Exhibit A-1
_________________________________________________
CONSOLIDATED NATURAL GAS COMPANY
AND
MANUFACTURERS HANOVER TRUST COMPANY,
TRUSTEE
INDENTURE
Dated as of May 1, 1971
$40,000,000 principal amount 8 3/8% Debentures
Due May 1, 1996
_______________________________________________
TABLE OF CONTENTS
Page
Parties ...................................................1
Authorization of
Debentures.................................................1
Recitals:
Form of May 1, 1996 Debenture (Front)................1
Form of Trustee's Certificate........................3
Form of May 1, 1996 Debenture (Reverse)..............3
Authorization of and consideration for the Indenture.......6
ARTICLE ONE.
Definitions.
Sec. 1.01. Terms to have meanings assigned to them
in the Trust Indenture Act of 1939,
unless otherwise defined.................7
Sec. 1.02. Definitions to apply except where
otherwise indicated by context...........7
Accountant...............................7
Affiliate................................7
` Authorized newspaper.....................7
Capitalization...........................8
Company..................................8
Consolidated debt........................8
Consolidated income available for
interest and subsidiary preferred
stock dividends.......................8
Consolidated net income available
for dividends.........................11
Consolidated net tangible assets.........12
Control..................................12
Debentureholders.........................13
Debentures...............................13
Engineer.................................13
Funded debt..............................13
Incur....................................13
Indebtedness.............................13
Indenture................................14
Independent..............................14
Independent accountant's certificate.....14
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Officers' certificate....................15
Opinion of counsel.......................15
Outstanding..............................15
Person...................................16
Principal office of Trustee..............17
Record date..............................17
Registered holder........................17
Resolution...............................17
Responsible officer......................17
Restricted subsidiary....................17
Security.................................18
Subsidiary...............................18
Subsidiary preferred stock...............18
Trustee..................................18
Voting shares............................18
ARTICLE TWO.
DESCRIPTION, EXECUTION, REGISTRATION, REGISTRATION OF
TRANSFER AND EXCHANGE OF DEBENTURES.
Sec. 2.01. Issuable in series and registered form
without coupons.......................19
Date of Debentures.......................19
Record date for payment of interest......20
Place of payment of Debentures...........20
Sec. 2.02. Provisions any series may contain..............21
Sec. 2.03. Numbers, designations, legends, etc.
on Debentures.........................22
Sec. 2.04. Execution and authentication of
Debentures............................22
Sec. 2.05. Registration of Debentures.....................23
Sec. 2.06. Exchange and registration of transfer
of Debentures.........................23
Sec. 2.07. Temporary Debentures...........................24
Sec. 2.08. Recognition of registered holders
of Debentures.........................25
Sec. 2.09. Xxxxxxxxx, destroyed, lost or stolen
Debentures............................25
Sec. 2.10. Upon consolidation, merger or
transfer, new Debentures of
successor corporation may be issued...26
Sec. 2.11. Change of name of Company......................27
iii
ARTICLE THREE.
The May 1, 1996 Debentures.
Sec. 3.01. Designation - maturity - interest
payment dates - issuable as
registered Debentures without
coupons - limitation of principal
amount................................27
Sec. 3.02. Right to redeem - redemption prices
for optional and sinking fund
redemption............................27
Sec. 3.03. Sinking Fund - redemption dates and
principal amounts of Debentures
to be redeemed........................28
Sinking Fund installments may be
anticipated...........................28
Officers' Certificate to be filed
when Debentures are delivered
for the account of the Sinking
Fund and Debentures are called
for redemption for the Sinking
Fund..................................29
ARTICLE FOUR.
Issue of Debentures.
Sec. 4.01. Aggregate principal amount of
Debentures; all Debentures
equally and ratable entitled
entitled to benefits of Indenture.....29
Sec. 4.02. $40,000,000 principal amount of
May 1, 1996 Debentures issuable
forthwith.............................29
Sec. 4.03. Additional Debentures..........................30
ARTICLE FIVE.
Redemption of Debentures.
Sec. 5.01. Reservation of right to redeem.................32
Sec. 5.02. Mailing of notice of redemption................32
Contents of notice of redemption.........33
Selection in case of partial
redemption............................33
Sec. 5.03. Payment of Debentures called for
redemption............................34
iv
ARTICLE SIX.
Particular Covenants of the Company.
Sec. 6.01. To pay principal, premium, if any,
and interest; payment date on
Sunday, holiday, etc..................34
Sec. 6.02. To maintain office or agency for
presentation of Debentures;
appointed agent.......................35
Sec. 6.03. Furnish paying agent moneys for
payment of Debentures and interest
thereon...............................35
Sec. 6.04. Negative pledge clause and exceptions
thereto...............................35
Sec. 6.05. (a) Restrictions on sale of common
or voting shares of restricted
subsidiaries..........................37
(b) Restrictions on issue of common
or voting shares by subsidiaries......37
Sec. 6.06. Restrictions on additional funded
debt of Company and its
subsidiaries and preferred stock
of subsidiaries.......................38
Sec. 6.07. Other restrictions on additional
funded debt and preferred stock
of subsidiaries.......................39
Restrictions on funded debt and pre-
ferred stock of new subsidiary
company................................39
Restrictions on dividends of sub-
sidiary companies.....................39
Sec. 6.08. Restriction on dividends.......................39
Sec. 6.09. Not to consolidate, merge or transfer
property unless specified ratios
omplied with.........................41
Securing the Debentures in consol-
idation, merger or transfer of
property..............................42
Sec. 6.10. Reports to Trustee.............................43
Sec. 6.11. To maintain corporate existence................44
Sec. 6.12. Of further assurance...........................45
Sec. 6.13. Company to cause subsidiaries to
take specified actions................45
Sec. 6.14. Company to file annually with Trustee
a certificate of no default...........46
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ARTICLE SEVEN.
Remedies of Trustee and Debentureholders.
Sec. 7.01. Defaults defined...............................47
Sec. 7.02. Declaration of maturity of principal
on default............................48
Waiver of declaration of maturity........48
Sec. 7.03. Company, failing to pay when due any
principal or for sixty days any
installment of interest, will pay to
Trustee at its request whole amt.due..49
Upon failure to pay, Trustee may
recover judgment......................49
Recovery of judgment to be for ratable
benefit of Debentureholders...........49
Trustee appointed attorney-in-fact for
Debentureholders to file claims.......49
Sec. 7.04. Application of moneys collected by
Trustee...............................50
Sec. 7.05. Debentures credited on purchase price
in case of sale.......................51
Sec. 7.06. A default subsisting, Trustee may
enforce rights by judicial
proceedings; Trustee entitled to
have receiver appointed...............52
Sec. 7.07. Holders of majority of Debentures may
direct proceedings....................52
Waiver of defaults on request of
Debentureholders......................52
Sec. 7.08. Right of Debentureholders to institute
proceeding............................53
Assessment of costs and attorney's
fees in legal proceedings.............54
Sec. 7.09. Remedies cumulative............................54
Sec. 7.10. Waiver of stay or extension laws...............55
ARTICLE EIGHT.
Debentureholders' Acts, Holdings and Apparent Authority.
Sec. 8.01. Form of instruments executed by
Debentureholders......................55
Proof of execution.......................55
Proof of holding of Debentures...........55
Sec. 8.02 Debentures owned by Company or
affiliates to be disregarded in
certain cases..........................56
vi
ARTICLE NINE.
Reports by the Company and the Trustee and
Debentureholders' Lists.
Sec. 9.01. Reports by Trustee.............................56
(a) annual report to Debentureholders..56
(b) special reports to Debenture-
holders............................57
(c) manner and extent of transmitting
eports............................57
(d) copies to be filed with the
Securities and Exchange Commission
and with stock exchanges...........57
Sec. 9.02. Reports by Company.............................57
(a) reports and information to be
filed with Trustee.................57
(b) additional information and
reports to be filed with Trustee
and the Securities and Exchange
Commission.........................58
(c)reports to Debentureholders.........58
Sec. 9.03. Debentureholders' lists........................58
(a) Company to furnish Trustee with
names and addresses of Debenture
holders............................58
(b) Trustee to preserve information....59
(c) Debentureholders' right to access
to names and addresses of other
Debenture holders..................59
- authority of the Securities and
Exchange Commission with respect
to Debentureholders'lists........60
- Trustee not liable for disclo-
sure.............................60
ARTICLE TEN.
Concerning the Trustee.
Sec. 10.01. Acceptance of trusts upon specified
conditions............................61
(a) Trustee entitled to compensa-
tion and expenses..................61
(b) Trustee may act by agents and
attorneys..........................62
(c) Trustee not responsible for
recitals of fact...................62
- no representation with respect
to validity of Indenture...........62
- not accountable for application
of proceeds of Debentures..........62
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(d) Trustee may consult with counsel...62
(e) Trustee may rely upon certificate
as to adoption of resolutions......62
(f) Trustee may become owner or
pledgee of Debentures..............62
(g) Action at request of or with
consent of Debentureholder
binding on future holders..........62
(h) Trustee entitled to security
against costs......................63
(i) Trustee protected in relying on
documents..........................63
(j) Trustee may accept officers'
ertificate as proof of facts......63
Sec. 10.02. Duties of Trustee in case of default...........63
- Trustee to use same degree of care as
prudent man would use..................63
- Trustee not to be relieved from
liability for negligence or willful
misconduct.............................63
- except:
(1) when no default subsisting.........63
(a) Trustee liable only for
performance of duties
specifically set forth......63
(b) Trustee may conclusively rely
on opinions, certificates
and statements furnished to
it pursuant to Indenture....64
(2) Trustee not liable for error of
judgment made in good faith by
responsible officer.............64
(3) Trustee not liable for action or
nonaction at direction of
holders of majority of
Debentures......................64
- Trustee may examine books and
records of the Company............64
Sec. 10.03. Notice to Debenture holders of default.........65
Sec. 10.04. Resignation of Trustee and notice
thereof...............................65
Removal of Trustee.......................66
Sec. 10.05. Disqualification of Trustee by reason
of conflicting interest...............66
(a) Trustee to resign as a result
of conflicting interest.........66
(b) Notice to Debentureholders of
failure to resign...............66
(c) Right of Debentureholders to
petition for removal of
Trustee.........................66
(d) Meaning of the term "conflicting
interest".......................66
viii
Sec. 10.06. Appointment of successor trustee...............72
- by Debentureholders....................72
- by Company.............................72
- notice of appointment by Company.......73
- appointment by a court.................73
Company covenants to appoint successor
trustee having specified qualify-
cations .............................73
Trustee to resign if specified
ualifications are not met.............74
Execution of instruments by successor
trustee, predecessor trustee and
Company .............................74
Sec. 10.07 Consolidation and merger of Trustee............74
Sec. 10.08. Trustee required to account for
amounts collected as creditor of
Company under certain conditions.......75
(a) Trustee, if a creditor, to set
apart and hold certain moneys
in a special account during
default.........................75
(b) situations not requiring Trustee
to account......................76
(c) apportionment of funds and
property set apart..............77
(d) in case of resignation of the
Trustee.........................78
(e) meaning of certain terms as used
in Section 10.08................78
(f) creditor relationships to which
Section 10.08 not applicable....78
ARTICLE ELEVEN.
Defeasance.
Sec. 11.01. Discharge of Indenture upon payment of
Debentures.........................80
Sec. 11.02. Discharge of Indenture upon deposit
of moneys..........................80
Sec. 11.03. Interest on moneys deposited with
Trustee or other depositary........81
Moneys unclaimed for six years after
maturity of Debentures to be
returned to Company................81
Moneys deposited with Trustee to pay
principal or interest to be held
in trust...........................81
ix
ARTICLE TWELVE.
Immunity of Incorporators, Stockholders, Officers
And Directors.
Liability solely corporate.................................81
ARTICLE THIRTEEN.
Consolidation, Merger and Sale.
Sec. 13.01. Consolidation, merger or sale per-
mitted under certain conditions........82
Sec. 13.02. Substitution of successor corporation
for the Company........................83
ARTICLE FOURTEEN.
Supplemental Indentures.
Sec. 14.01 Supplemental indentures by Company and
Trustee...............................84
(a) to add covenants and agreements....84
(b) to add provisions in case of
pledge or mortgage...............84
(c) to evidence succession to Company..84
(d) to correct or supplement existing
provisions.......................84
(e) to establish terms of Debentures
of any new series................84
Trustee's reliance on Company's
request................................84
Sec. 14.02. Supplemental indentures with consent
of Debentureholders....................84
Sec. 14.03. Authorization to Trustee for execution
of supplemental indentures.............85
Sec. 14.04. Supplemental indenture deemed a part
of this Indenture; to conform to
provisions of Trust Indenture Act
of 1939................................86
x
ARTICLE FIFTEEN.
Miscellaneous Provisions.
Sec. 15.01. Benefits restricted to parties and
holders of Debentures..................87
Sec. 15.02. Cancellation of Debentures paid,
redeemed or otherwise retired..........87
Sec. 15.03. Evidence of compliance with conditions
precedent..............................87
Execution of notices, requests,
certificates or statements.............88
Contents of certificates and opinions....88
Sec. 15.04. Provisions required by Trust Indenture
Act of 1939 to control.................88
Sec. 15.05. Service of notices and demands.................88
Sec. 15.06. Execution in counterparts......................88
Sec. 15.07. Governing law..................................88
Testimonium................................................88
Execution..................................................89
Acknowledgment.............................................90
INDENTURE dated as of May 1, 1971, between
CONSOLIDATED NATURAL GAS COMPANY, a corporation organized
and existing under the laws of the State of Delaware
(hereinafter called the "Company"), party of the first part,
and MANUFACTURERS HANOVER TRUST COMPANY, a corporation
organized and existing under the laws of the State of New
York, having its principal office, presently located at 00
Xxxx Xxxxxx, xx Xxx Xxxx xx Xxx Xxxx, Xxxxx of New York
(hereinafter called the "Trustee"), party of the second
part.
WHEREAS, the Company deems it necessary from time to
time to issue its debentures for its proper corporate
purposes and to that end has duly authorized the execution
and delivery of this Indenture to provide for the issue of
its debentures, to be issued in one of more series, to be
designated generally as its "Debentures", the debentures of
each series to be issuable as registered debentures without
coupons, all such Debentures to be authenticated by the
certificate of the Trustee, the Debentures of each
particular series to be identical as far as may be with one
another in tenor; and
WHEREAS, all action on the part of the Company
necessary to authorize an initial issue hereunder of
$40,000,000 principal amount of Debentures of a series to be
designated 8 3/8% Debentures Due May 1, 1996 (hereinafter
called the "May 1, 1996 Debentures") has been duly taken;
and
WHEREAS, the May 1, 1996 Debentures and the Trustee's
authentication certificate on all Debentures are to be
substantially in the forms following, respectively:
(FORM OF MAY 1, 1996, DEBENTURE)
(FRONT)
CONSOLIDATED NATURAL GAS COMPANY
8 3/8% Debenture Due May 1, 1996
No.......... $.......
CONSOLIDATED NATURAL GAS COMPANY, a Delaware
corporation (hereinafter called the "Company", for value
received, hereby promises to pay to or
registered assigns, the sum of Dollars, at
the principal corporate trust office of Manufacturers
Hanover Trust Company, Trustee under an Indenture
hereinafter mentioned, or its successors as such Trustee, in
the Borough of Manhattan, in The City of New York, on
2
the first day of May, 1996, in such coin or currency of the
United States of America as at the time of payment shall be
legal tender for the payment of public and private debts,
and to pay interest thereon in like coin or currency from
the first day of May or November, as the case may be, to
which interest hereon has been paid next preceding the date
hereof (unless the date hereof is a May 1 or a November 1 to
which interest has been paid, in which case from the date
hereof, or unless the date hereof is prior to the first
payment of interest, in which case from May 1, 1971), at the
rate of 8 3/8% per annum, payable at said office semi-
annually on the first day of May and the first day of
November in each year, until the Company's obligation with
respect to the payment of such principal shall have been
discharged. The interest so payable on any May 1 or
November 1 will, subject to certain exceptions provided in
the Indenture which is referred to on the reverse hereof, be
paid to the person in whose name this Debenture is
registered at the close of business on the 15th day of April
preceding such May 1 or the 15th day of October preceding
such November 1, as the case may be. Interest may be paid,
at the option of the Company, by check mailed to the
registered holder at his address last appearing on the
registration books of the Company.
Reference is hereby made to the further provisions of
this Debenture set forth on the reverse side hereof and such
further provisions shall for all purposes have the same
effect as though fully set forth at this point.
This Debenture shall not be valid or become obligatory
for any purpose until it shall have been authenticated by
the certificate, hereon endorsed, of the Trustee under the
Indenture.
IN WITNESS WHEREOF, Consolidated Natural Gas Company
has caused this Debenture to be signed in its corporate name
by its Chairman of the Board, or its President, or one of
its Vice-Presidents, manually or in facsimile, and a
facsimile of its corporate seal to be imprinted or engraved
hereon, and attested by the manual or facsimile signature of
its Secretary, or an Assistant Secretary.
Dated,
Consolidated Natural Gas Company,
By
Chairman of the Board.
Attest:
Secretary.
3
TRUSTEE'S CERTIFICATE
This is one of the Debentures, of the Series designated
therein, described in the within-mentioned Indenture.
MANUFACTURERS HANOVER TRUST COMPANY,
As Trustee,
By
Authorized Officer.
(Form of May 1, 1996 Debenture)
(Reverse)
Consolidated Natural Gas Company
8 3/8% Debenture Due May 1, 1996
(Continued)
This Debenture is one of a duly authorized issue of
Debentures of the Company (herein referred to as the
"Debentures") of the series hereinafter specified, all
issued or to be issued under and pursuant to an Indenture,
dated as of May 1, 1971 (herein referred to as the
"Indenture"), duly executed and delivered between the
Company and Manufacturers Hanover Trust Company (herein
called the "Trustee"), as Trustee, to which Indenture and all
indentures supplemental thereto reference is hereby made for
a statement of the rights thereunder of the Trustee, the
rights of the registered holders of the Debentures and of
the duties thereunder of the Trustee and the Company. The
Debentures may be issued for various principal sums and may
be issued in series, which may mature at different times,
may bear interest at different rates and may otherwise vary
as in the Indenture provided. This Debenture is one of a
series designated as the 8 3/8% Debentures Due May 1, 1996
of the Company (herein referred to as the "May 1, 1996
Debentures") issued under the Indenture.
The rights and obligations of the Company and of the
holders of Debentures may be changed and modified at the
request of the Company by an indenture or indentures
supplemental to the Indenture, executed pursuant to the
consent in writing of the holders of at least 66 2/3% in
principal amount of all Debentures then outstanding and of
the holders of at least 66 2/3% in principal amount of the
Debentures then outstanding of any series specifically
4
affected by such change or modification,in case one or more,
but less than all, of the series of Debentures then
outstanding under the Indenture are so affected,
all in the manner and subject to the limitations
set forth in the Indenture, provided that no such change or
modification by such supplemental indenture shall extend the
maturity of, or reduce the rate of interest or the
redemption premium, if any, on, or otherwise modify the
terms of payment of the principal or interest or redemption
premium, of any Debenture, without the express consent of
the holder of each Debenture so affected. Any such consent
by the holder of this Debenture (unless effectively revoked
as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and
owners of this Debenture, irrespective of whether or not any
notation of such consent is made upon this Debenture.
The May 1, 1996, Debentures may be redeemed prior to
maturity, at the option of the Company, as a whole at any
time, or in part from time to time, and for the Sinking Fund
for the May 1, 1996 Debentures on May 1, 1976 and on any May
1 thereafter, upon not less than thirty days' previous
notice given by mail to the registered holders, all as
provided in the Indenture, at the Regular Redemption Prices
(expressed in percentages of principal amount) set forth
below if redeemed otherwise than by operation of the
provisions of said Sinking Fund, or at the Sinking Fund
Redemption Prices (expressed in percentages of principal
amount) set forth below if redeemed by the operation of said
Sinking Fund, together in each case with accrued interest to
the redemption date:
If Redeemed If Redeemed
During 12-Mo. Regular Sinking Fund During 12-Mo. Regular Sinking Fund
Period Redemption Redemption Period Redemption Redemption
May 1 Prices Prices May 1 Prices Prices
1971 108.64% -- 1984.. 103.96% 100.19%
1972 108.28 -- 1985.. 103.60 100.18
1973 107.92 -- 1986.. 103.24 100.17
1974 107.56 -- 1987.. 102.88 100.16
1975 107.20 -- 1988.. 102.52 100.15
1976 106.84 100.25% 1989.. 102.16 100.14
1977 106.48 100.24 1990.. 101.80 100.12
1978 106.12 100.24 1991.. 101.44 100.11
1979 105.76 100.23 1992.. 101.08 100.09
1980 105.40 100.22 1993.. 100.72 100.07
1981 105.04 100.22 1994.. 100.36 100.05
1982 104.68 100.21 1995.. 100.00 100.00
1983 104.32 100.20
5
provided, that none of the Debentures may be redeemed at
the option of the Company prior to May l, 1976, if funds
for such redemption are obtained by the Company, directly
or indirectly, from or in anticipation of borrowings at a
cost of money to the Company (computed in accordance with
generally accepted financial practice) of less than 8.44%
per annum.
In case a default, as defined in the Indenture, shall
occur, the principal of all the Debentures then outstanding
may be declared due and payable in the manner and with the
effect provided in the Indenture. The Indenture provides
that such declaration may in certain events be rescinded by
the holders of a majority in principal amount of all
Debentures then outstanding.
This Debenture is transferable as prescribed in the
Indenture by the registered holder hereof in person, or by
his duly authorized attorney, at the principal corporate
trust office of the Trustee in said Borough of Manhattan,
upon surrender and cancellation of this Debenture, and,
thereupon, a new May 1, 1996 Debenture or Debentures, of
authorized denominations, for a like aggregate principal
amount, will be issued to the transferee in exchange
therefor as provided in the Indenture. No service charge
shall be made for any such transfer, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation
thereto. Subject to the foregoing provisions as to the
person entitled to receive payment of interest hereon, the
Company and the Trustee may deem and treat the person in
whose name this Debenture is registered as the absolute
owner hereof for the purpose of receiving payment of or on
account of the principal and interest due hereon and for all
other purposes.
The May 1, 1996 Debentures are issuable as registered
Debentures without coupons in the denominations of $1,000
and any multiple thereof authorized by the Board of
Directors. The May 1, 1996 debentures may be exchanged
without payment of a service charge for a like aggregate
principal amount of May l, 1996 Debentures of other
authorized denominations at the principal corporate trust
office of the Trustee and in the manner and subject to the
limitations provided in the Indenture.
If any or all of the Debentures of any series are to be
redeemed, the Company shall not be required (i) to register
the transfer of, or exchange, any Debenture of such series
during a period beginning at the opening of business 15 days
before the day of mailing of the notice of redemption and
ending at the close of business on such day, (ii) to
register the transfer of, or exchange, any Debenture which
has been called for redemption in whole, or the called
portion of any Debenture which has been called for
redemption in part, (iii)
6
to register the transfer of, or exchange, the uncalled
portion of any Debenture which has been selected
for redemption in part, in the absence of instructions
from the holder thereof authorizing the Company
to retain for redemption on the redemption date the portion
of such Debenture representing the principal amount which
has been selected for redemption, together with instructions
for the registration and delivery of the new Debenture to be
issued for the principal amount which has not been selected
for redemption, or (iv) to register the transfer of, or
exchange, after the close of business on any record date, as
defined in the Indenture, any Debenture which has been
selected for redemption in whole or in part if the date
fixed for such redemption shall fall within the period
subsequent to such record date to and including the interest
payment date next following such record date.
No recourse shall be had for the payment of the principal
of, or the interest on, or the premium, if any, on this
Debenture, or any part thereof, or for any claim based
hereon or otherwise in respect hereof or of the indebtedness
represented hereby, or based on any obligation, covenant or
agreement of the Indenture, against any incorporator,
stockholder, officer or director, as such, past, present or
future, of the Company or of any successor corporation
(either directly or through the Company or any such
successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise, all
liability, if any, of that character against every such
incorporator, stockholder, officer and director being by the
acceptance hereof, and as part of the consideration for the
issue hereof, expressly waived and released.
[END OF FORM OF MAY l, 1996 DEBENTURE]
AND WHEREAS the Company by due corporate action has
determined to execute an indenture in the form of this
Indenture, and all things necessary to make the Debentures,
when executed by the Company and authenticated by the
Trustee and issued upon the terms and conditions hereinafter
set forth, the valid, binding and legal obligations of the
Company in accordance with their terms and to make this
Indenture a valid, binding and legal agreement, have been
done and performed;
Now, THEREFORE, THIS INDENTURE WITNESSETH that for and
in consideration of the premises and of the acceptance or
purchase of the Debentures
7
by the holders thereof and of the sum of One Hundred
Dollars ($100) lawful money of the United States
of America to it in hand paid by the Trustee
at or before the ensealing and delivery of this Indenture,
the receipt whereof the Company hereby acknowledges, the
Company covenants and agrees with the Trustee, for the
equal benefit of all the present and future holders of the
Debentures, without preference, priority or distinction of
any of the Debentures over any of the others by reason of
difference in series, priority in time of issuance,
negotiation or maturity thereof, or otherwise, as follows:
ARTICLE ONE.
Definitions.
SECTION 1.01. Unless Otherwise defined in this Indenture,
all terms used herein, or in any indenture supplemental
hereto, shall have the meanings assigned to them in the
Trust Indenture Act of 1939.
SECTION 1.02. Except where otherwise indicated by the
context, the following terms wherever used in this Indenture
shall have the meanings hereinafter set forth:
Accountant:
The term "accountant" shall mean a person engaged in the
profession of accounting, whether or not such person shall
be an officer, director or employee of the Company or of any
affiliate of the Company.
Affiliate:
The term "affiliate" of any specified person shall mean
any other person, directly or indirectly, controlling,
controlled by or under direct or indirect common control
with such specified person.
Authorized Newspaper:
The term "authorized newspaper" shall mean a newspaper
printed in the English language and customarily published at
least once a day on each business day (any day other than a
day when banking institutions in The City of New York are
authorized or obligated to close) in each calendar week and
of general circulation in the Borough of Manhattan, The City
8
and State of New York, whether or not such newspaper is
published on Saturdays, Sundays and legal holidays.
Capitalization:
The term "capitalization", as applied to a subsidiary of
the Company, shall mean the aggregate of its indebtedness
and capital stock (including that held by the Company and by
other subsidiaries) and its surplus, as shown by its books
of account.
Company:
The term "Company" shall mean the party of the first part
hereto, Consolidated Natural Gas Company, and, subject to
the provisions of Article Thirteen hereof shall also include
its successors and assigns.
Consolidated Debt:
The term "consolidated debt" of the Company and its
subsidiaries shall mean the total funded debt appearing on
a consolidated balance sheet of the Company and its
subsidiaries, with all inter-company items eliminated.
Consolidated Income Available for Interest and Subsidiary
Preferred Stock Dividends:
The term "consolidated income available for interest and
subsidiary preferred stock dividends" of the Company and its
subsidiaries shall mean income of the Company and its
subsidiaries, on a consolidated basis, ascertained, in
accordance with sound accounting practice or with the
requirements of any regulatory body having jurisdiction over
the accounting procedure of the Company and/or its
subsidiaries, as follows:
(a) the total of the operating revenues, income from
plants leased, and the net non-operating revenues,
including income from securities and other investments,
of the Company and all subsidiaries, with all inter-
company items eliminated, shall be ascertained;
(b) from the total, determined as provided in
subdivision (a) there shall be deducted (i) all
operating expense (with all intercompany items
eliminated) of the Company and its subsidiaries,
including taxes (other than income and excess or other
9
profits taxes which are based on income after the
deduction of interest charges) and maintenance,
depletion and depreciation expense and (ii) net non-
operating losses, if any, (with all inter-company items
eliminated) Company and its subsidiaries; provided,
however, (1) that the minimum amounts charged-for
depletion of producing gas lands and land rights and
gas well construction located in the States of New
York, Ohio, Pennsylvania and West Virginia shall be not
less than 3 cents Per thousand cubic feet of natural
gas produced during any period ending subsequent to
December 31, 1970, and (2) that the minimum amounts
charged per thousand cubic feet of natural gas produced
during any period ending subsequent to December 31,
1970, for depletion of producing gas lands and land
rights and gas well construction on certain leases
located in the State of Louisiana shall be not less
than the number of cents that has been determined by an
independent engineer who has filed with the Company,
prior to the date of this Indenture, certificates
signed by him in which he has stated such
determinations, and (3) that if the Company or its
subsidiaries own other producing properties, the
minimum amount charged per thousand cubic feet of
natural gas produced from such properties for depletion
of producing gas lands and land rights and gas well
construction shall be not less than the number of cents
determined by an independent engineer who shall file
with the Trustee and with the Company a certificate
signed by him in which shall be stated the number of
cents per thousand cubic feet which in his judgment
fairly reflects the then current requirements
(determined in accordance with sound engineering and
accounting practices) of the Company and its
subsidiaries with respect to said depletion, and (4)
that the amount charged for depreciation shall be not
less than 2 1/2% per annum of depreciable gas plant,
excluding gas well construction, or such other
percentage as shall, upon application by the Company,
be authorized or approved by the Securities and
Exchange Commission, or by any successor commission or
authority administering the Public Utility Holding
Company Act of 1935; and provided, further, that the
number of cents per thousand cubic feet of natural gas
to be charged as the minimum rate of depletion as
above-provided may at the option of the Company be
redetermined from time to time in the manner
hereinafter provided, but no such redetermination shall
10
be made effective prior to January 1, 1972, and no such
redetermination shall be made effective within three
years from the effective date of the last previous
determination. Such redetermination shall be made by
an independent engineer, who shall file with the
Trustee and with the Company a certificate signed by
him in which shall be stated the number of cents per
thousand cubic feet of natural gas produced which in
his judgment fairly reflects the then current
requirements (determined in accordance with sound
engineering and accounting practices) of the Company
and its subsidiaries with respect to depletion of
producing gas lands and land rights and gas well
construction located as aforesaid, and such rate of
depletion stated in such certificate shall, beginning
with the first of the calendar year in which such
certificate shall be filed with the Trustee, be
substituted for the minimum rate in effect at the time
of filing such certificate and shall remain in effect
until a further redetermination thereof is made in
accordance with the provisions of this clause (b);
(c) the balance remaining after the deduction of the
total amount computed pursuant to subdivision (b) from
the total amount computed pursuant to subdivision (a),
and after making appropriate deductions for any
portions thereof applicable to minority holdings of
common stocks of subsidiaries, shall constitute the
"consolidated income available for interest and
subsidiary preferred stock dividends" of the Company
and its subsidiaries;
(d) in making such computations there shall be
excluded (i) gains or losses resulting from the sale,
abandonment, revaluation or other disposition of, or
increase or diminution in the book costs or recorded
values of, securities or other investments, (ii)
deductions for interest charges on funded debt and
amortization of stock and debt discount and expense or
premium, (iii) deductions for elimination, other than
through periodic amortization against earnings or
earned surplus, of intangibles or of any account
included in utility plant acquisition adjustment
accounts or utility plant adjustment accounts or any
accounts for similar purposes, and (iv) net non-
operating revenues or losses (not otherwise excluded by
this subdivision (d)) in excess of ten per centum of
the "consolidated income available for interest and
11
subsidiary preferred stock dividends" determined
without consideration of net non-operating revenues or
losses;
(e) in case, within or after the particular period
for which the calculation of such consolidated income
of the Company and its subsidiaries is made, the
Company or a subsidiary shall acquire any property for
a consideration in excess of $500,000, which within six
months prior to the date of such acquisition has been
used or operated by another person in a business
similar to that in which it has been or is to be
operated by the Company or its subsidiary, or in case
any subsidiary shall be consolidated or merged with any
other corporation and the corporation resulting from
such consolidation or merger shall become a subsidiary,
or in case any other corporation shall become a
subsidiary, then in computing such consolidated income
of the Company and its subsidiaries there shall be
included on a consolidated basis, to the extent the
same may not have been otherwise included and shall be
ascertainable, the earnings or losses or such property,
or of such other corporation, as the case may be, for
the whole of such period;
(f) in case, within or after the particular period
for which the calculation of consolidated income of the
Company and its subsidiaries is made, the Company or a
subsidiary shall dispose of (other than to the Company
or to a subsidiary) any property, the proceeds of which
exceed $500,000, or in case a subsidiary shall cease to
be such, then in computing such consolidated income of
the Company and its subsidiaries there shall be
excluded to the extent practicable the earnings or
losses of such property or of such corporation which
shall have ceased to be a subsidiary, as the case may
be, for the whole of such period.
Consolidated Net Income Available for Dividends:
The term "consolidated net income available for
dividends" shall mean the consolidated net income of the
Company and its subsidiaries, adjusted to reflect any known
debits or credits to earned surplus applicable to the
period in question, determined in accordance with
sound accounting practice or with the requirements of
any regulatory body having jurisdiction over the
accounting procedure of the Company and/or its
subsidiaries. If, in determining consolidated net
income available for dividends, the aggregate
12
amount of depletion and depreciation charged on the books of
the Company and its subsidiaries during the period in
question shall be less than the minimum amount of depletion
and depreciation determined as provided in clause (b) of the
definition of "consolidated income available for interest
and subsidiary preferred stock dividends", an additional
charge for depletion and depreciation shall be made, equal
to the difference between the amount so charged on the books
of the Company and its subsidiaries and said minimum amount.
Consolidated Net Tangible
Assets:
The term "consolidated net tangible assets" of the
Company and its subsidiaries shall mean the total assets
appearing on a consolidated balance sheet of the Company and
its subsidiaries, less the following:
(i) excess of carrying value over original cost of
property, plant and equipment of subsidiaries in all
cases where original cost of property, plant and
equipment has been determined in accordance with the
requirements of any regulatory body;
(ii) unamortized debt discount and expense, less
unamortized premium, and other deferred debits;
(iii) all current and accrued liabilities (other
than funded debt) and deferred credits;
(iv) all reserves (other than reserves for retirement
of items specified in the foregoing clause (i) ) not
already deducted from assets;
(v) minority interests in common stocks and surplus
of subsidiaries; and -
(vi) excess of the minimum amount of depletion and
depreciation determined as provided in clause (b) of
the definition of "consolidated income available for
interest and subsidiary preferred stock dividends" over
the aggregate amount of depletion and depreciation
charged on the books of the Company and its
subsidiaries from December 31, 1970 to date of the
consolidated balance sheet referred to above.
Control
The term "control" means the power to direct the
management and policies of a person, directly or through
one or more intermediaries, whether through the ownership
13
of voting securities, by contract or otherwise, and the
terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
Debentureholders:
The term "debentureholders" or "holders of the
Debentures" or "holders" shall mean the registered holders
of any Debentures.
Debentures:
The term "Debenture" or "Debentures" shall mean any
Debenture or Debentures, as the case may be, authenticated
and delivered under this Indenture.
Engineer:
The term "engineer" shall mean a person engaged in the
profession of engineering, whether or not such a person
shall be an officer, director or employee of the Company or
of any affiliate of the Company. The acceptance by the
Trustee of a certificate or opinion of any independent
engineer shall be sufficient evidence that the signer or
signers thereof are satisfactory to or approved by the
Trustee within the meaning of this Indenture.
Funded Debt:
The term "funded debt" shall mean any indebtedness
maturing by its terms more than one year from the date of
the creation thereof, including any indebtedness renewable
or extendable at the option of the obligor to a date later
than one year from the date of the original creation
thereof.
Incur:
The term "incur" as applied to indebtedness shall mean
create, issue, assume or otherwise become obligated for,
either directly or indirectly, by guaranty or otherwise.
Indebtedness:
The term "indebtedness" or "debt" shall mean, as to a
particular corporation, all obligations of such corporation,
whether or not represented by bonds, debentures or notes,
for the repayment of money borrowed by such corporation, all
14
deferred obligations of such corporation for the payment of
the purchase price of property purchased by such corporation
and all such obligations assumed or guaranteed by such
corporation, but shall not include any customers' deposits
or employees' deposit accounts or employees' pension or
other accounts.
Indenture:
The term "Indenture" shall mean this Indenture, either
as originally executed or as the same may from time to time
be supplemented, modified or amended by any supplemental
indenture entered into pursuant to the provisions hereof.
Independent:
The term "independent" when applied to any accountant,
engineer or other expert shall mean such a person who is in
fact independent, selected by the Company and satisfactory
to the Trustee, but such person may be regularly retained by
the Company or any affiliate thereof or any other obligor
under the Indenture or upon any of the Debentures. If such
person be an individual he shall not be a director, officer
or employee of the Company or of an affiliate of the Company
or of any such obligor. If such person be a co-partnership
or corporation it shall not be an affiliate of the Company
or of any such obligor and shall not have a partner,
director or officer who is a director, officer or employee
of the Company or of any affiliate of the Company or of any
such obligor. An accountant will not be considered as being
independent, if at the time any certificate is filed under
the Indenture he has, or had during the period covered by
such certificate, any direct, or material indirect,
financial interest in the Company or any such obligor.
Independent Accountant's Certificate:
The term "independent accountant's certificate" shall
mean a certificate or opinion signed by an independent
accountant selected by the Company and approved by the
Trustee in the exercise of reasonable care, and conforming
to the requirements of Section 15.03. The acceptance by the
Trustee of a certificate or opinion of any independent
accountant shall be sufficient evidence that the signer or
signers thereof are satisfactory to or approved by the
Trustee within the meaning of this Indenture.
15
Officer's Certificate:
The term "officers' certificate" shall mean a
certificate complying with the provisions of Section 15.03.
Any officers' certificate as to accounting matters of
the Company and its subsidiaries shall state that the
accounting statements involved in the certificate have been
prepared in accordance with the applicable requirements of
this Indenture and have been based upon accounts of the
Company which have been certified to by the Company's
independent public accountants or, if such accounts are for
a period subsequent to the latest period for which such
accounts have been audited by such accountants, that such
accounts have been kept in a manner consistent with the
accounts of the Company and its subsidiaries during the
latest period for which such accounts have been so audited
and certified.
Opinion of Counsel:
The term "opinion of counsel" shall mean an opinion in
writing, complying with the provisions of Section 15.03,
signed by legal counsel (who may be of counsel to the
Company or any subsidiary or affiliate of the Company)
appointed by the Company and satisfactory to the Trustee.
The appointment or approval of any counsel as herein
provided shall continue as to any such counsel until the
same shall have been revoked. The acceptance by the Trustee
of an opinion of counsel shall be sufficient evidence that
the signer or signers thereof are satisfactory to or
approved by the Trustee within the meaning of this
Indenture.
Outstanding:
The term "outstanding" or "outstanding hereunder" or
"outstanding under this Indenture", when tried with
reference to Debentures, shall mean, except as otherwise
expressly provided, as of any particular time all
Debentures authenticated and delivered under this
Indenture, except
(a) Debentures canceled by the Trustee or surrendered
to the Trustee for cancellation at or prior to said
particular time,
(b) Debentures for the payment or redemption of which
sufficient cash shall theretofore have been, or
simultaneously be, irrevocably deposited with the Trustee
in trust (whether upon or prior to the maturity or the
redemption date of such Debentures), provided that if
such Debentures are to be redeemed prior to the maturity
16
thereof, notice of such redemption shall have been given
as in Article Five provided or provision satisfactory to
the Trustee shall have been made therefor, and
(c) Debentures in lieu of and in substitution for
which other Debentures shall have been authenticated and
delivered pursuant to Section 2.09;
provided, however, that in determining whether the holders
of the requisite principal amount of the Debentures
outstanding have concurred in any direction, request or
consent under this Indenture, Debentures which are owned by
the Company or by any other obligor on the Debentures or by
any affiliate of the Company or any such other obligor,
shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in rely-
ing on any such direction, request or consent, only
Debentures which the Trustee knows are so owned shall be
disregarded.
The term "outstanding" when used with reference to any
indebtedness of the Company or any subsidiary or any
consolidated debt of the Company and its subsidiaries, or
any subsidiary preferred stock shall mean, as of any
particular time, all such indebtedness or consolidated debt
or subsidiary preferred stock incurred or issued at or prior
to the time in question, except
(a) indebtedness or consolidated debt which has
been paid or subsidiary preferred stock which has been
redeemed or otherwise retired, and indebtedness or
consolidated debt or subsidiary preferred stock for the
payment or redemption or retirement of which sufficient
cash shall theretofore have been, or simultaneously be,
irrevocably deposited with a bank or trust company in
trust for the purpose of such payment or redemption or
retirement provided that any notice required for such
payment or redemption or retirement shall have been given
or provision for the giving of such notice satisfactory
to the Trustee shall have been made, and
(b) indebtedness or subsidiary preferred stock held
by the Company or by any subsidiary of the Company.
Person:
The term "person" shall mean an individual, a
corporation, a partnership. an association, a joint stock
company, a trust in which the interest or interests of the
beneficiary or beneficiaries are evidenced by a security, an
unincorporated organization, or a governmental or political
subdivision thereof.
17
Principal Office of Trustee:
The term "principal office" when used with
reference to the Trustee, shall mean the office of the
Trustee in the Borough of Manhattan, The City of New York,
at which the principal corporate trust business of the
Trustee shall at any particular time be administered, which
office is, at the date of execution of this Indenture,
located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Record Date:
The term 'record date" when used with respect to any
semi-annual interest payment date shall have the meaning
specified in Section 2.01.
Registered Holder:
The term "registered holder" or "registered owner" shall
mean the person or persons in whose name or names the
particular Debenture shall be registered on the books of the
Company kept for that purpose in accordance with the terms
of this Indenture.
Resolution:
The term "resolution" shall mean a resolution certified
by the Secretary or an Assistant Secretary of the Company to
have been duly adopted by the Board of Directors of the
Company or by the Executive Committee thereof.
Responsible Officer:
The term "responsible officer" when used with respect
to the Trustee shall mean the chairman or vice chairman of
the board of directors, the chairman or vice chairman of the
executive committee of the board of directors, the
president, any vice president, cashier, the secretary, the
treasurer, any assistant or second vice president, any
assistant cashier, any assistant secretary, any assistant
treasurer, any trust officer, any assistant trust officer,
or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed
by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with a
particular subject.
Restricted Subsidiary:
The term "restricted subsidiary" shall mean any
corporation all of the common shares of which (other than
directors' qualifying shares) and at least
18
75% of the voting shares of which are at the time owned by
the Company or by other restricted subsidiaries of the
Company or by the Company and other restricted subsidiaries
of the Company.
Security:
The term "security" or "securities" shall mean any bond,
note, debenture, evidence of indebtedness, share of stock,
certificate of interest or participation in any profit
sharing agreement, voting trust certificate, certificate of
deposit for a security, or in general, any interest or
instrument commonly known as a "security", but shall not
include a bond or treasury certificate or other obligation
of the United States of America.
Subsidiary:
The term "subsidiary" shall mean any corporation a
majority of the voting shares of which are at the time owned
by the Company or by other subsidiaries of the Company or by
the Company and other subsidiaries of the Company.
Subsidiary Preferred Stock:
The term "subsidiary preferred stock" shall mean capital
stock of any subsidiary of the Company, which shall be
preferred over the common stock of such subsidiary as to
assets upon liquidation and shall be entitled to limited
dividends in preference to the common stock of such
subsidiary. For the purpose of determining the amount of
subsidiary preferred stock being issued or sold or
outstanding, the subsidiary preferred stock shall be taken
at the greater of its par value (if any) or liquidating
value upon involuntary liquidation, exclusive of accrued
dividends; provided that in the case of subsidiary preferred
stock outstanding at any time, the amount thereof shall
include any preferred dividends then in arrears.
Trustee:
The term "Trustee" shall mean the Trustee under this
Indenture for the time being, whether original or successor.
Voting Shares:
The term "voting shares" shall mean, as to shares of a
particular corporation, all shares of stock of any class of
such corporation at the time outstanding and entitled to
vote in the election of directors, excluding shares entitled
so to vote only upon the happening of some contingency.
19
ARTICLE TWO.
Description, Execution, Registration, Registration of
Transfer and Exchange of Debentures.
SECTION 2.01. The Debentures shall be issued in
registered form without coupons. The Debentures may, at the
election of the Board of Directors, be issued in one or more
series, and shall be designated generally as "Debentures" of
the Company, with such further particular designations added
or incorporated in such title for the Debentures of any
particular series, as the Board of Directors may determine.
Each Debenture shall bear upon the face thereof the
designation so selected for the series to which it belongs.
All Debentures of any one series at any time simultaneously
outstanding shall be identical in respect of date of
maturity, ale place or places of payment, the rate of
interest, the date of interest payment, the price or prices
and terms for optional redemption if redeemable, sinking or
purchase fund or analogous provisions (if any), tax
provisions (if any) and exchange or conversion (if any),
except that Debentures of any series may be of serial
maturities and, if of serial maturities, may differ with
respect to maturity date, interest rate, redemption price
and conversion privilege.
Except as hereinafter otherwise provided in this Section
2.01, Debentures shall be dated the date of authentication
and shall bear interest, payable semi-annually, from the
interest payment date to which interest on the Debentures
has been paid next preceding the date thereof, unless such
authentication date is an interest payment date to which
interest has been paid, in which case they shall bear
interest from such date, or unless such date is prior to the
first payment of interest, in which case they shall bear
interest from such dates as shall be fixed for the
respective series of Debentures by this Indenture or any
indenture supplemental hereto creating a series of
additional Debentures. Notwithstanding the foregoing, so
long as there is no existing default in the payment of
interest on Debentures of a particular series, all
Debentures of such series authenticated by the Trustee
between the record date (as hereinafter defined) for any
interest payment date for such series and such interest
payment date shall bear interest from such interest payment
date; provided, however, that if and to the extent the
Company shall default in the payment of the interest due on
such interest payment date, then any such Debenture shall
bear interest from the interest payment date next preceding
the date of such Debenture.
20
The person in whose name any Debenture is registered at
the close of business on any record date (as hereinbelow
defined) with respect to any interest payment date shall be
entitled to receive the interest payable on such interest
payment date notwithstanding the cancellation of such
Debenture upon any registration of transfer or exchange
thereof subsequent to the record date and prior to such
interest payment date; provided, however, that if and to the
extent the Company shall default in the payment of the
interest due on such payment date, such defaulted interest
shall be paid to the person in whose name the Debenture is
registered on the record date established as provided in
(iii) below; and, provided, further, that if any Debenture
or portion thereof is called for redemption on a date after
the close of business on the record date and before the
interest payment date and notice of such redemption has been
mailed and funds for such redemption have been duly
provided, interest accrued to the date fixed for redemption
on such Debenture or portion so called shall be paid only
against surrender of the Debenture for redemption in
accordance with said notice. The term "record date" as used
in this Section 2.01 with respect to (i) a regular semi-
annual interest payment date for the May 1, 1996 Debentures
shall mean the close of business on April 15th or October
l5th, as the case may be, next preceding such interest
payment date, (ii) a regular semi-annual interest payment
date for any series of additional Debentures created
pursuant to Section 4.03 hereof shall mean such date
preceding such interest payment date as shall be established
as such record date by the Supplemental Indenture creating
such series of additional Debentures, provided, however,
that such date shall be not more than twenty days preceding
such interest payment date, and (iii) the date of payment of
any interest which is in default on any of the Debentures of
any series shall mean the close of business on a date
established by the Company by notice mailed first class
postage prepaid to the Debentureholders concerned not less
than twenty days prior thereto, provided, however, that such
record date shall be not more than twenty days preceding the
date fixed for payment of such interest in default. If any
record date shall be a legal holiday or a day on which
banking institutions in The City of New York are authorized
or obligated by law to close, the close of business on the
next preceding day which shall not be a legal holiday or a
day on which such institutions are so authorized or
obligated to close shall be such record date.
The principal of, and the redemption premium, if any, and
the interest on the Debentures shall be paid at the
principal office of the Trustee in the Borough of Manhattan,
21
in The City of New York, in such coin or currency of the
United States of America as at the time of payment shall be
legal tender for the payment of public and private debts.
Interest may be paid, at the option of the Company, by check
mailed to the registered holder at his address last
appearing on the registration books of the Company.
Section 2.02. Subject to Section 2.01 and subject to
determination from time to time by the Board of
Directors, as expressed in one or more indentures
supplemental hereto, which the Company is hereby
authorized to execute and deliver to the Trustee:
(a) the Debentures of any series shall bear
interest at such rate or rates, and the principal of
and interest on such Debentures shall be payable at
such time or times, as may be expressed in such
Debentures when issued;
(b) the Debentures of any series shall be in such
denominations as may be determined by the Board of
Directors;
(c) the Debentures of any series may contain such
lawful provisions, if any, as the Board of Directors
shall prescribe with respect to the payment of
principal and/or interest without deduction for,
and/or with respect to the reimbursement of, such
taxes, assessments or governmental charges as may be
specified therein or in an indenture supplemental
hereto pursuant to which such Debentures are issued,
and/or with respect otherwise to relieving the holder
from payment of any such taxes, assessments or
governmental charges;
(d) the Debentures of any series may contain such
provisions (if any) for the redemption thereof, at the
option of the Company, at such redemption price or
prices, at such time or times, in such manner and upon
such other terms and conditions not inconsistent with
the provisions of Article Five hereof, as may be
expressed or referred to in such Debentures when
issued;
(e) the Debentures of any series may
contain such provisions (if any) for the establishment
of a purchase, sinking, or analogous fund,
and/or for the retirement or redemption of such
Debentures by the operation of any such fund or
otherwise, at such price or prices, in such amounts,
at such time or times, in such manner and upon such
22
other terms and conditions, not inconsistent with
the provisions of Article Five hereof, as may be
expressed or referred to in such Debentures when
issued;
(f) the debentures of any series may be limited as to
the maximum principal amount thereof which may be
authenticated and delivered by the Trustee or which may
be at any one time outstanding, and an appropriate
insertion in respect of such limitation may, but need
not, be made in the Debentures of such series; and
(g) the Debentures of any series may contain such
provisions with respect to serial maturities, interest
rate or rates (if they are of serial maturities),
payment of interest only in the event of specified
contingencies or events, exchangeability or
convertibility, and anticipation of maturity on the
happening of specified events, may contain such
covenants of the Company, may carry such warrants or
other rights to purchase stock or other securities of
the Company, and may contain such other special terms
and conditions, not contrary to the provisions hereof,
as may be determined by the Board of Directors.
SECTION 2.03. Any Debentures may bear such numbers,
letters or other marks of identification or designation, may
be endorsed with or have incorporated in the text thereof
such legends or recitals with respect to transferability or
in respect to the Debenture or Debentures for which they are
exchangeable, and may contain such provisions,
specifications and descriptive words, not inconsistent with
the provisions of this Indenture, as may be determined by
the Board of Directors, in order to comply with the rules
and regulations of any stock exchange upon which the
Debentures are or are to be listed or to conform with any
usage with respect thereto.
SECTION 2.04. Each Debenture shall be signed in the name
and on behalf of the Company by its Chairman of the Board,
or its President, or one of its Vice Presidents, and its
corporate seal shall be thereto affixed, or a facsimile
thereof shall he printed or engraved thereon, and such
corporate seal shall be attested by the Secretary, or an
Assistant Secretary of the Company. The signature of the
Chairman of the Board, the President, a Vice President and
of the Secretary or an Assistant Secretary may be in the
23
form of a facsimile signature and may be imprinted or
otherwise reproduced on the Debentures. In case any officer
of the Company who shall have signed, or whose facsimile
signature shall be borne by any of the Debentures, shall
cease to be such officer of the Company before the
Debentures so executed shall be actually authenticated and
delivered by the Trustee, such Debentures may, nevertheless,
be adopted by the Company and may be authenticated and
delivered as though the person whose signature appears on
such Debentures had not ceased to be such officer of the
Company; and also any of the Debentures may be signed on
behalf of the Company by any person who at the time of the
execution of such Debenture shall be the proper officer of
the Company, although at the date of such Debenture such
person may not have been such officer of the Company.
Only such of the Debentures as shall bear thereon
endorsed a certificate substantially in the form of the
Trustee's certificate of authentication herein before
recited, executed by the Trustee, shall be valid or
obligatory for any purpose or entitle the holder thereof to
any right or benefit under this Indenture, and the
authentication by the Trustee upon any such Debenture
executed on behalf of the Company as aforesaid shall be
conclusive evidence that the Debenture so authenticated has
been duly authenticated and delivered hereunder and that the
holder thereof is entitled to the benefits of this
Indenture.
SECTION 2.05. The Company shall keep or cause to be kept
at the principal office of the Trustee books for the
registration and registration of transfer of Debentures
issued hereunder and upon presentation for such purpose at
such office the Company will register or cause to be
registered therein, and permit to be transferred thereon,
under such reasonable regulations as it may prescribe,
Debentures issued under this Indenture. The Company hereby
appoints the Trustee and its successor from time to time as
Trustee hereunder as agent of the Company with the title of
Debenture Registrar for such registration and registration
of transfer.
SECTION 2.06. Whenever any Debenture shall be surrendered
to the Company for registration of transfer, duly endorsed
or accompanied by a proper instrument or instruments of
assignment and transfer thereof, or for exchange, duly
endorsed or accompanied by instruments of assignment and
transfer if so required by the Company or the Trustee, the
Company shall execute, and the Trustee shall authenticate
24
and deliver, in exchange therefor, a Debenture or
Debentures, as the case may require, of the same series and
maturity and for a like aggregate principal amount and of
such authorized denomination or denominations as may be
requested. The registration of transfer of any Debenture
shall not be valid unless made at said office by the
registered holder in person, or by attorney thereunto duly
authorized.
The Company, at its option, may require the payment of a
sum sufficient to reimburse it for any stamp tax or other
governmental charge or expense that may be imposed in
connection with any exchange or registration of transfer of
Debentures. No service charge will be made for any such
transaction.
If any or all of the Debentures of any series are to be
redeemed, the Company shall not be required (i) to register
the transfer of, or exchange, any Debenture of such series
during a period beginning at the opening of business 15 days
before the day of mailing of the notice of redemption of
Debentures selected for redemption and ending at the close
of business on such day, (ii) to register the transfer of,
or exchange, any Debenture which has been called for
redemption in whole, or the called portion of any Debenture
which has been called for redemption in part, (iii) to
register the transfer of, or exchange, the uncalled portion
of any Debenture which has been selected for redemption in
part, in the absence of instructions from the holder thereof
authorizing the Company to retain for redemption on the
redemption date the portion of such Debenture representing
the principal amount which has been selected for redemption,
together with instructions for the registration and delivery
of the new Debenture to be issued for the principal amount
which has not been selected for redemption, or (iv) to
register the transfer of, or exchange, after the close of
business on any record date, any Debenture which has been
selected for redemption in whole or in part if the date
fixed for such redemption shall fall within the period
subsequent to such record date to and including the interest
payment date next following such record date.
SECTION 2.07. Until definitive Debentures shall be
prepared, the Company may execute, and the Trustee shall
authenticate and deliver, in lieu of definitive Debentures
and subject to the same limitations and conditions as are
provided in this indenture in respect of the execution,
authentication and delivery of definitive Debentures, one or
more temporary printed or lithographed Debentures of the
denomination of $1,000 or any multiple thereof, as shall be
specified in the order or orders of the Company for the
25
authentication and delivery thereof, and substantially in
the form of the definitive Debentures in lieu of which they
are issued, but with or without recital of specific
redemption prices, if any, and with appropriate omissions,
insertions, substitutions and variations as may be required.
Such temporary Debentures shall be exchangeable at the
principal office of the Trustee, for definitive Debentures,
when the latter shall be ready for delivery; and, upon the
surrender of any temporary Debenture for exchange, the
Company, at its own expense, shall execute and the Trustee
shall authenticate and deliver in exchange therefore a
definitive Debenture or definitive Debentures, as the case
may require, of the same series and maturity and for a like
aggregate principal amount. Until so exchanged, the
temporary Debentures shall in all respects be entitled to
the same benefits of this Indenture as the definitive
Debentures to be authenticated and delivered hereunder.
SECTION 2.08. Subject to the provisions of Section 2.01,
the Company and the Trustee may deem and treat the
registered holder of any Debenture as the absolute owner of
such Debenture for all purposes whatsoever, and neither the
Company nor the Trustee shall be affected by any notice to
the contrary.
SECTION 2.09. In case any Debenture, whether in
temporary or in definitive form, shall become mutilated or
be destroyed, lost or stolen, then upon the conditions
hereinafter set forth the Company in its discretion may
execute, and thereupon the Trustee shall authenticate and
deliver, a new Debenture of like tenor and principal amount,
in exchange and substitution for and upon surrender and
cancellation of the mutilated Debenture, or in lieu of and
substitution for the Debenture, if any, so destroyed, lost
or stolen; provided, however, that if any such mutilated,
destroyed, lost or stolen Debenture shall have matured, the
Company may, instead of issuing a substituted Debenture
therefore, pay such Debenture without requiring the
surrender thereof. The applicant for such substituted
Debenture shall furnish to the Company and to the Trustee
evidence satisfactory to them, in their discretion, of the
ownership of and the destruction, loss or theft of such
Debenture, and shall furnish to the Company and to the
Trustee indemnity satisfactory to them, in their discretion,
and, if required, shall reimburse the Company for all
expenses (including counsel fees) in connection with the
preparation, authentication and delivery of such substituted
26
Debenture, and shall comply with such other reasonable
regulations as the Company and the Trustee, or either of
them, may prescribe.
SECTION 2.10. In case the Company pursuant to the
provisions of Article Thirteen hereof shall be consolidated
with or merged into any other corporation or shall convey or
transfer its property and assets, as an entirety or
substantially as an entirety, and the successor corporation
resulting from such consolidation, or into which the Company
shall have been merged, or which shall have received a
conveyance or transfer as aforesaid, shall have executed
with the Trustee an indenture pursuant to the provisions of
Article Thirteen hereof. Debentures may thereafter be
executed either in the name of the Company or of the
successor corporation, and any of the Debentures issued
under this Indenture prior to such consolidation, merger,
conveyance or transfer may from time to time at the request
of the successor corporation and with the consent of the
holders thereof be exchanged for other Debentures of the
same series and of the same maturity, executed in the name
and under the seal of the successor corporation, with such
changes in phraseology and form as may be appropriate, but
in substance of like tenor as the Debentures surrendered for
exchange and of like principal amount; and the Trustee upon
the request of the successor corporation shall authenticate
Debentures as specified in such request for the purpose of
such exchange and shall deliver them upon surrender of the
Debentures so to be exchanged. All Debentures so surrendered
shall be accompanied by written instruments of transfer duly
executed by the registered owner or his duly authorized
attorney if deemed necessary by the Trustee. All Debentures
so executed in the name and under the seal of the successor
corporation and authenticated and delivered shall in all
respects have the same legal rank and rights as the
Debentures executed in the name of the Company and
surrendered upon such exchange. The Company covenants and
agrees that, if additional Debentures of any particular
series, of which series Debentures are at the time
outstanding, shall at any time be authenticated and
delivered in the name of any successor corporation or if any
Debentures in such name are authenticated and delivered
thereafter pursuant to this Article Two in exchange or
substitution for or upon registration of transfer of any
such Debentures, the Company will provide for the exchange
of any Debentures of such series previously issued for
Debentures issued in the name of any successor corporation,
at the option of and without expense to the respective
holders thereof.
27
SECTION 2.ll. In case the name of the Company is
changed, the Debentures issued under this Indenture
subsequent to such change of name may be issued,
authenticated and delivered under such new name with such
changes in phraseology or form as may be appropriate.
ARTICLE THREE.
The May l, 1996 Debentures.
SECTION 3.01. The initial series of Debentures to be
executed, authenticated and delivered under this Indenture
shall be the May l, 1996 Debentures. The May l, 1996
Debentures shall:
(a) be designated as "8 3/8% Debentures Due May 1,
1996";
(b) mature May l, 1996;
(c) bear interest payable semi-annually on May 1 and
November 1 in each year, beginning November 1, 1971, at
the rate of 89~% per annum until payment of said
principal sum has been made or duly provided for;
(d) be issuable as registered Debentures without
coupons in denominations of $1,000 or any multiple
thereof authorized by the Board of Directors; and
(e) be limited to $40,000,000 aggregate principal
amount.
Subject to Section 2.01, all May l, 1996 Debentures
authenticated prior to November 1, 1971 shall bear interest
from May l, 1971.
SECTION 3.02. The May l, 1996 Debentures may be redeemed
prior to maturity in the manner hereinafter provided in
Article Five, as a whole at any time or in part from time to
time at the option of the Company at the redemption prices
(expressed in percentages of principal amount) set forth in
the tabulation below under the heading "Regular Redemption
Prices", and for the Sinking Fund provided for in Section
3.03 on May 1, 1976 and on any May 1 thereafter at the
redemption prices (expressed in percentages of principal
amount) set forth in the tabulation below under the
28
heading "Sinking Fund Redemption Prices", in each case plus
interest accrued and unpaid thereon to the date fixed for
such redemption:
If Redeemed If Redeemed
During 12-Mo. Regular Sinking Fund During 12-Mo. Regular Sinking Fund
Period Redemption Redemption Period Redemption Redemption
Commencing Prices Prices Commencing Prices Prices
May 1 May 1
1971 108.64% -- 1984.. 103.96% 100.19%
1972 108.28 -- 1985.. 103.60 100.18
1973 107.92 -- 1986.. 103.24 100.17
1974 107.56 -- 1987.. 102.88 100.16
1975 107.20 -- 1988.. 102.52 100.15
1976 106.84 100.25% 1989.. 102.16 100.14
1977 106.48 100.24 1990.. 101.80 100.12
1978 106.12 100.24 1991.. 101.44 100.11
1979 105.76 100.23 1992.. 101.08 100.09
1980 105.40 100.22 1993.. 100.72 100.07
1981 105.04 100.22 1994.. 100.36 100.05
1982 104.68 100.21 1995.. 100.00 100.00
1983 104.32 100.20
provided, that none of the Debentures may be redeemed at the
option of the Company prior to May 1, 1976, if funds for
such redemption are obtained by the Company, directly or
indirectly, from or in anticipation of borrowings at a cost
of money to the Company (computed in accordance with
generally accepted financial practice) of less than 8.44%
per annum.
The foregoing redemption prices and terms shall be set forth
in each definitive Debenture of the May 1, 1996 Debentures
prior to the execution and authentication thereof.
SECTION 3.03. The Company will, as long as any of the May
1, 1996 Debentures shall be outstanding and shall not have
become due, redeem for the Sinking Fund, at the applicable
redemption price specified for the Sinking Fund in Section
3.02, on May l, 1976 and on each succeeding May l, to and
including May 1, 1995, $1,600,000 principal amount of May 1,
1996 Debentures, in each case reduced by the principal
amount of May 1, 1996 Debentures which theretofore shall
have been delivered by the Company to the Trustee in
anticipation of such Sinking Fund installment or called by
the Company for optional redemption in accordance with the
29
provisions of Section 3.02 and no longer outstanding and
applied as a credit upon such Sinking Fund installment.
The Company shall have the right to anticipate at any
time, or from time to time, all or any part of any one or
more of the Sinking Fund installments by delivering May 1,
1996 Debentures to the Trustee or by applying as a credit
upon such installment any May 1, 1996 Debentures called by
the Company for optional redemption in accordance with the
provisions of Section 3.02 and no longer outstanding.
Whenever the Company shall deliver to the Trustee May
1, 1996 Debentures for account of the Sinking Fund or shall
apply as a credit upon any Sinking Fund installment any May
1, 1996 Debentures called by the Company for optional
redemption pursuant to Section 3.02, the Company shall file
with the Trustee an Officers' Certificate stating that the
May 1, 1996 Debentures so delivered or so called for
optional redemption and no longer outstanding are to be
credited upon a specified Sinking Fund installment or
installments, and that none of such May 1, 1996 Debentures
has theretofore been applied as a credit upon any Sinking
Fund installment.
Whenever the Company shall call May 1, 1996 Debentures
for redemption for the Sinking Fund the Company shall file
an Officers' Certificate with the Trustee stating the
principal amount of May 1, 1996 Debentures so called for
redemption, and the redemption date and specifying the
Sinking Fund installment or installments with respect to
which such call is made.
ARTICLE FOUR.
Issue of Debentures
SECTION 4.01. Debentures may be authenticated and
delivered under this Indenture as permitted by the
provisions of Sections 2.06, 2.07, 2.09, 2.10, 4.02, 4.03
and 5.02. Subject to the provisions of Section 7.04, all
Debentures issued under this Indenture shall in all respects
be equally and ratably entitled to the benefits hereof
without preference, priority or distinction on account of
the actual time or times of the authentication and delivery
or maturity of the Debentures, or any of them.
SECTION 4.02. May 1, 1996 Debentures for the aggregate
principal amount of $40,000,000 may forthwith be executed by
30
the Company and delivered to the Trustee and shall be
authenticated by the Trustee and delivered to or upon the
order of the Company signed by its Chairman of the Board, or
its President or a Vice President and by its Treasurer, or
an Assistant Treasurer.
SECTION 4.03. At any time, or from time to time
thereafter, additional Debentures, other than May 1, 1996
Debentures, may be executed by the Company and delivered to
the Trustee and shall be authenticated by the Trustee and
delivered to or upon the order of the Company signed by its
Chairman of the Board, or its President or a Vice President
and by its Treasurer, or an Assistant Treasurer, upon
receipt by the Trustee of the following:
(a) A resolution or resolutions
authorizing the execution, authentication
and delivery of Debentures, and specifying
the series, maturity or (if Debentures of
such series are of serial maturities)
maturities, and principal amount of such
Debentures to be authenticated and
delivered.
(b) In case the Debentures to be
authenticated and delivered are of
any series not theretofore created,
an indenture supplemental hereto,
accompanied by a certified resolution
or resolutions authorizing such
supplemental indenture, designating
the new series to be created and
prescribing, consistent with the
applicable provisions of Section
2.02, the terms and provisions
relating to the Debentures of such
series.
(c) Either (i) a certificate or other
official document evidencing the due
authorization, approval or consent of any
governmental body or bodies, at the time
having jurisdiction in the premises, together
with an opinion of counsel that the Trustee
is entitled to rely thereon and that the
authorization, approval or consent of no
other governmental body is required, or (ii)
an opinion of counsel that no authorization,
approval or consent of any governmental body
is required.
(d) An opinion of counsel that all
instruments furnished the Trustee conform to
the requirements of this indenture and
constitute sufficient authority hereunder for
it to authenticate and deliver
the Debentures then applied for; that all
31
conditions precedent provided for in this
Indenture relating to the authentication and
delivery of the additional Debentures applied
for have been complied with and the Company
is duly entitled to the authentication and
delivery of such additional Debentures in
accordance with the provisions of this
Indenture; that all laws and requirements in
respect of the form and execution by the
Company of the supplemental indenture, if
any, and the execution and delivery by the
Company of the Debentures then applied for
have been complied with; that the Company has
corporate power to issue such Debentures and
has duly taken all necessary corporate action
for that purpose; that the Debentures then
applied for, when issued will be the valid
legal and binding obligations of the Company
and entitled to the benefits of this
Indenture; equally and ratably (subject to
the provisions of Section 7.04) with all
other Debentures theretofore issued and then
outstanding hereunder; that the amount of
Debentures then outstanding under this
Indenture, including the additional
Debentures applied for, will not exceed the
amount at the time permitted by law or this
Indenture; and that all taxes payable in
connection with the issuance of such
additional Debentures have been paid or that
no such taxes are payable.
(e) An officer's certificate as required
by Section 6.10(A)hereof; provided however,
that in case the twelve months' period for
which the consolidated income available for
interest and subsidiary preferred stock
dividends of the Company and its subsidiaries
are to be stated in said certificate is a
period with respect to which an annual report
is required to be filed by the Company
pursuant to Section 9.02 hereof, and in case
the aggregate principal amount of Debentures
authenticated and delivered since the
commencement of the then current calendar
year other than those with respect to which
an earnings certificate is not required or
with respect to which an independent
accountant's certificate has previously been
furnished) is ten percent or more of the
Debentures to be outstanding hereunder,
including the Debentures the authentication
and delivery of which are then applied for,
the certificate required by such Section 6.10
(A) shall be an independent accountant's
certificate instead of an officers'
certificate.
32
(f) An officers' certificate stating in
substance that the Company is not in default
under the Indenture and that the issuance of
the additional Debentures applied for will
not result in any breach of any of the terms,
conditions or provisions of, or constitute a
default under, the Company's certificate of
incorporation or by-laws or any indenture,
mortgage, deed of trust or other agreement or
instrument to which the Company is a party,
or any order of any court or administrative
agency entered in any proceeding to which the
Company is a party or by which it may be
bound or to which it may be subject; and that
all conditions precedent provided in this
Indenture relating to the authentication and
delivery of the additional Debentures applied
for have been complied with.
ARTICLE FIVE.
Redemption OF Debentures
SECTION 5.01. With respect to any particular series of
Debentures, the Company may reserve the right to redeem and
pay before maturity all or any part of the Debentures of
such series at such time or times, and from time to time,
and on such terms, as the Board of Directors may determine
and as shall be expressed or referred to in the Debentures
of such series when issued.
Section 5.02. In case the Company shall desire to
exercise any such right to redeem all, or, as the case may
be, any part of the debentures, in accordance with the right
reserved so to do, it shall give, or cause to be given, at
its expense, notice of such redemption to the holders of the
Debentures so to be redeemed as hereinafter in this Section
5.02 provided.
Notice of redemption to the holders of Debentures to be
redeemed shall be mailed, or caused to be mailed, by the
Company, first class postage prepaid, at least thirty days
prior to said redemption date, to the Trustee and to all
holders of Debentures which are to be redeemed in whole or
in part, at their addresses as they shall then appear on the
registration books of the Company. Any notice which is
mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder
receives the notice. In any case, failure duly to give
notice by mail, or any defect in the notice to the holder of
any Debenture designated for redemption as a whole
33
or in part shall not affect the validity of the proceedings
for the redemption of any other Debenture.
Each such notice of redemption shall specify the date
fixed for redemption and the redemption price at which
Debentures are to be redeemed, shall specify where payment
of the redemption price is to be made, upon presentation and
surrender of such Debentures and shall state that interest
accrued to the date fixed for redemption will be paid as
specified in said notice, that from and after said date
interest thereon will cease to accrue, and, if the right to
convert the principal of any of the Debentures so to be
redeemed exists, the date upon which such right to convert
will terminate and the conversion price or basis of
conversion. If the redemption is for any sinking fund, the
notice of redemption shall so state. If less than all the
Debentures are to be redeemed, the notice shall specify the
serial designation or designations of the Debentures to be
redeemed, and in the case of partial redemption of any
series, the distinctive numbers of the particular Debentures
to be redeemed. The numbers of any debentures to be redeemed
required to be included in any such notice may be stated as
follows: individually or in groups from one number to
another number, both inclusive, except such as shall be
previously called for redemption or otherwise retired. In
case of any selection by the Trustee by groups, any notice
of redemption need specify only the final digit or final two
digits of the serial numbers of the Debentures to be
redeemed.
If less than all the Debentures of any series are to be
redeemed, the Company shall give the Trustee written notice,
at least sixty days in advance of the proposed redemption
date, of the aggregate principal amount of such Debentures
to be redeemed and thereupon the Trustee shall select, in
such manner as in its discretion it shall deem fair and
appropriate, and notify the Company of the numbers of the
Debentures to be redeemed. In case a Debenture is of a
denomination larger than $1,000, a portion of such Debenture
($1,000 or an integral multiple thereof may be redeemed and
if less than the whole Debenture be redeemed, the Company
shall execute and the Trustee shall authenticate and deliver
to the registered holder of such Debenture, without charge,
a new Debenture or Debentures, equal in aggregate principal
amount to the unredeemed portion thereof, each new Debenture
to be in such authorized denomination (not less than $1,000)
as such registered holder may elect. In case there shall
have been selected as aforesaid less than the entire
principal amount of any registered Debenture
34
of a denomination in excess of $1,000, the notice of
redemption shall specify the designated number of such
Debenture and the principal amount thereof called for
redemption, and shall state that on the redemption date,
upon surrender of such Debenture, the registered holder will
receive the applicable redemption price in respect of the
principal amount thereof called for redemption and a new
Debenture or Debentures for the principal amount thereof
remaining unredeemed.
SECTION 5.03. Notice of redemption having been duly given
by mail as aforesaid, the Debentures (or a specified
portion) so designated for redemption shall on the
redemption date specified in such notice become due and
payable at their respective redemption prices; and on and
after the redemption date so specified (unless the Company
shall make default in the payment of the redemption price or
prices of such Debentures or unless any such Debentures with
conversion privileges shall have been duly surrendered for
conversion and the Company shall default in the observance
of its covenants in regard to such conversion contained in
the supplemental indenture relating to such Debentures)
Interest on such Debentures (or in the case of a partial
redemption of a Debenture, on the portion thereof to be
redeemed) shall cease to accrue, and any rights to convert
the principal of any Debentures with conversion privileges,
so called for redemption, shall terminate in accordance with
the terms of the supplemental indenture relating to such
Debentures, and upon presentation and surrender of such
Debentures at said place of redemption in accordance with
said notice, such Debentures (or such specified portions)
shall be paid by the Company at the applicable redemption
price or prices.
ARTICLE SIX
Particular Covenants of the Company.
The Company covenants with the Trustee as hereinafter in
this Article Six set forth:
SECTION 6.01. The Company will duly and punctually pay
the principal of each of the Debentures, the premium, if
any, payable upon the redemption thereof, and the interest
which shall have accrued thereon, at the dates and place and
in the manner mentioned in the Debentures according to the
35
true intent and meaning thereof. The Company will not
directly or indirectly extend or assent to the extension of
the time for payment of any claim for interest upon any of
the Debentures and will not directly or indirectly be a
party to or approve of any arrangement for any such
extension by purchasing said claims or in any other manner.
If the date upon which any Debenture becomes payable, at
maturity or by call for redemption or otherwise, be a Sunday
or legal holiday or a day on which banking institutions in
The City of New York are authorized or obligated by law to
close and on which the principal office of the Trustee is
not open for business, then payment of the amount due
thereon may be made on the next succeeding day not specified
above with the same force and effect as if made on the date
upon which such Debenture became payable
and no interest shall accrue by reason of such delay in
payment.
SECTION 6.02. Until all the Debentures shall have been
paid or payment thereof provided for, the Company will
maintain an office or agency in the Borough of Manhattan, in
The City of New York, where Debentures may be presented for
payment and where notices and demands in respect of the
Debentures may be served. The Company hereby appoints the
Trustee and its successor from time to time as Trustee
hereunder as paying agent of the Company, in its behalf, to
make payment upon and as agent to receive all such notices
and demands in respect of the Debentures, and hereby
designates the principal office of the Trustee in the
Borough of Manhattan, in The City of New York, as the office
where Debentures may be presented for payment and where
notices and demands in respect of the Debentures may be
served.
SECTION 6.03. Prior to the date on which the principal
of, or the interest on, any of the Debentures by their terms
or as a result of the calling thereof for redemption shall
become payable, the Company will pay to the Trustee, as such
paying agent, a sum sufficient to pay such principal (and
the premium, if any, which shall be payable on any of the
Debentures which shall have been called for redemption) and
any interest which shall have so become payable, to be held
in trust for the benefit of the persons entitled thereto.
The foregoing provisions of this Section 6.03 are
subject to the provisions of Section 11.03.
SECTION 6.04. So long as any of the Debentures are
outstanding, the Company will not pledge, mortgage or
hypothecate, or permit any other lien upon, any property or
36
assets at any time owned by it, to secure any indebtedness,
without making effective provision whereby the Debentures
shall be equally and ratable secured with any and all such
indebtedness and with any other indebtedness similarly
entitled to be equally and ratably secured; provided,
however, that this restriction shall not apply to nor
prevent:
(a) the mortgaging, pledging, or establishing of a lien
on, any property to secure indebtedness of the Company as
part of the purchase price of such property, or the
extension, renewal or refunding of any such mortgage, pledge
or lien, on substantially the same property theretofore
subject thereto or on any part thereof;
(b) the acquisition by the Company of any property
subject to mortgages, pledges or liens existing thereon at
the time of acquisition (whether or not the obligations
secured thereby are assumed by the Company), and the
extension, renewal or refunding of any such mortgage, pledge
or lien, on substantially the same property theretofore
subject thereto or on any part thereof;
(c) the assumption by the Company of obligations
secured by mortgages on, pledges of, or liens on, any
property, existing at the time of the acquisition by the
Company of such property, or the extension, renewal or
refunding of any such mortgage, pledge or lien, on
substantially the same property theretofore subject thereto
or on any part thereof;
(d) the pledging by the Company of any of its assets as
security for payment of any tax, assessment or other similar
charge demanded from the Company by any public body so long
as the Company in good faith contests its liability to pay
the same, or as security to be deposited with any state
Insurance Department or similar public body in order to
entitle the Company to maintain self-insurance under, or
participate under any state insurance fund provided for
under, any legislation designed to insure employees of the
Company against injury or occupational diseases or for any
other purpose at any time required by law or governmental
regulation as a condition to the transaction of any business
or the exercise of any privilege or license; or
(e) the pledging by the Company of any assets for the
purpose of securing a stay or discharge in the course of any
legal proceeding to which the Company is a party;
37
but in no event shall the mortgage, pledge or lien permitted
by subdivisions (a), (b) and (c) be in excess of 60% of the
total purchase price of the property so acquired.
In case the Company shall propose to pledge, mortgage
or hypothecate any assets or property at any time owned by
it to secure any indebtedness, other than as permitted by
subdivisions (a) to (e), inclusive, of this Section 6.04, it
will prior thereto give written notice thereof to the
Trustee, and will prior to or simultaneously with such
pledge, mortgage or hypothecation, by supplemental indenture
executed to the Trustee (or to the extent legally necessary,
to another trustee or additional or separate trustee), in
form satisfactory to the Trustee, effectively secure all the
Debentures equally and ratably with such indebtedness,
pledge, mortgage or hypothecation of such assets or
property. Such supplemental indenture shall contain the
provisions concerning the possession, control, release and
substitution of mortgaged and pledged property and
securities and other appropriate matters which are required
by the Trust Indenture Act of 1939 to be included in a
secured indenture qualified under said Act, and may also
contain such additional and amendatory provisions not
inconsistent with said Act as the Company and the Trustee
shall deem advisable or appropriate or as the Trustee shall
deem necessary in connection with such pledge, mortgage or
hypothecation.
SECTION 6.05. So long as any of the Debentures are
outstanding, the Company will not
(a) itself sell or permit a restricted subsidiary to
issue or sell, other than to the Company or another
restricted subsidiary, common shares or voting shares of any
restricted subsidiary unless either (i) all of the common
shares and voting shares of such restricted subsidiary owned
by the Company and its subsidiaries shall be sold, or (ii)
the Company and its other restricted subsidiaries
collectively shall retain all of the common shares (except
directors' qualifying shares) and at least 75% of the voting
shares of such restricted subsidiary, or (iii) after giving
effect to such issue or sale the total amount of securities,
other than securities of restricted subsidiaries, owned by
the Company and its subsidiaries, shall not exceed 25% of
the consolidated net tangible assets of the Company and its
subsidiaries; or
(b) permit any subsidiary of the Company to issue or
sell any common shares or voting shares of such subsidiary
38
unless, after such issue or sale and giving effect thereto,
either (i) such subsidiary shall be a restricted subsidiary,
or (ii) the total amount of securities, other than
securities of restricted subsidiaries, owned by the company
and its subsidiaries, shall not exceed 25% of the
consolidated net tangible assets of the Company and its
subsidiaries.
SECTION 6.06. So long as any of the Debentures are
outstanding, the Company will not, and will not permit any
of its subsidiaries to, incur or sell any funded debt (other
than funded debt acquired by the Company or by another
subsidiary, funded debt subordinate to the Debentures and
funded debt issued to refund funded debt of the Company or
its subsidiaries) and will not permit any of its
subsidiaries to issue or sell (other than to the
Company or another subsidiary) any shares of its preferred
stock unless
(a) the consolidated income available for interest and
subsidiary preferred stock dividends of the Company and its
subsidiaries for any twelve consecutive calendar months
within the fifteen calendar months immediately preceding the
date on which such additional funded debt is so incurred or
sold or such subsidiary preferred stock is so issued or
sold, shall have been not less than two and one-half times
the sum of (i) the total annual interest charges upon the
consolidated debt of the Company and its subsidiaries, and
(ii) the total annual dividend requirements on subsidiary
preferred stock, in each case to be outstanding immediately
after the incurring, issue or sale of such additional funded
debt and subsidiary preferred stock; and
(b) giving effect to the incurring, issue or sale of such
additional funded debt and subsidiary preferred stock and to
the application of the proceeds thereof, the sum of (i) the
principal amount of outstanding consolidated debt of the
Company and subsidiaries, and (ii) the amount of outstanding
subsidiary preferred stock shall not be more than sixty per
cent of the consolidated net tangible assets of the Company
and its subsidiaries as shown by a pro forma consolidated
balance sheet of the Company and its subsidiaries; such pro
forma consolidated balance sheet shall be prepared on the
basis of a consolidated balance sheet of the Company and its
subsidiaries as of the last day of the 12 months' period for
which income is calculated for the purposes of subdivision
(a) of this Section and shall give effect to the proposed
incurring, issue or sale of the additional funded debt and
39
subsidiary preferred stock and to the application of the
proceeds thereof and to any dividend declared or other
distribution of assets made by the Company to its
stockholders after the date of the balance sheet and
simultaneously with or prior to the proposed transaction.
SECTION 6.07. So long as any of the Debentures are
outstanding, the Company will not permit any subsidiary of
the Company to incur or sell any funded debt, other than
indebtedness to the Company or to another subsidiary, or to
issue or sell, other than to the Company or to another
subsidiary, any of its preferred stock unless, giving effect
to the incurring, issue or sale of such funded debt or
preferred stock and to the application of the proceeds
thereof,
(a) the principal amount of outstanding funded
debt and the amount of the outstanding preferred stock
of such subsidiary shall not exceed 60% of the total
capitalization of such subsidiary; and
(b) the principal amount of outstanding funded
debt and the amount of outstanding preferred stock of
all subsidiaries of the Company shall not exceed 15% of
the consolidated net tangible assets of the Company and
its subsidiaries, computed in a manner similar to that
provided in Section 6.06;
provided, however, that nothing contained in this Section
shall prevent the Company from acquiring a new subsidiary
which shall have outstanding at the time of acquisition,
otherwise than in the hands of the Company or any subsidiary
of the Company, funded debt or preferred stock, if the
principal amount of such outstanding funded debt and the
amount of such outstanding preferred stock shall not exceed
sixth per cent of the total capitalization of such new
subsidiary.
So long as any of the Debentures are outstanding, the
Company will not permit any of its subsidiaries to declare
or pay any dividend if such declaration or payment would
reduce its surplus below the amount required to maintain the
ratio of its outstanding funded debt and preferred stock to
total capitalization specified in subdivision (a) of this
Section 6.07.
SECTION 6.08. So long as any of the Debentures are
outstanding, the Company will not declare or pay any
dividend or make any other distribution upon any of its
40
capital stock or purchase or redeem or otherwise acquire for
a consideration any of its capital stock (excluding from
such restriction and from the calculation in this Section
6.08 dividends paid in capital stock and capital stock
purchased, redeemed or otherwise acquired to the extent that
it was so acquired in exchange for or with the proceeds of
the issue of other capital stock) if, after giving effect to
such dividend, distribution, purchase, redemption or other
acquisition, the cumulative aggregate amount of all
dividends and distributions declared or paid on its capital
stock and the amount paid for the purchase, redemption or
acquisition of its capital stock subsequent to December 3l,
1970 by the Company exceeds the amount of the consolidated
net income available for dividends after December 31, 1970;
plus $70,000,000, plus such additional amounts as shall,
upon application by the Company, be authorized or approved
by the Securities and Exchange Commission, or by any
successor commission or authority administering the Public
Utility Holding Company Act of 1935.
In the case of any consolidation or merger of the Company
with or into any other corporation or the transfer of all or
substantially all of the assets of the Company as an
entirety to another corporation, as permitted by Article
Thirteen, the foregoing covenant shall apply, from and after
the date upon which such consolidation, merger, or transfer
shall become effective (hereinafter referred to as the
"effective date"), to the corporation (hereinafter referred
to as the "Successor Corporation") resulting from such
consolidation or merger or acquiring of the assets of the
Company, so that, so long as any of the Debentures are
outstanding, the Successor Corporation will not declare or
pay any dividend or make any other distribution upon any of
its capital stock or purchase or redeem or otherwise acquire
for a consideration any of its capital stock (excluding from
such restriction and from the calculation in this Section
6.08 dividends paid in capital stock and capital stock
purchased, redeemed or otherwise acquired to the extent that
it was so acquired in exchange for or with the proceeds of
the issue of other capital stock) if, after giving effect to
such dividend, distribution, purchase, redemption or other
acquisition, the cumulative aggregate amount of all
dividends and distributions declared or paid on its capital
stock and the amount paid for the purchase, redemption or
acquisition of its capital stock by the Company subsequent
to December 31, 1970, and prior to the effective date, and
by the Successor Corporation after the effective date,
exceeds the amount of consolidated net income available for
41
dividends of the Company and its subsidiaries after December
31, 1970, and prior to the effective date, plus the amount
of the consolidated net income available for dividends of
the Successor Corporation and its subsidiaries after the
effective date, plus $70,000,000, plus such additional
amounts as shall, upon application by the Company, or by any
Successor Corporation, be authorized or approved by the
Securities and Exchange Commission, or by any successor
commission or authority administering the Public Utility
Holding Company Act of 1935.
For the purpose of this Section 6.08, the acquisition for
a consideration of the capital stock of the Company or
Successor Corporation by a subsidiary of either shall be
deemed an acquisition by the Company or Successor
Corporation.
SECTION 6.09. The Company will not participate in any
consolidation or merger with, or transfer its properties and
assets as an entirety or substantially as an entirety to,
another corporation (the corporation resulting from any such
consolidation or merger or to which such transfer is made
being in this Section called "Successor Corporation"), and
the Company will not permit any subsidiary of the Company to
participate in any consolidation or merger with, or to
transfer its properties and assets as an entirety or
substantially as an entirety to, another corporation (in the
event of such a consolidation or merger of any subsidiary
with another corporation, or transfer of properties and
assets of a subsidiary to another corporation, the term
"Successor Corporation" as used hereinafter in this Section
shall mean the Company), unless
(a) immediately after such consolidation, merger or
transfer and giving effect thereto, the principal amount
of the outstanding consolidated debt of the Successor
Corporation and its subsidiaries, plus the amount of the
outstanding preferred stock of the subsidiaries
of the Successor Corporation, would not exceed the
principal amount of the consolidated debt of the Company
and its subsidiaries, plus the amount of the preferred
stock of subsidiaries of the Company, outstanding
immediately prior to such consolidation, merger or
transfer, or
(b)(i) the consolidated income available for
interest and subsidiary preferred stock dividends of the
Successor Corporation and its subsidiaries for any
twelve consecutive calendar months within the fifteen
calendar months immediately preceding the effective date
42
of such consolidation, merger or transfer (including on
a pro forma consolidated basis, such income for said
period of all corporations whose assets are combined
with those of the Company or any of its subsidiaries in
such consolidation, merger or transfer and of all
corporations which are subsidiaries of the Successor
Corporation immediately after such consolidation,
merger or transfer), shall have been not less than two
and one-half times the sum of (A) the total annual
interest charges upon the consolidated debt of the
Successor Corporation and its subsidiaries, and (B) the
total annual dividend requirements on the preferred
stock of such subsidiaries, in each case to be
outstanding immediately after such consolidation,
merger or transfer, and
(ii) immediately after such consolidation, merger
or transfer, and giving effect thereto, the sum of (A)
the outstanding consolidated debt of the Successor
Corporation and its subsidiaries and (B) the amount of
the outstanding preferred stock of subsidiaries of the
Successor Corporation, shall not be more than 60% of
the consolidated net tangible assets of the Successor
corporation and its subsidiaries, all computed in a
manner similar to that provided in Section 6.06, and
(iii) immediately after such consolidation, merger
or transfer, and giving effect thereto, the principal
amount of outstanding funded debt and the amount of the
outstanding preferred stock, of all subsidiaries of the
Successor Corporation, shall not exceed 15% of the
consolidated net tangible assets of the Successor
Corporation and its subsidiaries, computed in a manner
similar to that provided in Section 6.06;
provided, however, that the restrictions contained in this
Section shall not apply to or prevent the consolidation or
merger of the Company with, or transfer of its properties
and assets to, a then existing subsidiary of the Company or
the consolidation or merger of a subsidiary with, or a
transfer of its properties and assets to, the Company or
another then existing subsidiary of the Company.
The Company further covenants and agrees that if, upon
any consolidation or merger of the Company with any other
corporation, or upon any transfer of the properties of the
43
Company as an entirety or substantially as an entirety, any
of the property of the Company would thereupon become
subject to any mortgage, pledge, or other lien, the Company,
prior to such consolidation, merger or transfer, will by
appropriate action secure the Debentures, equally and
ratably with any other indebtedness similarly entitled to be
equally and ratably secured, by a direct mortgage or lien on
or pledge of all such property of the Company prior to all
other mortgages, liens or pledges except any mortgages,
liens or pledges then existing thereon as permitted by
Section 6.04. Such direct mortgage, lien or pledge shall be
evidenced by an appropriate instrument or instruments
executed to the Trustee (or to the extent legally necessary,
to another trustee as additional or separate trustee)
containing the provisions provided for in the last sentence
of Section 6.04.
SECTION 6.10. (A) In connection with a request for the
authentication and delivery of additional Debentures
pursuant to Section 4.03 and for the purpose of evidencing
compliance with the provisions of Sections 6.06, 6.07 and
6.09 in case the Company or any of its subsidiaries shall
enter upon or engage in any of the transactions therein
prohibited except upon the conditions therein stated, the
Company will, prior to or simultaneously therewith, file
with the Trustee an officers' certificate setting forth, in
such reasonable detail as the Trustee shall require, such
relevant statements as to consolidated income available for
interest and subsidiary preferred stock dividends, annual
interest charges upon consolidated funded debt, annual
dividend requirements of subsidiary preferred stock,
outstanding consolidated debt, outstanding subsidiary
preferred stock, consolidated net tangible assets,
capitalization and such other relevant statements as shall
be required to demonstrate compliance with such conditions;
provided, however, that in any case in which deferred
obligations for the payment of the purchase price of
property are incurred or issued such officers' certificate
need not be filed with the Trustee prior to or
simultaneously with such incurring or issue unless the
aggregate principal amount of the deferred obligations so
incurred or issued and of all other deferred obligations
incurred or issued by the Company and its subsidiaries
during the same calendar year and as to which no officers'
certificate shall theretofore have been filed equals or
exceeds $500,000; when any officers' certificate shall be
filed with respect to the incurring or issue of any such
deferred obligations such officers' certificate shall
specify all such deferred obligations theretofore incurred
or issued during the same calendar year and as to which no
44
officers' certificate shall theretofore have been filed; if
any such deferred obligations shall have been incurred or
issued during a calendar year and no officers' certificate
shall have been filed with respect thereto, the Company
will, on or before March 31 of the succeeding calendar year,
file with the Trustee an officers' certificate covering such
deferred obligations.
(B) For the purpose of evidencing compliance with the
provisions of Section 6.08, the Company will, on or before
April 1 in each calendar year commencing with the year 1972,
file with the Trustee an officers' certificate setting
forth, in such reasonable detail as the Trustee shall
require:
(a) the consolidated net income available for
dividends of the Company and its subsidiaries subsequent
to December 31, 1970, to the close of the preceding
calendar year;
(b) the respective amounts referred to in Section
6.08 which have been authorized or approved by the
Securities and Exchange Commission or by any successor
commission or authority administering the Public Utility
Holding Company Act of 1935; and
(c) the respective amounts declared or paid by the
Company subsequent to and including the close of the
preceding calendar year, as dividends or other
distributions upon any of its capital stock or in the
purchase or redemption or other acquisition for a
consideration of any of its capital stock (excluding
dividends paid in capital stock and capital stock
purchased, redeemed or otherwise acquired, to the extent
that it was acquired in exchange for or with the
proceeds of the issue of other capital stock) and
amounts paid by a subsidiary subsequent to December
31,1970, as consideration for the acquisition of the
Company's capital stock; the aggregate amount of said
payments; and separately the amount of all capital stock
purchased, redeemed or otherwise acquired during said
period in exchange for or with the proceeds of the issue
of other capital stock.
SECTION 6.11. The Company will at all times (subject to
its right to merge, consolidate or convey all or
substantially all of its property and assets pursuant to
Article Thirteen, and thereafter dissolve) take or cause to
be taken all such action as may from time to time be
necessary to maintain, preserve and renew its corporate
existence and its franchise to be a corporation.
45
SECTION 6.12. The Company will, upon reasonable request
of the Trustee, execute and deliver such further instruments
and do such further acts as may be necessary or proper to
carry out more effectually the purposes of this Indenture.
SECTION 6.13. The Company will cause
(a) each subsidiary duly and punctually to pay the
interest, as and when due and payable, on all
outstanding indebtedness of such subsidiary and to pay
and discharge all other liabilities at the time
outstanding as and when due and payable and duly and
punctually to keep, observe and perform each and every
term, covenant and condition contained in the
instrument evidencing or securing such indebtedness or
under which such indebtedness shall have been issued
and in each and every indenture supplemental thereto,
on the part of such subsidiary to be kept, observed and
performed; and will prevent any default or other event
from happening whereby the right might arise to enforce
any such instrument by foreclosure or otherwise;
(b) each subsidiary to take or cause to be taken all
action necessary to preserve, extend and renew its
corporate existence, and to preserve in full force and
effect, and to take all reasonable means to procure
extensions or renewals of, all rights, franchises,
licenses, permits and privileges, to it granted or
conferred upon it by law or at the time otherwise
possessed by it and at the time necessary or
advantageous in the continued and efficient conduct of
its business, and duly to observe and conform to all
covenants, terms and conditions contained in any
franchise, license or permit under or pursuant to which
any part of its property is or shall be constructed,
held, maintained or operated; and
(c) that part of the property of the Company and
each subsidiary which is of an insurable nature or of a
character customarily insured by other companies
operating like or similar properties to be insured and
at all times kept insured against loss, destruction or
damage by fire to an amount and on terms determined by
the Company in the exercise of prudent judgment;
provided however, that the Company or its subsidiaries
shall be free to adopt, in lieu of or supplementing
such insurance, such other proper plan or method of
46
protection against loss, destruction or damage by fire
as shall be determined by the Company in the exercise
of prudent judgment.
Nothing in this Section 6.13 shall, or is intended to,
(a) require the payment or discharge of any indebtedness,
liability, claims or demands, so long as the validity
thereof, or the liability therefor, shall be in good faith
contested, or (b) prevent any subsidiary from ceasing to
operate any plant or other property or from abandoning same,
if in the judgment of such subsidiary, it shall be advisable
and to the best interests of such subsidiary so to do, or
(c) obligate the Company or any subsidiary to perform or
omit to perform any acts so long as the validity thereof, or
the obligation for the performance or omission thereof, is
in good faith contested, or (d) prevent the Company or any
subsidiary from taking such action in respect of the
properties or franchises of any subsidiary as shall be
proper and customary under the circumstances and not
detrimental or prejudicial to the interests of the Debenture
holders, or (e) prevent any subsidiary from merging or
consolidating with, or transferring its assets to, the
Company or to another subsidiary or, under the conditions
provided in Section 6.09, another corporation.
SECTION 6.14. The Company will, on or before the first
day of May in each calendar year commencing with the year
1972, file with the Trustee an officers' certificate stating
that a review of the activities of the Company and its
subsidiaries during the preceding calendar year (or, in the
case of the officers' certificate filed in 1972, during the
period from the date of execution hereof, to December 31,
1971) has been made under the supervision of the signers of
such certificate with a view to determining whether the
Company has kept, observed, performed and fulfilled all the
covenants, agreements and obligations on its part in this
Indenture contained and that to the best of their knowledge
(i) the Company is not in default in the performance,
observance or fulfillment of any of the terms, provisions
and conditions hereof, and (ii) no event has happened which
with the passage of time would constitute an event of
default. If any default or any such event exists, such
officers' certificate shall specify all such defaults or
events and the nature thereof.
47
ARTICLE SEVEN.
Remedies of Trustee and Debentureholders.
SECTION 7.01. Except where otherwise indicated by the
context or where the term is otherwise defined for a
specific purpose, the term "default" wherever used in this
Indenture shall mean one of the following-described events:
(a) the failure of the Company for a period of sixty
days to pay any installment of interest on any of the
Debentures, when and as the same shall become payable;
(b) the failure of the Company to pay the principal of
(or premium, if any, on) any of the Debentures when and
as the same shall become due and payable, whether at
maturity or otherwise;
(c) the failure of the Company for a period of sixty
days to make due payment or satisfaction of any sinking
fund or analogous obligation as required by this
Indenture or any indenture supplemental hereto;
(d) the failure of the Company to observe and perform
any other of the covenants or agreement on the part of
the Company contained in this Indenture or in any
indenture supplemental hereto, which failure shall have
continued unremedied for a period of ninety days after
written notice, from the Trustee to the Company, or from
the holders of not less than 25% of the Debentures
outstanding to the Company and the Trustee, specifying
such failure and requiring the Company to remedy the
same;
(e) a period of ninety days shall have elapsed after
(1) the adjudication of the Company as a bankrupt by
a court of competent jurisdiction;
(2) the entry by such a court of an order approving
a petition seeking reorganization of the Company under
the Federal bankruptcy laws or any other applicable law
or statute of the United States of America or any State
thereof; or
(3) the appointment by such a court of a trustee or
receiver or receivers of the Company or of all or any
48
substantial part of its property upon the application
of any creditor in any insolvency or bankruptcy
proceeding or other creditor's suit;
but such period of ninety days shall not include
any period during which any such decree or order shall
be stayed upon appeal or otherwise; or
(f) the filing by the Company of a petition in
voluntary bankruptcy or the making by it of an
assignment for the benefit of creditors or the
consenting by it to the appointment of a receiver or
receivers of all or any substantial part of the
property of the Company; or the filing by the Company
of a petition or answer seeking reorganization under
the Federal bankruptcy laws or any other applicable law
or statute of the United States of America or any State
thereof; or the filing by the Company of a petition to
take advantage of any debtor's act.
SECTION 7.02. If any one or more of the above-
described defaults shall happen, then, and in each and every
such case, during the continuance of any such default,
either the Trustee, by notice in writing to the Company, or
the holders of at least 25% in principal amount of the
Debentures then outstanding, by notice in writing to the
Company and to the Trustee, may declare the principal of all
the Debentures then outstanding (if not then due and
payable) to be due and payable, and upon any such
declaration the same shall become and be immediately due and
payable, anything in this Indenture or in the Debentures
contained to the contrary notwithstanding. This provision,
however, is subject to the condition that if at any time
after the principal of the Debentures shall have been so
declared to be due and payable and before any judgment or
decree for the payment of the moneys shall have been
obtained or entered as hereinafter provided, the principal
of all the Debentures which shall have matured otherwise
than by said declaration and all arrears of interest, if
any, upon all the Debentures (with interest on any overdue
principal and installments of interest at the rate borne by
the Debentures) and the reasonable charges and expenses of
the Trustee, its agents and attorneys, shall be paid by the
Company or deposited with the Trustee, and every other
default under this Indenture shall have been made good to
the reasonable satisfaction of the Trustee, or provision
deemed by the Trustee to be adequate therefor shall have
been made, then and in every such case the holders of a
majority in principal amount of the Debentures then
outstanding, by written notice to the Company and the
Trustee, may waive the default by reason of which the
principal of the Debentures shall have been so declared to
be due and payable and may rescind and annul such
49
declaration and its consequences; but no such waiver,
rescission or annulment shall extend to or affect any
subsequent default or impair any right consequent thereon.
SECTION 7.03. If the Company shall fail for a period
of sixty days to pay any installment of interest on any of
the Debentures or shall fail to pay the principal of (or
premium, if any, on) any of the Debentures when and as the
same shall become due and payable, whether at maturity or
otherwise, then, upon demand of the Trustee, the Company
will pay to the Trustee for the benefit of the holders of
the Debentures then outstanding the whole amount which then
shall have become due and payable on all such Debentures,
with interest on the overdue principal and, so far as
permitted by law, installments of interest at the rate borne
by the Debentures, the reasonable compensation to the
Trustee, its agents and attorneys, and any other reasonable
expenses and liabilities incurred without negligence or bad
faith by the Trustee under this Indenture.
In case the Company shall fail forthwith to pay
such amounts, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to
institute any action or proceedings at law or in equity for
the collection of the sum so due and unpaid, and may
prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final
decree against the Company or any other obligor on the
Debentures, and collect the moneys adjudged or decreed to be
payable out of the property of the Company or any other
obligor on the Debentures, wherever situated, in the manner
provided by law. Every recovery of judgment in any such
action or other proceeding, subject to the payment of the
expenses, disbursements and compensation of the Trustee, its
agents and attorneys, shall be for the ratable benefit of
the holders of the Debentures which shall be the subject of
such action or proceedings. All rights of action upon or
under any of the Debentures or this Indenture may be
enforced by the Trustee without the possession of any of the
Debentures and without the production of any thereof at any
trial or any proceedings relative thereto.
The Trustee is hereby appointed, and each and every
holder of the Debentures, by receiving and holding the same,
shall be conclusively deemed to have appointed the Trustee,
the true and lawful attorney-in-fact of such holder, with
authority to make or file (whether or not the Company shall
be in default in respect of the payment of the principal of,
or interest on, any of the Debentures, and whether or not
50
the Trustee shall have made any demand for payment pursuant
to the provisions of this Section 7.03), in its own name
as trustee of an express trust or otherwise as it shall deem
advisable, in any receivership, insolvency, liquidation,
bankruptcy, reorganization or other judicial proceedings
relative to the Company, its creditors or its property, or
any other obligor on the Debentures, its creditors or its
property, any and all claims, proofs of debt, petitions,
consents, other documents and amendments of any thereof, and
to receive payment of any sums that shall be distributable
in any such proceedings on account of any of the Debentures,
and to execute and deliver any and all other papers and
documents and to do and perform any and all other acts and
things that it may deem necessary or advisable in order to
enforce in any such proceedings any of the claims of any of
such holders in respect of any of the Debentures; and any
receiver, assignee, trustee or debtor in any such
proceedings is hereby authorized, and each and every holder
of the Debentures, by receiving and holding the same, shall
be deemed to have authorized any such receiver, assignee,
trustee or debtor, to make payment of any and all such sums
to or on the order of the Trustee, and to pay to the Trustee
any amount due it for compensation and expenses, including
counsel fees, incurred by it down to the date of such
payment and, without limiting the generality of the
foregoing, the Trustee is authorized to file such proofs of
claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of
the holders of the Debentures allowed in any judicial
proceedings relative to the Company or any other obligor on
the Debentures, its creditors, or its property; provided,
however, that nothing herein contained shall be deemed to
authorize or empower the Trustee to consent to or accept or
adopt, on behalf of any holder of Debentures, any plan of
reorganization or readjustment of the Company affecting the
Debentures or the rights of any holder thereof, or to
authorize or empower the Trustee to vote in respect of the
claim of any holder of any Debentures in any such
proceedings.
SECTION 7.04. Any moneys collected by the Trustee under
this Article Seven shall be applied by the Trustee as
follows:
First: To the payment of all costs and expenses in
connection with the collection of such moneys, including
reasonable compensation to the Trustee, its agents and
attorneys, and all expenses, liabilities and advances
incurred or made without negligence or bad faith by the
Trustee hereunder.
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Second: To the payment of the amounts then due and
unpaid upon the Debentures in respect of which such moneys
shall have been collected, ratably and without preference or
priority of any kind, according to the amounts due and
payable on such Debentures, at the date fixed by the Trustee
for the distribution of such moneys, upon presentation of
the several Debentures and notation thereon of the payment,
if only partially paid, and upon the surrender and
cancellation thereof, if fully paid; provided, however, that
if the time for the payment of any claim for interest upon
any of the Debentures shall have been extended, or, if any
such claim at or after maturity shall have been transferred
or pledged separate from the Debenture to which it relates,
such claim for interest shall not be entitled in case of
default hereunder to the benefit of this Indenture except
after prior payment in full of the principal of all
Debentures then outstanding and of all claims for interest
on such Debentures the payment of which has not been so
extended, or which have not been so transferred or pledged.
Third: To the payment of any surplus then remaining to
the Company, its successors or assigns, or to whosoever may
be lawfully entitled to receive the same.
SECTION 7.05. Upon any sale made under any writ of
execution issued on any judgment for the recovery of the
indebtedness evidenced by the Debentures or recovered under
this Indenture, any purchaser shall be entitled, in making
settlement or payment of the purchase price of the property
purchased, to present and to turn in and use any of the
Debentures, such Debentures being computed for that purpose
at a sum equal to that which shall be payable out of the net
proceeds of such sale to such purchaser as the holder
thereof for his share of such net proceeds; and, if the
amounts so payable in respect of such Debentures shall be
less than the amount for which the Company may be liable
thereon, then the receipt endorsed thereon under the
direction of any person authorized to receive payment of the
purchase price for the amount to be so allowed or credited
thereon shall constitute partial payment and settlement and
shall be conclusive proof of the amount thereof. At any such
sale any holder or holders of the Debentures may directly,
or through one or more agents, bid for and purchase the
property sold for his or their own account and make payment
52
therefor as aforesaid or otherwise and may hold, retain and
dispose of such property without further accountability.
SECTION 7.06. In case of a default hereunder the Trustee
may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights, either
by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in
this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Upon the filing of a bill in equity or other commencement of
judicial proceedings to enforce the rights of the trustee
and of the Debenture holders, the Trustee shall be entitled,
as a matter of right, to the appointment of a receiver or
receivers of the property of the Company, and of the tolls,
rents, revenues, issues, earnings, income and profits
thereof pending such proceedings with such powers as the
court making such appointment shall confer.
SECTION 7.07. The holders of a majority in principal
amount of the Debentures at the time outstanding may direct
the time, method and place of conducting any proceeding for
any remedy available to the Trustee hereunder, or of
exercising any trust or power hereby conferred upon the
Trustee; provided, however, that subject to the provisions
of Section 10.02, the Trustee shall have the right to
decline to follow any such direction if the Trustee, being
advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the
Trustee in good faith shall, by responsible officers,
determine that the action or proceeding so directed would
involve the Trustee in personal liability.
The Trustee shall, upon the written request of the
holders of a majority in principal amount of the Debentures
at the time outstanding, waive any past default hereunder
and its consequences, except a default in the payment of the
principal of the Debentures at the date of maturity stated
therein; provided, however, that the Trustee shall not (1)
waive a default in the payment of interest on the
Debentures, unless all arrears of interest, and, to the
extent that payment of such interest shall be legally
enforceable, interest on overdue installments of interest at
the rate borne by the Debentures, shall have been paid by
the Company or shall have been provided for by the deposit
53
with the Trustee in trust of a sum sufficient to pay the
same, or (2) waive a default in the payment of the
redemption price of any of the Debentures that shall
theretofore have been called for redemption, unless such
redemption price, with interest thereon at the rate borne by
the Debentures, shall have been paid by the Company or shall
have been provided for by the deposit with the Trustee in
trust of a sum sufficient to pay the same. In case of any
such waiver, the Company, the Trustee and the holders of the
Debentures shall be restored to their former positions and
rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any
right consequent thereon.
SECTION 7.08. No holder of any Debenture shall have any
right to institute any action, suit or proceeding at law or
in equity for the execution of any trust hereunder or for
the appointment of a receiver or for any other remedy
hereunder, unless such holder previously shall have given to
the Trustee written notice of the happening of one or more
of the defaults herein specified, and unless also the
holders of 25% in principal amount of the Debentures then
outstanding shall have requested the Trustee in writing to
take action in respect of the matter complained of, and
shall have afforded to it a reasonable opportunity either to
proceed to exercise the powers herein granted or to
institute such action, suit or proceeding in its own name,
and unless also there shall have been offered to the Trustee
security and indemnity satisfactory to it against the costs,
expenses and liabilities to be incurred therein or thereby,
and unless the Trustee, for thirty days after receipt of
such notification, request and offer of indemnity, shall
have neglected and refused to institute any such action,
suit or proceeding; and such notification, request and offer
of indemnity are hereby declared in every such case to be
conditions precedent to any such action, suit or proceeding
by any holder of any Debentures; it being understood and
intended that no one or more of the holders of Debentures
shall have any right in any manner whatsoever by his or
their action to enforce any right hereunder, except in the
manner herein provided, and that every action, suit or
proceeding at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal
benefit of all holders of outstanding Debentures which shall
be the subject of such action, suit or proceeding.
Notwithstanding any other provisions in this Indenture,
however, the right of any holder of any Debenture to receive
payment of the principal of and interest on such Debenture,
on or near the respective due dates expressed in such
54
Debenture, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be
impaired or affected without the consent of such holder.
All parties to this Indenture and the holders of the
Debentures agree that the court may in its discretion
require, in any action, suit or proceeding for the
enforcement of any right or remedy under this Indenture, or
in any action, suit or proceeding against the Trustee for
any action taken or omitted by it as Trustee, the filing by
any party litigant in such action, suit or proceeding of an
undertaking to pay the costs of such action, suit or
proceeding, and that such court may in its discretion assess
reasonable costs, including reasonable attorney's fees,
against any party litigant in such action, suit or
proceeding, having due regard to the merits and good faith
of the claims or defenses made by such party litigant;
provided, however, that the provisions of this paragraph
shall not apply to any action, suit or proceeding instituted
by the Trustee, to any action, suit or proceeding instituted
by any one or more holders of Debentures holding in the
aggregate more than ten per cent in principal amount of the
Debentures then outstanding, or to any action, suit or
proceeding instituted by any holder of Debentures for the
enforcement of the payment of the principal of, or the
interest on, any of the Debentures, on or after the
respective due dates expressed in such Debentures.
SECTION 7.09. No remedy herein conferred upon or reserved
to the Trustee or to the holders of Debentures is intended
to be exclusive of any other remedy or remedies, and each
and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. No
delay or omission of the Trustee or of any holder of the
Debentures to exercise any right or power accruing upon any
default shall impair any such right or power or shall be
construed to be a waiver of any such default or an
acquiescence therein; and every power and remedy given by
this Article Seven to the Trustee and to the holders of
Debentures, respectively, may be exercised from time to time
and as often as may be deemed expedient by the Trustee or by
the holder of Debentures, as the case may be. In case the
Trustee or any holder of Debentures shall have proceeded to
enforce any right under this Indenture and the proceedings
for the enforcement thereof shall have been discontinued or
abandoned because of waiver or for any other reason or shall
have been determined adversely to the Trustee or to such
holder of Debentures, then and in every such case the
Company, the Trustee and the holders of the Debentures shall
55
severally and respectively be restored to their former
positions and rights hereunder and thereafter all rights,
remedies and powers of the Trustee shall continue as though
no such proceedings had been taken.
SECTION 7.10. The Company will not at any time insist
upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the terms of performance
of this Indenture; and the Company hereby expressly waives
all benefit or advantage of any such law or laws, and
covenants that it will not hinder, delay or impede the
execution of any power herein granted and delegated to the
Trustee, but will suffer and permit the execution of every
such power as though no such law or laws had been made or
enacted.
ARTICLE EIGHT.
Debentureholders' Acts, Holdings and Apparent Authority.
SECTION 8.01. Any demand, request, notice, direction,
consent, waiver, appointment, removal or other instrument
required or permitted by this Indenture to be signed and
executed by holders of Debentures may be in any number of
concurrent writings of similar tenor and may be signed or
executed by such holders in person or by agent appointed in
writing, and, subject to the provisions of Section 10.02,
proof of the execution thereof or of the writing appointing
any such agent shall be sufficient for any purpose of this
Indenture and shall be conclusive in favor of the Trustee or
of the Company with regard to any action by them,
respectively, taken under such instrument; and such
execution may be proved in any reasonable manner which the
Trustee in its sole discretion may deem appropriate.
The fact of the holding of Debentures shall be
established by the register of such Debentures.
SECTION 8.02. In determining whether the holders of the
requisite principal amount of the Debentures have concurred
in any direction, request or consent under this Indenture,
Debentures which are owned by the Company or by any other
obligor on the Debentures or by any person directly or
indirectly controlling, or controlled by, or under direct or
indirect common control with, the Company or any such other
obligor, shall be disregarded, except that for the purpose
56
of determining whether the Trustee shall be protected in
relying on any such direction, request or consent only
Debentures which the Trustee knows are so owned shall be
disregarded.
ARTICLE NINE
Reports by the Company and the Trustee and
Debentureholders' Lists
SECTION 9.01. (a) The Trustee shall transmit to the
holders of Debentures, as hereinafter provided, on or before
July 15, 1972, and on or before the fifteenth day of July in
each year thereafter, a brief report as of the last
preceding fifteenth day of May with respect to
(l) its eligibility under Section 10.06 and its
qualifications under Section 10.05 to serve as Trustee
hereunder, or in lieu thereof, if to the best of its
knowledge it has continued to be eligible and
qualified under said Sections, a written statement to
that effect;
(2) the character and amount of any advances (and if
the Trustee elects so to state, the circumstances
surrounding the making thereof) made by it as Trustee
which remain unpaid on the date as of which such report
is made and for the reimbursement of which it claims or
may claim a lien or charge, prior to that of the
Debentures, on any property or funds held or collected
by it as Trustee, if such advances so remaining unpaid
aggregate more than one-half of one per cent of the
principal amount of the Debentures outstanding on the
date as of which such report is made;
(3) the amount, interest rate and maturity date of
all other indebtedness owing to it in its individual
capacity, on the date as of which such report is made,
by the Company or any other obligor on the Debentures,
with a brief description of any property held as
collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner
described in paragraph (2), paragraph (3), paragraph (4)
or paragraph (6) of subdivision(f) of Section 10.08;
(4) the property and funds, if any, physically in its
possession as Trustee on the date as of which such
report is made;
57
(5) any additional issue of Debentures which it has
not previously reported; and
(6) any action taken by it in the performance of
its duties under this Indenture which it has not
previously reported and which in its opinion materially
affects the Debentures, except action in respect of a
default, notice of which has been or is to be withheld
by the Trustee in accordance with the provisions of
Section 10.03.
(b) If (i) since the date of the last report transmitted
pursuant to the provisions of subdivision (a) of this
Section 9.01 (or, if no such report has yet been
transmitted, since the date of the execution of this
Indenture), the Trustee shall have made any advances for the
reimbursement of which it claims or may claim a lien or
charge prior to that of the Debentures on property or funds
held or collected by it as Trustee, (ii) the Trustee has not
previously reported such advances pursuant to this
subdivision (b) and (iii) such advances remaining unpaid
shall at any time aggregate more than ten per cent of the
principal amount of the Debentures then outstanding, the
Trustee shall, within ninety days after such time, transmit
to the holders of Debentures, a brief report of the
character and amount of such advances (and if the Trustee
elects so to state, the circumstances surrounding the making
thereof).
(c) Each report pursuant to the provisions of this
Section 9.01 shall be transmitted by mail to all registered
holders of Debentures, as the names and addresses of such
holders appear upon the registration books of the Company.
(d) The Trustee shall, at the time of the transmission
to the holders of Debentures of any report pursuant to the
provisions of this Section 9.01, file a copy of such report
with each stock exchange upon which any of the Debentures
are listed and also with the Securities and Exchange
Commission.
The Company will reimburse the Trustee for all expenses
incurred in the transmission of any report pursuant to the
provisions of this Section 9.01.
SECTION 9.02. (a) The Company will file with the
Trustee, within fifteen days after the Company shall be
required to file the same with the Securities and Exchange
Commission, copies of the annual reports and of the
information, documents and other reports which the Company
58
may be required to file with the Securities and Exchange
Commission pursuant to the provisions of Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 (or
copies of such portions of any of the foregoing as the
Securities and Exchange Commission may by rules and
regulations prescribe); or, if the Company is not required
to file information, documents or reports pursuant to the
provisions of either of such Sections, then the Company will
file with the Trustee and the Securities and Exchange
Commission, in accordance with rules and regulations
prescribed by the Securities and Exchange Commission, such
of the supplementary and periodic information, documents and
reports which may be required pursuant to the provisions of
Section 13 of the Securities Exchange Act of 1934, in
respect of a security listed and registered on a national
securities exchange, as may be prescribed in such rules and
regulations.
(b) The Company will file with the Trustee and the
Securities and Exchange Commission, in accordance with rules
and regulations prescribed by the Securities and Exchange
Commission, such additional information, documents and
reports with respect to compliance by the Company with the
conditions and covenants provided for in this Indenture as
may be required by such rules and regulations.
(c) The Company will transmit to the holders of
Debentures, within thirty days after the filing thereof
with the Trustee (unless some other time
shall be fixed by the Securities and Exchange
Commission) and in the manner and to the extent provided
in subdivision (c) of Section 9.01, such summaries of
any information, documents and reports required to be
filed by the Company pursuant to the provisions of
subdivisions (a) and (b) of this Section 9.02 as may be
required by rules and regulations prescribed by the
Securities and Exchange Commission.
SECTION 9.03. (a) The Company will furnish or cause to
be furnished to the Trustee, semi-annually, not less than
forty-five days nor more than sixty days after May 1 and
November 1, in each year, beginning with November l, 1971,
and at such other times as the Trustee may request
in writing, in such form as the Trustee may reasonably
require, all the information in the possession or control of
the Company as of a date not more than fifteen days prior to
the date of furnishing or causing such information to be
furnished, as to the names and addresses of the holders of
the Debentures, which the Company shall have obtained since
59
the date as of which the next previous information as to the
names and addresses of holders of Debentures, if any, was
furnished, but so long as the Trustee is the Registrar for
the Debentures, no such information shall be required to be
furnished by the Company.
(b) The Trustee will preserve, in as current form as is
reasonably practicable, all information as to the names and
addresses of holders of Debentures so furnished to it or
received by it in the capacity of paying agent or Debenture
Registrar or filed with it by holders of Debentures for the
purpose of receiving reports. The Trustee may (1) destroy
any information furnished to it as provided in subdivision
(a) of this Section 9.03 or received by it as paying agent
or Debenture Registrar in connection with an interest
payment upon receipt of new similar information so furnished
to or received by it; (2) except as provided in ( l ) above,
destroy any information received by it as paying agent or
Debenture Registrar in connection with an interest payment,
but not until forty-five days after a subsequent interest
payment shall have been made; and (3) destroy all
information received by it from holders of Debentures, but
not until two years after such information shall have been
filed with it.
(c) Within five business days after the receipt by the
Trustee of a written application by any three or more
holders of Debentures stating that such holders (hereinafter
in this subdivision (c) called such applicants) desire to
communicate with other holders of Debentures with respect to
their rights under this Indenture or under the Debentures
and accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, and
by reasonable proof that each such applicant has owned a
Debenture for a period of at least six months preceding the
date of such application, the Trustee will at its election,
either
(1) afford to such applicants access to all
information furnished to, or received by, and preserved
by, the Trustee pursuant to the provisions of this
Section 9.03; or
(2) inform such applicants as to the approximate
number of holders of Debentures according to the most
recent information so furnished to, or received by, and
preserved by, the Trustee, and as to the approximate
cost of mailing to such holders of Debentures the form
of proxy or other communication, if any, specified in
such application.
60
If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall,
upon the written request of such applicants, mail to all
holders of Debentures whose names and addresses are
contained in the information so furnished to, or received
by, and preserved by, the Trustee copies of the form of
proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or
provision for the payment of the reasonable expenses of such
mailing, unless within five days after such tender, the
trustee shall mail to such applicants, and file with the
Securities and Exchange Commission, together with a copy of
the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the holders of Debentures
or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If The
Securities and Exchange Commission, after opportunity for a
hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain
any of the objections specified in the written statement so
filed, or if, after the entry of an order sustaining one or
more of such objections. the Securities and Exchange
Commission shall find, after notice and opportunity for
hearing, that all objections so sustained have been met, and
shall enter an order so declaring, the Trustee shall mail
copies of such material to all such holders of Debentures
with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants
respecting their application.
Each and every holder of the Debentures, by receiving
and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee shall be
held accountable by reason of the disclosure of any such
information as to the names and addresses of the holders of
Debentures in accordance with the provisions of this
subdivision (c), regardless of the source from which such
information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant
to a request made under this subdivision (c).
61
ARTICLE TEN.
Concerning the Trustee.
SECTION 10.01. The Trustee accepts the trusts created by
this Indenture upon the terms and Conditions hereof,
including the following, to all of which the parties hereto
and the holders from time to time of the Debentures agree:
(a) The Trustee shall be entitled to reasonable
compensation for all services rendered by it hereunder
(which compensation shall not be limited by any
provision of law in regard to the compensation of a
trustee of an express trust), and such compensation, as
well as the reasonable compensation of its counsel, and
all other reasonable expenses incurred by the Trustee
hereunder in good faith and without negligence, and all
advances made by the Trustee in accordance with any
provision of this Indenture in good faith and without
negligence, the Company agrees to pay promptly on demand
from time to time as such services shall be rendered and
as such expenses shall be incurred or advances made. If
any property other than cash shall at any time be
subject to the lien of this Indenture, the Trustee, if
and to the extent authorized by a receivership or
bankruptcy court of competent jurisdiction or by the
instrument subjecting such property to such lien, shall
be entitled to make advances for the purpose of
preserving such property or of discharging tax liens or
other prior liens or encumbrances thereon. In default of
such payment by the Company, the Trustee shall have a
lien therefor on any moneys held by the Trustee
hereunder prior to any rights therein of the holders of
the Debentures. The reasonable fees and expenses of the
Trustee (including the reasonable charges and expenses
of its counsel) shall be preferred over the claims of
the Debenture holders in any reorganization or other
similar proceedings. The Company also agrees to
indemnify the Trustee for, and to hold it harmless
against any loss, liability or expense incurred, without
negligence or bad faith on the part of the Trustee,
arising out of or in connection with the acceptance,
administration or satisfaction of this trust, as well as
the costs and expenses of defending against any claim of
liability in the premises.
62
(b) The Trustee may execute any of the trusts or powers
hereof and perform any duty hereunder either directly or by
its agents and attorneys.
(c) The Trustee shall not be responsible in any manner
whatsoever for the correctness of the recitals of fact
herein or in the Debentures (except its certificate of
authentication thereon), all of which are made by the
Company solely; and the Trustee shall not be responsible or
accountable in any manner whatsoever for or with respect to
the validity or execution or sufficiency of this Indenture,
of any supplemental indenture, or of the Debentures, and the
Trustee makes no representation with respect thereto. The
Trustee shall not be accountable for the use or application
by the Company of any Debentures, or the proceeds of any
Debentures, authenticated and delivered by the Trustee in
conformity with the provisions of this Indenture.
(d) The Trustee may consult with counsel (who need not
be appointed by the Company as provided in Section 1.02),
and, to the extent permitted by Section 10.02, the advice or
opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken
or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel.
(e) The Trustee, to the extent permitted by Section
10.02, may rely upon the certificate of the Secretary or an
Assistant Secretary of the Company, under its corporate
seal, as to the adoption of any resolution by its Board of
Directors or Executive Committee or stockholders.
(f) The Trustee, in its individual or any other
capacity, may become the owner or pledgee of Debentures with
the rights it would have had if it were not Trustee
hereunder.
(g) Any action taken by the Trustee pursuant to any
provision hereof at the request or with the consent of any
person who at the time of such request or consent is the
holder of any Debenture shall be conclusive and binding in
respect of such Debenture upon all future holders thereof,
whether or not such Debenture shall have noted thereon the
fact that such request or consent had been made or given.
63
(h) The Trustee, to the extent permitted by Section
10.02, shall be under no obligation to exercise any of the
trusts or powers hereof at the request, order or direction
of any of the Debentureholders, pursuant to the provisions
of this Indenture, unless such Debentureholders shall have
offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be
incurred therein or thereby.
(i) The Trustee, to the extent permitted by Section
10.02, may rely and shall be protected in relying upon any
resolution, certificate, opinion, report, statement,
request, consent, Debenture or other instrument or paper
believed by it to be genuine and to have been signed or
presented by the proper parties.
(j) Whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter
(unless other evidence in respect thereof be herein
specifically prescribed) may, to the extent permitted by
Section 10.02. be deemed to be conclusively proved and
established by a certificate signed in the name of the
Company by its Chairman of the Board, or the President, or a
Vice president, and its Secretary, or an Assistant
Secretary, or its Treasurer, or an Assistant Treasurer, or
its Controller, or an Assistant Controller.
SECTION 10.02. If a default specified in Section 7.01
shall have happened, then, so long as the same shall be
subsisting, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and shall use the
same degree of care and skill in their exercise as a prudent
man would exercise or use under the circumstances in the
conduct of his own affairs. None of the provisions of this
Indenture shall be construed as relieving the Trustee from
liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that,
anything in this Indenture contained to the contrary
notwithstanding,
(1) unless and until a default specified in Section
7.01 shall have happened which at the time is subsisting,
(a) the Trustee shall not be liable except for the
performance of such duties as are specifically set out
in this Indenture and no implied covenants or
64
obligations shall be read into this Indenture against
the Trustee, whose duties and obligations shall be
determined solely by the express provisions of this
Indenture; and
(b) the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the
opinions expressed therein, in the absence of bad faith
on the part of the Trustee, upon certificates or
opinions furnished to it pursuant to and conforming to
the requirements of this Indenture; but in the case of
any such certificates or opinions which, by the
provisions of this Indenture, are specifically required
to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether
or not they conform to the requirements of this
Indenture;
(2) the Trustee shall not be liable to any holder of
Debentures or to any other person for any error of
judgment made in good faith by a responsible officer or
officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable to any holder of
Debentures or to any other person with respect to any
action taken or omitted to be taken by it in good faith,
in accordance with the direction of the holders of a
majority in principal amount of the Debentures at the
time outstanding (determined as provided in Section
8.02), relating to the time, method and place of
conducting any proceeding for any remedy available to it
or exercising any trust or power conferred upon it by
this Indenture.
Notwithstanding any provisions of this Indenture
authorizing the Trustee conclusively to rely upon any
certificates or opinions, the Trustee may, before taking
or refraining from taking any action in reliance upon
any certificate furnished by the Company require any
further evidence or make any further investigation as to
the facts or matters stated therein which it may, in
good faith, deem reasonable in the circumstances, and in
connection therewith the Trustee may examine or cause to
be examined the pertinent books, records and premises of
the Company; and the Trustee sha11, in any case, require
such further evidence or make such further investigation
as may be requested by the holders of a majority in
principal amount of the Debentures then outstanding,
provided that, if payment to the Trustee of the costs,
expenses and liabilities likely to be incurred by it in
65
making such investigation is not reasonably assured to
the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee before making such
investigation may require reasonable indemnity against
such costs, expenses or liabilities. Any further
evidence which may be requested by the Trustee pursuant
to any of the provisions of this Section 10.02 shall be
furnished by the Company at its own expense; and any
costs, expenses and liabilities incurred by the Trustee
in connection with any further investigation made by it
pursuant to any of the provisions of this Section 10.02
shall be paid by the Company, or, if paid by the
Trustee, shall be repaid by the Company upon demand,
with interest at the rate of four per cent per. annum,
and, until such repayment, shall be secured by a lien on
any moneys held by the Trustee hereunder prior to any
rights therein of the holders of Debentures.
SECTION 10.03. The Trustee shall, within ninety days
after the happening thereof, give to the holders of the
debentures notice of the happening of any default, known to
it to be then subsisting, unless such default shall have
been cured before the giving of such notice (the term
"default" for the purposes of this Section 10.03 being
hereby defined to be any of the events specified in Section
7.01 not including any period of grace therein provided for
and irrespective of the giving of the written notice
specified in subdivision (d) of said Section 7.01), but, in
the case of any default of the character specified in
subdivision (d) of said Section 7.01, no such notice shall
be given until at least sixty days after the occurrence of
the event giving rise to such default; provided that, unless
such event be the failure to pay the principal of, or the
interest on, any of the Debentures when and as the same
shall become payable, or the failure to meet any sinking
fund requirement, the Trustee shall be protected in
withholding such notice, if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or responsible officers of the Trustee in good
faith determines that the withholding of such notice is in
the interest of the holders of the Debentures. Such notice
shall be given to the holders of the Debentures in the
manner and to the extent provided in subdivision (c) of
Section 9.01.
SECTION 10.04. The Trustee, or any successor to it
hereafter appointed, may at any time resign and be
discharged of the trusts hereby created by giving to the
Company notice in writing, and mailing notice of the
resignation of the Trustee to the holders of the Debentures
in the manner and to the extent provided in subdivision (c)
of Section 9.01. Such resignation shall take effect upon
66
the appointment by the holders of the Debentures or by the
Company as hereinafter provided of a successor trustee
having the qualifications prescribed in Sections 10.05 and
10.06, and the acceptance of such appointment by such
successor trustee. Any trustee hereunder may be removed at
any time by the filing with such trustee and the delivery to
the Company of an instrument in writing signed by the
holders of a majority in principal amount of the Debentures
then outstanding, specifying such removal and the date when
it shall become effective.
Upon its resignation or removal, any trustee shall be
entitled to the payment of reasonable compensation for the
services rendered hereunder by such trustee and to the
payment of all reasonable expenses incurred hereunder and
all moneys then due to it hereunder.
SECTION 10.05. (a) If the Trustee has or shall acquire
any conflicting interest, as the term "conflicting interest"
is defined in subdivision (d) of this Section 10.05, the
Trustee shall, within ninety days after ascertaining that it
has such conflicting interest, either eliminate such
conflicting interest or resign, the resignation to become
effective upon the appointment of a successor trustee and
the acceptance by such successor trustee of such
appointment. If the Trustee shall resign, the Company shall
take prompt steps to have a successor appointed in the
manner provided in Section 10.06.
(b) In the event that the Trustee shall fail to comply
with the provisions of subdivision (a) of this Section
10.05, the Trustee shall, within ten days after the
expiration of such ninety-day period, transmit notice of its
failure in that regard to the holders of Debentures in the
manner and to the extent provided in subdivision (c) of
Section 9.01.
(c) Subject to the provisions of the last paragraph of
Section 7.08, any holder of a Debenture who has been a bona
fide holder of a Debenture for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal
of the Trustee, and the appointment of a successor trustee,
if the Trustee shall fail, after written request therefor by
such holder, to comply with the provisions of subdivision
(a) of this Section 10.05.
(d) For the purposes of this Section 10.05, the Trustee
shall be deemed to have a conflicting interest, if
(1) the Trustee is trustee under another indenture
under which any other securities, or certificates of
interest or participation in any other securities of
67
the Company are outstanding; provided, however, that
there shall be excluded from the operation of this
paragraph (1) this Indenture and any such other
indenture or indentures under which other securities,
or certificates of interest or participation in other
securities, of the Company are outstanding, if (i) this
Indenture and such other indenture or indentures are
wholly unsecured, and such other indenture or
indentures are hereafter qualified under the Trust
Indenture Act of 1939, unless the Securities and
Exchange Commission shall have found and declared by
order pursuant to subsection (b) of Section 305 or
subsection (c) of Section 307 of the Trust Indenture
Act of 1939 that differences exist between the
provisions of this Indenture and the provisions of such
other indenture which are so likely to involve a
material conflict of interest as to make it necessary
in the public Interest or for the protection of
investors to disqualify the Trustee from acting as
trustee under one of said indentures, or (ii) the
Company shall have sustained the burden of proving, on
application to the Securities and Exchange Commission
and after opportunity for hearing thereon, that
trusteeship under this Indenture and such other
indenture is not so likely to involve a material
conflict of interest as to make it necessary in the
public interest or for the protection of investors to
disqualify the Trustee from acting as trustee under one
of said indentures; and provided, further, that there
shall be excluded from the operation of this paragraph
(1) the Indenture between the Company and The Hanover
Bank (now by merger Manufacturers Hanover Trust
Company), as Trustee, dated August 1, 1954, under which
the Company's 3% Debentures Due 1978 are outstanding
and the Indenture between the Company and Manufacturers
Hanover Trust Company, as Trustee, dated as of
September 1, 1965, under which the Company's 4 3/4%
Debentures Due September 1, 1990 are outstanding;
(2) the Trustee or any of its directors or executive
officers is an obligor upon the Debentures or an
underwriter for the Company;
(3) the Trustee directly or indirectly controls, or is
directly or indirectly controlled by, or is under direct or
indirect common control with, the Company or an underwriter
for the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee,
appointee or representative of the Company, or of an
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underwriter (other than the Trustee itself) for the Company
who is currently engaged in the business of underwriting,
except that (A) one individual may be a director and/or
executive officer of the Trustee and a director and/or an
executive officer of the Company, but may not be at the
same time an executive officer of both the Trustee and the
Company, and (B) if and so long as the number of directors
of the Trustee in office is more than nine, one additional
individual may be a director and/or an executive officer of
the Trustee and a director of the Company, and (C) the
Trustee may be designated by the Company or by any
underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal
agent, escrow agent or depositary or in any other similar
capacity, or, subject to the provisions of paragraph (1) of
this subdivision (d), to act as trustee, whether under an
indenture or otherwise;
(5) ten per cent or more of the voting securities of the
Trustee is beneficially owned either by the Company or by
any director or executive officer thereof, or twenty per
cent or more of such voting securities is beneficially
owned, collectively, by any two or more of such persons; or
ten per cent or more of such voting securities is
beneficially owned either by an underwriter for the Company
or by any director, partner or executive officer thereof, or
is beneficially owned, collectively, by any two or more of
such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as
the term "default" is defined in Clause (B) of the second
paragraph following paragraph (9) of this subdivision (d),
(A) five per cent or more of the voting securities, or ten
per cent or more of any other class of security, of the
Company, not including debentures and not including
securities issued under any other indenture under which the
Trustee is also trustee, or (B) ten per cent or more of any
class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as
the term "default" is defined in C1ause (B) of the second
paragraph following paragraph (9) of this subdivision (d),
five per cent or more of the voting securities of any person
69
who, to the knowledge of the Trustee, owns ten per cent or
more of the voting securities of, or controls directly
or indirectly, or is under direct or indirect common control
with, the company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as
the term "default" is defined in Clause (B) of the second
paragraph following paragraph (9) of this subdivision (d),
ten per cent or more of any class of security of any person
who, to the knowledge of the Trustee, owns fifty per cent or
more of the voting securities of the Company; or
(9) the Trustee owns, on May 15 in any year, in the
capacity of executor, administrator, testamentary or inter
vivos trustee, guardian, committee or conservator, or in any
other similar capacity, an aggregate of twenty-five per cent
or more of the voting securities, or of any class of
security, of any person, the beneficial ownership of a
specified percentage of which would have constituted a
conflicting interest under paragraph (6), paragraph (7) or
paragraph (8) of this subdivision (d). As to any of such
securities of which the Trustee acquired ownership through
becoming executor, administrator or testamentary trustee of
an estate which included them, the provisions of the
preceding sentence shall not apply, for a period of two
years from the date of such acquisition, to the extent that
such securities included in such estate do not exceed
twenty-five per cent of such voting securities or twenty-
five per cent of any such class of security. Promptly after
May 15, in each year, the Trustee shall make a check
of its holdings of such securities in any of the above-
mentioned capacities as of such May 15. If the Company
shall fail to make payment in full of principal of or
interest on any of the Debentures, when and as the same
becomes due and payable, and such failure shall continue for
thirty days thereafter, the Trustee shall make a prompt
check of its holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration
of such thirty-day Period, and after such date,
notwithstanding the foregoing provisions of this paragraph
(9), all such securities so held by the Trustee, with
sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be
70
considered as though beneficially owned by the Trustee, for
the purposes of paragraphs (6), (7) and (8) of this
subdivision (d).
The specification of percentages in paragraphs (5) to
(9), inclusive, of this subdivision (d) shall not be
construed as indicating that the ownership of such
percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect
control for the purposes of paragraph(3) or paragraph (7) of
this subdivision (d).
For the purposes of paragraphs (6), (7), (8) and (9) of
this subdivision (d), (A) the terms "security" and
"securities" shall include only such securities as are
generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by
one or more banks, trust companies or banking firms, or any
certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed
to be in default when a default in payment of principal
shall have continued for thirty days or more and shall not
have been cured; and (C) the Trustee shall not be deemed the
owner or holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an
obligation which is not in default as the term "default" is
defined in this paragraph, or (ii) any security which it
holds as collateral security under this Indenture,
irrespective of any default hereunder, or (iii) any security
which it holds as agent for collection, or as a custodian,
escrow agent or depositary, or in any similar representative
capacity.
For the purposes of this subdivision (d) the term
"underwriter' when used with reference to the Company means
every person who, within three years prior to the time as of
which the determination is made, has purchased from the
Company with a view to, or has offered or sold for the
Company in connection with, the distribution of any security
of the Company which is outstanding at the time the
determination is made, or has participated or has had a
direct or indirect participation in any such undertaking, or
has participated or has had a participation in the direct or
indirect underwriting of any such undertaking; but such term
shall not include a person whose interest was limited to a
commission from an underwriter or dealer not in excess of
the usual and customary distributors' or sellers'
commission.
For the purposes of this subdivision (d) the term "voting
security" shall mean any security presently entitling the
owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security
71
issued under or pursuant to any trust, agreement or
arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently
entitled to vote in the direction of management or the
affairs of a person.
The percentages of voting securities and other securities
specified in this subdivision (d) shall be calculated in
accordance with the following provisions:
(A) A specified percentage of the voting securities of a
person means such amount of the outstanding voting
securities of such person as entitles the holder or holders
thereof to cast such specified percentage of the aggregate
votes which the holders of all the outstanding voting
securities of such person are entitled to cast in the
direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of
securities of the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount, if relating to evidences of
indebtedness; the number of shares, if relating to capital
shares; and the number of units, if relating to any other
kind of security.
(D) The term "outstanding" means issued and not held by
or for the account of the issuer. The following securities
shall not be deemed outstanding within the meaning of this
definition:
(i) Securities of an issuer held in a sinking fund
relating to securities of the issuer of the same class;
(ii) Securities of an issuer held in a sinking fund
relating to another class of securities of the issuer,
if the obligation evidenced by such other class of
securities is not in default as to principal or interest
or otherwise;
(iii) Securities pledged by the issuer thereof as
security for an obligation of the issuer not in default
as to principal or interest or otherwise;
(iv) Securities held in escrow, if placed in escrow
by the issuer thereof;
72
provided, however, that any voting securities of an
issuer shall be deemed outstanding, if any person other
than the issuer is entitled to exercise the voting
rights thereof.
(E) A security shall be deemed to be of the same class
as another security, if both securities confer upon the
holder or holders thereof substantially the same rights and
privileges; provided, however, (1) that, in the case of
secured evidences of indebtedness all of which are issued
under a single indenture, differences in the interest rates
or maturity dates of various series thereof shall not be
deemed sufficient to constitute such series different
classes, and (2) that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity
dates thereof shall not be deemed sufficient to constitute
them securities of different classes, whether or not they
are issued under a single indenture.
The term "the Company", whenever used in this
subdivision (d), shall include every other person which, at
the time in question, is an obligor on the Debentures.
SECTION 10.06. In case at any time the Trustee shall
resign, or shall be removed (unless the Trustee shall be
removed as provided in subdivision (c) of Section 10.05, in
which event the vacancy shall be filled as provided in said
subdivision), or shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or if a receiver of the
Trustee or of its property shall be appointed, or if any
public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, a successor
trustee may be appointed by the holders of a majority in
principal amount of the Debentures then outstanding, by an
instrument or concurrent instruments in writing signed in
duplicate by such holders and filed, one original thereof
with the Company and the other with the successor trustee;
but, until a successor trustee shall have been so appointed
by the holders of Debentures as herein authorized, the
Company by a resolution or, in case all or substantially all
of the assets of the Company shall be in the possession of
one or more receivers lawfully appointed, or of trustees in
bankruptcy or reorganization proceedings (including a
trustee or trustees appointed under the provisions of the
Bankruptcy Act), or of assignees for the benefit of
creditors, such receivers, trustees or assignees, as the
case may be, by an instrument in writing, shall appoint a
73
successor trustee. Upon the appointment and acceptance as
aforesaid of a successor trustee the Trustee shall cease to
be Trustee hereunder. After any such appointment other than
by the holders of Debentures, the person making such
appointment shall forthwith cause notice thereof to be
mailed to the holders of the Debentures in the manner and to
the extent provided in subdivision (c) of Section 9.01 or,
if for any reason the names and addresses of all registered
holders of Debentures shall not be available to such person,
shall forthwith cause such notice to be published on at
least three different days in a daily newspaper printed in
the English language and of general circulation in the
Borough of Manhattan, in The City of New York; but any
successor trustee so appointed shall, immediately and
without further act, be superseded by a successor trustee
appointed by the holders of Debentures in the manner above
prescribed, if such appointment be made prior to the
expiration of one year from the date of mailing or the first
publication of such notice by the Company, or by such
receivers, trustees or assignees.
If any trustee shall resign because of a conflict of
interest as provided in subdivision (a) of Section 10.05 and
a successor trustee shall not have been appointed by the
Company or by the holders of Debentures, or, if any
successor trustee so appointed shall not have accepted its
appointment within thirty days after such appointment shall
have been made, the resigning trustee may apply to any court
of competent jurisdiction for the appointment of a successor
trustee. If in any other proper case a successor trustee
shall not be appointed pursuant to the foregoing provisions
of this Section 10.06 within three months after such
appointment might have been made hereunder, the holder of
any Debenture or any retiring trustee may apply to any court
of competent jurisdiction to appoint a successor trustee.
Such court may thereupon, in any such case, after such
notice, if any, as such court may deem proper and prescribe,
appoint a successor trustee.
The Company covenants that whenever necessary to avoid or
fill a vacancy in the office of Trustee, the Company will,
in the manner provided in this Section 10.06, appoint a
successor trustee so that there shall at all times be a
trustee under this Indenture, which shall at all times be a
corporation organized and doing business under the laws of
the United States of America or of the State of New York, in
good standing and having its principal office in the Borough
of Manhattan, in The City of New York, which is authorized
under such laws to exercise corporate trust powers and is
subject to supervision or examination by Federal or State
authority and which has a combined capital and surplus of
74
not less than Five Million Dollars. For the purposes of this
Section 10.06 the combined capital and surplus of any such
trustee shall be deemed to be the combined capital and
surplus as set forth in the most recent report of its
condition published by such trustee, provided that such
reports are published at least annually, pursuant to law or
to the requirements of a Federal or State supervising or
examining authority. If the Trustee or any successor trustee
shall at any time cease to have the qualifications
prescribed in this paragraph, it shall promptly resign as
trustee hereunder.
Any successor trustee appointed hereunder shall execute,
acknowledge and deliver to its predecessor trustee and to
the Company, or to the receivers, trustees, assignees or
court appointing it, as the case may be, an instrument
accepting such appointment hereunder, and thereupon such
successor trustee, without any further act, deed or
conveyance, shall become vested with all the authority,
rights, powers, trusts, immunities, duties and obligations
of such predecessor trustee with like effect as if
originally named as trustee hereunder, and such predecessor
trustee shall thereupon become obligated to pay over, and
such successor trustee shall be entitled to receive, all
moneys on deposit with or held by such predecessor trustee
as trustee hereunder. Nevertheless, on the written request
of the Company or of the successor trustee or of the holders
of ten per cent in principal amount of the Debentures then
outstanding, such predecessor trustee, upon payment of its
charges and disbursements then unpaid, shall execute and
deliver an instrument transferring to such successor trustee
upon the trusts herein expressed all the rights, powers and
trusts of such predecessor trustee, and shall assign,
transfer and deliver to the successor trustee all moneys and
properties held by such predecessor trustee; and upon
request of any such successor trustee, the Company shall
make, execute, acknowledge and deliver any and all
instruments in writing for more fully and effectually
vesting in and confirming to such successor trustee all such
rights, powers, trusts, immunities, duties and obligations.
SECTION 10.07. Any corporation into which the Trustee or
any successor to it in the trusts created by this Indenture
may be merged or converted, or any corporation with which it
or any successor to it may be consolidated, or any
corporation resulting from any merger or consolidation to
which the Trustee or any such successor to it shall be a
party, or any corporation to which the Trustee or any
successor to it shall sell or otherwise transfer all or
substantially all the assets and business of the Trustee,
75
shall be the successor trustee under this Indenture without
the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to
the contrary notwithstanding; provided, however, that such
corporation shall have the qualifications prescribed in
Sections 10.05 and 10.06. In case at the time such successor
to the Trustee shall succeed to the trusts created by this
Indenture any of the Debentures shall have been
authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of the
original Trustee or of any successor to it as trustee
hereunder, and deliver such Debentures so authenticated; and
in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee by merger
or consolidation or conversion may authenticate such
Debentures either in the name of its predecessor hereunder
or in the name of the successor trustee; and in all such
cases such certificate shall have the full force which it is
anywhere in the Debentures or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 10.08. (a) If the Trustee shall be, or shall
become, a creditor, directly or indirectly, secured or
unsecured, of the Company (other than in a relationship
specified in subdivision (f) of this Section 10.08), within
four months prior to a default, as the term "default" is
defined in subdivision (e) of this Section 10.08, or
subsequent to such a default, then, unless and until such
default shall be made good, the Trustee shall set apart and
hold in a special account for the benefit of the Trustee
individually, the holders of Debentures and the holders of
any other indenture securities, as the term "other indenture
securities" is defined in said subdivision (e):
(1) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in
respect of principal or interest, effected after the
beginning of such four months' period and valid as against
the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subdivision (a),
or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such
default; and
(2) all property received by the Trustee in respect of
any claim as such creditor, either as security therefor, or
in satisfaction or composition thereof or otherwise, after
the beginning of such four months' period, or an amount
76
equal to the proceeds of any such property, if disposed of,
subject however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
(b) Nothing contained in this Section 10.08 shall affect
the right of the Trustee:
(1) to retain for its own account (i) payments made on
account of any such claim by any person (other than the
Company) who is liable thereon, and (ii) the proceeds of the
bona fide sale of any such claim by the Trustee to a third
person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Bankruptcy Act or applicable
State law;
(2) to realize, for its own account, upon any property
held by it as security for any such claim, if such property
was so held prior to the beginning of such four months'
period;
(3) to realize, for its own account, but only to the
extent of the claim hereinafter mentioned, upon any property
held by it as security for any such claim, if such claim was
created after the beginning of such four months' period and
such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in subdivision (e) of
this Section 10.08, would happen within four months; or
(4) to receive payment on any claim referred to in
paragraph (2) or paragraph (3) of this subdivision (b)
against the release of any property held as security for
such claim as provided in said paragraph (2) or said
paragraph (3), as the case may be, to the extent of the fair
value of such property.
For the purposes of paragraphs (2), (3) and (4) of this
subdivision (b), property substituted after the beginning of
such four months' period for property held as security at
the time of such substitution shall, to the extent of the
77
fair value of the property released have the same status as
the property released, and, to the extent that any claim
referred to in any of such paragraphs is created in renewal
of, or in substitution for, or for the purpose of repaying
or refunding, any pre-existing claim of the Trustee as such
creditor, such claim shall have the same status as such pre-
existing claim.
(c) If the Trustee shall be required to account, the
funds and property held in a special account pursuant to the
provisions of this Section 10.08 and the proceeds thereof
shall be apportioned among the Trustee, the holders of
Debentures and the holders of other indenture securities in
such manner that the Trustee, the holders of Debentures and
the holders of other indenture securities realize, as a
result of payments from such special account and payments of
dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization
pursuant to the Bankruptcy Act or applicable State law, the
same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of
the receipt by it from the Company of the funds and property
in such special account and before crediting to the
respective claims of the Trustee, the holders of Debentures
and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant
to the Bankruptcy Act or applicable State law, but after
crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources
other than from such dividends and from the funds and
property so held in such special account. As used in this
subdivision (c) with respect to any claim, the term
"dividends" shall include any distribution with respect to
such claim in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Bankruptcy Act or
applicable State law, whether such distribution is made in
cash, securities, or other property, but shall not include
any such distribution with respect to the secured portion,
if any, of such claim. The court in which such bankruptcy,
receivership, or proceeding for reorganization shall be
pending shall have jurisdiction (i) to apportion among the
Trustee, the holders of Debentures and the holders of other
indenture securities, in accordance with the provisions of
this subdivision (c), the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of
such apportionment thereof, in whole or in part, to give to
the provisions of this subdivision (c) due consideration in
determining the fairness of the distributions to be made to
the Trustee, the holders of Debentures and the holders
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of other indenture securities with respect to their
respective claims, in which event it shall not be necessary
to liquidate or to appraise the value of any securities or
other property held in such special account or as security
for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this
subdivision (c) as a mathematical formula.
(d) In case the Trustee shall have resigned or been
removed after the beginning of such four months' period, the
Trustee shall be subject to the provisions of this Section
10.08 as though such resignation or removal had not
occurred. If the Trustee shall have resigned or been removed
prior to the beginning of such four months' period, it shall
be subject to the provisions of this Section 10.08 if and
only if the receipt of property or reduction of claim which
would have given rise to the obligation to account, if the
Trustee had continued as such trustee hereunder, had
occurred after the beginning of such four months' period and
within four months after such resignation or removal.
(e) As used in this Section 10.08, the term "default"
means any failure to make payment in full of principal of or
interest on the Debentures or any other indenture
securities, when and as such principal or interest becomes
due and payable; and the term "other indenture securities"
means securities upon which the Company is an obligor (as
the term "obligor" is defined in the Trust Indenture Act of
1939) outstanding under any other indenture under which the
Trustee is also trustee and which contains provisions
substantially similar to the provisions of this Section
10.08 and under which a default exists at the time of the
apportionment of the funds and property held in said special
account.
(f) None of the foregoing provisions of this Section
10.08 shall be applicable in respect of a creditor
relationship arising from:
(1) the ownership or acquisition of securities issued
under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(2) if any property other than cash shall at any time
be subject to the lien of this Indenture, advances
authorized by a receivership or bankruptcy court of
competent jurisdiction or by the instrument subjecting
such property to such lien, made for the purpose of
79
preserving such property or of discharging tax liens or
other prior liens or encumbrances thereon, if notice of
such advance and of the circumstances surrounding the
making thereof is given to the Debentureholders as
provided in subdivisions (a), (b) and (c) of Section
9.01 with respect to advances by the Trustee of such;
(3) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent,
fiscal agent or depositary, or other similar capacity;
(4) an indebtedness created as a result of services
rendered or premises rented; or an indebtedness created
as a result of goods or securities sold in a cash
transaction, as defined in this subdivision (f);
(5) the ownership of stock or of other securities of
a corporation organized under the provisions of Section
25(a) of the Federal Reserve Act as amended which is
directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance, or
negotiation of any drafts, bills of exchange,
acceptances or obligations which fall within the
classification of self-liquidating paper, as the term
"self-liquidating paper" is defined in this subdivision
(f).
The term "security" or "securities" as used in this
subdivision (f) shall have the same meaning as the
definition, singular and plural, respectively, of the term
"security" as that term is defined in the Securities Act of
1933, as amended prior to August 3, 1939.
The term "cash transaction" as used in paragraph (4) of
this subdivision (f) means any transaction in which full
payment for goods or securities sold is made within seven
days after the delivery of the goods or securities in
currency or in checks or other orders drawn upon banks or
bankers and payable upon demand.
The term "self-liquidating paper" as used in paragraph
(6) of this subdivision (f) means any draft, bill of
exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment,
storage or sale of goods, wares or merchandise and which is
secured by documents evidencing title to, possession of or
a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods,
80
wares or merchandise previously constituting the security,
provided that the security is received by the Trustee
simultaneously with the creation of the creditor
relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of
exchange, acceptance or obligation.
The term "the Company" whenever used in this Section
10.08, shall include every other person which, at the time
in question, is an obligor on the Debentures.
ARTICLE ELEVEN.
Defeasance.
SECTION 11.01. If and when the principal of, and the
interest on, all the Debentures and all other sums due
hereunder shall have been well and truly paid at the times
and in the manner therein and herein expressed, this
Indenture shall cease and determine, and, at the written
request of the Company, accompanied by the officers'
certificate and opinion of counsel required by Section
15.03, and upon proof being given to the reasonable
satisfaction of the Trustee that all the Debentures have
been paid or satisfied and upon payment of the costs,
charges and expenses incurred or to be incurred by the
Trustee in relation thereto or in carrying out the
provisions of this Indenture, the Trustee shall cancel and
satisfy this Indenture.
SECTION 11.02. If, at or prior to the maturity of the
Debentures, the Company shall deposit with the Trustee, in
trust for the pro rata benefit of the holders thereof, funds
sufficient to pay all sums, for principal and interest and
premium, if any, due or to become due on the Debentures at
the time outstanding, and shall pay all costs, charges and
expenses incurred or to be incurred by the Trustee in
relation thereto or in carrying out the provisions of this
Indenture, and (unless all the Debentures at the time
outstanding shall mature not more than six months after the
date of such deposit) upon delivery to the Trustee of (l)
proof satisfactory to the Trustee that notice of redemption
of all outstanding Debentures on a specified redemption date
has been given by mail as in Article Five provided; or (2)
proof satisfactory to the Trustee that arrangements have
been made insuring to the satisfaction of the Trustee that
such notice will be so given; or (3) a written instrument
executed by the Company under its corporate seal, and
expressed to be irrevocable, authorizing the Trustee to give
such notice for and on behalf of the Company, the Trustee,
on the written request of the Company accompanied by the
officers' certificate and opinion of counsel required by
81
Section 15.03, shall cancel and satisfy this Indenture. The
Trustee shall apply the moneys so deposited to the payment
to the holders of Debentures of all sums due and to become
due thereon for principal and interest and premium, if any.
SECTION ll.03. The Trustee shall not be required to pay
interest on any moneys deposited pursuant to the provisions
of this Indenture, and any such moneys remaining unclaimed
for six years after the maturity of the Debentures or after
the date fixed for the redemption thereof in the case of
moneys deposited for the payment of Debentures called for
redemption prior to the date of maturity therein expressed,
shall be repaid by the Trustee thereof to the Company upon
its request, and thereafter, anything in this Indenture to
the contrary notwithstanding, any rights of such holders of
Debentures in respect of which such moneys shall have been
deposited shall be enforceable only against the Company;
provided, however, that, before being required to make any
such payment to the Company, the Trustee may, at the expense
of the Company, cause to be published once a week for two
successive weeks (in each case on any day of the week) in an
authorized newspaper, a notice that said moneys remain
unclaimed and that, after a date specified in said notice,
which date shall not be less than ten nor more than twenty
days after the date of the second such publication of such
notice, the balance of such moneys then unclaimed will be
returned to the Company. It shall not be necessary for such
publications to be made in the same newspaper.
Any moneys which at any time shall be deposited by the
Company or on its behalf with the Trustee, as paying agent
or otherwise under this Indenture, shall be and are hereby
assigned, transferred and set over to the Trustee in trust
for the purpose for which such money shall have been
deposited; but such moneys need not be segregated from other
funds except to the extent required by law.
ARTICLE TWELVE.
Immunity of Incorporators, Stockholders,
Officers and Directors.
No recourse shall be had for the payment of the principal
of, or the interest on, or the premium, if any, on, any
Debentures, or any part thereof, or for any claim based
thereon or otherwise in respect thereof, or of the
indebtedness represented thereby or upon any obligation,
82
covenant or agreement of this Indenture, against any
incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or of any successor
corporation (either directly or through the Company or any
successor corporation), whether by virtue of any
constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture
and all the Debentures are solely corporate obligations, and
that no personal liability whatsoever shall attach to, or be
incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of any
successor corporation, either directly or indirectly through
the Company or any successor corporation, because of the
indebtedness hereby authorized or under or by reason of any
of the obligations, covenants, promises or agreements
contained in this Indenture or in any of the Debentures or
to be implied herefrom or therefrom, and that any such
personal liability is hereby expressly waived and released
as a condition of, and as part of the consideration for, the
execution of this Indenture and the issue of the Debentures.
ARTICLE THIRTEEN.
Consolidation, Merger and Sale.
SECTION 13.01. Subject to the provisions Of Section 6.09,
nothing contained in this Indenture or in the Debentures
shall be deemed to prevent the consolidation or merger of
the Company with or into any other corporation, or the
merger into the Company of any other corporation, or the
sale by the Company of its property and assets as, or
substantially as, an entirety, or otherwise; provided,
however, (l) that, in case of any such consolidation or
merger, the corporation resulting from such consolidation or
any corporation other than the Company into which such
merger shall be made shall succeed to and be substituted for
the Company with the same effect as if it had been named
herein as the party of the first part hereto and shall
become liable and be bound for, and shall expressly assume,
by indenture in form satisfactory to the Trustee executed
and delivered to the Trustee, the due and punctual payment
of the principal of, and the interest on, all the Debentures
then outstanding and the performance and observance of each
and every covenant and condition of this Indenture on the
part of the Company to be performed or observed, and (2)
that, as a condition of any such sale of the property and
83
assets of the Company as, or substantially as, an entirety,
the corporation to which such property and assets shall be
sold shall (a) expressly assume, as a part of the purchase
price thereof, the due and punctual payment of the principal
of, and the interest on, all the Debentures then outstanding
and the performance and observance of each and every
covenant and condition of this Indenture on the part of the
Company to be performed or observed, and (b) simultaneously
with the delivery to it of the conveyances or instruments of
transfer of such property and assets, execute and deliver to
the Trustee a proper indenture in form satisfactory to the
Trustee, whereby such purchasing corporation shall so assume
the due and punctual payment of the principal of, and the
interest on, all the Debentures then outstanding and the
performance and observance of each and every covenant and
condition of this Indenture on the part of the Company to be
performed or observed, to the same extent that the Company
is bound and liable.
SECTION 13.02. The Company will not consolidate with
any other corporation or permit the Company to be merged
into any other corporation or sell its property and assets
as, or substantially as, an entirety except upon the terms
and conditions set forth in this Article Thirteen. Upon any
consolidation or merger, or any sale of the property and
assets of the Company as, or substantially as, an entirety
in accordance with the provisions of this Article Thirteen,
the corporation formed by such consolidation or into which
the Company shall have been merged or to which such sale
shall have been made shall succeed to and be substituted for
the Company with the same effect as if it had been named
herein as a party hereto, and thereafter from time to time
such corporation may exercise each and every right and power
of the Company under this Indenture, in the name of the
Company or in its own name; and any act or proceeding by any
provision of this Indenture required or permitted to be done
by any board or officer of the Company may be done with like
force and effect by the like board or officer of any
corporation that shall at the time be the successor of the
Company hereunder.
84
ARTICLE FOURTEEN.
Supplemental Indentures.
SECTION 14.01. The Company and the Trustee may, from time
to time and at any time, enter into such indentures
supplemental hereto as shall be deemed by them necessary or
desirable, for one or more of the following purposes:
(a) To add to the covenants and agreements of the
Company for the protection or benefit of the holders of
Debentures;
(b) To add appropriate provisions in the event of
the pledge, mortgage or hypothecation of property or
assets as security for the Debentures, as provided in
Section 6.04 or 6.09;
(c) To evidence the succession of another
corporation to the Company, or successive corporations,
and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company
upon the Debentures and under this Indenture;
(d) For any other purpose not inconsistent with the
terms of this Indenture, or for the purpose of curing
any ambiguity or of curing, correcting or supplementing
any defective or inconsistent provisions, contained
herein or in any supplemental indenture; and
(e) To set forth the terms of the Debentures of any
series in addition to the May 1, 1996 Debentures.
The Trustee, to the extent permitted by Section 10.02,
shall be fully protected in relying upon the request of the
Company as proof of the necessity or desirability of any
supplemental indenture provided for in this Section 14.01
and upon an officers' certificate and an opinion of counsel
that such supplemental indenture complies with the
provisions of this Section 14.01.
SECTION 14.02. Subject to the terms and provisions
contained in this Section, and not otherwise, the Company
and the Trustee may execute such indenture or indentures
supplemental hereto as shall be by the Company deemed
necessary or desirable for the purpose of modifying or
amending in any particular not provided for under Section
14.01 any of the terms or provisions contained in this
Indenture or in any supplemental indenture or in any
Debenture, with the consent of holders of sixty-six and two-
85
thirds percent in aggregate principal amount of the
Debentures at the time outstanding and of the holders of
sixty-six and two-thirds per cent in aggregate principal
amount of the Debentures at the time outstanding of any
series specifically affected by such modification or
amendment in case one or more, but less than all, of the
series of the Debentures then outstanding under this
Indenture are so affected (subject to the provisions of
Section 8.02); provided, that nothing herein contained shall
permit, or be construed as permitting (a) the extension of
the maturity specified by the terms of any Debentures issued
hereunder, or the reduction of the rate of interest thereon
or of the premium, if any, payable upon redemption thereof,
or any other modification in the terms of payment of
principal or interest or premium, without the express
consent of the holders of such Debentures, or (b) the
reduction of 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 all Debentures at the time outstanding.
If at any time the Company shall request the Trustee to
enter into any supplemental indenture pursuant to the
provisions of this Section accompanied by a resolution
authorizing the execution thereof, the Trustee shall,
at the expense of the Company, cause notice of the proposed
execution of such supplemental indenture to be mailed to the
holders of Debentures in the manner and to the extent
provided in subdivision (c) of Section 9.01. Such
notice shall briefly set forth the nature of the proposed
supplemental indenture, and shall state that a copy thereof
is on file at the principal office of the Trustee in the
Borough of Manhattan, City and State of New York, for
inspection by all holders of Debentures.
SECTION 14.03. Whenever the Company shall deliver to
the Trustee an instrument or instruments executed by the
holders of at least sixty-six and two-thirds per cent in
aggregate principal amount of the Debentures at such time
outstanding and, where so required by the provisions of
Section 14.02, by the holders of at least sixty-six and two-
thirds per cent in aggregate principal amount of the
Debentures of any series at such time outstanding (subject
to the provisions of Section 8.02), which instruments shall
refer to the proposed supplemental indenture described in
such notice and shall specifically consent to and approve
the execution thereof in substantially the form of the copy
thereof referred to in such notice as on file with the
Trustee, together with an officers' certificate and an
86
opinion of counsel, thereupon, but not otherwise, the
Trustee shall execute, subject to Section 10.02, such
supplemental indenture in substantially such form, without
liability or responsibility to any holder of any Debenture,
whether or not such holder shall have consented thereto, and
no holder of any Debenture shall have any right or interest
to object to the execution of such supplemental indenture or
to object to any of the terms or provisions therein
contained, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to
enjoin or restrain the Trustee or the Company from executing
the same or from taking any action pursuant to the
provisions thereof.
Any consent given by the holder of any Debenture under
this Article Fourteen may be revoked at any time by such
holder or by his successor in title by filing written notice
of such revocation with the Trustee at its principal office;
provided, however, that such consent shall not be revocable
after the time when the holders of sixty-six and two-thirds
per cent in aggregate principal amount of the Debentures
outstanding at such time and, where required by the
provisions of Section 14.02, the holders of sixty-six and
two-thirds per cent in aggregate principal amount of the
Debentures of any series outstanding at such time, shall
have consented to such supplemental indenture. No notation
on any Debenture of the fact of such consent shall be
necessary, but any such written consent by the holder of any
Debenture shall be conclusive and binding on all future
holders and owners of the same Debenture and of all
Debentures delivered in exchange therefor, unless revoked in
the manner hereinabove in this Section 14.03 provided.
SECTION 14.04. Any supplemental indenture executed in
accordance with any of the provisions of this Article
Fourteen shall thereafter form a part of this Indenture; and
all the terms and conditions contained in any such
supplemental indenture as to any provisions authorized to be
contained therein shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all
purposes, and the respective rights, duties and obligations
under this Indenture of the Company, the Trustee and all
holders of outstanding Debentures shall thereafter be
determined, exercised and enforced hereunder subject, in all
respects, to such modifications and amendments; provided,
however, that all modifications of or additions to the terms
of this Indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as such Act shall be in effect
at the time of execution of such supplemental indenture and
that no such supplemental indenture shall modify the rights,
duties and immunities of the Trustee without its written
consent.
87
ARTICLE FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. Nothing in this Indenture expressed or
that may be implied from any of the provisions hereof is
intended, or shall be construed, to confer upon or to give
to any person or corporation other than the parties hereto
and the holders of the Debentures any right, remedy or claim
under or by reason of this Indenture or any covenant,
condition or stipulation hereof; and all covenants,
stipulations, promises and agreements in this Indenture
contained shall be for the sole and exclusive benefit of the
parties hereto and their successors and of the holders of
the Debentures.
SECTION 15.02. All Debentures paid or redeemed, or
delivered to the Trustee for any sinking or other analogous
fund provided for in this Indenture or any indenture
supplemental hereto or otherwise retired or surrendered in
exchange for new Debentures pursuant to any of the
provisions of this Indenture, shall be canceled by the
Trustee. Such canceled Debentures shall be delivered or
disposed of as directly by the Company, and no Debentures
shall be issued under this Indenture in lieu thereof. At
the direction of the Company, the Trustee may deliver to the
Company Debentures canceled by the Trustee or may destroy
such Debentures and deliver a certificate of such
destruction to the Company.
SECTION 15.03. As evidence of compliance with the
conditions precedent provided for in this Indenture
(including any covenants compliance with which constitutes a
condition precedent) which relate to the satisfaction and
discharge of this Indenture or to any other action to be
taken by the Trustee at the request or upon the application
of the Company, the Company will furnish to the Trustee an
officers' certificate stating that such conditions precedent
have been complied with and an opinion of counsel stating
that in his opinion such conditions precedent have been
complied with.
Unless herein otherwise expressly provided and to the
extent permitted by Section 10.02, any order, notice,
request, certificate or statement of the Company required or
permitted to be filed with the Trustee or to be made or
given under any provision hereof, shall be signed by the
Chairman of the Board, or the President, or a Vice
President, and by the Treasurer, or an Assistant Treasurer,
or by the Secretary, or an Assistant Secretary, or by the
Controller, or an Assistant Controller of the Company.
88
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
shall include (l) a statement that the person making such
certificate or opinion has read such condition or covenant;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person,
he has made such examination or investigation as is
necessary to enable him to express an informed opinion as
to whether or not such condition or covenant has been
complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has
been complied with:
SECTION 15.04. If any provision of this Indenture limits,
qualifies or conflicts with another provision included in
this Indenture which is required to be included in this
Indenture by any of the provisions of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, such
required provision shall control.
SECTION 15.05. Any notice or demand authorized by this
Indenture to be served on or given to the Company shall be
sufficiently served or given for all purposes, if it shall
be sent by registered mail to the Company addressed to it
at 00 Xxxxxxxxxxx xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at
such other address as may have been furnished in writing to
the Trustee by the Company.
SECTION 15.06. This Indenture may be executed in any
number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 15.07. This Indenture and each Debenture shall be
deemed to be a contract made under the laws of the State of
New York, and for all purposes shall be construed in
accordance therewith.
IN WITNESS WHEREOF, said Consolidated Natural Gas Company
has caused this Indenture to be executed in its corporate
name by its Chairman of the Board, or its President, or one
of its Vice Presidents and its corporate seal to be
hereunto affixed and to be attested by its Secretary, or an
Assistant Secretary, and said Manufacturers Hanover Trust
Company has caused this Indenture to be executed in its
89
corporate name by one of its Assistant Vice Presidents and
its corporate seal to be hereunto affixed and to be
attested by one of its Assistant Trust Officer, all as of
May l, 1971.
CONSOLIDATED NATURAL GAS COMPANY,
By X. X. Xxxxxxx
Chairman of the Board.
Attest:
Xxxxxx X. Xxxx
Secretary.
(CORPORATE SEAL)
MANUFACTURERS HANOVER TRUST COMPANY,
By X. X. XXXXX
Assistant Vice President.
Attest:
X. X. XXXXXX
Assistant Trust Officer.
(CORPORATE SEAL)
90
STATE OF NEW YORK, )
COUNTY OF NEW YORK,) SS..
On the 24th day of May, in the year 1971, before me
personally came X. X. Xxxxxxx, to me known, who, being by me
duly sworn, did depose and say that he resides at 00 Xxxxx
Xxxx, Xxxxxx Xxxxxx, Xxx Xxxx; that he is the Chairman of
the Board of CONSOLIDATED NATURAL GAS COMPANY, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument bearing the corporate
name of said corporation is such corporate seal; that it was
so affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like
order.
XXXXX X. XXXXXXXX
XXXXX X. XXXXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Nassau County
Certificate filed in New York County
Commission Expires March 30, 1972
STATE OF NEW YORK, )
COUNTY OF NEW YORK,) SS.:.
On the 24th day of May, in the year 1971, before me
personally came X. X. XXXXX, to me known, who, being by me
duly sworn, did depose and say that he resides at 000 Xxxxx
Xxxx Xxxx, Xxxxxxxxx Xxx Xxxx; that he is an Assistant Vice
President of MANUFACTURERS HANOVER TRUST COMPANY, one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument bearing the name of said
corporation is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation;
and that he signed his name thereto by like authority.
XXX X. XXXXXX
XXX X. XXXXXX
Notary Public, State of New York
No. 00-0000000
Qualified in Richmond County
Certificate filed in New York County
Commission Expires March 30 1972
CONSOLIDATED NATURAL GAS COMPANY
CERTIFICATE
I, Xxxxxx X. Xxxx, Secretary of CONSOLIDATED NATURAL GAS
COMPANY, a Delaware corporation (hereinafter called the "Company"),
DO HEREBY CERTIFY that the specimen fully-registered 8 -3/8%
Debentures Due May 1, 1996, appended hereto, in $1,000, $5,000, $10,000
and blank denominations, are true and correct copies of the forms
of fully-registered Debentures submitted to and approved by
the Board of Directors of said Company, at a meeting duly called
and held on May 19,1971, at which a quorum was present and acting
throughout, and that such action has not been in any manner rescinded
or modified by said Board.
I FURTHER CERTIFY that the facsimile signatures appearing on the
specimen copies of said fully-registered Debentures are facsimiles of
the genuine signatures of X.X. Xxxxxxx, Chairman of the Board,
and Xxxxxx X. Xxxx, Secretary, respectively, of the Company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
Consolidated Natural Gas Company this 27th day of May, 1971.
/s/ Xxxxxx X. Xxxx
_____________________________________
Secretary
I, Xxxx X. Xxxxxxxxx, an Assistant Secretary of Consolidated
Natural Gas Company, DO HEREBY CERTIFY that Xxxxxx X. Xxxx has been duly
elected, has duly qualified, and this day is the Secretary of said Company,
and has been the Secretary since December 31, 1970, and that the above
signature is his genuine signature.
WITNESS my hand and the seal of said Company this 27th day of
May, 1971.
/s/ Xxxx X. Xxxxxxxxx
______________________________________
Assistant Secretary
