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TWENTY-NINTH
SUPPLEMENTAL INDENTURE
TO
INDENTURE OF MORTGAGE AND
DEED OF TRUST
DATED AS OF MARCH 1, 1944
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MICHIGAN CONSOLIDATED GAS COMPANY
TO
CITIBANK, N.A.
AND
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TRUSTEES
DATED AS OF JULY 14, 1989
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CREATING AN ISSUE OF FIRST MORTGAGE BONDS,
designated
SECURED MEDIUM-TERM NOTES, SERIES A
DUE FROM 2 TO 30 YEARS FROM THE DATE OF ISSUE
------------
AND PROVIDING FOR THE MODIFICATION AND RESTATEMENT OF
SAID INDENTURE
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MICHIGAN CONSOLIDATED GAS COMPANY
TWENTY-NINTH SUPPLEMENTAL INDENTURE
DATED JULY 15, 1989
SUPPLEMENTAL TO INDENTURE OF MORTGAGE
AND DEED OF TRUST
DATED AS OF MARCH 1, 1944
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TABLE OF CONTENTS*
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PART I
PROVISIONS RELATED TO SECURED
MEDIUM-TERM NOTES, SERIES A
ARTICLE I.
CREATION OF AN ISSUE OF FIRST MORTGAGE
BONDS, DESIGNATED AND DISTINGUISHED
AS "SECURED MEDIUM-TERM NOTES, SERIES A".
SECTION 1.................................................................. 5
Bonds of the Twenty-sixth Series...................................... 5
SECTION 2.................................................................. 7
Redemption............................................................ 7
SECTION 3.................................................................. 8
Form of Bonds......................................................... 8
SECTION 4.................................................................. 16
Transfer and Exchange................................................. 16
SECTION 5.................................................................. 17
Temporary Bonds....................................................... 17
ARTICLE II.
ISSUE OF BONDS OF TWENTY-SIXTH SERIES.
Aggregate Principal Amount................................................. 18
PART II
RESTATEMENT OF INDENTURE
PARTIES.................................................................... 19
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*NOTE: The Table of Contents is not part of the original Indenture as executed.
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RECITALS:
Purpose of mortgage ............................................ 19
General descriptions of bonds .................................. 19
General form of coupon bond .................................... 20
General form of interest coupon ................................ 23
General form of registered bond without coupons ................ 23
Form of Trustee's certificate on all bonds ..................... 26
Due authorization of the Indenture ............................. 26
GRANTING CLAUSES .................................................... 26
Description of property mortgaged .............................. 26
Real estate ............................................... 27
Pipelines ................................................. 27
Gas plants, transmission and distribution systems ......... 28
Franchise, easements, etc. ................................ 28
Other property ............................................ 28
After-acquired property ................................... 28
Property hereafter expressly mortgaged or pledged ......... 28
Together with appurtenances ............................... 29
Property excepted and excluded from lien ....................... 29
Securities, receivables, cash and contracts ............... 29
Property and franchises of other corporations ............. 29
Merchandise, materials and supplies ....................... 29
Gas, by-products of gas, electricity, steam, water
and oil ................................................. 30
Automobiles, trucks and other transportation equipment .... 30
Property in Earth's orbit or otherwise in space ........... 30
Oil rights under gas and/or oil leases .................... 30
Certain real estate ....................................... 30
Right of Trustees or receiver to take possession of excepted
property on default .......................................... 30
Reservation of right to mortgage excepted property ............. 30
HABENDUM ............................................................ 31
Matters to which the conveyance is subject ..................... 31
DECLARATION OF TRUST ................................................ 31
DEFEASANCE .......................................................... 32
ARTICLE I.
DEFINITIONS
Purposes and limitation of definitions .............................. 32
Accountant .......................................................... 33
Accountant's certificate ............................................ 33
Acquired plan or system ............................................. 33
Additional bonds .................................................... 33
Affiliate ........................................................... 33
Appraiser ........................................................... 34
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Appraiser's certificate................................................... 34
Authorized Detroit newspaper.............................................. 34
Authorized New York newspaper............................................. 34
Board of Directors -- Board............................................... 35
Bonded.................................................................... 35
Bonds or property "theretofore bonded"............................... 36
Bondholders............................................................... 36
Bonds..................................................................... 37
Bonds "outstanding under this Indenture"............................. 37
Certified resolution...................................................... 37
Company................................................................... 37
Counsel................................................................... 37
Coupons................................................................... 37
Engineer.................................................................. 38
Engineer's certificate.................................................... 38
Event of default.......................................................... 38
Indenture................................................................. 38
Independent accountant.................................................... 38
Independent accountant's certificate...................................... 38
Independent appraiser..................................................... 39
Independent appraiser's certificate....................................... 39
Independent engineer...................................................... 39
Independent engineer's certificate........................................ 40
Lien of this Indenture.................................................... 40
Mortgaged property -- trust estate........................................ 40
Net property additions.................................................... 40
Officers' certificate..................................................... 41
Order of the Company -- request of the Company............................ 41
Original cost............................................................. 41
Permissible encumbrances.................................................. 41
Prior lien................................................................ 42
Prior ▇▇▇▇ ▇▇▇▇▇.......................................................... 42
Prior ▇▇▇▇ ▇▇▇▇▇ "outstanding"....................................... 42
Property additions........................................................ 43
Property retirements...................................................... 46
Publication of notice..................................................... 47
Redeemed bonds and redeemed prior ▇▇▇▇ ▇▇▇▇▇.............................. 47
Registered owner.......................................................... 48
Responsible officers of the Trustee....................................... 48
Supplemental indenture.................................................... 48
Trust Indenture Act of 1939............................................... 48
Trustee -- Individual Trustee -- Trustees................................ 48
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ARTICLE II.
DESCRIPTION, EXECUTION AND REGISTRATION OF BONDS.
Sec. 2.01 Issuance in series; title, form and designation; determination by Board of Directors;
supplemental indenture to define terms of each series; general provisions of bonds;
interest.............................................................................. 49
Sec. 2.02 Numbering, lettering and denominations; exchangeability............................... 53
Sec. 2.03 Execution of bonds; officers authorized; authentication of coupons..................... 54
Sec. 2.04 Authentication by Trustee; effect of Trustee's Certificate............................ 55
Sec. 2.05 Temporary bonds; exchange for definitive bonds........................................ 55
Sec. 2.06 Registration and transfer of bonds; agency in The City of New York; registration
and transfer elsewhere................................................................ 56
Sec. 2.07 Charges for registration, transfer and exchange....................................... 57
Sec. 2.08 Mutilated, destroyed, lost or stolen bonds; issuance of substitutes; effect of
substitute bond or coupon; cancellation of mutilated bonds and coupons................ 58
Sec. 2.09 Twenty-sixth Series of Bonds.......................................................... 58
ARTICLE III.
ISSUE OF BONDS.
Sec. 3.01 General provisions; aggregate principal amount unlimited; all bonds equally and
ratably secured....................................................................... 59
Sec. 3.02 Initial series--Retired at or before maturity in 1969................................. 59
Sec. 3.03 Issue of bonds upon basis of net property additions; 70% limitation................... 59
A. Compliance with Section 5.10 of Article V....................................... 60
B. Deduction of amount of prior ▇▇▇▇ ▇▇▇▇▇......................................... 60
C. 1. Certified resolution........................................................ 60
2. Engineer's certificate...................................................... 60
3. Independent engineer's certificate in certain cases......................... 62
4. Appraiser's certificate in certain cases.................................... 62
5. Accountant's certificate or independent accountant's certificate
as to net earnings.......................................................... 62
6. Instruments of conveyance, transfer and assignment.......................... 65
7. Opinion of counsel.......................................................... 65
8. Officers' certificate as to retirements, liens, no defaults and compliance
with conditions precedent................................................... 67
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9. Evidence of authorization by
governmental authorities ................ 69
Sec. 3.04 Issue of bonds upon the basis of prior ▇▇▇▇ ▇▇▇▇▇ ...... 69
A. Provisions for issuance ...................... 69
1. Certified resolution .................... 69
2. Delivery of prior ▇▇▇▇ ▇▇▇▇▇ or officers'
certificate of payment, reduction,
invalidity or redemption................. 69
3. Officers' certificate as to deduction of
prior ▇▇▇▇ ▇▇▇▇▇, bonding, no default,
liens and compliance with conditions
precedent ............................... 70
4. Opinion of counsel ...................... 70
5. Accountant's certificate or independent
accountant's certificate as to net
earnings in certain cases ............... 71
6. Evidence of authorization by governmental
authorities ............................. 71
B. Redeemed prior ▇▇▇▇ ▇▇▇▇▇ deemed paid ........ 71
C. Issue of bonds in respect to discharge of
mortgage securing prior ▇▇▇▇ ▇▇▇▇▇ ........... 71
a). Certified resolution; officers'
certificate; accountant's certificate;
independent accountant's certificate;
opinion of counsel ...................... 71
b). Additional officers' certificate ........ 72
c). Opinion of counsel as to discharge of
lien .................................... 72
Sec. 3.05 Issue of bonds upon deposit of cash with Trustee ....... 72
A. Certified resolution ......................... 72
B. Officers' certificate of no default and
compliance with conditions precedent ......... 72
C. Accountant's certificate or independent
accountant's certificate as to net earnings .. 72
D. Deposit of cash .............................. 72
E. Opinion of counsel ........................... 72
F. Evidence of authorization by governmental
authorities .................................. 73
Disposition of cash deposited .......................... 73
Sec. 3.06 Issue of bonds upon retirement of bonds previously
outstanding ............................................ 73
A. Certified resolution ......................... 74
B. Officers' certificate of no default and
compliance with conditions precedent ......... 74
C. Opinion of counsel ........................... 74
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D. Accountant's certificate or independent
accountant's certificate as to net earnings
in certain cases............................. 74
E. Officer's certificate........................ 74
F. Evidence of authorization by governmental
authorities.................................. 75
Redeemed bonds deemed paid.............................. 75
ARTICLE IV.
REDEMPTION OF BONDS.
Sec. 4.01 Notice of redemption; manner of giving notice to be
specified in supplemental indenture; redemption of
part of series; deposit of cash; effect of notice;
payment of redemption price.................................. 75
Sec. 4.02 Surrender for cancellation of bonds held by Company.......... 77
Sec. 4.03 Cancellation of redeemed bonds............................... 77
Sec. 4.04 Release of lien upon deposit of redemption money............. 78
Sec. 4.05 Notice to be mailed at least 30 days before redemption....... 78
Sec. 4.06 Failure to give notice does not affect validity.............. 78
Sec. 4.07 Redemption may be made conditional on deposit of moneys...... 78
ARTICLE V.
COVENANTS.
Sec. 5.01 To pay principal and interest and premium in accordance
with terms of bonds and coupons; to cancel coupons when
paid......................................................... 79
Sec. 5.02 To maintain agency for service of notices, etc., in The
City of New York............................................. 79
Sec. 5.03 Of title and warranty........................................ 79
Sec. 5.04 Of further assurances........................................ 80
Sec. 5.05 To record and file Indenture and additional instruments; to
furnish opinions of counsel as to recording.................. 80
Sec. 5.06 To preserve corporate existence, franchises, etc. ........... 81
Sec. 5.07 To perform all covenants and conditions of prior liens....... 81
Sec. 5.08 Against issuance of additional prior ▇▇▇▇ ▇▇▇▇▇ unless
deposited with Trustee....................................... 81
Sec. 5.09 A. To pledge and deposit acquired uncancelled prior
▇▇▇▇ ▇▇▇▇▇ with Trustee.............................. 82
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B. To cancel or deliver to Trustee prior ▇▇▇▇ ▇▇▇▇▇
on satisfaction of prior lien ..................... 82
C. To pay or deliver to Trustee cash and securities
released on satisfaction of prior lien ............ 82
D. Not to obtain release of cash held by trustee or
prior lien except on compliance with Section 5 of
Article VIII unless deposited with Trustee ......... 83
Sec. 5.10 "Restricted property" defined ............................. 83
Against applying for authentication of bonds, withdrawal or
reduction of cash, or release of property, if as a result
70% of the property additions then constituting restricted
property would exceed 15% of outstanding bonds and prior
▇▇▇▇ ▇▇▇▇▇ ................................................ 83
Sec. 5.11 Not to create or permit equal or prior liens on trust
estate other than liens existing on property at acquisition
and purchase money mortgages; right to contest validity of
liens ..................................................... 84
To subordinate future mortgages to the lien of this
Indenture; exceptions ..................................... 84
Sec. 5.12 To pay taxes; right to contest validity of taxes .......... 84
Sec. 5.13 To insure; application of proceeds of insurance; to furnish
officers' certificate as to insurance ..................... 85
Sec. 5.14 To maintain mortgaged property ............................ 87
Sec. 5.15 To observe covenants of the Indenture and supplemental
indentures ................................................ 87
Sec. 5.16 Not to dispose of trust estate or lease trust estate as a
whole or substantially as a whole except as authorized by
Articles VII and XIII ..................................... 87
Sec. 5.17 To permit Trustee to examine property and books; to file
with Trustees and Securities and Exchange Commission
certain information and reports; to transmit summaries of
certain documents and reports to bondholders; to furnish
Trustee with names and addresses of bondholders ........... 87
Sec. 5.18 Trustees empowered to make payments on default of
Company ................................................... 89
Sec. 5.19 To cause any paying agent to deliver to Trustee an
agreement to hold payments for benefit of bondholders and
to notify Trustee of defaults in payments; Company to hold
in trust sums to pay principal, premium and interest when
due if it acts as own paying agent ........................ 89
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ARTICLE VI.
CONCERNING SECURITIES PLEDGED OR MORTGAGED.
Sec. 6.01 Prior ▇▇▇▇ ▇▇▇▇▇ and other securities to be held by
Trustee for further security of bonds issued hereunder;
prior ▇▇▇▇ ▇▇▇▇▇ in coupon form to have unmatured
coupons attached; uncancelled prior ▇▇▇▇ ▇▇▇▇▇ received
by Trustee to be stamped; form of stamp; transfer to
Trustee; registration of prior ▇▇▇▇ ▇▇▇▇▇ or other
securities in the name of Trustee or its nominee ......... 90
Sec. 6.02 Payments on prior ▇▇▇▇ ▇▇▇▇▇ held by Trustee; no
payments while Company is not in default; enforcement
of prior ▇▇▇▇ ▇▇▇▇▇ on default; Trustee may exercise
rights of holder ......................................... 91
Company not to sell, assign or transfer any coupon or
right to interest on prior ▇▇▇▇ ▇▇▇▇▇; restruction on
collection of coupons or interest or other claim or
judgment, without consent of Trustee; coupons and interest
rights on prior ▇▇▇▇ ▇▇▇▇▇ subject to lien hereof......... 91
Sec. 6.03 Surrender of prior ▇▇▇▇ ▇▇▇▇▇ by Trustee to trustee of
prior lien ............................................... 92
Cancellation of prior ▇▇▇▇ ▇▇▇▇▇ when all bonds of
particular issue have been deposited with Trustee;
resolution and opinion of counsel required ............... 92
Sec. 6.04 Disposition of interest on and principal of purchase
money obligations and municipal or governmental bonds
held by Trustee; Trustee may exercise rights of holder ... 93
Sec. 6.05 Trustee deemed sole owner of pledged securities when
authorized under Indenture to exercise rights of holder;
Trustee to act at request of Company before default;
after default, Trustee may act in own discretion ......... 93
ARTICLE VII.
POSSESSION, USE, RELEASE AND TRANSFER OF PROPERTY.
Sec. 7.01 Until default, Company to have possession of property
and right to receive rents and profits free of lien
of Indenture, to use and consume materials and supplies,
to deal with choses in action and contracts (subject to
Article VI) and to alter, remove, change position of,
replace and renew property ............................... 94
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Sec. 7.02 Powers of Company while in possession of trust estate, without release by Trustees:
A. Disposal of worn-out equipment upon replacement thereof; disposal of materials,
merchandise and supplies in the ordinary conduct of business................................ 94
B. Surrender and modification of leases and right-of-way grants and abandonment of
gas ▇▇▇▇▇................................................................................... 94
C. Surrender and modification of franchises, etc., if right to continue business is
reserved under modified or new franchise.................................................... 94
Sec. 7.03 A. Sale or other disposition by Company and release by Trustees of property.................... 95
1. Officers' certificate.................................................................. 95
2. Engineer's certificate or independent engineer's certificate........................... 95
3. Cash equal to the consideration, if any, or fair value of property released;
permissible reductions in amount....................................................... 96
4. Opinion of counsel..................................................................... 99
B. Redeemed prior ▇▇▇▇ ▇▇▇▇▇ deemed paid....................................................... 100
C. Release of property subject to prior lien; Trustee to accept certificate of
receipt of consideration by trustee or holder of prior lien in lieu of
consideration............................................................................... 100
Sec. 7.04 Sale or other disposition by Company and release by Trustees of property of fair value not
in excess of $100,000 in any year..................................................................... 100
A. Officers' certificate requesting the release................................................ 101
B. Further Officer's Certificate............................................................... 101
C. Engineer's certificate...................................................................... 101
D. Opinion of counsel.......................................................................... 101
E. Deposit of consideration with Trustee....................................................... 101
F. Appraiser's certificate in certain cases.................................................... 101
If subject to prior lien, Trustee to accept certificate of receipt of
consideration by trustee or holder of prior lien in lieu of consideration................... 101
Sec. 7.05 Release of property taken by eminent domain or disposed of pursuant to requirement of
public authority; fair value fixed by court or public authority taken as fair value................... 102
Release of property purchased by municipality or public authority in exercise of right;
price specified taken as fair value................................................................... 102
Officers' certificate requesting release; opinion of counsel as to power of eminent domain
or of public authority or municipality................................................................ 102
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Sec. 7.06 Purchaser in good faith not bound to make inquiry............ 103
Sec. 7.07 Receiver, trustee in bankruptcy, or assignee may exercise
power to dispose of property with approval of Trustee;
exercise of powers by Trustees in possession................. 103
Trustees not required to, but may in discretion of Trustee,
release mortgaged property when Company is in default........ 104
Sec. 7.08 Release of property by Trustee............................... 104
A. Officer's Certificate................................. 104
B. Engineer's Certificate................................ 104
C. Further Engineer's Certificate........................ 105
D. Opinion of counsel.................................... 105
Sec. 7.09 Quit claim of property not subject to Lien................... 105
ARTICLE VIII.
APPLICATION OF MONEYS RECEIVED BY THE TRUSTEE.
Sec. 8.01 Moneys held by Trustee as part of trust estate (except
moneys received for special trust or similar fund) to be
paid out upon order of the Company, if not in default........ 106
A. Against net property additions; deductions for
prior liens........................................... 106
B. Against deposit, payment, reduction or ascertainment
of invalidity of prior ▇▇▇▇ ▇▇▇▇▇..................... 107
C. Against bonds surrendered for conversion, paid,
redeemed or otherwise surrendered and cancelled....... 107
D. In case of proceeds of insurance, against replacement
of damaged or destroyed property...................... 108
E. In case of moneys deposited on account of judgment
liens, against amounts of lien upon discharge......... 108
F. In case of certain moneys deposited pursuant to
Section 7.03 or 7.05 of Article VII, against payment
of certain Federal taxes; limitations................. 108
Redeemed prior ▇▇▇▇ ▇▇▇▇▇ deemed paid........................ 110
Sec. 8.02 Moneys held by Trustee not otherwise disposed of and not
required for other purposes to be applied on order of
Company to purchase or redemption of bonds or prior ▇▇▇▇
▇▇▇▇▇........................................................ 111
Method of purchase of bonds or prior ▇▇▇▇ ▇▇▇▇▇ by Trustee... 111
Cancellation of bonds purchased.............................. 111
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Company to pay Trustee excess of purchase price over principal amount of bonds and cost of
advertising ................................................................................................. 111
Trustee to pay Company excess of aggregate principal amount of bonds purchased over purchase price .......... 112
Sec. 8.03 Deposit of cash with Trustee for payment or redemption of bonds; application of deposited moneys ............ 112
Moneys unclaimed for two years after maturity or redemption dates to be repaid to Company; publication of
notice by Trustee ........................................................................................... 112
Sec. 8.04 Investment and reinvestment of cash held by Trustee; payment of interest to Company; sale of investments
by Trustee .................................................................................................. 113
Securities invested in by Trustee to be accepted by Company in lieu of cash .................................. 114
Sec. 8.05 Consent to release of cash held by trustee of prior lien; certification required to authorize release ....... 114
Sec. 8.06 Receiver, trustee in bankruptcy, assignee for benefit of creditors or Trustees in possession of trust estate
may exercise powers of Company under Article VIII ........................................................... 115
ARTICLE IX.
REMEDIES.
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Sec. 9.01 Events of default defined ................................................................................... 115
Trustee or not less than 25% of bondholders may declare bonds due and payable if event of default occurs .... 117
Sec. 9.02 Trustee's rights on default:
A. To enter and operate trust estate; application of income; restoration of possession ............... 117
B. Power of sale ..................................................................................... 119
C. To enforce or foreclose by judicial proceedings ................................................... 119
Sec. 9.03 Judicial sale of property; appointment of receiver .......................................................... 119
Sec. 9.04 Sale of property as an entirety or in several parcels ....................................................... 119
Sec. 9.05 Notice of sale .............................................................................................. 120
Sec. 9.06 Adjournment of sale ......................................................................................... 120
Sec. 9.07 Receipt of Trustee for purchase money sufficient discharge to purchaser at sale ............................. 120
Sec. 9.08 Use of bonds in payment of purchase price ................................................................... 121
Sec. 9.09 Trustees to execute and deliver deed to purchaser ........................................................... 121
Sec. 9.10 Entire title and interest of Company divested by sale ....................................................... 121
Sec. 9.11 Application of proceeds of sale ............................................................................. 122
Sec. 9.12 Principal of bonds to become due in case of sale ............................................................ 122
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Sec. 9.13 Covenant to pay principal and interest to Trustees in case
of default................................................. 123
Right of Trustees to enforce payment and recover judgment.. 123
Application of moneys collected by Trustees................ 124
Sec. 9.14 Trustees empowered to institute suits to prevent impairment
of lien.................................................... 124
Sec. 9.15 Waiver of stay, extension, valuation, appraisement and
redemption laws............................................ 124
Sec. 9.16 Company may surrender possession of trust estate to
Trustees; voluntary receivership; application of
income..................................................... 125
Sec. 9.17 Control of proceedings by a majority of bondholders........ 125
Sec. 9.18 Exercise of remedies by bondholders; conditions precedent.. 126
Court may assess costs against parties seeking to enforce
rights in certain cases.................................... 126
Sec. 9.19 Waiver of default; rescission of acceleration of maturity;
restoration of parties to former position; delay or omission
not a waiver; remedies cumulative.......................... 127
Sec. 9.20 Right of Trustee to file proof of debt, claim, etc. on
behalf of bondholders; Trustee appointed attorney-in-fact of
bondholders for such purposes.............................. 128
Sec. 9.21 Rights, remedies and powers under Article IX subject to
applicable laws, etc. ..................................... 129
ARTICLE X.
Concerning the Bondholders.
Sec. 10.01 Bearers and registered holders deemed owners of bonds...... 129
Sec. 10.02 Instruments executed by bondholders; proof of execution
and of ownership of bonds.................................. 130
Sec. 10.03 Right of Trustees and Company to inspect bonds; future
bondholders bound by request and consent of present
holders.................................................... 130
Sec. 10.04 Trustees may act without possession of bonds............... 130
ARTICLE XI.
Immunities of Officers, Directors, Incorporators,
Subscribers and Stockholders
Sec. 11.01 No recourse against officers, directors, incorporators,
subscribers, and stockholders, obligations issued under
Indenture solely corporate obligations; personal liability
waived..................................................... 130
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ARTICLE XII.
THE TRUSTEES.
Sec. 12.01 Conditions of Trustees' acceptance of trust ............ 131
A. Compensation of Trustees; expenses; lien;
indemnity by Company ......................... 131
B. May act through agents or attorneys .......... 132
C. Not responsible for recitals in Indenture or
bonds, validity or sufficiency of Indenture
or bonds, title, security or value of trust
estate; not accountable for use by Company of
bonds or proceeds thereof .................... 132
D. No obligation to act at request of bondholders
without security or indemnity, subject to
Section 12.02 of this Article ................ 132
E. May rely on opinions of counsel to extent
permitted by Section 12.02 of this Article ... 132
F. May rely on certificate of Secretary or
Assistant Secretary as to adoption of
resolutions to extent permitted by Section
12.02 of this Article ........................ 132
G. Action taken at request of bondholders binding
on future bondholders ........................ 133
H. Not liable for debts or damages incurred in
case of entry upon and operation of trust
property ..................................... 133
I. May rely on resolutions, certificates,
statements, etc., to the extent permitted by
Section 12.02 of this Article ................ 133
J. Moneys received by Trustee constitute trust
funds but need not be segregated ............. 133
Sec. 12.02 Trustees not relieved from liability for negligent or
willful misconduct ..................................... 133
A. Prior to event of default, Trustees liable
only for performance of duties specified in
Indenture, and may rely on resolutions,
certificates, statements, etc. furnished them
pursuant to Indenture ........................ 133
B. Trustee not liable for error of judgment made
in good faith by responsible officer unless
negligent in ascertaining facts .............. 134
C. Trustees not liable for action taken or
omitted in good faith when directed by holders
of majority of bonds ......................... 134
After event of default, Trustees to use same degree of
care and skill as prudent man .......................... 134
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Trustees may, and if requested by holders of majority
of bonds shall, make further investigation of matters
stated in resolutions, certificates, statements, etc.;
conditions precedent...................................... 134
Right to examine books, records and premises of
Company at expense of Company............................. 134
Sec. 12.03 Trustees to notify bondholders of defaults; withholding
of notice................................................. 135
No notice of default required if default has been cured... 135
Sec. 12.04 Trustees to eliminate any conflicting interest or resign.. 135
Certain interest deemed to be conflicting................. 136
Definitions of "security," "obligation in default,"
"owner or holder," "underwriter," and "person" for
purposes of this Section 12.04............................ 138
Method of calculation of percentages of securities for
purposes of this Section 12.04............................ 139
Sec. 12.05 Resignation of Trustee upon its ceasing to be bank or
trust company in good standing with combined capital and
surplus of not less than $5,000,000; procedure upon
failure of Trustees to eliminate conflicting interest
or to resign.............................................. 140
Sec. 12.06 Resignation of Trustees; notice........................... 141
Removal of Trustees; appointment of successor Trustees;
qualifications of successor Trustees...................... 142
Sec. 12.07 Execution of instruments by successor and retiring
Trustee and by Company; vesting of trust estate in
successor Trustee; notice................................. 143
Sec. 12.08 Merger or consolidation of Trustee; authentication of
bonds by successor Trustee................................ 144
Sec. 12.09 A. Trustees, if a creditor of the Company, to set
apart and hold in a special account amounts
realized on certain claims against Company
within four months prior to default or
subsequent to default........................... 144
B. Right of Trustees to retain for own account
certain amounts realized on claims against
Company......................................... 145
C. Apportionment of funds and property held in
special account................................. 146
D. Effect of resignation or removal of Trustees.... 147
E. Definitions of "default" and "indenture
security holders"............................... 148
F. Trustees not required to account if creditor
relationship arises from certain transactions;
definitions of "security," cash transaction"
and "self-liquidating paper".................... 148
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SEC. 12.10 A. Trustees to transmit to bondholders annual report as to:
1. Eligibility and qualification of Trustees..................................................... 149
2. Advances, remaining unpaid, made as Trustees.................................................. 149
3. Indebtedness owed by Company to Trustees in individual capacities and property held as
collateral security therefor.................................................................. 150
4. Property and funds in possession of Trustees.................................................. 150
5. Release of mortgaged property not previously reported......................................... 150
6. Any additional issue of bonds under Indenture not previously reported......................... 150
7. Any action materially affecting bonds or trust estate taken by Trustees and not
previously reported........................................................................... 150
B. Trustees to transmit to bondholders, within ninety days, a brief report with respect to:
1. Release or substitution of property if fair value is 10% or more of outstanding bonds......... 150
2. Advances made by Trustees as such since date of last report if amount unpaid at any time
exceeds 10% of outstanding bonds.............................................................. 151
C. Reports and notices to be transmitted by mail to registered owners of bonds, bondholders who have
within two years filed names with Trustee, and bondholders whose names are preserved by Trustee
pursuant to subdivision A. of Section 12.11 of this Article....................................... 151
D. Trustee to file copies of reports and notices with each stock exchange upon which bonds are
listed and with the Securities and Exchange Commission............................................ 151
Sec. 12.11 A. Trustee to preserve, in current form, names and addresses of bondholders; destruction
of old lists...................................................................................... 151
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B. Application by bondholders desiring to
communicate with other bondholders; Trustee
may elect either to afford access to list
of bondholders or mail, at applicants'
expense, communication specified in request;
application to Securities and Exchange
Commission where in opinion of Trustee mailing
would be contrary to best interests of
bondholders or in violation of applicable
law ........................................... 152
Trustee not liable for disclosure of names and
addresses of bondholders or for mailing any
material pursuant to this Section 12.11 ....... 153
Sec. 12.12 Acquisition of bonds and coupons by Trustees ............ 153
Sec. 12.13 Trustees protected in complying with rules or orders of
Securities and Exchange Commission made pursuant to Trust
Indenture Act of 1939 ................................... 153
Sec. 12.14 Estate held by Trustees as joint tenants; notice to one
is notice to both ....................................... 154
Cash and securities to be held by Trustee; title vests in
Trustees subject to disposition by Trustee; Individual
Trustee to act on written request by Trustee; Individual
Trustee may delegate powers to Trustee; removal of
Individual Trustee ...................................... 154
Trustee attorney-in-fact for Individual Trustee ......... 155
Sec. 12.15 Appointment of co-trustees; conditions of appointment
and tenure .............................................. 156
Sec. 12.16 Appointment of Successor Trustee by Company ............. 158
ARTICLE XIII.
CONSOLIDATION, MERGER, CONVEYANCE AND LEASE.
Sec. 13.01 Consolidation, merger, conveyance or lease of all
property by Company permitted; conditions; execution
of supplemental indenture by successor to Company ....... 159
Sec. 13.02 Extent to which property of successor corporation
shall become subject to lien of this Indenture;
provisions of supplemental indenture .................... 159
Sec. 13.03 Powers of successor when all property subjected to
lien of Indenture; issue of bonds in respect of property
of successor ............................................ 161
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ARTICLE XIV.
MEETINGS OF BONDHOLDERS.
Sec. 14.01 Modifications of Indenture--in general ......................... 162
Sec. 14.02 Call and notice of meeting of bondholders ...................... 162
Place when called by Trustee ................................... 162
Written notice ................................................. 162
Publication .................................................... 162
When notice not required ....................................... 163
Sec. 14.03 Attendance at meetings ......................................... 164
Trustee may make regulations as to deposits of bonds ........... 164
Certificate in lieu of production of unregistered bonds ........ 165
Sec. 14.04 Persons entitled to vote at meetings ........................... 165
When production of bonds and further proof necessary ........... 165
Proxies--Acknowledgement ....................................... 165
Sec. 14.05 Temporary Chairman and Secretary ............................... 165
Permanent Chairman and Secretary ............................... 166
Inspectors of Votes ............................................ 166
Sec. 14.06 Quorum ......................................................... 166
Notice of adjournment .......................................... 167
Sec. 14.07 Vote necessary for modification, alteration, etc. of Indenture.. 167
Limitations on right of modification ........................... 167
Sec. 14.08 Record of meeting .............................................. 168
Conclusiveness of meeting ...................................... 168
Copy of resolution to be mailed to bondholders ................. 168
Proof of mailing to be filed with Trustee ...................... 168
Effect of failure to mail ...................................... 168
Approval of resolution by Company .............................. 168
Effective date of resolution ................................... 169
Sec. 14.09 Notation of action take may be made on bonds ................... 169
New bonds ...................................................... 169
When supplemental instrument may be executed ................... 169
Sec. 14.10 A. Trustee may receive written consent of bondholders in lieu
of holding a meeting ...................................... 170
B. Acknowledgment of written consent ......................... 170
C. Revocation of consent ..................................... 171
ARTICLE XV.
SUPPLEMENTAL INDENTURES.
Sec. 15.01 Purposes ....................................................... 171
Supplemental indentures to conform to requirements of Trust
Indenture Act of 1939 .......................................... 173
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Sec. 15.02 Trustees authorized to join in supplemental indenture; ap-
plicability of supplemental indenture; form to be approved
by counsel ............................................... 173
Sec. 15.03 Authority of Trustees to join in supplemental indentures
and agreements; opinion of counsel; immunity of Trustees.. 173
Sec. 15.04 Supplemental indentures deemed part of Indenture; refer-
ence to supplemental indenture in bonds .................. 174
ARTICLE XVI.
Defeasance.
Sec. 16.01 Satisfaction and discharge of Indenture .................. 174
Sec. 16.02 Payment of principal and interest on bonds; surrender and
cancellation of bonds and coupons ........................ 175
Sec. 16.03 Deposit of funds with Trustee for payment of bonds and
coupons not presented when due discharges Company's
liability ................................................ 175
Sec. 16.04 Reissue of bonds reacquired by Company except bonds
redeemed ................................................. 176
Sec. 16.05 Bonds for the payment of which money or obligations of
the United States are deposited are deemed paid--proviso.. 176
ARTICLE XVII.
Miscellaneous Provisions.
Sec. 17.07 Successors of Company bound .............................. 177
Sec. 17.02 Benefits restricted to parties and holders of bonds and
coupons .................................................. 177
Sec. 17.03 Bonds may have independent security ...................... 178
Sec. 17.04 Certification by different officers, engineers, counsel
or other persons ......................................... 178
Sec. 17.05 Cremation of cancelled bonds and coupons; records ........ 178
Sec. 17.06 Accounting practices of Company or its power to fix
price and terms of sale of bonds not affected by
Indenture ................................................ 178
Sec. 17.07 Certificates and opinions as to compliance with
conditions precedent ..................................... 178
Sec. 17.08 Statements to be included in certificates or opinions ... 179
Sec. 17.09 Required provisions under Trust Indenture Act of 1939
to control provisions of Indenture ....................... 179
Sec. 17.10 Choice of law ............................................ 179
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PART III
THE TRUSTEES
PART IV
MISCELLANEOUS PROVISIONS
TESTIMONIUM........................................................ 182
EXECUTIONS......................................................... 182
ACKNOWLEDGMENTS.................................................... 183
SCHEDULE A......................................................... 184
21
THIS TWENTY-NINTH SUPPLEMENTAL INDENTURE, dated as of the 15th day of July,
1989, between MICHIGAN CONSOLIDATED GAS COMPANY, a corporation duly organized
and existing under and by virtue of the laws of the State of Michigan
(hereinafter called the "Company"), having its principal place of business at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, party of the first part, and CITIBANK,
N.A. (formerly First National City Bank), a national banking association
incorporated and existing under and by virtue of the laws of the United States
of America, having an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ in the Borough of Manhattan, The
City of New York, New York, successor to CITY BANK FARMERS TRUST COMPANY
(hereinafter with its predecessors as trustee called the "Trustee"), and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, residing at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, successor
to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as individual trustee (hereinafter with his predecessors as
individual trustee called the "Individual Trustee"), as Trustees under the
indenture hereinafter mentioned, parties of the second part (the Trustee and
Individual Trustee being hereinafter together referred to as the "Trustees"):
Whereas, the Company has heretofore executed and delivered to the Trustees
an Indenture of Mortgage and Deed of Trust (hereinafter called the "Indenture"),
dated as of March 1, 1944, to secure the Company's First Mortgage Bonds,
unlimited in aggregate principal amount except as therein otherwise provided:
a Supplemental Indenture of the same date;
a Second Supplemental Indenture, dated as of March 1, 1947;
a Third Supplemental Indenture, dated as of March 1, 1948;
a Fourth Supplemental Indenture, dated as of November 1, 1950;
a Fifth Supplemental Indenture, dated as of August 1, 1951;
a Sixth Supplemental Indenture, dated as of January 15, 1954;
a Seventh Supplemental Indenture, dated as of November 15, 1955;
an Eighth Supplemental Indenture, dated as of December 2, 1955;
a Ninth Supplemental Indenture, dated as of December 5, 1956;
a Tenth Supplemental Indenture, dated as of June 15, 1957;
an Eleventh Supplemental Indenture, dated as of May 15, 1961;
a Twelfth Supplemental Indenture, dated as of January 15, 1962;
a Thirteenth Supplemental Indenture, dated as of March 15, 1963;
a Fourteenth Supplemental Indenture, dated as of May 15, 1964;
a Fifteenth Supplemental Indenture, dated as of May 15, 1966;
a Sixteenth Supplemental Indenture, dated as of May 15, 1967;
a Seventeenth Supplemental Indenture, dated as of September 1, 1968;
an Eighteenth Supplemental Indenture, dated as of November 15, 1968;
22
2
a Nineteenth Supplemental Indenture, dated as of June 1, 1970;
a Twentieth Supplemental Indenture, dated as of July 1, 1972;
a Twenty-first Supplemental Indenture, dated as of July 1, 1973;
a Twenty-second Supplemental Indenture, dated as of July 15, 1974;
a Twenty-third Supplemental Indenture, dated as of April 15, 1975;
a Twenty-fourth Supplemental Indenture, dated as of September 15, 1976;
a Twenty-fifth Supplemental Indenture, dated as of November 15, 1977;
a Twenty-sixth Supplemental Indenture, dated as of November 15, 1981;
a Twenty-seventh Supplemental Indenture, dated as of February 15, 1983;
a Twenty-eighth Supplemental Indenture, dated as of February 1, 1987;
and
WHEREAS, the Supplemental Indenture, dated as of March 1, 1944, the Second
Supplemental Indenture, the Third Supplemental Indenture, the Fourth
Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental
Indenture, the Seventh Supplemental Indenture, the Tenth Supplemental Indenture,
the Eleventh Supplemental Indenture, the Thirteenth Supplemental Indenture, the
Fourteenth Supplemental Indenture, the Fifteenth Supplemental Indenture, the
Sixteenth Supplemental Indenture, the Seventeenth Supplemental Indenture, the
Eighteenth Supplemental Indenture, the Nineteenth Supplemental Indenture, the
Twentieth Supplemental Indenture, the Twenty-first Supplemental Indenture, the
Twenty-second Supplemental Indenture, the Twenty-third Supplemental Indenture,
the Twenty-fourth Supplemental Indenture, the Twenty-fifth Supplemental
Indenture, the Twenty-sixth Supplemental Indenture, the Twenty-seventh
Supplemental Indenture and the Twenty-eighth Supplemental Indenture each
provided for the creation of a series of the Company's First Mortgage Bonds; and
each of said Supplemental Indentures, except the Supplemental Indenture dated as
of March 1, 1944, also recorded the description of and confirmed unto the
Trustees certain property; and the Fifteenth Supplemental Indenture also amended
Section 1 of Article II and Section 1 of Article IV of the Indenture; and the
Eighth Supplemental Indenture designated ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as successor to ▇▇▇▇▇
▇. ▇▇▇▇▇▇, as Individual Trustee; and the Ninth Supplemental Indenture
designated ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as successor to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Individual
Trustee; and the Twelfth Supplemental Indenture appointed The First National
City Bank of New York as successor Trustee upon resignation and in place of
First National City Trust Company; and the Seventeenth Supplemental Indenture
also designated ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as successor to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Individual
Trustee; and the Twentieth Supplemental Indenture also designated ▇▇▇▇▇▇▇
23
3
▇. ▇▇▇▇▇ as successor to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Individual Trustee; and the
Twenty-fourth Supplemental Indenture made subject to the lien and operation of
the Indenture certain base gas classified as excepted property under the
Indenture; and the Twenty-fifth Supplemental Indenture also designated ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ as successor to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, as Individual Trustee, and cured and
corrected a defective provision in the Twenty-fourth Supplemental Indenture; and
the Twenty-sixth Supplemental Indenture also corrected an erroneous property
description in the Fifteenth Supplemental Indenture; and the Twenty-eighth
Supplemental Indenture also will make certain amendments to the Indenture when
all Bonds of the First through Twenty-fourth Series are no longer outstanding;
and
WHEREAS, at the date hereof there were outstanding First Mortgage Bonds of
the Company issued under the Indenture, of 9 series (all outstanding bonds of 16
other series having been previously retired) in the principal amounts set forth
below:
DESIGNATION AMOUNT AMOUNT
OF SERIES INITIALLY ISSUED OUTSTANDING
--------- ---------------- -----------
First Mortgage Bonds
5-7/8% Series due 1991 .............................. $30,000,000 $19,584,000
First Mortgage Bonds
6-1/2% Series due 1992 .............................. 35,000,000 23,336,000
First Mortgage Bonds
7% Series due 1993 .................................. 25,000,000 17,172,000
First Mortgage Bonds
7-1/2 % Series due December 1, 1993 ................. 31,000,000 21,099,000
First Mortgage Bonds
9-1/4% Series due 1996 .............................. 30,000,000 12,000,000
First Mortgage Bonds
7-5/8% Series due 1997 .............................. 35,000,000 25,937,000
First Mortgage Bonds
8-5/8% Series due 1997 .............................. 29,000,000 16,129,000
First Mortgage Bonds
8-1/8% Series due 1998 .............................. 35,000,000 26,614,000
First Mortgage Bonds
9-1/8% Series due 2017 .............................. 60,000,000 60,000,000
24
4
and
WHEREAS, the Company desires in and by this Twenty-ninth Supplemental
Indenture to create a Twenty-sixth series of bonds to be issued under the
Indenture, to designate or otherwise distinguish such series, to specify the
particulars necessary to describe and define the same, and to specify such other
provisions and agreements in respect thereof as are in the Indenture provided or
permitted; and
WHEREAS, the Company also desires in and by this Twenty-ninth Supplemental
Indenture to record the description of, and confirm unto the Trustees, but
subject to the amendments, deletions and revisions provided for in Part II of
this Twenty-ninth Supplemental Indenture, certain property acquired after the
execution and delivery of the Twenty-eighth Supplemental Indenture, and now
subject to the lien of the Indenture by virtue of the provisions thereof
conveying to the Trustees property acquired after its execution and delivery;
and
WHEREAS, the Company desires to amend the Indenture in its entirety
effective when all bonds issued prior to March 1, 1987, are no longer
outstanding or consent to the extent required by the provisions of the
Indenture; and
WHEREAS, all the conditions and requirements necessary to make this
Twenty-ninth Supplemental Indenture, when duly executed and delivered, a valid,
binding and legal instrument in accordance with its terms and for the purposes
herein expressed, have been done, performed and fulfilled, and the execution and
delivery of this Twenty-ninth Supplemental Indenture in the form and with the
terms hereof have been in all respects duly authorized;
NOW,THEREFORE, in consideration of the premises and in further
consideration of the sum of One Dollar in lawful money of the United States of
America paid to the Company by the Trustees at or before the execution and
delivery of this Twenty-ninth Supplemental Indenture, the receipt whereof is
hereby acknowledged, and of other good and valuable considerations, it is agreed
by and between the Company and the Trustees as follows:
DESCRIPTION OF PROPERTY ACQUIRED AFTER EXECUTION AND DELIVERY OF THE
TWENTY-EIGHTH SUPPLEMENTAL INDENTURE
The Company hereby confirms unto the Trustees, and records the description
of, the property described in Schedule A attached hereto and expressly made a
part hereof, which property has been acquired by the Company after the
25
5
execution and delivery of the Twenty-eighth Supplemental Indenture and which is
now subject to the lien of the Indenture in all respects as if originally
described therein, but subject to the amendments, deletions and revisions
provided for in Part II of this Twenty-ninth Supplemental Indenture.
PART I
PROVISIONS RELATING TO SECURED MEDIUM-TERM NOTES, SERIES A
ARTICLE I.
CREATION OF AN ISSUE OF FIRST MORTGAGE BONDS, DESIGNATED AND DISTINGUISHED AS
"SECURED MEDIUM-TERM NOTES, SERIES A".
SECTION 1. There is hereby created a twenty-sixth series of bonds to be
issued under and secured by the Indenture, to be known as "First Mortgage
Bonds," designated and distinguished as "Secured Medium-Term Notes, Series A" of
the Company (herein sometimes called "Bonds of Twenty-sixth Series"). The Bonds
of Twenty-sixth Series may be issued without limitation as to aggregate
principal amount except as provided in the Indenture and in this Twenty-ninth
Supplemental Indenture. The Bonds of Twenty-sixth Series shall be registered
bonds without coupons and shall be dated as of the date of the authentication
thereof by the Trustee.
Each Bond of Twenty-sixth Series shall mature on such date not less than 2
years nor more than 30 years from date of issue, shall bear interest at such
rate or rates not in excess of 15-5/8 per cent per annum payable semi-annually
on the first days of May and November of each year and at maturity (each an
interest payment date) and have such other terms and provisions not inconsistent
with the Indenture as the Board of Directors may determine in accordance with a
resolution filed with the Trustee referring to this Twenty-ninth Supplemental
Indenture; the principal, premium, if any, and interest on the Bonds of
Twenty-sixth Series shall be payable in lawful money of the United States of
America; the place where such principal and premium, if any, shall be payable
shall be the corporate trust office of the Trustee in the Borough of Manhattan,
The City of New York, New York, and the place where such interest shall be
payable shall be the office or agency of the Company in said Borough of
Manhattan, The City of New York, New York.
So long as there is no existing default in the payment of interest on the
Bonds of Twenty-sixth Series, all Bonds of Twenty-sixth Series authenticated
26
6
by the Trustee after the record date hereinafter specified for any interest
payment date, and prior to such interest payment date (unless the issue date
hereinafter specified is after such record date) shall be dated the date of
authentication, but shall bear interest from such interest payment date, and the
person in whose name any Bond of Twenty-sixth Series is registered at the close
of business on any record date with respect to any interest payment date shall
be entitled to receive the interest payable on such interest payment date
notwithstanding any transfer or exchange of such Bond of Twenty-sixth Series
subsequent to the record date and on or prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date, in which case such defaulted
interest shall be paid to the person in whose name such Bond of Twenty-sixth
Series is registered on the record date for the interest payment date fixed by
the Company for the payment of such defaulted interest, provided that in no case
shall such record date be less than ten days after notice thereof shall have
been mailed to all registered holders of Bonds of Twenty-sixth Series; and
provided that interest payable on a maturity date will be payable to the person
to whom the principal thereof is payable. If the issue date of any Bond of
Twenty-sixth Series is after such record date, such Bond shall bear interest
from the issue date but payment of interest shall commence on the second
interest payment date next succeeding the issue date. Any notice which is mailed
as herein provided shall be conclusively presumed to have been properly and
sufficiently given on the date of such mailing, whether or not the holder
receives notice.
The term "record date" as used herein with respect to any interest payment
date shall mean the last business day which is more than ten (10) calendar days
prior to such interest payment date. The term "business day" as used herein
shall mean any day other than a Saturday or Sunday or a day on which the offices
of the Trustee in the Borough of Manhattan, The City and State of New York, are
closed pursuant to authorization of law.
The term "issue date" as used herein with respect to Bonds of Twenty-sixth
Series of a designated interest rate and maturity shall mean the date of first
authentication of Bonds of such designated interest rate and maturity.
As used in this Section 1, the term "default in the payment of interest"
means failure to pay interest on the applicable interest payment date
disregarding any period OF grace permitted by Section 2 of Article IX of the
Indenture.
27
7
SECTION 2. Each Bond of Twenty-sixth Series may be redeemable prior to
maturity, at the option of the Company in whole at any time or in part from time
to time, as the Board of Directors may determine in accordance with a resolution
filed with the Trustee referring to this Twenty-ninth Supplemental Indenture, on
notice given in the manner set forth in Article IV of the Indenture and as in
this Section 2 provided; provided, however, that if at the time of mailing of
any notice of redemption of Bonds of Twenty-sixth Series, the Company shall not
have deposited with the Trustee and/or irrevocably directed the Trustee to
apply, from money held by it available to be used for the redemption of Bonds
of Twenty-sixth Series, an amount in cash sufficient to redeem all of the Bonds
of Twenty-sixth Series called for redemption, such notice may state that it is
subject to the receipt of the redemption monies by the Trustee before the date
fixed for redemption and such notice shall be of no effect unless such monies
are so received before such date; provided further, however, that if any Bond of
the Twenty-sixth Series states that it may not be redeemed at the option of the
Company through a refunding, directly or indirectly, by or in anticipation of
the incurring of any debt which has an interest cost to the Company of less than
the effective interest cost of such Bond, the term "interest cost to the
Company" shall mean the annual percentage yield to stated maturity of the debt
at the net price to the Company therefor, determined by reference to a standard
table of bond yields, with a straight-line interpolation if necessary. The "net
price to the Company" shall be determined after adding all premiums and
deducting all discounts, commissions, stand-by or commitment charges and any
other compensation received or receivable directly from the Company by
underwriters, investment bankers or other financing agents or purchasers. Prior
to each redemption of any Bonds of Twenty-sixth Series at the option of the
Company which by their terms are subject to the restrictions of this proviso,
the Company will deliver to the Trustee an officers' certificate showing
compliance with the proviso in the third preceding sentence prior to the
"Limitation Date" specified on such Bonds.
In case the Company shall at any time elect to redeem all or any part of
the Bonds of Twenty-sixth Series, it shall give notice to the effect that it
intends to redeem all or a part thereof, as the case may be, on a date therein
designated, specifying in case of redemption of a part of the Bonds of
Twenty-sixth Series the distinctive numbers of the bonds to be redeemed and, if
applicable, the portion of the bond to be redeemed and if at the time of mailing
of any such notice of redemption of Bonds of Twenty-sixth Series the Company
shall not have deposited with the Trustee and/or irrevocably directed the
Trustee to apply, from money held by it available to be used for the redemption
of Bonds
28
8
of Twenty-sixth Series an amount in cash sufficient to redeem all of the bonds
called for redemption, including accrued interest to such date fixed for
redemption, such notice may state that it is subject to the receipt of the
redemption monies by the Trustee before the date fixed for redemption and such
notice shall be of no effect unless such monies are so received before such
date.
Such notice, in the case of redemption of Bonds of Twenty-sixth Series at
the option of the Company, shall be given by mail by the Company, postage
prepaid, at least thirty days prior to such redemption date, to the holders of
all Bonds of Twenty-sixth Series to be so redeemed, at the addresses that shall
appear upon the register thereof. Any notice which is mailed as herein provided
shall be conclusively presumed to have been properly and sufficiently given on
the date of such mailing, whether or not the holder receives the notice. In any
case, failure to give due notice by mail, or any defect in the notice, to the
registered owners of any Bonds of Twenty-sixth Series designated for redemption
as a whole or in part, shall not affect the validity of the proceedings for the
redemption of any other bonds.
If less than the whole principal amount of a Bond of Twenty-sixth Series
shall be called for redemption, the Company shall execute and the Trustee shall
authenticate and deliver, without charge, to the holder thereof, a Bond or Bonds
of Twenty-sixth Series (but only of authorized denominations) for the unredeemed
balance of the principal amount of the Bond of Twenty-sixth Series surrendered.
SECTION 3. The Bonds of Twenty-sixth Series shall be registered bonds
without coupons. Bonds of Twenty-sixth Series may be issued in the denomination
of $1,000 or any integral multiple thereof.
The forms of Bonds of Twenty-sixth Series shall be substantially as follows
(any of the provisions of such Bond may be set forth on the reverse side
thereof):
[FORM OF REDEEMABLE BOND, IF ANY, OF TWENTY-SIXTH SERIES]
MICHIGAN CONSOLIDATED GAS COMPANY
SECURED MEDIUM-TERM NOTE, SERIES A
being a series of
FIRST MORTGAGE BONDS
ISSUE DATE: INITIAL REDEMPTION DATE: LIMITATION DATE:
MATURITY DATE: INITIAL PERCENTAGE: PAR DATE:
INTEREST DATE: REDUCTION PERCENTAGE:
29
9
The Optional Redemption Price, if any, shall initially be the Initial
Percentage specified above of the principal amount of this bond to be redeemed
and, unless otherwise provided in the space below, shall decline by equal
amounts at each anniversary of the Initial Redemption Date by the Reduction
Percentage specified above of the principal amount to be redeemed, until the Par
Date specified above, when the Optional Redemption Price is 100% of such
principal amount. If applicable, this bond shall not be redeemed at the option
of the Company prior to the Limitation Date specified above, through a
refunding, directly or indirectly, by or in anticipation of the incurring of any
debt which has an effective interest cost to the Company (as defined in the
Twenty-ninth Supplemental Indenture) of less than the effective interest cost to
this bond.
ADDITIONAL REDEMPTION PRICES, IF ANY:
MICHIGAN CONSOLIDATED) GAS COMPANY (hereinafter called the "Company"), a
corporation of the State of Michigan, for value received, hereby promises to pay
to......................................... or registered assigns, the sum
of................... Dollars on the Maturity Date specified above, at the
corporate trust office of the Trustee hereinafter named in the Borough of
Manhattan, The City of New York, New York or at the principal office of any
successor in trust, in lawful money of the United States of America, and to pay
interest thereon at the Interest Rate specified above, in like lawful money
payable semi-annually at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York on the first day of May and November
in each year and on the Maturity Date (each an interest payment date) from the
Issue Date specified above or from the most recent interest payment date to
which interest has been paid, commencing on the interest payment date next
succeeding the Issue Date, until the Company's obligation with respect to the
payment of such principal sum shall be discharged as provided in the indentures
hereinafter mentioned; provided, however, if the date of this bond is after a
record date with respect to any interest payment date and prior to such interest
payment date, then interest shall be payable only from such interest payment
date (unless the Issue Date is after such record date). If the Issue Date is
after such record date, then payment of interest shall commence on the second
interest payment date succeeding the Issue Date (but shall be payable from the
Issue Date). If the Company shall default in the payment of interest due on any
interest payment date, then interest shall be payable from the next preceding
interest payment date to which interest has been paid, or, if no such interest
has been paid on
30
10
the bonds, from the Issue Date, so long as there is no existing default in the
payment of interest the person in whose name this bond was registered at the
close of business on any record date with respect to any interest payment date
shall be entitled to receive the interest payable on such interest payment date,
except that if the Company shall default in the payment of interest due on such
interest payment date such defaulted interest shall be paid to the person in
whose name this bond is registered on the record date for the interest payment
date fixed by the Company for the payment of such defaulted interest, provided
that in no case shall such record date be less than ten days after notice
thereof shall have been mailed to all registered holders of bonds of this
series. The term "record date" shall mean the last business day which is more
than ten calendar days prior to such interest payment date.
This bond is one, of the series hereinafter specified, of the bonds of the
Company (herein called the "bonds") known as its "First Mortgage Bonds," issued
and to be issued in one or more series under, and all equally and ratably
secured by, an Indenture of Mortgage and Deed of Trust dated as of March 1,
1944, duly executed by the Company to City Bank Farmers Trust Company (Citibank,
N.A., successor trustee, herein called the "Trustee") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, successor Individual Trustee), Trustees, to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and extent of
the security, the terms and conditions upon which the bonds are, and are to be,
issued and secured, and the rights of the holders of the bonds and of the
Trustees in respect of such security. As provided in said Indenture, the bonds
may be for various principal sums and are issuable in series, which may mature
at different times, may bear interest at different rates and may otherwise vary
as therein provided; and this bond is one of a series entitled "First Mortgage
Bonds," designated "Secured Medium-Term Notes, Series A," herein called Secured
Medium-Term Notes, Series A, created by the Twenty-ninth Supplemental Indenture
dated as of July 15, 1989 as provided for in said Indenture.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, as supplemented, the rights and obligations of the
Company and/or the rights of the holders of the Bonds of the Twenty-sixth Series
and/or the terms and provisions of the Indenture may be modified or altered by
such affirmative vote or votes of the holders of the bonds then outstanding as
are specified in the Indenture, as supplemented.
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11
Notice of any redemption of this bond to be redeemed at the option of the
Company (which notice may be made subject to receipt of the redemption monies by
the Trustee before the date fixed for redemption) shall be given by mail at
least thirty days prior to the redemption date, subject to the conditions set
forth as more fully provided in said Indenture and in said Twenty-ninth
Supplemental Indenture.
In the event that any bond shall not be presented for payment when the
principal thereof becomes due, either at maturity or otherwise or at the date
fixed for the redemption thereof, and the Company shall have on deposit with the
Trustee in trust for the purpose, on the date when such bond is so due, funds
sufficient to pay the principal of such bond (and premium, if any), together
with all interest due thereon to the Maturity Date of such bond or to the date
fixed for the redemption thereof, for the use and benefit of the registered
owner thereof, then all liability of the Company to the registered owner of said
bond for the payment of the principal thereof and interest thereon (and premium,
if any), shall forthwith cease, determine and be completely discharged and such
registered owner shall no longer be entitled to any lien or benefit of said
Indenture.
In case an event of default as defined in said Indenture shall occur, the
principal of this bond may become or be declared due and payable in the manner,
with the effect, and subject to the conditions provided in said Indenture.
This bond is transferable by the registered owner hereof in person, or by
attorney duly authorized in writing, at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, New York, upon
surrender and cancellation of this bond, and upon any such transfer a new
registered bond or bonds of the same series for the same aggregate principal
amount, interest rate or rates, issue date, maturity date and redemption
provisions, if any, will be issued to the transferee or transferees in exchange
herefor; and bonds of this series may, at the option of the registered owners
and upon surrender at said office, be exchanged for registered bonds of this
series of the same aggregate principal amount, interest rate or rates, issue
date, maturity date, and redemption provisions, if any, in larger or smaller
authorized denominations, all without service charge (except for any stamp tax
or other governmental charge).
No recourse shall be had for the payment of the principal of, or the
interest on, this bond, or for any claim based hereon or otherwise in respect
hereof or
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12
of said Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, director or officer, past, present or
future, of the Company, as such, or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability, whether at common law, in equity, by any constitution, statute or
otherwise, of incorporators, stockholders, directors or officers being waived
and released by every owner hereof by the acceptance of this bond and as part of
the consideration for the issue hereof, and being likewise waived and released
by the terms of said Indenture.
This bond shall not be valid or become obligatory for any purpose unless
and until the certificate hereon shall have been executed by the Trustee or its
successor in trust under said Indenture.
IN WITNESS WHEREOF, MICHIGAN CONSOLIDATED GAS COMPANY has caused this bond
to be executed in its name with the facsimile signature of its President or one
of its Vice-Presidents, and a facsimile of its corporate seal to be imprinted
hereon and attested with the facsimile signature of its Secretary or one of its
Assistant Secretaries.
Dated:................................
MICHIGAN CONSOLIDATED GAS COMPANY,
BY .........................................
President
Attest:
......................................
Secretary
The form of Trustee's certificate to be borne by all Bonds of Twenty-sixth
Series shall be substantially as follows:
[FORM OF TRUSTEE'S CERTIFICATE]
This bond is one of the bonds of the series designated therein, described
in the within-mentioned Indenture and Twenty-ninth Supplemental Indenture.
CITIBANK, N.A., as Trustee,
BY .........................................
Authorized Officer
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13
[FORM OF NON-REDEEMABLE BOND, IF ANY, OF TWENTY-SIXTH SERIES]
MICHIGAN CONSOLIDATED GAS COMPANY
SECURED MEDIUM-TERM NOTE, SERIES A
being a series of
FIRST MORTGAGE BONDS
ISSUE DATE: MATURITY DATE: INTEREST RATE:
MICHIGAN CONSOLIDATED GAS COMPANY (hereinafter called the "Company"), a
corporation of the State of Michigan, for value received, hereby promises to pay
to .......................................................................... or
registered assigns, the sum of .............. Dollars on the Maturity Date
specified above, at the corporate trust office of the Trustee hereinafter named
in the Borough of Manhattan, The City of New York, New York, or at the principal
office of any successor in trust, in lawful money of the United States of
America, and to pay interest thereon at the Interest Rate specified above, in
like lawful money payable semi-annually at the office or agency of the Company
in the Borough of Manhattan, The City of New York, New York on the first day of
May and November in each year and on the Maturity Date (each an interest payment
date) from the Issue Date specified above or from the most recent interest
payment date to which interest has been paid, commencing on the interest payment
date next succeeding the Issue Date, until the Company's obligation with respect
to the payment of such principal sum shall be discharged as provided in the
indentures hereinafter mentioned; provided, however, if the date of this ,bond
is after a record date with respect to any interest payment date and prior to
such interest payment date, then interest shall be payable only from such
interest payment date (unless the Issue Date is after such record date). If the
Issue Date is after such record date, then payment of interest shall commence on
the second interest payment date succeeding the Issue Date (but shall be payable
from the Issue Date). If the Company shall default in the payment of interest
due on any interest payment date, then interest shall be payable from the next
preceding interest payment date to which interest has been paid, or, if no such
interest has been paid on the bonds, from the Issue Date; so long as there is no
existing default in the payment of interest the person in whose name this bond
was registered at the close of business on any record date with respect to any
interest payment date shall be entitled to receive the interest payable on such
interest payment date, except that if the company shall default in the payment
of interest due on such
34
14
interest payment date such defaulted interest shall be paid to the person in
whose name this bond is registered on the record date for the interest payment
date fixed by the Company for the payment of such defaulted interest, provided
that in no case shall such record date be less than ten days after notice
thereof shall have been mailed to all registered holders of bonds of this
series. The term "record date" shall mean the last business day which is more
than ten calendar days prior to such interest payment date.
This bond is one, of the series hereinafter specified, of the bonds of the
Company (herein called the "bonds") known as its "First Mortgage Bonds," issued
and to be issued in one or more series under, and all equally and ratably
secured by, an indenture of Mortgage and Deed of Trust dated as of March 1,
1944, duly executed by the Company to City Bank Farmers Trust Company (Citibank,
N.A., successor trustee, herein called the "Trustee") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, successor Individual Trustee), Trustees, to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the property mortgaged and pledged, the nature and extent of the
security, the terms and conditions upon which the bonds are, and are to be,
issued and secured, and the rights of the holders of the bonds and of the
Trustees in respect of such security. As provided in said Indenture, the bonds
may be for various principal sums and are issuable in series, which may mature
at different times, may bear interest at different rates and may otherwise vary
as therein provided; and this bond is one of a series entitled "First Mortgage
Bonds," designated "Secured Medium-Term Notes, Series A," herein called Secured
Medium-Term Notes, Series A, created by the Twenty-ninth Supplemental Indenture
dated as of July 15, 1989 as provided for in said Indenture.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, as supplemented, the rights and obligations of the
Company and/or the rights of the holders of the Bonds of the Twenty-sixth Series
and/or the terms and provisions of the Indenture may be modified or altered by
such affirmative vote or votes of the holders of the bonds then outstanding as
are specified in the Indenture, as supplemented.
This Bond shall not be redeemable prior to the Maturity Date.
In the event that any bond shall not be presented for payment when the
principal thereof becomes due at maturity and the Company shall have on
35
15
deposit with the Trustee in trust for the purpose, on the date when such bond is
so due, funds sufficient to pay the principal of such bond (and premium, if
any), together with all interest due thereon to the Maturity Date of such bond
for the use and benefit of the registered owner thereof, then all liability of
the Company to the registered owner of said bond for the payment of the
principal thereof and interest thereon (and premium, if any), shall forthwith
cease, determine and be completely discharged and such registered owner shall no
longer be entitled to any lien or benefit of said Indenture.
In case an event of default as defined in said Indenture shall occur, the
principal of this bond may become or be declared due and payable in the manner,
with the effect, and subject to the conditions provided in said Indenture.
This bond is transferable by the registered owner hereof in person, or by
attorney duly authorized in writing, at the corporate trust office of the
Trustee in the Borough of Manhattan, The City of New York, New York, upon
surrender and cancellation of this bond, and upon any such transfer a new
registered bond or bonds of the same series for the same aggregate principal
amount, interest rate or rates, issue date, maturity date and redemption
provisions, if any, will be issued to the transferee or transferees in exchange
herefor; and bonds of this series may, at the option of the registered owners
and upon surrender at said office, be exchanged for registered bonds of this
series of the same aggregate principal amount, interest rate or rates, issue
date, maturity date, and redemption provisions, if any, in larger or smaller
authorized denominations, all without service charge (except for any stamp tax
or other governmental charge).
No recourse shall be had for the payment of the principal of, or the
interest on, this bond, or for any claim based hereon or otherwise in respect
hereof or of said Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, director or officer, past, present or
future, of the Company, as such, or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability, whether at common law, in equity, by any constitution, statute or
otherwise, of incorporators, stockholders, directors or officers being waived
36
16
and released by every owner hereof by the acceptance of this bond and as part
of the consideration for the issue hereof, and being likewise waived and
released by the terms of said Indenture.
This bond shall not be valid or become obligatory for any purpose unless
and until the certificate hereon shall have been executed by the Trustee or its
successor in trust under said Indenture.
IN WITNESS WHEREOF, MICHIGAN CONSOLIDATED GAS COMPANY has caused this bond
to be executed in its name with the facsimile signature of its President or one
of its Vice-Presidents, and a facsimile of its corporate seal to be imprinted
hereon and attested with the facsimile signature of its Secretary or one of its
Assistant Secretaries.
Dated:................................
MICHIGAN CONSOLIDATED GAS COMPANY,
By .........................................
President
Attest:
......................................
Secretary
The form of Trustee's certificate to be borne by all Bonds of Twenty-sixth
Series shall be substantially as follows:
[FORM OF TRUSTEE'S CERTIFICATE]
This bond is one of the bonds of the series designated therein, described
in the within-mentioned Indenture and Twenty-ninth Supplemental Indenture.
CITIBANK, N.A., as Trustee,
By .........................................
Authorized Officer
SECTION 4. Bonds of Twenty-sixth Series shall be exchangeable, at the
option of the registered owners thereof and upon surrender thereof at the
corporate trust office of the Trustee in the Borough of Manhattan, The City of
New York, New York, for registered bonds of the same aggregate principal amount,
37
17
issue date, maturity date, interest rate or rates, and redemption provisions, if
any, but of different authorized denomination or denominations, such exchanges
to be made without service charge (except for any stamp tax or other
governmental charge).
Every bond so surrendered shall be accompanied by a proper transfer power
duly executed by the registered owner or by duly authorized attorney
transferring such bond to the Company, and the signature to such transfer power
shall be guaranteed to the satisfaction of the Trustee. All bonds so surrendered
shall be forthwith cancelled and delivered to or upon the order of the Company.
All bonds executed, authenticated and delivered in exchange for bonds so
surrendered shall be valid obligations of the Company, evidencing the same debt
as the bonds surrendered, and shall be secured by the same lien and be entitled
to the same benefits and protection as the bonds in exchange for which they are
executed, authenticated and delivered.
The Company shall not be required to make any such exchange or any
registration of transfer (1) during a period of fifteen days next preceding any
interest payment date, but only if there is an existing default in the payment
of interest on the Bonds of Twenty-sixth Series or (2) after the bond so
presented for exchange or registration of transfer, or any portion thereof, has
been called for redemption and notice thereof given to the registered owner.
SECTION 5. Pending the preparation of definitive Bonds of Twenty-sixth
Series the Company may from time to time execute, and upon its written order,
the Trustee shall authenticate and deliver, in lieu of such definitive bonds and
subject to the same provisions, limitations and conditions, one or more
temporary printed, lithographed or typewritten bonds, in registered form, of any
denomination specified in the written order of the Company for the
authentication and delivery thereof, and with such omissions, insertions and
variations as may be determined by the Board of Directors of the Company. Such
temporary bonds shall be substantially of the tenor of the bonds to be issued as
hereinbefore recited, but such temporary bonds may, in lieu of the statement of
the specific redemption prices required to be set forth in Bonds of Twenty-sixth
Series in definitive form, include a reference to this Twenty-ninth Supplemental
Indenture for a statement of such redemption prices.
If any such temporary Bonds of Twenty-sixth Series shall at any time be so
authenticated and delivered in lieu of definitive bonds, the Company shall upon
request at its own expense prepare, execute and deliver to the Trustee
38
18
and thereupon, upon the presentation and surrender of temporary bonds, the
Trustee shall authenticate and deliver in exchange therefor, without charge to
the holder, definitive bonds of the same series, interest rate or rates, issue
date, maturity date, redemption provision, if any, and for the same principal
sum in the aggregate as the temporary bonds surrendered. All temporary bonds so
surrendered shall be forthwith cancelled by the Trustee and delivered to or upon
the order of the Company. Until exchanged for definitive bonds the temporary
bonds shall in all respects be entitled to the lien and security of the
Indenture and all supplemental indentures.
ARTICLE II.
ISSUE OF BONDS OF TWENTY-SIXTH SERIES.
Bonds of Twenty-sixth Series in the aggregate principal amount of
$60,000,000 may be executed, authenticated and delivered from time to time only
as permitted by the provisions of Section 6 of Article III of the Indenture.
PART II
RESTATEMENT OF INDENTURE
WHEN (A) ALL BONDS ISSUED PRIOR TO MARCH 1, 1987 ARE NO LONGER OUTSTANDING
OR THE HOLDERS OF ANY SUCH BONDS REMAINING OUTSTANDING HAVE CONSENTED (THE
HOLDERS OF ALL BONDS ISSUED ON OR AFTER MARCH 1, 1987 BY THE ACCEPTANCE OF SUCH
BONDS HAVING CONSENTED TO THIS AMENDMENT AND RESTATEMENT), (B) THE TRUSTEE HAS
RECEIVED AN OFFICERS' CERTIFICATE STATING IN SUBSTANCE THAT THE COMPANY IS NOT
IN DEFAULT UNDER ANY TERMS OR COVENANTS OF THE INDENTURE AND COMPLYING WITH
SECTIONS 7 AND 8 OF ARTICLE XVII AS THEN IN EFFECT, (C) THE TRUSTEE HAS RECEIVED
AN OPINION OF COUNSEL DATED THE DATE OF SUCH OFFICERS' CERTIFICATE COMPLYING
WITH SECTIONS 7 AND 8 OF ARTICLE XVII AS THEN IN EFFECT, AND (D) THE TRUSTEE
HAS RECEIVED AN ACCOUNTANT'S CERTIFICATE DATED THE DATE OF SUCH OFFICERS'
CERTIFICATE STATING IN SUBSTANCE THAT THE
39
19
AGGREGATE PRINCIPAL AMOUNT OF ALL BONDS TO BE OUTSTANDING IMMEDIATELY FOLLOWING
THIS AMENDMENT AND RESTATEMENT BECOMING EFFECTIVE DOES NOT EXCEED SIXTY PER CENT
(60%) OF THE COST OF THE BONDED PROPERTIES TO BE SUBJECT TO THE LIEN OF THIS
INDENTURE IMMEDIATELY FOLLOWING THIS AMENDMENT AND RESTATEMENT BECOMING
EFFECTIVE THEN THE INDENTURE OF MORTGAGE AND DEED OF TRUST AS SUPPLEMENTED OR
AMENDED THROUGH FEBRUARY 28, 1987 IS HEREBY AMENDED AND RESTATED EFFECTIVE THE
DATE OF SUCH OFFICERS' CERTIFICATE TO READ IN ITS ENTIRETY, SUBJECT TO
AMENDMENTS, DELETIONS OR REVISIONS, IF ANY, APPLICABLE TO THIS AMENDMENT AND
RESTATEMENT AFTER MARCH 1, 1987, TO READ AS FOLLOWS:
INDENTURE OF MORTGAGE AND DEED OF TRUST, dated as of the 1st day of March,
1944, between MICHIGAN CONSOLIDATED GAS COMPANY, a corporation duly organized
and existing under and by virtue of the laws of the State of Michigan
(hereinafter called the "Company"), party of the first part, and CITY BANK
FARMERS TRUST COMPANY to which on the date of the Twenty-ninth Supplemental
Indenture hereto CITIBANK, N.A., a national banking association incorporated and
existing under and by virtue of the laws of the United States of America, having
an office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ in the Borough of Manhattan, The City of New York,
New York is successor (hereinafter called the "Trustee"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ to
whom on the date of the Twenty-ninth Supplemental Indenture hereto ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, residing at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ is successor
(hereinafter called the "Individual Trustee"), parties of the second part (the
Trustee and Individual Trustee being hereinafter together referred to as the
"Trustees"):
WHEREAS, the Company is authorized by law, and deems it necessary from time
to time, to borrow money for its proper corporate purposes, and to that end, in
exercise of said authority, has duly authorized and directed the issue of its
bonds, not limited in aggregate principal amount except as otherwise hereinafter
provided, to be known as its First Mortgage Bonds, to be issued in one or more
series, the bonds of each series to bear such date, to mature on such date or
dates, to bear such rate or rates of interest and to contain such other
specifications and provisions as are hereinafter in this Indenture provided
40
20
or permitted, the bonds of each series to be issuable originally either as
coupon bonds registrable as to principal and/or as registered bonds without
coupons, as the Company shall elect; and in order to secure the payment of the
principal of, and interest on, the bonds, to provide for the authentication
thereof by the Trustee and to establish and declare the terms and conditions
upon which the bonds are to be issued, received and held, the Company has duly
authorized and directed the execution and delivery of this Indenture; and
WHEREAS, the bonds, the coupons to be attached to the coupon bonds and the
certificate of the Trustee to be borne by the bonds, are to be substantially in
the following forms, respectively, with such appropriate omissions, insertions
and variations as are in this Indenture or in any indenture supplemental hereto
provided or permitted:
[GENERAL FORM OF COUPON BOND]
MICHIGAN CONSOLIDATED GAS COMPANY
FIRST MORTGAGE BOND
$................. No.................
MICHIGAN CONSOLIDATED GAS COMPANY (hereinafter called the "Company"), a
corporation of the State of Michigan, for value received, hereby promises to pay
to bearer, or, if this bond be registered as to principal, to the registered
owner hereof, on ............, at ............ in ............ the sum of
............. Dollars ($.............) in lawful money of the United States of
America, and to pay interest thereon from ............... at the rate of ......
per cent (......%) per annum, in like lawful money, payable ........... at
........... in ........... on the ........... day of ......... and on the . .
....... day of ......... in each year until the Company's obligation with
respect to the payment of such principal sum shall be discharged as provided in
the indentures hereinafter mentioned, but only, in the case of interest due on
or before the maturity date, upon presentation and surrender of the interest
coupons therefor hereto attached as they severally mature.
This bond is one, of the series hereinafter specified, of the bonds of the
Company (herein called the "bonds") known as its "First Mortgage Bonds," issued
and to be issued in one or more series under, and all equally and ratably
secured by, an Indenture of Mortgage and Deed of Trust (herein, together with
any indenture supplemental thereto, including the supplemental indenture dated
as of , called the "Indenture") dated as of March 1,
41
21
1944, duly executed by the Company to City Bank Farmers Trust Company,
(Citibank, N.A., as successor trustee, herein called the "Trustee") and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as successor individual trustee, herein called the
"Individual Trustee"), Trustees, to which Indenture reference is hereby made for
a description of the property mortgaged and pledged, the nature and extent of
the security, the terms and conditions upon which the bonds are, and are to be,
secured, and the rights of the bearers or registered owners of the bonds and of
the Trustees in respect of such security. This bond is one of a series entitled
...................................................
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, the rights and obligations of the Company and/or the
rights of the holders of the bonds and/or coupons and/or the terms and
provisions of the Indenture may be modified or altered, with certain exceptions
as provided in the Indenture, by affirmative vote of the holders of at least
sixty per cent (60%) in principal amount of the bonds then outstanding under the
Indenture and, if the rights of the holders of one or more, but less than all,
series of bonds then outstanding are to be adversely affected, then by
affirmative vote of the holders of at least sixty per cent (60%) in principal
amount of those bonds then outstanding so to be adversely affected.
In case an event of default as defined in said Indenture shall occur, the
principal of this bond may become or be declared due and payable in the manner,
with the effect, and subject to the conditions provided in said Indenture.
This bond is transferable by delivery unless registered as to principal on
the books of the Company at the office or agency of the Company in
............., such registration to be noted hereon. After such registration, no
transfer shall be valid unless made upon said books by the registered owner in
person, or by an attorney duly authorized in writing, and similarly noted
hereon; but this bond may be discharged from registration by being in like
manner transferred to bearer, and thereupon transferability by delivery shall be
restored, after which this bond may again from time to time be registered or
made transferable to bearer as before. Such registration, however, shall not
affect the negotiability of the coupons for interest hereto attached, which
shall always be payable to bearer and transferable by mere delivery.
No recourse shall be had for the payment of the principal of, or the
interest on, this bond, or for any claim based hereon or otherwise in respect
hereof or
42
22
of said Indenture, against any incorporator, any subscriber, or against any
stockholder, director or officer, past, present or future, of the Company, as
such, or of any predecessor or successor corporation, either directly or through
the Company or any such predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability, whether at common law,
in equity, by any constitution, statute or otherwise, of incorporators,
subscribers, stockholders, directors or officers being waived and released by
every bearer or registered owner hereof by the acceptance of this bond and as
part of the consideration for the issue hereof, and being likewise waived and
released by the terms of said Indenture.
Neither this bond nor any of the annexed interest coupons shall be valid or
become obligatory for any purpose unless and until the certificate hereon shall
have been executed by the Trustee or its successor in trust under said
Indenture.
IN WITNESS WHEREOF, MICHIGAN CONSOLIDATED GAS COMPANY has caused this bond
to be signed in its name by its Chairman, Chief Executive Officer, President,
Vice Chairman or one of its Vice Presidents, by signature or facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and attested by its
Secretary or an Assistant Secretary, by signature or facsimile thereof, and
coupons for said interest bearing the facsimile signature of its Treasurer or an
Assistant Treasurer or its Secretary or an Assistant Secretary to be hereunto
attached.
DATED:
MICHIGAN CONSOLIDATED GAS COMPANY
BY ........................................
ATTEST:
.......................................
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23
[GENERAL FORM OF INTEREST COUPON]
No ................ $ ................
On the ........ day of ...................... unless the bond hereinafter
mentioned shall have previously become due and payable, upon surrender of this
coupon, MICHIGAN CONSOLIDATED GAS COMPANY will pay to bearer, at .......... in
.............................. Dollars ($...........) in lawful money of the
United States of America, being .................... months' interest then due
on its First Mortgage Bond, ............ , No ..............
....................................
[GENERAL FORM OF REGISTERED BOND WITHOUT COUPONS]
MICHIGAN CONSOLIDATED GAS COMPANY
FIRST MORTGAGE BOND
$ ................ No ................
MICHIGAN CONSOLIDATED GAS COMPANY (hereinafter called the "Company"), a
corporation of the State of Michigan, for value received, hereby promises to pay
to ............. or registered assigns, on ............. , at
.............................. in ............................... the sum of
............ .......... Dollars ($ ...................... ) in lawful money of
the United States of America, and to pay interest thereon from ,
if the date of this bond is prior to or, if the date of this bond is on
or after , from the or next preceding the
date of this bond (unless the date hereof is an interest payment date to which
interest has been paid, in which case from the date hereof), at the rate of ....
per cent (....%) per annum, in like lawful money, payable ............. at
............ in ............ on the ........... day of ............ and on the
........... day of ................ in each year until the Company's obligation
with respect to the payment of such principal sum shall be discharged as
provided in the indentures hereinafter mentioned.
[The following provision may be included here at the Company's option:
provided, however, if the date hereof is after any record date, as hereinafter
provided, with respect to any interest payment date and prior to such interest
payment date, then interest shall be payable only from such interest payment
44
24
date unless the Company shall default in the payment of the interest due on such
interest payment date, in which case interest shall be payable from the next
preceding interest payment date to which interest has been paid, or, if no such
interest has been paid on the bonds, from .........
The interest so payable on any interest payment date will, subject to
certain exceptions provided in the Indenture hereinafter referred to, be paid to
the person in whose name this bond is registered at the close of business
(whether or not a business day) on the ........ or ........ (herein called
"record dates"), as the case may be, next preceding such interest payment date.]
At the option of the Company, interest may be payable by check mailed on or
prior to such interest payment date to the address of the person entitled
thereto as such address shall appear on the register of the Company.
[The provisions hereinafter indicated for the reverse of the bond may
instead be inserted here. Otherwise, the following statement shall be included
here if provisions are continued on the reverse of the bond: ADDITIONAL
PROVISIONS OF THIS BOND ARE SET FORTH ON THE REVERSE HEREOF AND SUCH PROVISIONS
SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS
PLACE.]
This bond shall not be valid or become obligatory for any purpose, unless
and until the certificate herein shall have been executed by the Trustee or its
successor in trust under said Indenture.
IN WITNESS WHEREOF, MICHIGAN CONSOLIDATED GAS COMPANY has caused this bond
to be signed in its name by its Chairman, Chief Executive Officer, President,
Vice Chairman or one of its Vice Presidents, by signature or facsimile thereof,
and its corporate seal to be impressed or imprinted hereon and attested by its
Secretary or an Assistant Secretary, by signature or facsimile thereof.
DATED:
MICHIGAN CONSOLIDATED GAS COMPANY
By ........................................
Attest:
......................................
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[GENERAL FORM OF REGISTERED BOND WITHOUT COUPONS]
(REVERSE)
MICHIGAN CONSOLIDATED GAS COMPANY
This bond is one, of the series hereinafter specified, of the bonds of the
Company (herein called the "bonds") known as its "First Mortgage Bonds," issued
and to be issued in one or more series under, and all equally and ratably
secured by, an Indenture of Mortgage and Deed of Trust (herein, together with
any indenture supplemental thereto, including the supplemental indenture dated
as of , called the "Indenture") dated as of March 1, 1944, duly
executed by the Company to City Bank Farmers Trust Company (CITIBANK, N.A., as
successor trustee, herein called the "Trustee") and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ as successor individual trustee, herein called the "Individual
Trustee"), Trustees, to which Indenture reference is hereby made for a
description of the property mortgaged and pledged, the nature and extent of the
security, the terms and conditions upon which the bonds are, and are to be,
secured, and the rights of the bearers or registered owners of the bonds and of
the Trustees in respect of such security. This bond is one of a series entitled
.............................................
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, the rights and obligations of the Company and/or the
rights of the holders of the bonds and/or coupons and/or the terms and
provisions of the Indenture may be modified or altered, with certain exceptions
as provided in the Indenture, by affirmative vote of the holders of at least
sixty per cent (60%) in principal amount of the bonds then outstanding under the
Indenture and, if the rights of the holders of one or more, but less than all,
series of bonds then outstanding are to be adversely affected, then by
affirmative vote of the holders of at least sixty per cent (60%) in principal
amount of those bonds then outstanding so to be adversely affected.
In case an event of default as defined in said Indenture shall occur, the
principal of this bond may become or be declared due and payable in the manner,
with the effect, and subject to the conditions provided in said Indenture.
This bond is transferable by the registered owner hereof in person, or by
an attorney duly authorized in writing, at the office or agency of the Company
in ................., upon surrender and cancellation of this bond, and upon any
such transfer a new registered bond, without coupons, of the same series
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and maturity for the same aggregate principal amount will be issued to the
transferee in exchange herefor.
No recourse shall be had for the payment of the principal of, or the
interest on, this bond, or for any claim based hereon or otherwise in respect
hereof or of said Indenture, against any incorporator, any subscriber, or
against any stockholder, director or officer, past, present or future, of the
Company, as such, or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such
liability, whether at common law, in equity, by any constitution, statute or
otherwise, of incorporators, subscribers, stockholders, directors or officers
being waived and released by every owner hereof by the acceptance of this bond
and as part of the consideration for the issue hereof, and being likewise waived
and released by the terms of said Indenture.
[FORM OF TRUSTEE'S CERTIFICATE ON ALL BONDS]
This bond is one of the bonds of the series designated therein, described
in the within-mentioned Indenture.
CITIBANK, N.A., as Trustee,
By ......................................
Authorized Officer
AND WHEREAS, all acts and things required by law and by the articles of
incorporation and the by-laws of the Company necessary to make this Indenture,
when duly executed and delivered, a valid and binding mortgage and deed of trust
for the security of all bonds duly issued hereunder have been done and
performed; and the execution and delivery of this Indenture have been in all
respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of and interest on all bonds at any time outstanding
under this Indenture according to their tenor, purport and effect, and the
performance and observance of all the covenants and conditions therein and
herein contained, and to declare the terms and conditions upon and subject to
which said bonds are secured and to be secured, and in consideration of the
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premises and of the mutual covenants herein contained and of the purchase and
acceptance of said bonds by the holders thereof, and of the sum of One Dollar,
lawful money of the United States of America, to the Company duly paid by the
Trustees at or before the ensealing and delivery hereof, and for other valuable
considerations, the receipt whereof is hereby acknowledged, the Company has
executed and delivered this Indenture and has granted, bargained, sold, aliened,
granted a security interest in, remised, released, conveyed, assigned,
transferred, mortgaged, pledged, set over and confirmed, and by these presents
does grant, bargain, sell, alien, grant a security interest in, remise, release,
convey, assign, transfer, mortgage, pledge, set over and confirm unto Citibank,
N.A. (successor to City Bank Farmers Trust Company) and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(successor to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇), as Trustees, and to their successors in trust
and to their assigns, forever, all of the property of the Company, real and
personal, of every kind and character described below (other than the excepted
property hereinafter referred to and defined) including the following:
FIRST.
All the real estate of the Company located in the State of Michigan
described in the Indenture of Mortgage dated as of March 1, 1944 as it was
recorded in 1944 and the supplemental indentures thereto all as recorded prior
to the effective date of this amendment and restatement except for any such real
estate that has been released from the lien hereof in any deed executed by the
Trustees pursuant to the provisions of the Indenture as amended and
supplemented.
SECOND.
All pipelines of the Company located in the State of Michigan, including
all transmission lines and lateral lines, together with all easements and
rights-of-way for constructing, maintaining, replacing and operating the same,
and all pipes, structures, compressors, valves, regulators, services, meters,
machinery, fixtures, equipment and apparatus comprising or appurtenant to said
transmission lines and lateral lines, including those described in the Indenture
of Mortgage dated as of March 1, 1944 as it was recorded in 1944 and the
supplemental indentures thereto all as recorded prior to the effective date of
this amendment and restatement and except for any such pipeline that has been
released from the lien hereof in any deed executed by the Trustees pursuant to
the provisions of the Indenture as amended and supplemented.
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THIRD.
All gas manufacturing plants and gas transmission and distribution systems
of the Company located in the State of Michigan, including all and singular the
gas works, stations, substations, offices, repair shops, buildings, structures,
holders, retorts, purifiers, scrubbers, tanks, boilers, machinery, engines,
pumps, compressors, pipes, mains, conduits, valves, regulators, services,
meters, fixtures, tools, equipment, apparatus and other property comprising or
appurtenant to said gas manufacturing plants and gas transmission and
distribution systems.
FOURTH.
All franchises, all rights to construct, maintain and operate systems for
the distribution and transmission of gas in the State of Michigan, and all
easements, rights-of-way, permits, consents, privileges and licenses of the
Company related thereto.
FIFTH.
Also all other property of the Company, real and personal, of every kind
and character used or useful for or to be used in the business of manufacturing,
producing, generating, purchasing, transmitting, distributing or supplying gas,
electricity, steam or water for any purpose and wheresoever situated in the
States of Michigan, Ohio or Indiana, except property of the character
hereinafter referred to and defined as excepted property.
SIXTH.
Also all gas utility property, real and personal, of every kind and
character described above, and wheresoever situated in the State of Michigan
(except property of the character hereinafter referred to and defined as
excepted property), which may be hereafter acquired or possessed by the Company,
subject, however, to the provisions of Article XIII.
SEVENTH.
And also all property which at any time after March 1, 1987, by delivery or
by an indenture supplemental hereto, may be expressly conveyed, mortgaged or
pledged to the Trustees hereunder, or either of them, by the Company or by a
successor corporation, or by anyone on the Company's behalf and with its written
consent as and for additional security hereunder; the Trustees and each of them
being hereby authorized at any and all times to accept and
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receive any such conveyance, mortgage, pledge or delivery and to hold and apply
any such property upon and subject to the terms and provisions hereof or of any
such supplemental indenture.
EIGHTH.
Together with all and singular the tenements, hereditaments and
appurtenances belonging or in anyway appertaining to the property hereby granted
or intended so to be; and the reversion and reversions, remainder and
remainders, incomes, rents, issues, proceeds and profits thereof; and all of the
estate, right, title, interest and claim whatsoever of the Company in and to the
same and every part and parcel thereof, excepting always property hereinafter
excepted and excluded from the lien hereof.
EXCEPTED PROPERTY.
Expressly excepting and excluding, however, from this Indenture and from the
lien and operation hereof all the following-described property whether now owned
or hereafter acquired by the Company:
A. All shares of stock and certificates or evidences of interest
therein, all bonds, notes and other evidences of indebtedness or
certificates of interest therein, all other securities, all bills, notes and
accounts receivable, cash on hand or in banks, judgments, demands and
general intangibles, choses in action and all contracts and operating
agreements, now owned or hereafter acquired or possessed by the Company and
which, or the proceeds of which, are not hereby or hereafter specifically
mortgaged and pledged hereunder or required so to be.
B. All property and franchises of any other corporation of whatever
character, securities whereof, or obligations secured by lien upon the
properties and franchises whereof, may be now owned or hereafter acquired or
possessed by the Company, notwithstanding the fact that the Company may own
or hereafter acquire all or substantially all of the securities issued by or
secured by lien upon property of any such corporation or that any such
corporation may be incorporated or organized at the instance of, or for the
account of, the Company.
C. All goods, wares, merchandise, equipment, materials and supplies
manufactured or otherwise acquired for the purpose of resale or lease or for
consumption in the ordinary course of business or in the operation of any
properties of the Company, or held in advance of use thereof for fixed
capital purposes, and all leases.
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D. All gas (including but not limited to volumes of gas necessary to
maintain minimum pressures required for the operation of storage fields,
sometimes referred to as "base gas"), by-products of gas, electricity,
steam, water and oil, and any natural gas lands, ▇▇▇▇▇, royalties, or rights
or interests therein, or natural gas gathering lines or other works or
property used in the production of natural gas.
E. All automobiles, trucks, and other transportation equipment.
F. All property of the Company in Earth's orbit or otherwise in space.
G. All oil rights under gas and/or oil leases.
H. All the interest of the Company in ▇▇▇▇ ▇, ▇, ▇, ▇, ▇, ▇▇, ▇▇, ▇▇,
and a portion of Lots 4 and 13, Fraser's Section of part of the Chene Farm,
Detroit, ▇▇▇▇▇ County, Michigan, record title to said premises being in
Union Trust Company, a Michigan corporation, by virtue of a deed recorded in
the office of the Register of Deeds for ▇▇▇▇▇ County in Liber 1591 of Deeds,
page 6.
All securities, properties and franchises so excepted and excluded, or
during the time and to the extent so excepted and excluded, are elsewhere in
this Indenture sometimes referred to collectively as "excepted property". If,
upon the happening and continuance of an event of default as defined in Section
9.01 hereof, the Trustees or either of them or any receiver appointed hereunder
shall enter upon and take possession of the mortgaged property, the Trustees or
such receiver may, to the extent permitted by law, at the same time likewise
take possession of any and all of the excepted property described herein then on
hand, and not then subject to a lien or encumbrance, which is used or useful in
connection with the business of the Company, and use and administer the same, to
the extent permitted by law, to the same extent as if such property were then
made part of the mortgaged property, unless and until such event of default
shall be remedied or waived and possession of the mortgaged property restored to
the Company, its successors or assigns.
The Company, however, expressly reserves the power at any time and from time
to time, by indenture supplemental hereto, to subject to the lien and operation
of the indenture any part or all of the securities, property and franchises so
excepted and excluded from the lien and operation hereto, upon such terms and
conditions and subject to such restrictions, limitations and reservations as it
may determine.
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TO HAVE AND TO HOLD the trust estate unto the Trustees, and their successors
and assigns, to and for the proper use and benefit of the Trustees, and their
successors and assigns forever:
SUBJECT, HOWEVER, to the exceptions and reservations and matters hereinabove
recited; to existing leases and railroad trackage agreements; to alleys, streets
and highways that may run across or encroach upon said lands; to easements,
rights-of-way, reservations and restrictions existing by operation of law
or otherwise, over, under, upon or against the trust estate; to mortgages,
encumbrances or other liens existing at the date of acquisition on properties
and franchises acquired after the date of delivery of this Indenture; to
purchase money mortgages upon properties and franchises, acquired after the date
of delivery of this Indenture, created by the Company at the time of acquisition
of such properties and franchises; and to permissible encumbrances, as the term
"permissible encumbrances" is defined in Article I hereof.
IN TRUST NEVERTHELESS, for the equal and proportionate use, benefit and
security of all present and future holders of the bonds and coupons issued and
to be issued under this Indenture, and for the enforcement of the payment of
said bonds and coupons when payable according to their tenor, purport and
effect, and to secure the performance of and compliance with the covenants and
conditions of said bonds and coupons and of this Indenture, without preference,
priority or distinction as to lien or otherwise, except as otherwise hereinafter
provided, of any one bond or coupon over any other bond or coupon, or of the
bonds or coupons of any particular series over the bonds or coupons of any other
series, by reason of priority in the time of issue, sale or negotiation thereof
or by reason of the purpose of issue or otherwise howsoever, so that, except as
aforesaid, each and every bond issued and to be issued hereunder shall have the
same right, lien and privilege under and by virtue of this Indenture, and so
that, except as aforesaid, the principal of and interest on all bonds shall be
equally and proportionately secured hereby, as if all such bonds at any time
outstanding had been duly issued, sold and negotiated simultaneously with the
delivery of this Indenture, and for the same consideration; it being intended
that the lien and security of this Indenture as to all bonds issued and to be
issued hereunder shall take effect from the day of the delivery hereof, without
regard to the time of the actual issue, sale or disposition of said bonds, and
as though upon said date all of said bonds had been sold and delivered to and
were in the hands of bona fide purchasers thereof for value;
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PROVIDED, HOWEVER, and these presents are upon the condition that if the
Company, its successors or assigns, shall pay or cause to be paid unto the
holders of all bonds outstanding hereunder the principal and interest (and
premium, if any) to become due in respect thereof at the times and in the manner
stipulated therein and herein, and shall keep, perform and observe all and
singular the covenants and promises in the bonds and coupons and in this
Indenture expressed as to be kept, performed and observed by or on the part of
the Company according to the true intent and meaning of this Indenture, then
this Indenture and the estate and rights hereby granted shall cease, determine
and be void, otherwise to remain in full force and effect.
And it is hereby covenanted, declared and agreed by and between the parties
hereto that all of said bonds, with the coupons, if any, for interest thereon,
are to be executed, authenticated, issued and held, and that the trust estate is
to be held by the Trustees, upon and subject to the further covenants,
conditions, uses and trusts hereinafter set forth, viz.:
ARTICLE I.
DEFINITIONS.
For all purposes of this Indenture and of all indentures supplemental hereto
now or hereafter entered into in accordance with the provisions hereof, the
definitions contained in and the methods of computation. prescribed by this
Article I shall be applied, unless the context otherwise requires or unless any
such supplemental indenture shall otherwise provide. Unless otherwise defined in
this Indenture, all terms used in those provisions of this Indenture which are
required to be inserted in an indenture to be qualified under the Trust
Indenture ACT of 1939 shall have the meaning, if any, assigned to such terms in
said Act, unless the context otherwise requires.
The accounting terms used in this Indenture shall be construed in accordance
with generally accepted accounting principles and practices in use at the time
by companies operating like properties or, at the option of the Company, from
time to time, in accordance with generally accepted accounting principles and
practices in use at the effective date of this Amendment and Restatement of the
Indenture as hereinafter defined.
The acceptance by the Trustee of any document, the signer of which is
required by some provision hereof to be approved by the Trustee, shall be
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sufficient evidence of its approval of the signer within the meaning of this
Indenture.
Every request or application by the Company for action by the Trustee under
any of the provisions of this Indenture shall be accompanied by an officers'
certificate and the opinion of counsel to the extent provided for in Section
17.07 hereof.
Accountant:
The term, "accountant," shall mean an individual or a co-partnership or a
corporation engaged in the accounting profession, whether or not employed by or
in any way affiliated with the Company, or an individual employed by the Company
in the capacity of accountant.
Accountant's Certificate:
The term, "accountant's certificate," shall mean a certificate signed by the
Chairman, Chief Executive Officer, President, Vice Chairman or a Vice President
of the Company or by any other officer selected by the Board of Directors and by
an accountant acceptable to the Trustee.
Acquired Plant or System:
The term, "acquired plant or system," shall mean any property purchased or
acquired by the Company after December 31, 1943, which within six months prior
to the date of purchase or acquisition thereof by the Company has been used or
operated, by others other than the Company, in a business similar to that in
which it had been or is to be used or operated by the Company.
Additional Bonds:
The term, "additional bonds," shall mean bonds authorized hereunder, of the
initial series known as First Mortgage Bonds, 3-1/2 % Series due 1969, or of any
other series, hereafter duly authenticated and delivered pursuant to the
provisions of Sections 3.03, 3.04, 3.05 and/or 3.06 hereof.
Affiliate:
The term, "affiliate," when used with reference to the Company, shall mean
any person or corporation controlling, controlled by, or under direct or
indirect common control with, the Company, and when used with reference to an
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obligor under this Indenture or upon the bonds other than the Company, shall
mean any person or corporation controlling, controlled by, or under direct or
indirect common control with, such obligor.
Appraiser:
The term, "appraiser," shall mean an individual or a co-partnership or a
corporation engaged in the business of appraising property or competent to
determine the value of the particular property in question, whether or not
employed by or in any way affiliated with the Company.
Appraiser's Certificate:
The term, "appraiser's certificate," shall mean a certificate signed by an
appraiser appointed by the Chairman, Chief Executive Officer, President, Vice
Chairman or a Vice President of the Company or any other officer selected by the
Board of Directors and acceptable to the Trustee.
Authorized Detroit Newspaper:
The term, "authorized detroit newspaper," shall mean any newspaper published
on each business day, whether or not published on Saturdays, Sundays or
holidays, printed in the English language, and of general circulation in the
City of Detroit, Michigan. In the event that successive weekly publications in
an authorized Detroit newspaper are required hereunder they may be made' (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or in different authorized Detroit newspapers. In case, by
reason of the suspension of publication of any authorized Detroit newspaper, or
by reason of any other cause, it shall be impractical without extraordinary
expense to make publication of any notice in an authorized Detroit newspaper as
required by this Indenture, then such method of publication or notification as
shall be made with the approval of the Trustee shall be deemed the equivalent of
the required publication of such notice in an authorized Detroit newspaper.
Authorized New York Newspaper:
The term, "authorized New York newspaper," shall mean any newspaper
published on each business day, whether or not published on Saturdays, Sun-days
or holidays, printed in the English language, and of general circulation in the
Borough of Manhattan, The City of New York, New York. In the event that
successive weekly publications in an authorized New York newspaper are
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required hereunder they may be made (unless otherwise expressly provided herein)
on the same or different days of the week and in the same or in different
authorized New York newspapers. In case, by reason of the suspension of
publication of any authorized New York newspaper, or by reason of any other
cause, it shall be impractical without extraordinary expense to make publication
of any notice in an authorized New York newspaper as required by this Indenture,
then such method of publication or notification as shall be made with the
approval of the Trustee SHALL be deemed the equivalent of the required
publication of such notice in an authorized New York newspaper.
Board of Directors-Board:
The term, "Board of Directors," or "Board" shall mean the Board of Directors
of the Company or any authorized committee of the Board of Directors.
Bonded:
The term, "bonded," when used with reference to property, PROPERTY
additions, bonds or prior ▇▇▇▇ ▇▇▇▇▇, shall mean any such property, property
additions, bonds or prior ▇▇▇▇ ▇▇▇▇▇ made by the Company the basis for the
authentication and delivery of bonds or for the withdrawal of cash held by the
Trustee or by the trustee or other holder of a prior lien or for the reduction
of the amount of cash to be deposited with the Trustee or for the release of
property from the lien hereof, under any provision of this Indenture (provided
that such provision does not expressly otherwise specify). The term, "bonded,"
shall also include bonds and prior ▇▇▇▇ ▇▇▇▇▇ purchased or retired with money or
other property constituting a part of the trust estate including, but not
limited to, the proceeds of insurance on property theretofore bonded. The term,
"bonded," shall also include any property, property additions, bonds or prior
▇▇▇▇ ▇▇▇▇▇, if and to the extent that the terms of any indenture supplemental
hereto, dated after March 1, 1987, shall so require.
All of the properties owned by the Company on December 31, 1943, and
hereby mortgaged or intended so to be, shall, for all purposes of this
Indenture, be deemed to have been bonded at the date of delivery of this
Indenture.
To the extent that any property additions, bonds or prior ▇▇▇▇ ▇▇▇▇▇,
certified to the TRUSTEE as the basis for any of the foregoing purposes, shall
be in excess of the amount of property additions, bonds or prior ▇▇▇▇ ▇▇▇▇▇
required for the particular purpose, such excess property additions, bonds or
prior lien
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bonds shall not be deemed to be bonded, or shall be only partially bonded to the
extent so used. For the purpose of determining which property additions
certified to the Trustee represent any such excess, such excess shall be deemed
to be represented by the property additions most recently purchased, constructed
or otherwise acquired and included in the certificate.
The term, "theretofore bonded," when used in any provision of this Indenture
with reference to property, property additions, bonds or prior ▇▇▇▇ ▇▇▇▇▇, shall
mean any such property, property additions, bonds, or prior ▇▇▇▇ ▇▇▇▇▇ - bonded
prior to and remaining bonded at the particular time under any provision of this
Indenture, or bonded contemporaneously under any provision of this Indenture.
Bondholders:
The term, "bondholders," or, "holders of the bonds," or, "holders," shall
mean the bearers of any coupon bonds outstanding hereunder, the ownership of
which is not at the time registered as to principal; the registered owners of
any coupon bonds outstanding hereunder which are at the time duly registered as
to principal; and the registered owners of any registered bonds without coupons
outstanding hereunder.
Any reference to a particular percentage or proportion of the bondholders,
or to a particular percentage or proportion of the holders of bonds of
a particular series, shall mean the holders at the particular time of the
specified percentage or proportion in aggregate principal amount of all bonds
then outstanding under this Indenture, or of all bonds of the particular series
then outstanding under this Indenture, as the case may be, exclusive of bonds or
of bonds of the particular series, as the case may be, owned by the Company,
whether or not theretofore issued, or by any obligor upon the bonds, or by any
affiliate of the Company or of such obligor, and whether held in the treasury of
the Company or of such obligor or affiliate or pledged to secure any
indebtedness; provided, however, that where such reference is made in connection
with the protection of the Trustees in acting upon the direction or consent of a
specified proportion of bondholders, such bonds shall be excluded only if known
to the Trustees to be so owned; and provided further, that bonds . so pledged
may be regarded as outstanding for the purposes of this paragraph if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such bonds and that the pledgee is not an obligor upon the bonds or an affiliate
of the Company or of such obligor.
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Bonds:
The term, "bond," or, "bonds," shall mean any bond or all the bonds, as the
case may be, authenticated and delivered under this Indenture.
The term, "outstanding under this Indenture," "outstanding under the
Indenture," or, "outstanding hereunder," when used with reference to bonds,
shall mean all bonds authenticated and delivered under this Indenture, except
A. bonds cancelled prior to the particular time;
▇. ▇▇▇▇▇ held by the Trustee for the purpose of any sinking fund or
analogous fund for the retirement of bonds for which provision may be made
in any indenture supplemental hereto, unless otherwise provided in such
supplemental indenture;
C. "redeemed bonds" as hereinafter defined; and
▇. ▇▇▇▇▇ in lieu of and in substitution for which other bonds shall have
been authenticated and delivered pursuant to the terms of Section 2.08
hereof.
Certified Resolution:
The term, "certified resolution," shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary Of the Company, under its
corporate seal, to have been duly adopted by the Board.
Company:
The term, "Company," shall mean the party of the first part hereto, MICHIGAN
CONSOLIDATED GAS COMPANY, and, subject to the provisions of Article XIII hereof,
shall include its successors and assigns.
Counsel:
The term,"counsel,"shall mean counsel (who may be of counsel for the
Company) appointed by the Chairman, Chief Executive Officer, President, Vice
Chairman or a Vice President of the company or any other officer selected by the
Board of Directors and acceptable to the Trustee.
Coupons:
The term, "coupon," or "coupons," shall mean any interest coupon or all the
interest coupons, as the case may be, appertaining to the bonds.
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Engineer:
The term, "engineer," shall mean an individual or a co-partnership or a
corporation engaged in the engineering business, whether or not employed by or
in any way affiliated with the Company, or an individual employed by the Company
in the capacity of engineer.
Engineer's Certificate:
The term, "engineer's certificate," shall mean a certificate signed by the
Chairman, Chief Executive Officer, President, Vice Chairman or a Vice President
of the Company and by an engineer acceptable to the Trustee.
Event of Default:
The term, "event of default," shall mean any event of default specified
in Section 9.01 of this Indenture, continued for the period of time, if any,
therein designated.
Indenture:
The term, "Indenture," shall mean this instrument and all indentures
supplemental hereto. All references to "herein" shall mean in this Indenture or
in any indenture supplemental hereto.
Independent Accountant:
The term, "independent accountant," shall mean an individual, co-partnership
or corporation, engaged in the accounting profession, who or which is in fact
independent and, in the case of an individual, who is not a director, officer or
employee of the Company or of an affiliate of the Company or of any other
obligor under this Indenture or upon any of the bonds, and, in the case of a
co-partnership or corporation, which is not an affiliate of the Company or of
any other obligor under this Indenture or upon any of the bonds and which does
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,
whether or not such individual, co-partnership or corporation is regularly
retained by the Company or by any affiliate of the Company or by such other
obligor.
Independent Accountant's Certificate:
The term, "independent accountant's certificate," shall mean a certificate
or opinion signed by an independent accountant appointed by the Chairman,
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Chief Executive Officer, President, Vice Chairman or a Vice President of the
Company or any other officer selected by the Board of Directors and approved by
the Trustee in the exercise of reasonable care
Independent Appraiser:
The term, "independent appraiser," shall mean an individual, co-partnership
or corporation, engaged in the business of appraising property or otherwise
competent to determine the value of the particular property in question, who or
which is in fact independent and, in the case of an individual, who is not a
director, officer or employee of the Company or of an affiliate of the Company
or of any other obligor under this Indenture or upon any of the bonds, and, in
the case of a co-partnership or corporation, which is not an affiliate of the
Company or of any other obliger under this Indenture or upon any of the bonds
and which does 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, whether or not such individual, co-partnership or corporation is
regularly retained by the Company or by any affiliate of the Company or by such
other obligor.
Independent Appraiser's Certificate:
The term, "independent appraiser's certificate," shall mean a certificate
signed by an independent appraiser appointed by the Chairman, Chief Executive
Officer, President, Vice Chairman or a Vice President of the Company or any
other officer selected by the Board of Directors and approved by the Trustee in
the exercise of reasonable care.
Independent Engineer:
The term, "independent engineer," shall mean an individual, co-partnership
or corporation, engaged in the engineering business, who or which is in fact
independent and, in the case of an individual, who is not a director, officer or
employee of the Company or of an affiliate of the Company or of any other
obligor under this Indenture or upon any of the bonds, and, in the case of a
co-partnership or corporation, which is not an affiliate of the Company or of
any other obliger under this Indenture or upon any of the bonds and which does
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,
whether or not such individual, co-partnership or corporation is regularly
retained by the Company or by an affiliate of the Company or by such other
obligor.
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Independent Engineer's Certificate:
The term, "independent engineer's certificate," shall mean a certificate
signed by an independent engineer appointed by the Chairman, Chief Executive
Officer, President, Vice Chairman or a Vice President of the Company or any
other officer selected by the Board of Directors and approved by the Trustee in
the exercise of reasonable care.
Lien of this Indenture:
The terms, "lien hereof," and, "lien of this Indenture," shall mean the lien
created by these presents (including the after-acquired property clauses hereof)
and the lien created by any subsequent conveyance to the Trustees hereunder or
otherwise (whether made by the Company or any other corporation or any
individual or co-partnership) effectively constituting any property a part of
the security held by the Trustees for the benefit of all bonds outstanding
hereunder.
Mortgaged Property--Trust Estate:
The terms, "mortgaged property," and, "trust estate," shall mean as of any
particular time the property which at said time is subject or intended to be
subject to the lien of this Indenture, whether such lien be created by these
presents (including the after-acquired property clauses hereof) or by subsequent
conveyance or delivery to or pledge with the Trustees hereunder or otherwise.
Net Property Additions:
The term, "net property additions," as of any particular date shall mean the
excess of the cost or fair value (whichever is less) of all property additions
of the Company, certified to the Trustee pursuant to any of the provisions of
this Indenture as of such date, over the original cost or over the cost or fair
value (whichever is less), as the case may be (computed in accordance with the
definition of property retirements), of all property retirements of the Company
certified to the Trustee as of such date pursuant to any provision of this
Indenture (provided that such provision does not expressly otherwise specify).
In the computation of "net property additions not theretofore bonded" for
any purpose of this Indenture, only property additions not theretofore bonded
shall be included. Property additions which shall have been retired or which
shall have been released from the lien of this Indenture without in either event
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having become bonded, shall be excluded in determining the amount of property
additions and property retirements.
Officers' Certificate:
The term "officers' certificate," shall mean a certificate signed by the
Chairman, Chief Executive Officer, President, Vice Chairman or a Vice President
and the Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer of the Company.
Order of the Company--Request of the Company:
The terms, "order of the Company," and, "request of the Company," shall
mean, unless the context otherwise indicates, an instrument in writing signed by
the Chairman, Chief Executive Officer, President, Vice Chairman or a Vice
President of the Company, or by any other officer selected by the Board of
Directors.
Original Cost:
The term, "original cost," when used with reference to property, shah mean
the cost of such property to the person first devoting it to public service, or,
in the case of property not devoted to public service, the cost thereof to the
Company.
Permissible Encumbrances:
The term, "permissible encumbrances," shall mean at any particular time
A.taxes, assessments or governmental charges not delinquent, B. taxes,
assessments or governmental charges, already due, but the validity of which is
being contested at the time by the Company in good faith, C. liens created by
others than the Company on property with respect to which the Company owns
easements, leases or rights-of-way for gas, steam or water mains, pipes, pipe
lines or equipment or for electric transmission or distribution lines, or leases
or other rights for natural gas production purposes, D. undetermined liens or
charges incidental to construction, E. liens 1. of any judgments in an aggregate
amount of not in excess of one per cent (1%) of the aggregate principal amount
of the bonds outstanding hereunder at the time of the creation of such lien in
personal injury, workers' compensation or death cases or for damages to
property, or 2. in respect of judgments or awards with respect to which the
Company shall in good faith concurrently be prosecuting an appeal or proceedings
for review, or 3. of any judgment in respect of which moneys in the amount of
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the judgment have been deposited with the Trustee to be withdrawn only as
provided in Section 8.01 hereof, F. easements, rights-of-way, exceptions,
reservations or restrictions, ,and agreements for the joint or common use of
property, which do not materially impair the use of the affected property in the
operation of the business of the Company, G. the right reserved to, or vested
in, any municipality or public authority by the terms of any franchise, grant,
license or permit, or by any provision of law, to terminate such franchise,
grant, license or permit or to purchase or appropriate or recapture or to
designate a purchaser of any of the mortgaged property, or to demand and collect
from the Company any tax or other compensation for the use of streets, alleys or
other public places, H. rights reserved to, or vested in, any municipality or
public authority to use, control, remove or regulate any property of the
Company, I. zoning laws and ordinances, J. possible adverse rights or interests
and inconsequential defects or irregularities in title which, in the opinion of
counsel, may be properly disregarded, K. any liens securing indebtedness,
neither assumed nor guaranteed by the Company nor on which it customarily pays
interest, existing upon real estate or rights in or relating to real estate
acquired by the Company for right-of-way, lease or similar purposes, L. rights
reserved to or vested in others to take or receive any part of the gas, power,
oil or other minerals or timber generated, developed, manufactured or produced
by, or grown on, or acquired with, any property of the Company, and M. any
controls, liens, restrictions, regulations, easements, exceptions or
reservations of any governmental authority applying to the property or
facilities of the Company.
Prior Lien:
The term, "prior lien," shall mean a mortgage or other lien prior to the
lien of this Indenture (excepting the liens of permissible encumbrances)
existing at any particular time upon any property additions then or theretofore
bonded under any provision of this Indenture.
Prior ▇▇▇▇ ▇▇▇▇▇:
The term, "prior ▇▇▇▇ ▇▇▇▇▇, " shall mean bonds, obligations or indebtedness
secured by prior liens.
The term, "outstanding," when used with reference to prior ▇▇▇▇ ▇▇▇▇▇, shall
mean as of any particular time all prior ▇▇▇▇ ▇▇▇▇▇ theretofore authenticated
and delivered by the trustee of the mortgage or other lien securing the same
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and/or, if there be no such trustee, all prior ▇▇▇▇ ▇▇▇▇▇ theretofore issued and
delivered by the maker of such mortgage or other lien, except:
A. prior ▇▇▇▇ ▇▇▇▇▇ theretofore cancelled;
B. prior ▇▇▇▇ ▇▇▇▇▇ held in pledge hereunder;
C. prior ▇▇▇▇ ▇▇▇▇▇ held in pledge by the trustee or other holder of the
mortgage or other lien securing such prior ▇▇▇▇ ▇▇▇▇▇ or other prior ▇▇▇▇
▇▇▇▇▇, or for the purpose of any sinking fund or analogous fund for the
retirement of bonds, for which provision may have been made in the
instrument evidencing such mortgage or other lien;
D. redeemed prior ▇▇▇▇ ▇▇▇▇▇, as hereinafter defined, and prior ▇▇▇▇
▇▇▇▇▇ for the purchase of which moneys in the necessary amount shall have
been irrevocably deposited with the Trustee hereunder or with the trustee or
other holder of the mortgage or other lien securing such prior ▇▇▇▇ ▇▇▇▇▇ or
other prior ▇▇▇▇ ▇▇▇▇▇ (whether upon or prior to maturity or upon or prior
to the redemption date of such prior ▇▇▇▇ ▇▇▇▇▇); and
E. lost, stolen, mutilated or destroyed prior ▇▇▇▇ ▇▇▇▇▇ in lieu of, and
in substitution for, which other prior ▇▇▇▇ ▇▇▇▇▇ shall have been issued.
Property Additions:
The term, "property additions," shall mean any new or additional property,
real or personal (including acquired plants or systems and separate and distinct
units, plants, systems and properties) purchased, constructed or otherwise
acquired by the Company and permanent improvements, extensions or additions
(including in these terms equipment and appliances) to or about the plants or
properties of the Company, and in every case subject to the lien hereof, in the
opinion of counsel for the Company, and located in the United States of America
or the Dominion of Canada and purchased, constructed or otherwise acquired by
the Company after December 31, 1943 (or, in the case of materials and supplies,
held on December 3 1, 1943, in advance of use thereof and installed after that
date), and properly chargeable to fixed capital accounts and so charged after
that date,, and in every case used or useful for or to be used in the business
of manufacturing, producing, exploring for and developing, generating,
purchasing, transmitting, transporting, managing the use-of, distributing or
supplying energy or fuel in any form, including without limitation, gas or
electricity for any purpose or of generating, manufacturing, producing,
transmitting, transporting, distributing or supplying water for drinking, power,
heat or other purposes or steam or hot water for power, heat or other purposes.
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"Property additions," as so defined, without limitation of the general
import of such definition, shall include:
A. Property acquired by the Company as the result of any consolidation
or merger to which the Company may be a party;
B. Permanent improvements, extensions or additions to or about the
properties of the Company in the process of construction or partially
completed, but only to the extent of construction made subsequent to
December 31, 1943;
C. Property purchased, constructed or otherwise acquired by the Company
to renew or replace, or in substitution for, other property including old,
worn out, obsolete, discontinued or abandoned property, or property which
has been lost through enforcement of liens on property with respect to which
the Company owns easements, rights-of-way or leases for gas, steam or water
mains, pipes or pipe lines or for electric transmission or distribution
lines;
D. Movable equipment, whether or not installed on property owned by
others;
E. Easements and rights-of-way for gas, steam or water mains, pipes or
pipe lines or for electric transmission or distribution lines, and any
rights, permits or licenses to use or appropriate water or to overflow the
land of others by the erection of dams or otherwise; and permanent
improvements, extensions or additions, including mains, pipes, towers, pole,
wires, vaults, conduits and equipment for transmission, distribution or pipe
line purposes, to or upon any land covered by such easements or
rights-of-way or such rights, permits or licenses or by leases;
F. Permanent improvements, extensions or additions, including mains,
pipes, towers, poles, wires, vaults, conduits and equipment for
transmission, distribution or pipe line purposes, located or constructed on,
over or under public highways, streets, alleys, bridges or other public
property (including in the cost thereof any cost of paving or repaving in
connection therewith);provided that the Company shall have or acquire the
lawful right (which may be for a term or indeterminate or revocable at the
will of the public authority having jurisdiction over such public highways,
streets, alleys, bridges or other public property) for such use; and
G. Any form of solar power satellites, space satellites, space stations
and other analogous facilities whether or not in the Earth's atmosphere.
"Property additions," as so defined, shall not include:
AA. Good will or any leases, contracts or operating agreements;
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BB. Any shares of stock or certificates or evidences of interest
therein, or any bonds, notes or other evidences of indebtedness or
certificates of interest therein or any other securities;
CC. Any goods, wares, merchandise, equipment, materials or supplies
acquired for the purpose of resale or lease or for consumption in the
ordinary course of business or in the operation of any properties of the
Company, or held in advance of use thereof for fixed capital purposes;
DD. Any natural gas lands, ▇▇▇▇▇, leases or royalties, or rights or
interests therein, or natural gas gathering lines or other works or property
used in the production of natural gas;
EE. Except as permitted by C., D., E. or F. above, any rights-of-way or
easements with respect to land owned by others or improvements, extensions
or additions by the Company on easements or rights-of-way or on leasehold
estates or on, over or under public highways, streets, alleys, bridges or
other public property;
FF. Any automobiles, trucks or other transportation equipment; or
GG. Any property acquired by the Company with proceeds , of any
insurance on property theretofore bonded.
The cost of any property additions shall include a sum equal to the
principal amount of any outstanding prior ▇▇▇▇ ▇▇▇▇▇ secured by a lien on such
property additions and not theretofore included in the cost of other property
additions which have been bonded. The fair value of any property additions shall
be determined without any deduction for any prior liens upon such property. The
cost of any property additions constructed by or for the Company shall include
such allowances or charges for interest, taxes, engineering, legal expenses,
superintendence, insurance, casualties and other items during construction and
for intangibles as the signers of an officers' certificate filed at the
particular time shall certify (1) are, in the opinion of the signers, proper in
respect of the particular property additions specified in said certificate, and
(2) are not in violation of any applicable rules, regulations or orders of any
public body or authority exercising supervisory authority over the accounts of
the Company.
The cost of any property additions shall mean the cost thereof to the
Company and the fair value of any property additions shall mean the fair value
thereof to the Company.
If the Company shall have acquired or paid for any property additions in
whole or in part through the issue or delivery of shares of stock or other
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securities, the portion of the cost of such property additions represented by
such shares of stock or other securities shall be deemed to be the fair value in
cash of any such shares of stock or other securities at the time of the issue or
delivery thereof in payment for, or for the acquisition of, such property
additions.
The cost of any property additions consisting of acquired plants or systems
shall be deemed to include the cost of any franchises or other rights acquired
simultaneously therewith for which no separate or distinct consideration shall
have been paid or apportioned. In the determination of the fair value of any
such property additions, consideration shall be given to going concern value to
the Company as well as to the value of the physical property acquired, but only
to the extent that the signer of the certificate required by the terms of
subdivision C.3. of Section 3.03 hereof shall certify is, in his opinion,
reasonable and proper in respect of the particular property additions specified
in said certificate.
The fair value of property additions shall in every case, except as
otherwise specifically provided herein, be determined as of a date not more than
ninety days prior to the date of application to the Trustee for bonding such
property additions.
Property Retirements:
The term, "property retirements," shall mean A. property of the character of
property additions owned by the Company on December 3 1, 1943, and B. property
additions theretofore bonded, which, in either case, subsequent to said date,
shall have worn out or been physically retired, discontinued or abandoned,
whether or not renewed or replaced (but shall not include any property only
temporarily out of use), or shall have been sold or otherwise disposed of, or
released pursuant to Section 7.03 or 7.04 or 7.05 hereof. Property retirements
shall not include any amount for the write-down or the write-off of the excess
of the cost to the Company of properties acquired as entireties over the
original cost of such properties, which may be required by any rule, regulation
or order of any public body or authority exercising supervisory authority over
the accounts of the Company.
For the purposes of this Indenture all property retirements shall be
computed at the original cost thereof (estimated, if necessary), unless such
property retirements shall consist of property additions theretofore bonded, in
which
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case such property retirements shall be computed at the zest or fair value
thereof (whichever is less) as certified to the Trustee at the time of bonding
such property additions (estimated, if necessary),in each case after deducting
from such original cost or cost or fair value, as the case may be, 1. if the
property retirements have been released pursuant to Section 7.03 hereof, the
consideration received or to be received therefor or an amount equal to the fair
value thereof at the time of such release (whichever is greater), or 2. if the
property retirements have been released pursuant to Section 7.04 or Section 7.05
hereof, the proceeds of the property so released; provided, however, that if any
property retirement is included as a property retirement in an engineer's
certificate, required to be filed pursuant to any provision of this Indenture,
prior to a release of such property retirement pursuant to Section 7.03 or
Section 7.04 or Section 7.05 hereof, as the case maybe, and if such property
retirement shall subsequently be so released, the consideration received or to
be received therefor or the fair value thereof at the time of such release
(whichever is greater) or the proceeds of the property so released, as the case
may be, may be deducted from the amount of any subsequent property retirements.
Publication of Notice:
Wherever herein provision is made for publication of any notice once in each
week for any period of consecutive weeks, such publications shall not be
required to be made on the same day of each such week, but may be made on any
day of any of such weeks, and need not be made in the same newspaper.
Redeemed Bonds and Redeemed Prior ▇▇▇▇ ▇▇▇▇▇:
The term, "redeemed bonds," shall mean A. bonds which have been deemed to
have been paid pursuant to a Section 16.05 Defeasance as provided for in Section
16.05 hereof and ▇. ▇▇▇▇▇ for the payment or redemption of which cash in the
necessary amount shall have been irrevocably deposited with the Trustee (whether
upon or prior to the maturity or redemption date of said bonds), provided that
if said bonds are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article IV hereof provided, or provision
satisfactory to the Trustee shall have been made for giving such notice; and the
term, "redeemed prior ▇▇▇▇ ▇▇▇▇▇," shall mean prior ▇▇▇▇ ▇▇▇▇▇ for the payment
or redemption of which cash in the necessary amount shall have been irrevocably
deposited with the Trustee hereunder, or with the trustee or other holder of the
mortgage or other lien securing such prior ▇▇▇▇ ▇▇▇▇▇ or other prior ▇▇▇▇ ▇▇▇▇▇
(whether upon, or prior to, the
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maturity or the redemption date of such prior ▇▇▇▇ ▇▇▇▇▇); provided that if such
prior ▇▇▇▇ ▇▇▇▇▇ are to be redeemed prior to the maturity thereof, notice of
such redemption shall, according to an opinion of counsel furnished to the
Trustee, have been published or otherwise given as required by the mortgage or
other lien securing the same, or provision satisfactory to the Trustee shall
have been made for such notice.
Registered Owner:
The term, "registered owner," shall mean the person or persons in whose name
or names the particular registered bond without coupons shall be registered, or
the particular coupon bond shall be registered as to principal, on the books of
the Company, kept for that purpose in accordance with the terms of this
Indenture.
Responsible Officers of the Trustee:
The term, "responsible officers of the Trustee," shall mean the chairman of
the board of directors, the president, every vice chairman of the board of
directors, every vice president, the secretary, every assistant secretary, the
treasurer, every assistant treasurer, every senior trust officer, every trust
officer, every assistant trust officer and every other officer and 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.
Supplemental Indenture:
The term, "supplemental indenture," or "indenture supplemental hereto,"
shall mean any indenture now or hereafter duly authorized and entered into
between the Company and the Trustees, in accordance with the provisions of this
Indenture.
Trust Indenture Act of 1939:
The term, "Trust Indenture Act of 1939," shall mean the Trust Indenture Act
of 1939 as in effect for the time being.
Trustee--Individual Trust--Trustees:
The term, "Trustee," shall mean Citibank, N.A., (successor to City Bank
Farmers Trust Company) or its successor as trustee under this Indenture for
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the time being, but not the Individual Trustee, and not a co-trustee or separate
trustee appointed pursuant to the provisions of Section 12.15 hereof unless
otherwise provided in the instrument of appointment executed pursuant to the
provisions of said Section 12.15 and then only to the extent therein provided.
The term, "Individual Trustee," shall mean ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (successor to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇) or his successor as trustee under this Indenture for the time
being, but not a co-trustee or separate trustee appointed pursuant to the
provisions of Section 12.15 hereof unless otherwise provided in the instrument
of appointment executed pursuant to the provisions of said Section 12.15, and
then only to the extent therein provided.
The term, "Trustees," shall mean the Trustee and the Individual Trustee for
the time being.
ARTICLE II.
DESCRIPTION, EXECUTION AND REGISTRATION OF BONDS.
SECTION 2.01. The bonds issuable under this Indenture may be issued in one
or more series as from time to time shall be authorized by the Board and may be
provided for in an indenture or indentures supplemental hereto or in certified
resolutions, and may be issued originally either as coupon bonds and/or as
registered bonds without coupons as the Board shall elect. The bonds of all
series shall be known generally as the "First Mortgage Bonds" of the Company,
but with respect to the bonds of any particular series, the Company may add to,
change or incorporate in such title, as the same may appear at the heading of
such bonds and in the coupons thereto attached, the rate of interest borne by
the bonds of such series, the date of maturity thereof, or any other words or
figures descriptive thereof or of the security therefor, as the Board may
determine. The Company may, if the Board so elects and if the Trustee approves,
or if the Trustee so requests in writing and if in the opinion of counsel the
general designation of the bonds as First Mortgage Bonds is not appropriate
under the circumstances existing at the particular time, the Company shall, at
any time from time to time change such general designation to such other general
designation as may, in the opinion of counsel, be appropriate under such
circumstances and not objected to by the Trustee. In the case of any such
change, and until a further change, all bonds which may be authenticated and
delivered thereafter pursuant to Article III hereof shall bear such new
designation. If additional bonds of any particular series, of which
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series bonds are outstanding at the time of any such change, shall at any time
thereafter be authenticated and delivered, or if any bonds bearing such new
designation are authenticated and delivered thereafter pursuant to this Article
II in exchange or substitution for or upon transfer of any such bonds, the
Company shall provide for the exchange of all bonds of such series at the time
outstanding for new bonds of like series and maturity bearing the new general
designation, at the option of, but without expense to, the holders.
The bonds of each series and the coupons to be attached to the coupon bonds
shall be substantially in the forms hereinbefore recited, with such omissions,
variations and insertions as are authorized in the supplemental indenture or
certified resolutions of the Board creating such series and as are permitted by,
or as may be required to comply with, the terms of this Indenture. The bonds of
each series shall be distinguished from the bonds of each other series in such
manner, either by a serial designation (which may be noted thereon) and/or in
the title of the bonds of such series or otherwise, as the Board may determine.
Bonds of the same series may be of different denominations, and bonds of any
series may be of serial maturities and if of serial maturities may differ with
respect to interest rates, redemption prices and terms of convertibility.
The Company shall deliver certified resolutions to the Trustee or shall
execute and deliver a supplemental indenture to the Trustee with respect to each
series of bonds issued hereunder which shall specify the designation, terms and
provisions of the bonds of such series, as herein required or permitted.
Subject to determination from time to time by