of the last
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preceding year to the effective date of such termination of service) setting
forth all investments, receipts, disbursements and all other transactions
effected by it, including a description of all securities and investments
purchased and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and showing all
cash, securities and other property held in the Trust at the end of such year
or as of the effective date of such resignation. Such account may
incorporate by reference any and all schedules and other statements setting
forth investments, receipts, disbursements and other transactions effected
during the period for which such account is rendered which the Trustee has
furnished to the Corporation and the Administrator prior to the filing of
such account. Each account so filed (and copies of any schedules and
statements incorporated therein by reference as aforesaid) shall be open to
inspection at the offices of the Corporation during business hours by any
Participant (or in the event of any Participant's death, his or her
beneficiary) for a period of 60 days immediately following the date on which
the accounts are filed with the Corporation. In the absence of the filing in
writing with the Trustee by the Corporation or a Participant (or benefi-
-38-
ciary) of exceptions or objections to any such account within 90 days of the
date the accounts are filed with the Corporation and Administrator, the
Corporation and all Participants (or their beneficiaries) shall be deemed to
have approved such account; and in such case, or upon the signed written
approval of the Corporation and all Participants (or beneficiaries) of any
such account, the Trustee shall be released, relieved and discharged with
respect to all matters and things set forth in such account as though such
account had been settled by the decree of a court of competent jurisdiction.
9.2 Notwithstanding Article XIV hereof or any approval (or lack of
approval) of an account pursuant to Section 9.1 hereof, the Trustee may at any
time initiate an action or proceeding for the settlement of its accounts or for
the determination of any question of construction which may arise or for
instructions.
9.3 The Trustee will maintain such books, records and accounts as
may be necessary for the proper administration of the Trust Fund. The Trustee
will at all times maintain (and will provide promptly to the Administrator on an
annual basis, no later than April 1 of each year and also upon any written
request) a record of each amount delivered by the Corporation to the Trust-
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ee and each amount paid by the Trustee to a Participant in accordance with a
Payment Schedule. On or prior to each May 1 which occurs after the initial
transfer of the Required Funding Amount to the Trustee and during the term of
this Trust, the Administrator shall deliver to each Participant and the
Corporation a current written report (as of the immediately preceding
December 31st) setting forth (a) the present value of such Participant's
unpaid Plan Benefits; (b) the aggregate present value of all unpaid Plan
Benefits; (c) the aggregate fair market value of the Trust Fund (plus the
value of any contributions made by the Corporation within the ninety (90)
days immediately following such December 31st, as of the date of any such
contribution); and
(d) a record of any amounts paid by the Trustee to such Participant (or
beneficiary) in accordance with a Payment Schedule.
X.
Trustee Protection
------------------
10.1 The Corporation shall indemnify and hold harmless the Trustee
for any action, or failure to take action, in reliance in good faith upon any
certification, instruction, direction or approval of the Corporation (or
Administrator).
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10.2 The Corporation shall indemnify and hold harmless the Trustee
for acting upon any instrument, certificate, or paper believed by it to be
genuine and to be signed or presented by the proper person or persons, and the
Trustee shall be under no duty to make any investigation or inquiry as to any
statement contained in any such writing but may accept the same as conclusive
evidence of the truth and accuracy of the statements therein contained.
10.3 The Trustee shall not be liable for the proper application of
any part of the Trust Fund if distributions are made in accordance with the
terms of Payment Schedules or other written instructions furnished to the
Trustee by the Corporation or Administrator in accordance with this Agreement.
All persons dealing with the Trustee are released from inquiry into the decision
or authority of the Trustee and from seeing to the application of any moneys,
securities or other property paid or delivered to the Trustee.
10.4 The Trustee shall not be liable hereunder for any loss or
diminution of the Trust Fund resulting from any action taken or omitted unless
caused by Trustee's gross negligence or willful misconduct.
-41-
10.5 The Corporation shall indemnify and hold harmless on an
after-tax basis the Trustee for any liability or expenses, including without
limitation reasonable attorney's fees, incurred by the Trustee with respect to
keeping records with respect to the administration of the Trust Fund and
otherwise carrying out its obligations under this Agreement, other than those
resulting from the Trustee's gross negligence or willful misconduct.
10.6 The duties and obligations of the Trustee acting as Trustee
hereunder shall be strictly limited to those expressly imposed upon the Trustee
by this Agreement and by the applicable laws of the State of New York.
Notwithstanding anything else to the contrary contained herein, the Trustee
shall have no duty to review the Plans or Participant Designations, have no
responsibility for providing for the proper administration of the Plans, for
calculating any Benefits payable to Participants (or beneficiaries), for
calculating any contributions required to be made by the Corporation under the
Plans or Participant Designations, or for insuring that the provisions of this
Agreement are consistent with the provisions of the Plans and Participant
Designations.
XI.
Resignation or Removal of Trustee
---------------------------------
11.1 At any time prior to the occurrence of any Change in Control,
the Trustee may be removed by the Corporation on thirty (30) days notice or upon
shorter notice accepted by the Trustee. After a Change in Control, the Trustee
may be removed by the combined action of the Corporation and Participants (or in
the event of the death of a Participant, his or her beneficiaries) then having
unpaid Benefits equal to at least sixty-five percent (65%) of all amounts then
held in the Trust hereunder on thirty (30) days notice or upon shorter notice
accepted by the Trustee. A Trustee may resign at any time (whether before or
after a Change in Control) by written notice to the Corporation, which
resignation shall be effective ninety (90) days after receipt of such notice by
the Corporation unless the Corporation agrees otherwise. Notwithstanding the
foregoing provisions of this Section 11.1, any Trustee which is removed or
resigns shall continue to serve until its successor Trustee accepts the
appointment and receives delivery of the Trust Fund.
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XII.
Appointment of Successor Trustee
--------------------------------
12.1 If notice is given that the Trustee is being removed or is
resigning, the Corporation (or, if a Change in Control shall have occurred
prior to the effective appointment of a successor Trustee, the Corporation
and the Participants (or in the event of the death of a Participant, his or
her beneficiaries) then having unpaid Benefits equal to at least sixty-five
(65%) of all amounts then held in the Trust) shall appoint a successor
Trustee hereof prior to the effective date of the Trustee's resignation or
removal. The appointment of a successor Trustee shall be by a written
instrument delivered to the Trustee then acting hereunder and the successor
Trustee being appointed.
12.2 If notice of resignation or removal has been given, and the
applicable notice period has expired without any successor Trustee having been
appointed, the Trustee may apply to a court of competent jurisdiction for
appointment of a successor bank Trustee having trust powers or for instructions.
All expenses of Trustee in connection with the proceeding shall be allowed as
administrative expenses of the Trust. Any successor Trustee appointed hereunder
shall be a commercial bank which is
-43-
not an affiliate of the Corporation, but which is a national banking
association or is established under the laws of one of the states of the
United States.
12.3 The appointment of a successor Trustee shall be effective when
accepted in writing by the new Trustee. The new Trustee shall have all the
rights, powers and duties of the prior Trustee, including ownership rights in
Trust Fund assets.
12.4 A successor Trustee need not examine the records and acts of
any prior Trustee. The successor Trustee shall not be responsible for, and
Corporation shall indemnify and defend the successor Trustee from any claim
or liability resulting from, any action or inaction of any prior Trustee or
from any other past event, or any condition existing at the time it becomes
successor Trustee.
12.5 If the Trustee ceases to act as Trustee and appointment of a
successor Trustee is made, all Trust Fund assets shall subsequently be
transferred to the successor Trustee. The transfer shall be completed within
thirty (30) days after the appointment of the successor Trustee becomes
effective, unless the Corporation extends the time limit.
-44-
XIII.
Amendment or Termination
------------------------
13.1 The Trust under this Agreement shall terminate on the date on
which the Corporation, with the concurrence of the Administrator, certifies to
the Trustee that Participants and their beneficiaries are no longer entitled to
Benefits pursuant to the terms of the Plans (all payments of such Benefits
having been completed). Any amendment which purports to terminate the Trust at
any earlier date shall be effective only if made in accordance with Section 13.2
or 13.3 hereof. Promptly upon termination of the Trust, any remaining Trust
Fund assets shall be paid to the Corporation.
13.2 Prior to a Change in Control, the Corporation may amend this
Agreement (including making an amendment which terminates the Trust), without
the consent of the Participants by written instrument executed by the
Corporation and approved in writing by the Trustee; provided, however, that
the written approval of the Trustee shall not be required for any termination
of the Trust.
13.3 On and after the occurrence of a Change in Control, this
Agreement may be amended only by an instrument in writing signed on behalf of
the parties
-45-
hereto, together with the written consent of Participants (or in the
event of their deaths, their beneficiaries) then having unpaid Benefits equal to
at least sixty-five percent (65%) of all amounts then held in the Trust;
provided, however, that the signature and approval of the Trustee shall not be
required for any termination of the Trust or for any amendment required by law.
Notwithstanding the foregoing, any such amendment may be made by written
agreement of the parties hereto without obtaining the consent of the
Participants or their beneficiaries, if such amendment does not adversely affect
the rights of the Participants or their beneficiaries hereunder. No amendment
made on or after the Change in Control may make the Trust revocable solely by
the Corporation.
XIV.
Arbitration
-----------
14.1 Except as otherwise provided herein, any dispute between the
Participants (or their beneficiaries), the Corporation, the Administrator
and/or the Trustee as to the interpretation or application of the provisions
of this Agreement, and, after any Change in Control, any question concerning
distributions or payments hereunder, shall be determined in Binghamton, New
York, exclusively by arbitration in accordance with the
-46-
rules of the American Arbitration Association then in effect. Such
determination shall be final, conclusive and binding upon the parties.
Judgment may be entered on the arbitrator's award in any court of competent
jurisdiction. All fees and expenses of such arbitration (including, without
limitation, those incurred by the Participants or their beneficiaries) shall
be paid by the Corporation, provided that if the Corporation does not
promptly pay such fees and expenses, the Trustee may pay such fees and
expenses out of the assets of the Trust.
XV.
Notices
-------
Any notice or communication which the Corporation, the Trustee, the
Administrator, or a Participant (or Participant's beneficiary) may be required
or may desire to give to another entity or individual under any provision of
this Agreement shall be: (a) given in writing and personally delivered to, or
mailed or delivered by overnight courier service to the address (or addresses)
given below for, the entity or individual to whom such notice or communication
is directed, or (b) with respect to notices or communications to the
Corporation, the Trustee or the Administrator, made by telecopy, delivered or
transmitted to the address given below.
To the Corporation: New York State Electric & Gas
Corporation
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Secretary
To Trustee: Bankers Trust Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Xxxxxxxx Xxxxxxxxx
To Administrator: Towers, Perrin, Xxxxxxx &
Xxxxxx, Inc.
Centre Square East 0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
To Any Participant
or beneficiary: From time to time, as stated on the Payment
Schedule most recently delivered to the Trustee.
Any notice which is personally delivered shall be deemed to have been given on
the date it is personally delivered. Any notice which is mailed shall be deemed
to have been given on the third business day after deposit in the mail,
registered or certified mail, postage prepaid and return receipt requested. Any
notice which is delivered by overnight courier service shall be deemed to have
been given on the business day after deposit with such courier service. Any
notice which is transmitted by telex or
-47-
telecopy shall be deemed to have been given on the day that such notice is
transmitted.
The Corporation, the Trustee, the Administrator, or a Participant (or
beneficiary) may change the address to which notices, requests and other
communications are to be sent to it, him or her by giving written notice of
such address change to the other entities and individuals in conformity with
this Article, but such change shall not be effective until notice of such
change has been received by the other entities and individuals.
XVI.
Miscellaneous
-------------
16.1 Any provision of this Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
16.2 Amounts payable to Participants and their beneficiaries under
this Agreement may not be anticipated, assigned (either at law or in equity),
alienated, pledged, encumbered or subjected to attachment, garnishment, levy,
execution or other legal or equitable process.
16.3 This Agreement and the Trust created herein shall be governed
by and construed in accordance
-48-
with the laws of the State of New York, unless such laws are preempted by the
laws of the United States.
16.4 Each Participant and his or her beneficiaries are intended
beneficiaries under this Trust, and shall be entitled to enforce all terms and
provisions hereof with the same force and effect as if each such person had been
a party hereto.
16.5 This Agreement and the obligations of the Corporation
hereunder shall be binding upon the Corporation and its successors and assigns.
16.6 Nothing contained in this Agreement shall limit the
Corporation's ability to take any action allowed pursuant to the terms of the
Plans.
IN WITNESS WHEREOF, this instrument has been executed as of the day
and year first above written.
NEW YORK STATE ELECTRIC &
GAS CORPORATION
By:_________________________
Title: Senior Vice President
BANKERS TRUST COMPANY,
as Trustee
By:__________________________
Title:
-00-
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF XXXXXXXX )
On the 11th day of July, in the year one thousand nine hundred and
ninety-four, before me personally came Xxxxxxx X. Xxxxx to me known, who being
by me duly sworn, did depose and say: that he resides in Dryden, New York; that
he is a Senior Vice President of NEW YORK STATE ELECTRIC & GAS CORPORATION, the
corporation described in and which executed the above instrument; and that he
signed his name thereto by order of the Board of Directors and said corporation.
____________________________
Notary Public
-00-
XXXXX XX XXX XXXX )
)ss.:
COUNTY OF NEW YORK )
On the _____ day of ________ the year one thousand nine hundred and
ninety-four, before me personally came _____________ ________________ to me
known, who being by me duly sworn, did depose and say: that he/she resides in
______________________ that he/she is the __________________ of BANKERS TRUST
COMPANY, the corporation described in and which executed the above instrument;
that he/she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by order of the Board
of Directors of said corporation, and that he/she signed his/her name thereto by
like order.
____________________________
Notary Public
-51-
