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REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITED CITIES GAS COMPANY
(Exact name of Registrant as specified in charter)
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ILLINOIS & VIRGINIA 36-1801540
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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5300 MARYLAND WAY
BRENTWOOD, TENNESSEE 37027
615-373-5310
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
GENE C. KOONCE, PRESIDENT
5300 MARYLAND WAY
BRENTWOOD, TENNESSEE 37027
615-373-5310
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies of communications to:
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JOHN M. DIXON, ESQ. ROBERT A. YOLLES, ESQ.
CHAPMAN AND CUTLER JONES, DAY, REAVIS & POGUE
111 W. MONROE STREET 77 WEST WACKER DRIVE
CHICAGO, ILLINOIS 60603-4080 CHICAGO, ILLINOIS 60601-1692
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective as
determined by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING PRICE AGGREGATE AMOUNT OF
TITLE OF EACH CLASS AMOUNT TO BE PER OFFERING PRICE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED(1)(2)(4) SECURITY(1)(4) (1)(2)(4) FEE(3)(4)
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Debt Securities and Common Stock,
without par value.................. $200,000,000 $68,966
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(1) The amount to be registered, the proposed maximum offering price per
security and the proposed maximum aggregate offering price for each class of
security being registered have been omitted in accordance with the General
Instructions to Form S-3.
(2) In no event will the aggregate initial offering price of the Debt Securities
(excluding accrued interest) and Common Stock (excluding shares issuable
upon the conversion of convertible Debt Securities) issued under this
Registration Statement exceed $200,000,000.
(3) The amount of the registration fee has been calculated in accordance with
Rule 457(o) under the Securities Act of 1933.
(4) The number of additional shares of Common Stock issuable upon the conversion
of convertible Debt Securities and registered under this Registration
Statement will be determined with reference to the market price of the
Common Stock at the time of the sale of such Debt Securities. In accordance
with Rule 457(i) under the Securities Act of 1933, no additional fee is to
be paid in connection with the registration of such shares.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 20, 1994
UNITED CITIES GAS COMPANY
DEBT SECURITIES
COMMON STOCK
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United Cities Gas Company (the "Company") may offer, from time to time, (i)
its First Mortgage Bonds (the "Bonds"), (ii) its notes (the "Notes" and
collectively with the Bonds, the "Debt Securities") and/or (iii) shares of its
Common Stock, without par value (the "Common Stock"), at prices and on terms to
be determined when an agreement to sell is made or at the time or times of sale,
as the case may be. The Debt Securities and the Common Stock may be issued in
one or more series or issuances, as the case may be, and the aggregate initial
offering price thereof will not exceed $200,000,000. The Debt Securities and the
Common Stock are collectively referred to herein as the "Securities."
This Prospectus will be supplemented by an accompanying prospectus
supplement or supplements ("Prospectus Supplement") that will set forth, in the
case of any Debt Securities for which this Prospectus is being delivered
("Offered Bonds" in the case of Bonds or "Offered Notes" in the case of Notes),
the form in which such Debt Securities are to be issued and the designation
thereof, their aggregate principal amount, rate or rates and times of payment of
interest, maturity or maturities, their purchase price or prices and initial
offering price or prices, redemption or repurchase provisions, if any, whether,
in the case of Offered Notes, such Offered Notes will be collateralized by the
Company's First Mortgage Bonds or convertible into Common Stock and other
specific terms of such Debt Securities and, in the case of any Common Stock for
which this Prospectus is being delivered ("Offered Stock"), the number of shares
of such Common Stock and their purchase price and the initial public offering
price or prices. See "Description of Debt Securities" and "Description of
Capital Stock" herein.
The Common Stock of the Company is traded over-the-counter on the NASDAQ
National Market System under the symbol "UCIT." Unless otherwise specified in
the applicable Prospectus Supplement, the Offered Stock will be listed, subject
to notice of issuance, on the NASDAQ National Market System.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The Company may sell the Securities to or through underwriters, dealers or
agents, or directly to one or more purchasers. The Prospectus Supplement will
set forth the names of underwriters or agents, if any, any applicable
commissions or discounts and the net proceeds to the Company from any such sale.
See "Plan of Distribution" for possible indemnification arrangements for
underwriters, dealers and agents.
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The date of this Prospectus is , 1995.
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IN CONNECTION WITH THIS OFFERING THE UNDERWRITERS MAY, IF APPLICABLE,
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE CLASS OR SERIES OF THE SECURITIES OFFERED HEREBY AT A LEVEL ABOVE THAT
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy statements
and other information filed by the Company with the Commission pursuant to the
informational requirements of the Exchange Act may be inspected and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Northeast Regional Office, 7 World Trade Center, Suite 1300, New
York, New York 10048; and Midwest Regional Office, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661. Copies of such material may be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993.
2. The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1994, June 30, 1994 and September 30, 1994.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be modified or superseded, for purposes
of this Prospectus, to the extent that a statement contained herein or in any
subsequently filed document which is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
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The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any or all of the documents described above (other than
exhibits unless such exhibits are specifically incorporated by reference into
such documents). Requests for such copies should be directed to Investor
Relations/Corporate Communications, United Cities Gas Company, 5300 Maryland
Way, Brentwood, Tennessee 37027, telephone (615) 373-5310.
THE COMPANY
The Company was incorporated under the laws of Illinois in 1929 and was
domesticated under the laws of Virginia in 1966. The Company's principal
executive offices are located at 5300 Maryland Way, Brentwood, Tennessee 37027,
and its telephone number is (615) 373-5310.
The Company's predominant business is the distribution of natural gas. As
of September 30, 1994, the Company supplied natural gas service to approximately
291,000 customers. In addition to its business of natural gas distribution, the
Company sells and installs gas appliances and performs certain appliance service
work.
The Company has two wholly-owned subsidiaries. One subsidiary, United
Cities Gas Storage Company ("UCG Storage"), was formed in 1989 to provide
natural gas storage services. A natural gas storage field was purchased in
Kentucky to supplement natural gas used by the Company's customers in Tennessee
and Illinois. In addition, natural gas storage fields located in Kansas and
included in the Company's 1989 acquisition of Union Gas System, Inc. were sold
to UCG Storage. These fields are used to supplement natural gas used by the
Company's Kansas customers.
The other subsidiary, UCG Energy Corporation ("UCG Energy"), incorporated
under the laws of Delaware in 1965, distributes energy-related products of the
American Meter Company and other companies in twenty-eight states, is a broker
procuring natural gas for the Company, certain of the Company's industrial
customers, local distribution companies and others, and is engaged in
exploration and production activities. In addition, UCG Energy leases
appliances, real estate, equipment and vehicles to the Company and others.
UCG Energy has two wholly-owned subsidiaries, United Cities Propane Gas of
Tennessee, Inc. and UCG Leasing, Inc. United Cities Propane Gas of Tennessee,
Inc., incorporated under the laws of Tennessee in 1976, is engaged in the retail
distribution of propane (LP) gas. As of September 30, 1994, the propane
operation served approximately 22,000 customers in Tennessee, Virginia and North
Carolina. UCG Leasing, Inc. was incorporated under the laws of Georgia in 1987
and leases vehicles, equipment and real estate to the Company.
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USE OF PROCEEDS
The net proceeds to be received by the Company from the issuance and sale
of the Securities offered hereby may be used for one or more of the following
purposes: for the repayment of all or a portion of the Company's short-term debt
outstanding at the time of issuance of the Securities; for the purchase,
acquisition and construction of additional properties and facilities, as well as
improvements to the Company's existing utility plant; for the refunding of
maturing long-term debt and satisfaction of sinking fund requirements; for the
refunding of higher-coupon long-term debt as market conditions permit; and for
general corporate purposes. Reference is made to the applicable Prospectus
Supplement for a description of the long-term debt, if any, to be refunded with
the net proceeds from any issuance and sale of the Securities offered hereby.
RATIO OF EARNINGS TO FIXED CHARGES
The ratios of consolidated earnings to fixed charges for the Company and
its subsidiaries for the twelve months ended September 30, 1994 and for each of
the years ended December 31, 1989 through 1993 are 2.32, 3.22, 1.42, 1.92, 2.17
and 2.21, respectively. Earnings consist of net income to which have been added
fixed charges and taxes on income. Fixed charges consist of interest on
long-term debt and amortization of debt discount.
DESCRIPTION OF DEBT SECURITIES
DESCRIPTION OF BONDS
General
The Bonds will be issued under the Indenture of Mortgage dated as of July
15, 1959 (the "Original Mortgage") from the Company to Bank of America Illinois
(successor to Continental Bank, National Association) (the "Mortgage Trustee")
and Robert J. Donahue (successor to M.J. Kruger), as Trustees (the Mortgage
Trustee and Robert J. Donahue are hereinafter referred to as the "Mortgage
Trustees"), as amended and supplemented, and as to be further supplemented by
one or more supplemental indentures creating the Bonds (the "Supplemental
Indenture"). The Original Mortgage as so amended and supplemented is hereinafter
referred to as the "Mortgage" and all bonds issued under the Mortgage are
hereinafter referred to as the "bonds." The statements herein concerning the
Bonds do not purport to be complete and are qualified in their entirety by
express reference to the Mortgage and to the definitions therein of the terms
used herein. References to article and section numbers under this heading are to
articles and section numbers in the Mortgage.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Offered Bonds (among others): (i) the designation and series of the
Offered Bonds; (ii) the percentage or percentages of their principal amount at
which such Offered Bonds will be issued; (iii) the date or dates on which the
Offered Bonds will mature; (iv) the rate or rates at which the Offered Bonds
will bear interest; (v) the times at which such interest will be payable; (vi)
the dates, if any, on which and the price or prices at which the Offered Bonds
will, pursuant to any mandatory sinking fund provisions, or may, pursuant to any
optional sinking fund provisions, be redeemed by the Company, and the other
detailed terms and provisions of any such sinking funds; (vii) the date, if any,
after which and the price or prices at which the Offered Bonds will, pursuant to
any optional redemption provisions, be redeemable at the option of the Company
or the holders thereof and the other detailed terms and provisions of such
optional redemptions; and (viii) any other special terms or provisions not
inconsistent with the terms of the Mortgage.
The Mortgage does not contain any covenants or other provisions that are
specifically intended to afford holders of the bonds special protection in the
event of a highly leveraged transaction.
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Form and Exchangeability
The Bonds will be issued only as fully registered bonds without coupons, in
denominations of $1,000 and multiples thereof. The Bonds will be exchangeable
for a like aggregate principal amount of other Bonds of the same series of
different authorized denominations, and may be transferred, in each case upon
surrender thereof at the principal corporate trust office of the Mortgage
Trustee in Chicago, Illinois. The Company may require the payment of a sum
sufficient to pay any stamp tax or other governmental charge imposed in relation
to any transfer or exchange of the Bonds, and in addition thereto, such charge
for any such transfer or exchange as it may deem proper, not exceeding $2.00 for
each new Bond issued upon such transfer or exchange.
Interest and Payment
Reference is made to the applicable Prospectus Supplement for the interest
rate or rates, if any, of the Offered Bonds and the date or dates on which such
interest is payable. Unless otherwise specified in the applicable Prospectus
Supplement, principal and interest on the Bonds are payable to the registered
holder thereof at the principal corporate trust office of the Mortgage Trustee
in Chicago, Illinois.
Redemption
The Supplemental Indenture will provide that the Bonds are redeemable, in
whole or in part, at any time upon notice as required in the Mortgage through
the application of cash deposited with the Mortgage Trustee in accordance with
the provisions of Section 3.14 of the Original Mortgage (relating to insurance
and certain other compensatory proceeds) or Section 7.02, 7.03 or 7.04 of the
Original Mortgage (relating to proceeds from the disposition, release or
governmental taking of mortgaged properties) at 100% of the principal amount
thereof, together with interest accrued thereon, if any, to the date of
redemption. (Art. 2, Sec. 2.03 of the Supplemental Indenture)
Any additional terms for the optional or mandatory redemption of Offered
Bonds will be set forth in the applicable Prospectus Supplement. Except as shall
otherwise be provided with respect to Offered Bonds redeemable at the option of
the holder thereof, such Offered Bonds will be redeemable only upon notice, by
mail, not less than 30 days and not more than 90 days prior to the date fixed
for redemption, postage prepaid, to each registered holder of Offered Bonds to
be redeemed. (Art. 4, Section 4.03 of the Original Mortgage) If less than all of
the Offered Bonds of any series are to be redeemed, the particular Offered Bonds
to be redeemed will be selected by such methods as the Mortgage Trustee deems
fair and appropriate. (Art. 3, Sec. 3.02 of the Supplemental Indenture)
Issuance of Additional Bonds
The Company may issue additional bonds:
(a) to a principal amount equal to 60% of the cost or fair value,
whichever is less, of net unbonded Property Additions (subject to
deductions if such net Property Additions secure Prior Lien Bonds or were
made the basis for the release of either property or cash under the
Mortgage) evidenced to the Mortgage Trustee for such purpose;
(b) to a principal amount equal to the amount of cash deposited with
the Mortgage Trustee for such purpose; and
(c) to a principal amount equal to the principal amount of any bonds
of any series voluntarily retired by the Company, by purchase or
redemption, and bonds retired by payment at their stated maturity; provided
that in case bonds described in clauses (a) and (b) above are issued, or
bonds described in this clause (c) are to be certified and delivered more
than one year prior to the maturity date of the bonds to be refunded and
are to bear a higher rate of interest than the bonds to be refunded, Net
Earnings for any period of 12 consecutive months within a 15 month period
ending not more than 60 days prior to the date of such proposed issue shall
have been at least equal to 175% of the interest requirements for a period
of
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12 months on all bonds (including Prior Lien Bonds) to be outstanding
immediately thereafter. (Art. 2, Sec. 2.02 of the Original Mortgage; Art.
5, Sec. 5.01 of the Nineteenth Supp. Ind.)
For purposes of the Mortgage, "Property Additions" is defined as all
property, with certain exceptions, of a fixed or permanent nature constructed or
acquired by the Company after July 31, 1959 and used or useful in the business
of providing natural gas service including all plants and properties constructed
or acquired and used solely for the purpose of furnishing other than natural gas
to augment the supply of natural gas in order to effect "peak shaving," all
property of the aforementioned described character in process of construction to
the extent that the Company has incurred liability therefor, and proper charges
for overhead in accordance with generally accepted principles of accounting, and
all Cushion Gas (defined as that minimum volume of natural gas necessary to be
retained in a gas storage reservoir owned by the Company in order to maintain
the integrity and viability of the geological strata and the horizons of a gas
reservoir for the storage of natural gas); provided, however, that until the
date on which no bonds of any series issued under the Mortgage and outstanding
immediately prior to January 26, 1990 are outstanding, the amount of Cushion Gas
which shall be included as Property Additions shall at no time exceed 10% of
Property Additions. (Art. 12, Sec. 12.05 of the Original Mortgage; Art. 5, Sec.
5.01 of the Nineteenth Supp. Ind.)
Two series of bonds issued under the Mortgage and outstanding immediately
prior to January 26, 1990 remain outstanding on December 20, 1994.
"Net Earnings" is defined, for any period, as the amount obtained by
deducting from the gross earnings derived from the operation of the mortgaged
property all operating expenses of the Company, and by adding to the remainder
all net non-operating earnings not in excess of 15% of such remainder; provided,
however, that the Supplemental Indenture will provide that each holder of the
Bonds and bonds of any subsequent series shall agree that effective on the
earlier of (i) the date on which the holders of the bonds of each series issued
under the Mortgage and outstanding immediately prior to January 26, 1990 consent
to such amendment, or (ii) the date on which no bonds of any series issued under
the Mortgage and outstanding immediately prior to January 26, 1990 remain
outstanding, the definition of Net Earnings shall be amended to replace the
words "not in excess of 15% of such remainder" with "other than any portion of
such earnings which represents the net gain arising from any sale or other
disposition of capital assets, or any other items, which would, in accordance
with generally accepted accounting principles, require separate treatment or
classification in the preparation of the Company's financial statements as
'extraordinary items'." (Art. 12, Sec. 12.05 of the Original Mortgage; Art. 5,
Sec. 5.01 of the Supplemental Indenture)
As of September 30, 1994, unbonded net Property Additions available as a
basis for the issuance of bonds were approximately $352,726,000 and unbonded
bond retirements available as a basis for the issuance of bonds were
approximately $291,612,000. It is expected that the Bonds will be issued
primarily upon the basis of unbonded net Property Additions. See "Description of
Capital Stock -- Restriction on Issuance of Funded Debt" for a description of
provisions contained in the Company's Amended Articles of Incorporation, as
amended, which may restrict the Company's ability to issue bonds under the
Mortgage.
Withdrawal of Certain Cash
Cash deposited with the Mortgage Trustee as a basis for the issuance of
additional bonds may be withdrawn by the Company against net unbonded Property
Additions (subject to deductions if such net Property Additions secure Prior
Lien Bonds or were made the basis for the release of either property or cash
under the Mortgage) in an amount equal to at least 166 2/3% of the amount of
such cash. (Art. 2, Sec. 2.04 of the Original Mortgage)
Cash deposited with the Mortgage Trustee pursuant to Section 3.14, 7.02,
7.03 or 7.04 of the Original Mortgage may be withdrawn by the Company against
gross unbonded Property Additions (subject to deductions if such gross Property
Additions secure Prior Lien Bonds or were made the basis for the release of
either property or cash under the Mortgage) in an amount equal to 100% of the
amount of such cash; provided, however, such cash shall be withdrawn by the
Company within twelve months, if such cash was deposited pursuant to Section
3.14 (relating to insurance and certain other compensatory proceeds), or two
years, if such cash was deposited pursuant to Section 7.02, 7.03 or 7.04
(relating to proceeds from the
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disposition, release or governmental taking of mortgaged properties), from the
date of deposit of such cash if the Company shall have gross Property Additions
available for such purpose. (Art. 3 and 7 of the Original Mortgage; Art. 4, Sec.
4.02 of the Supplemental Indenture)
Limitations on Liens
The Company will not, directly or indirectly, create, assume, incur or
suffer to exist any lien upon any of its property or assets, whether now owned
or hereafter acquired, other than the lien of the Mortgage and permitted liens
and encumbrances described in the Mortgage, including, without limitation, Prior
Liens subject to the restrictions described below. (Art. 3, Sec. 3.09 of the
Original Mortgage)
The Mortgage provides that the Company will not acquire any property
subject to Prior Liens if the aggregate amount of Prior Lien Bonds outstanding
after such acquisition will:
(i) be in excess of 10% of the aggregate amount of bonds at the time
outstanding under the Mortgage, or
(ii) exceed 60% of the cost or fair value of such property, whichever
is less, unless there shall be filed with the Mortgage Trustee a
certificate evidencing gross Property Additions in an amount not less than
166-2/3% of such excess and all Property Additions certified for such
purpose shall constitute Funded Property. (Art. 3, Sec. 3.17 of the
Original Mortgage)
For purposes of the Mortgage, "Prior Liens" are defined as any mortgages or
other instruments constituting a lien upon property acquired by the Company
prior to the lien of the Mortgage. "Prior Lien Bonds" are defined as any bonds,
notes or other evidences of indebtedness secured by Prior Liens. (Art. 12, Sec.
12.05 of the Original Mortgage)
Maintenance of Net Earnings
The Company will, so long as the bonds of any series issued and outstanding
under the Mortgage immediately prior to January 26, 1990 remain outstanding,
maintain its Net Earnings for any period of 12 consecutive months within a 15
month period ending March 31 and September 30 of each year, at least equal to
175% of the interest requirements for a period of 12 months on all bonds
(including Prior Lien Bonds) outstanding as of such March 31 and September 30 of
each year. (Art. 5, Sec. 5.01 of the Nineteenth Supp. Ind.)
Dividend Restrictions
For so long as any of the bonds issued under the Mortgage prior to January
26, 1990 remain outstanding, the Company will not declare or pay any dividends
or directly or indirectly purchase, redeem or otherwise acquire any shares of
Common Stock (except out of the net cash proceeds derived from the issuance of
other shares of Common Stock), or make any other distribution on shares of
Common Stock (such non-excepted declarations, payments, purchases, redemptions
or other acquisitions and distributions, hereinafter referred to as "Restricted
Payments"), unless after giving effect thereto the aggregate amount of all such
Restricted Payments made during the period from December 31, 1985 to and
including the date of the making of the Restricted Payment in question does not
exceed the sum of $9,000,000 plus (or minus in case of a deficit) the amount of
Consolidated Net Income Available for Common Stock Dividends for such period.
The supplemental indentures, including, unless otherwise stated in the
applicable Prospectus Supplement, the Supplemental Indenture, creating each
series of bonds issued on and after January 26, 1990 contain or will contain a
similar dividend covenant but prohibit the making of Restricted Payments during
the period from December 31, 1988 in excess of the sum of $15,038,000 plus (or
minus in case of a deficit) the amount of Consolidated Net Income Available for
Common Stock Dividends for such period.
"Consolidated Net Income Available for Common Stock Dividends" for any
period is defined under the Mortgage as the net income of the Company and its
subsidiaries for such period available for dividends on capital stock, after
deducting therefrom dividends paid and accrued during such period on preferred
stock, determined on a consolidated basis in accordance with generally accepted
accounting principles; provided,
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however, that no effect shall be given to any gains or losses or other additions
or deductions arising by reason of the issue, purchase, sale, conversion or
retirement by the Company or any subsidiary of any of its or their securities,
or arising by reason of any purchases, sales, write-ups, write-downs, increase
or decrease in book value, or other transactions or changes in respect of
capital assets, tangible or intangible, and deductions for income taxes shall be
adjusted by giving effect to any change in the amount thereof resulting from the
elimination of any of the capital transactions or changes referred to above.
(Art. 5 of the Fourteenth and Eighteenth Supplemental Indentures; Art. 4 of the
Fifteenth, Sixteenth, Seventeenth, Nineteenth and Twentieth Supplemental
Indentures; Art. 4, Sec. 4.03 of the Supplemental Indenture)
Under the foregoing provisions, none of the Company's retained earnings at
September 30, 1994 was unavailable to pay dividends on the Common Stock.
Merger, Consolidation and Sale
The Mortgage does not prevent any consolidation or merger of the Company
with or into, or any conveyance or transfer of all or substantially all of the
mortgaged property as an entirety to, any corporation lawfully entitled to
acquire and operate the same; unless such consolidation, merger, conveyance or
transfer shall impair the lien of the Mortgage, or any of the rights or powers
of the Mortgage Trustees or the bondholders thereunder. (Art. 8, Sec. 8.01 of
the Original Mortgage)
In the Supplemental Indenture, the Company will covenant that so long as
any of the Bonds remain outstanding, any of the provisions of Article 8 of the
Original Mortgage to the contrary notwithstanding, the Company will not
consolidate or merge with or into, or convey or transfer all or substantially
all of the mortgaged property to, any other entity if at the time thereof or
after giving effect thereto any event of default shall or would exist under the
Mortgage. (Art. 4, Sec. 4.04 of the Supplemental Indenture)
Modification of the Mortgage
The Mortgage may be modified with the written consent of the holders of not
less than 66 2/3% in aggregate principal amount of each series of bonds then
outstanding, and not less than 66 2/3% in principal amount of the bonds of any
particular series then outstanding can waive any right specifically applicable
to that series, provided that no such modification or waiver shall be effective
against any bondholder that changes the obligation of the Company in respect of
the amount or time of the payment of principal, interest, or premium on any bond
outstanding, or reduces the percentage in principal amount of the bonds required
to approve any such modification or waiver, or subordinates the bonds or the
lien of the Mortgage in favor of other creditors of the Company, without the
consent of such bondholder; and no modification of any of the rights or
obligations of the Mortgage Trustees under the Mortgage shall be effective
against the Mortgage Trustees without their consent. (Art. 12, Sec. 12.08 of the
Original Mortgage)
The Mortgage may be modified without the written consent of the holders of
the bonds to set out the provisions of an additional series of bonds, to subject
other property to the lien of the Mortgage, to add further covenants and
conditions of the Company for the further security of the bondholders, to limit
the amount of any bond or all bonds of any series that may be issued under the
Mortgage, to conform to the requirements of the Trust Indenture Act of 1939 and
the regulations thereunder as the same may from time to time be amended, or to
cure any ambiguity or to correct any defective or inconsistent provisions in the
Mortgage or in any supplemental indenture thereto. (Art. 12, Sec. 12.08 of the
Original Mortgage)
Default and Notice Thereof
The Mortgage Trustees or the holders of a majority in aggregate principal
amount of bonds outstanding may declare the principal and interest of the bonds
immediately due and payable if any of the following events of default exist: (a)
a default in the payment of any installment of interest on any of the bonds when
due and payable and such default continues for a period of 10 days; (b) a
default in the payment of any installment of sinking fund payments when due and
payable; (c) a default in the payment of the principal of or premium on any bond
when due and payable whether at its stated maturity, by call for redemption, by
declaration or otherwise; (d) a violation of covenants or conditions in the
Mortgage or any bonds which have not been cured
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within 60 days after written notice by the Mortgage Trustee; or (e) the
insolvency of the Company or the occurrence of certain bankruptcy, insolvency or
receivership proceedings; provided, however, at any time before a sale of the
mortgaged property, the holders of a majority in aggregate principal amount of
bonds outstanding may annul such declaration. (Art. 6 of the Original Mortgage)
The holders of a majority in aggregate principal amount of bonds outstanding
have the right to direct and control the time, method and place of any action of
the Mortgage Trustees to be taken upon the occurrence of a default. (Art. 6,
Sec. 6.08 of the Original Mortgage) The Mortgage Trustees are not required to
act under the Mortgage, whether or not requested to do so by the bondholders,
unless they shall have received indemnity satisfactory to them. (Art. 10, Sec.
10.01 of the Original Mortgage) The Mortgage Trustees may withhold notice of an
event of default (except in the payment of principal, interest or sinking fund
installments on any bond) if they determine in good faith that the withholding
of such notice is in the interests of the holders of the bonds.
The Company is required to file annually with the Mortgage Trustee a
certificate as to compliance with all terms and conditions of the Mortgage.
(Art. 3, Sec. 3.08 of the Original Mortgage)
Defeasance
The Mortgage provides that when the principal of all bonds at the time
outstanding under the Mortgage shall have become payable, or will become payable
within 6 months, by their terms, on redemption, by declaration or in any other
manner, and the Company irrevocably deposits or causes to be deposited with the
Mortgage Trustee for the account of the holders of such bonds, a sum sufficient,
with any other moneys then held by the Mortgage Trustee applicable to that
purpose, to pay the whole amount of the principal, premium, if any, and interest
due or to become due on all of the bonds then outstanding, immediately upon such
irrevocable deposit and, in case of redemption, upon furnishing to the Mortgage
Trustee proof satisfactory to the Mortgage Trustee that the notice of redemption
has been given or waived as provided in the Mortgage or when there shall be or
shall have been delivered to the Mortgage Trustee, for immediate cancellation,
all bonds then outstanding, and, in such case, immediately upon such delivery,
then and in any such case the bonds shall cease to be entitled to any benefit or
security under the Mortgage except the right to receive payment of the moneys
deposited and held for the payment thereof and the lien of the Mortgage shall be
released and/or the mortgaged property shall revert to the Company. (Art. 11,
Sec. 11.01 of the Original Mortgage)
Security and Priority
The Bonds will rank pari passu as to security with the bonds of the other
series outstanding under the Mortgage, which, in the opinion of counsel to the
Company, is a valid first lien on substantially all the properties, franchises
and contract rights used by or useful to the Company in the operation of its
business, whether now owned or hereafter acquired by the Company (except as
noted below), subject to permitted liens and encumbrances described in the
Mortgage and, with respect to property hereafter acquired, to Prior Liens.
There are excepted from the lien of the Mortgage all cash, notes and bills,
accounts receivable, not specifically pledged, all stocks, bonds and securities
not specifically pledged, all merchandise held for resale and consumable
materials and supplies (other than Cushion Gas), all automotive equipment and
all inventory of pipe, meters and equipment. (Granting Clauses of the Original
Mortgage; Art. 5, Sec. 5.01 of the Nineteenth Supp. Ind.)
The Mortgage contains provisions subjecting to the lien thereof all
property, real, personal and mixed (other than property of the kind excepted
from the lien as described above) acquired by the Company after the date of the
delivery of the Original Mortgage.
Release and Substitution of Property
Unless an event of default shall have occurred and is continuing, the
Company may sell, exchange or dispose of, free from the lien of the Mortgage,
any property (other than real property) which has become worn out,
unserviceable, undesirable or unnecessary for use in the conduct of its
business; provided that the Company shall replace such property, if necessary
for the efficient and proper operation of its business, by
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other property of equal or greater value or utility to the Company, or if not so
necessary, the Company shall deposit the proceeds of the disposition of such
property with the Mortgage Trustee. (Art. 7, Sec. 7.02 of the Original Mortgage)
DESCRIPTION OF NOTES
General
The Notes will be issued under an Indenture (the "Indenture") to be entered
into between the Company and Bank of America Illinois, as trustee (the
"Indenture Trustee"). The summaries under this heading do not purport to be
complete and are qualified in their entirety by express reference to the
detailed provisions of the Indenture. References to article and section numbers
under this heading are to articles and section numbers in the Indenture. Terms
used under this heading or in any Prospectus Supplement relating to the Offered
Notes which are defined under this heading are so defined solely with reference
to the Offered Notes.
The Indenture provides that debt securities (including both interest
bearing and original issue discount securities), including the Notes, may be
issued thereunder, without limitation as to the aggregate principal amount.
(Art. Three, Sec. 301) The Notes and all other debt securities issued under the
Indenture are collectively referred to herein as the "Indenture Securities." The
Indenture does not limit the amount of other debt, secured or unsecured, which
may be issued by the Company. The Notes will rank pari passu with all other
unsecured indebtedness of the Company; provided, however, that if specified in
the applicable Prospectus Supplement, a particular series of Offered Notes may
be collateralized by the Company's First Mortgage Bonds. See "Description of
Capital Stock -- Restriction on Issuance of Funded Debt" for a description of
provisions contained in the Company's Amended Articles of Incorporation, as
amended, which may restrict the Company's ability to issue Indenture Securities
under the Indenture.
Reference is made to the applicable Prospectus Supplement for the following
terms of the Offered Notes (among others): (i) the title of such Offered Notes;
(ii) the limit, if any, upon the aggregate principal amount of such Offered
Notes; (iii) the rate or rates, or the method of determination thereof, at which
such Offered Notes will bear interest, if any, and the date or dates from which
such interest will accrue; (iv) the dates on which such interest will be payable
(each an "Interest Payment Date") and the regular record dates for the interest
payable on such Interest Payment Dates; (v) the obligation, if any, of the
Company to redeem or purchase such Offered Notes pursuant to any sinking fund or
analogous provisions or at the option of the holder thereof and the periods
within which or the dates on which, the prices at which and the terms and
conditions upon which such Offered Notes will be redeemed or purchased, in whole
or in part, pursuant to such obligation; (vi) the periods within which or the
dates on which, the prices at which and the terms and conditions upon which such
Offered Notes may be redeemed, if any, in whole or in part, at the option of the
Company; (vii) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which such Offered Notes will be issuable; (viii)
whether such Offered Notes are to be issued in whole or in part in the form of
one or more global Notes and, if so, the identity of the depositary for such
global Notes; (ix) the terms, if any, under which the Offered Notes may be
convertible into Common Stock; (x) whether such Offered Notes will be
collateralized by the Company's First Mortgage Bonds and (xi) any other terms of
such Offered Notes not inconsistent with the provisions of the Indenture.
The Indenture does not contain any covenants or other provisions that are
specifically intended to afford holders of the Notes special protection in the
event of a highly leveraged transaction.
Payment of Notes; Transfers; Exchanges
Except as may be provided in the applicable Prospectus Supplement,
interest, if any, on each Offered Note payable on each Interest Payment Date
will be paid by check mailed to the person in whose name such Note is registered
(the registered holder of any Indenture Security being herein called a "Holder")
as of the close of business on the regular record date relating to such Interest
Payment Date; provided, however, that interest payable at maturity (whether at
stated maturity, upon redemption or otherwise, hereinafter "Maturity") will be
paid to the person to whom principal is paid. However, if there has been a
default in the payment of interest on any Note, such defaulted interest may be
payable to the Holder of such Note as of the
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close of business on a date selected by the Indenture Trustee not more than 15
days and not less than 10 days prior to the date proposed by the Company for
payment of such defaulted interest.
Principal of and premium, if any, and interest, if any, on the Notes at
maturity will be payable upon presentation of the Notes at the principal
corporate trust office of the Indenture Trustee in Chicago, Illinois. The
Company may change the place of payment on the Notes, may appoint one or more
paying agents (including the Company) and may remove any paying agent, all in
its discretion. The applicable Prospectus Supplement will identify any new place
of payment and any paying agent appointed, and will disclose the removal of any
paying agent effected, prior to the date of such Prospectus Supplement.
The transfer of Notes may be registered, and Notes may be exchanged for
other Notes of authorized denominations and of like tenor and aggregate
principal amount, at the principal corporate trust office of the Indenture
Trustee in Chicago, Illinois. The Company may change the place for registration
of transfer of the Notes, may appoint one or more additional security registrars
or transfer agents (including the Company) and may remove any security registrar
or transfer agent, all in its discretion. The applicable Prospectus Supplement
will identify any new place for registration of transfer and any additional
security registrar or transfer agent appointed, and will disclose the removal of
any security registrar or transfer agent effected, prior to the date of such
Prospectus Supplement. No service charge will be made for any transfer or
exchange of the Notes, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
(Art. Three, Sec. 305) The Company will not be required (a) to issue, register
the transfer of or exchange Notes during a period of 15 days prior to giving any
notice of redemption or (b) to issue, register the transfer of or exchange any
Note selected for redemption in whole or in part, except the unredeemed portion
of any Note being redeemed in part.
Redemption
Any terms for the optional or mandatory redemption of Offered Notes will be
set forth in the applicable Prospectus Supplement. Except as may otherwise be
provided in the applicable Prospectus Supplement with respect to Offered Notes
redeemable at the option of the Holder, such Offered Notes will be redeemable
only upon notice, by mail, not less than 30 or more than 60 days prior to the
date fixed for redemption and, if less than all of the Offered Notes of any
series, or any tranche thereof, are to be redeemed, the particular Offered Notes
will be selected by such methods as the Indenture Trustee deems fair and
appropriate. (Art. Four, Sec. 403 and 404)
Any notice of optional redemption may state that such redemption shall be
conditional upon the receipt by the Indenture Trustee, on or prior to the date
fixed for such redemption, of money sufficient to pay the principal of and
premium, if any, and interest, if any, on such Notes and that if such money has
not been so received, such notice will be of no force or effect and the Company
will not be required to redeem such Notes. (Art. Four, Sec. 404)
Conversion Rights
The applicable Prospectus Supplement will provide whether the Offered Notes
will consist of convertible Notes and, if so, the initial conversion price per
share at which such convertible Notes will be convertible into Common Stock.
Subject to prior redemption of the convertible Notes, the Holders of such Notes
will be entitled at any time on or before the close of business on the maturity
date thereof to convert such Notes (or, in the case of convertible Notes of
denominations in excess of $1,000 any portion of which is $1,000 or an integral
multiple of $1,000) into shares of Common Stock at the initial conversion price
set forth in the applicable Prospectus Supplement. No adjustment will be made on
conversion of any convertible Notes for interest accrued thereon or, except as
set forth below, for dividends on any securities issued upon such conversion.
In order to exercise the right of conversion, the Holder of any such
convertible Notes must surrender such convertible Notes to the Company at any
office or agency of the Company maintained for such purpose. The convertible
Notes to be surrendered must be accompanied by written notice to the Company
that the Holder elects to convert such Notes.
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If any convertible Note, whether or not called for redemption, is converted
between a record date for the payment of interest and the next succeeding
Interest Payment Date, such convertible Note must be accompanied by funds
payable to the Company equal to the interest payable to the registered Holder on
such Interest Payment Date on the principal amount so converted. In the case of
any convertible Note or portion thereof called for redemption, conversion rights
expire at the close of business on the Redemption Date, even if such redemption
occurs at a time when conversion of such Note or portion thereof is in the best
interests of the Holder.
No fractional shares of Common Stock will be issued upon conversion but, in
lieu thereof, an adjustment in cash will be made based on the market price at
the close of business on the date of conversion.
The Conversion Price will be subject to adjustment in the event of: (i) the
payment of certain stock dividends on the Common Stock; (ii) the issuance of
certain rights or warrants to all holders of the Common Stock entitling them to
subscribe for or purchase Common Stock at a price less than the market price;
(iii) the subdivision of Common Stock into a greater number of shares of Common
Stock; (iv) the distribution by the Company to all holders of the Common Stock
of evidences of indebtedness or assets of the Company (excluding rights or
warrants and any dividends or distributions mentioned above); and (v) the
reclassification of Common Stock into other securities. (Art. Five)
Events of Default
The following constitute Events of Default under the Indenture with respect
to each series of Indenture Securities outstanding thereunder:
(a) failure to pay any interest on any Indenture Security of such
series within 30 days after the same becomes due and payable;
(b) failure to pay any principal of any Indenture Security of such
series when the same becomes due and payable;
(c) failure to perform or breach of any covenant or warranty of the
Company in the Indenture (other than a covenant or warranty of the Company
in the Indenture solely for the benefit of one or more series of Indenture
Securities other than the Notes), for 60 days after written notice to the
Company by the Indenture Trustee, or to the Company and the Indenture
Trustee by the Holders of at least 25% in principal amount of the Indenture
Securities of such series outstanding under the Indenture as provided in
the Indenture;
(d) an event of default as defined in any mortgage, indenture or
instrument under which there may be issued any indebtedness for borrowed
money of the Company (including bonds issued under the Mortgage and
Indenture Securities of other series issued under the Indenture), which
event of default either (i) results in such indebtedness in an amount in
excess of $15,000,000 becoming or being declared due and payable prior to
maturity or (ii) results from the failure by the Company to make any
payment in excess of $15,000,000 of the principal of such indebtedness on
the date it becomes due and payable (after the expiration of any applicable
grace periods), and such acceleration shall not have been rescinded or
annulled or such failure to make payment shall not have been cured, as the
case may be, or such indebtedness shall not have been otherwise discharged,
within 90 days after notice shall have been given as provided in the
Indenture;
(e) certain events of bankruptcy, insolvency or reorganization with
respect to the Company; and
(f) any other Event of Default specified with respect to Indenture
Securities of such series. (Art. Eight, Sec. 801)
No Event of Default with respect to the Notes necessarily constitutes an Event
of Default with respect to the Indenture Securities of any other series issued
under the Indenture.
Remedies
If an Event of Default with respect to any series of Indenture Securities
occurs and is continuing, then either the Indenture Trustee or the Holders of
not less than 25% in principal amount of the outstanding Indenture Securities of
such series may declare the principal amount (or if the Indenture Securities of
such
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series are discount notes or similar Indenture Securities, such portion of the
principal amount of such Indenture Securities as may be specified in the terms
thereof) of all of the Indenture Securities of such series to be due and payable
immediately; provided, however, that if an Event of Default occurs and is
continuing with respect to more than one series of Indenture Securities, the
Indenture Trustee or the Holders of not less than 25% in aggregate principal
amount of the outstanding Indenture Securities of all such series, considered as
one class, may make such declaration of acceleration and not the Holders of the
Indenture Securities of any one of such series.
At any time after the declaration of acceleration with respect to the
Indenture Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained, the Event or Events of Default
giving rise to such declaration of acceleration will, without further act, be
deemed to have been waived, and such declaration and its consequences will,
without further act, be deemed to have been rescinded and annulled, if
(a) the Company has paid or deposited with the Indenture Trustee a sum
sufficient to pay
(1) all overdue interest on all Indenture Securities of such
series;
(2) the principal of and premium, if any, on any Indenture
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in such Indenture Securities;
(3) interest upon overdue interest at the rate or rates prescribed
therefor in such Indenture Securities, to the extent that payment of
such interest is lawful; and
(4) all amounts due to the Indenture Trustee under the Indenture;
and
(b) any other Event or Events of Default with respect to the Indenture
Securities of such series, other than the nonpayment of the principal of
the Indenture Securities of such series which has become due solely by such
declaration of acceleration, have been cured or waived as provided in the
Indenture. (Art. Eight, Sec. 802)
If an Event of Default with respect to the Indenture Securities of any
series occurs and is continuing, the Holders of a majority in principal amount
of the outstanding Indenture Securities of such series will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power conferred
on the Indenture Trustee, with respect to the Indenture Securities of such
series; provided, however, that if an Event of Default occurs and is continuing
with respect to more than one series of Indenture Securities, the Holders of a
majority in aggregate principal amount of the outstanding Indenture Securities
of all such series, considered as one class, will have the right to make such
direction, and not the Holders of the Indenture Securities of any one of such
series. (Art. Eight, Sec. 812) The Indenture Trustee is not required to exercise
any of the rights and powers vested in it under the Indenture at the request or
direction of any Holder unless such Holder shall have offered to the Indenture
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction. (Art. Nine, Sec. 903) The right of a Holder of any Indenture Security
of such series to institute a proceeding with respect to the Indenture is
subject to certain conditions precedent, but each Holder has an absolute right
to receive payment of principal and premium, if any, and interest, if any, when
due and to institute suit for the enforcement of any such payment. (Art. Eight,
Sec. 807 and 808) The Indenture provides that the Indenture Trustee, within 90
days after the occurrence of any default thereunder with respect to the
Indenture Securities of a series, is required to give the Holders of the
Indenture Securities of such series notice of any default known to it, unless
cured or waived; provided, however, that, except in the case of a default in the
payment of principal of or premium, if any, or interest, if any, on any
Indenture Securities of such series, the Indenture Trustee may withhold such
notice if the Indenture Trustee determines that it is in the interest of such
Holders to do so; and provided, further, that in the case of a default of the
character specified above in clause (c) under "Events of Default," no such
notice shall be given to such Holders until at least 75 days after the
occurrence thereof. (Art. Nine, Sec. 902)
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The Company will be required to furnish annually to the Indenture Trustee a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance. (Art. Six, Sec.
606)
Covenants; Consolidation, Merger, etc.
The Company will cause (or, with respect to property owned in common with
others, make reasonable effort to cause) all its properties used or useful in
the conduct of its business to be maintained and kept in good condition, repair
and working order and will cause (or, with respect to property owned in common
with others, make reasonable effort to cause) to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as, in the
judgment of the Company, may be necessary so that the business carried on in
connection therewith may be properly conducted; provided, however, that the
foregoing shall not prevent the Company from discontinuing, or causing the
discontinuance of, the operation and maintenance of any of its properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business. (Art. Six, Sec. 605)
Subject to the provisions described in the next paragraph, the Company will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence and rights (charter and statutory) and
franchises of the Company; provided, however, that the Company not be required
to preserve any such right or franchise if, in the judgment of the Company,
preservation thereof is no longer desirable in the conduct of the business of
the Company and the loss thereof will not adversely affect the interests of the
Holders in any material respect. (Art. Six, Sec. 604)
The Company will not consolidate with or merge into any other corporation
or corporations or convey, transfer or lease its properties and assets
substantially as an entirety to any Person or Persons unless (a) the corporation
or corporations formed by such consolidation or into which the Company is merged
or the Person or Persons which acquires by conveyance or transfer, or which
leases, the property and assets of the Company substantially as an entirety,
expressly assumes, by supplemental indenture, the due and punctual payment of
the principal of and premium, if any, and interest, if any, on all the Indenture
Securities and the performance of all of the covenants of the Company under the
Indenture, (b) immediately after giving effect to such transactions no Event of
Default, and no event which after notice and lapse of time or both would become
an Event of Default, will have occurred and be continuing, and (c) the Company
will have delivered to the Indenture Trustee an opinion of counsel as provided
in the Indenture. (Art. Eleven, Sec. 1101)
Modification of Indenture
Without the consent of any Holders of Indenture Securities, the Company and
the Indenture Trustee may enter into one or more supplemental indentures for any
of the following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company in the
Indenture and the Indenture Securities pursuant to a consolidation, merger
or conveyance of substantially all of the Company's assets as described
above; or
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of outstanding Indenture Securities or to
surrender any right or power conferred upon the Company by the Indenture;
or
(c) to add any additional Events of Default with respect to all or any
series of outstanding Indenture Securities; or
(d) to change or eliminate any provision of the Indenture or to add
any new provision to the Indenture; provided that if such change,
elimination or addition will adversely affect the interests of the Holders
of Indenture Securities of any series in any material respect, such change,
elimination or addition will become effective with respect to such series
only when there is no Indenture Security of such series remaining
outstanding under the Indenture; or
(e) to provide collateral security for all series of Indenture
Securities; or
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(f) to establish the form or terms of Indenture Securities of any
series as permitted by the Indenture; or
(g) to evidence and provide for the acceptance of the appointment of a
successor Indenture Trustee under the Indenture with respect to the
Indenture Securities of one or more series and to add to or change any of
the provisions of the Indenture as shall be necessary to provide for or to
facilitate the administration of the trusts under the Indenture by more
than one trustee; or
(h) to provide for the procedures required to permit the utilization
of a noncertificated system of registration for any series of Indenture
Securities; or
(i) to change any place where (1) the principal of and premium, if
any, and interest, if any, on Indenture Securities of any series, or any
tranche thereof, shall be payable, (2) any Indenture Securities of any
series, or any tranche thereof, may be surrendered for registration of
transfer, (3) Indenture Securities of any series, or any tranche thereof,
may be surrendered for exchange and (4) notices and demands to or upon the
Company in respect of the Indenture Securities of any series, or any
tranche thereof, and the Indenture may be served; or
(j) to cure any ambiguity or inconsistency or to make any other
provisions with respect to matters and questions arising under the
Indenture, provided such provisions shall not adversely affect the
interests of the Holders of Indenture Securities of any series in any
material respect. (Art. Twelve, Sec. 1201)
Except as described above, the consent of the Holders of not less than a
majority in principal amount of the Indenture Securities of all series then
outstanding under the Indenture, considered as one class, is required for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, the Indenture pursuant to an indenture or supplemental
indenture; provided, however, that if less than all of the series of Indenture
Securities outstanding under the Indenture are directly affected by a
supplemental indenture, then the consent only of the Holders of a majority in
aggregate principal amount of the outstanding Indenture Securities of all series
so directly affected, considered as one class, will be required; and provided,
further, that if the Indenture Securities of any series shall have been issued
in more than one tranche and if the proposed supplemental indenture shall
directly affect the rights of the Holders of Indenture Securities of one or
more, but less than all, of such tranches, then the consent only of the Holders
of a majority in aggregate principal amount of the outstanding Indenture
Securities of all tranches so directly affected, considered as one class, shall
be required; and provided, further, that no such supplemental indenture will,
without the consent of the Holder of each Indenture Security outstanding under
the Indenture of each such series directly affected thereby, (a) change the
stated maturity of, or any installment of principal of or the rate of interest
on (or the amount of any installment of interest on), any Indenture Security, or
reduce the principal thereof or redemption premium thereon, if any, or change
the amount payable upon acceleration of a discount note or method of calculating
the rate of interest thereon, or otherwise modify certain terms of payment of
the principal thereof or interest or yield or premium thereon, (b) reduce the
percentage in principal amount of the Indenture Securities outstanding of such
series required to consent to any supplemental indenture or waiver under the
Indenture or to reduce the requirement for quorum and voting, or (c) modify
certain of the provisions in the Indenture relating to supplemental indentures,
waivers of certain covenants and waivers of past defaults.
A supplemental indenture which changes or eliminates any covenant or other
provision of the Indenture which has expressly been included solely for the
benefit of one or more particular series of Indenture Securities, or which
modifies the rights of the Holders of Indenture Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under the Indenture of the Holders of any other Indenture Securities.
(Art. Twelve, Sec. 1202)
Defeasance
The Indenture Securities of any series, or any portion of the principal
amount thereof, will be deemed to have been paid for purposes of the Indenture
(except as to any surviving rights of registration of transfer or
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exchange expressly provided for in the Indenture), and the entire indebtedness
of the Company in respect thereof will be deemed to have been satisfied and
discharged, if there shall have been irrevocably deposited with the Indenture
Trustee, in trust: (a) money in the amount which will be sufficient, or (b)
Government Obligations (as defined below), which do not contain provisions
permitting the redemption or other prepayment thereof at the option of the
issuer thereof, the principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide monies which, together with the
money, if any, deposited with or held by the Indenture Trustee, will be
sufficient, or (c) a combination of (a) and (b) which will be sufficient, to pay
when due the principal of and premium, if any, and interest, if any, due and to
become due on such Indenture Securities or portions thereof on and prior to the
maturity thereof. (Art. Seven, Sec. 701) For this purpose, "Government
Obligations" include direct obligations of, or obligations unconditionally
guaranteed by, the United States of America entitled to the benefit of the full
faith and credit thereof and certificates, depositary receipts or other
instruments which evidence a direct ownership interest in such obligations or in
any specific interest or principal payments due in respect thereof.
While there is no legal precedent on point, it is possible that, for
federal income tax purposes, any deposit contemplated in the preceding paragraph
could be treated as a taxable exchange of the related Notes for an issue of
obligations of the trust or a direct interest in the case of securities held in
the trust. In that case, Holders of such Notes would recognize gain or loss as
if the trust obligations or the cash or securities deposited, as the case may
be, had actually been received by them in exchange for their Notes. Such Holders
thereafter would be required to include in income a share of the income, gain or
loss of the trust. The amount so required to be included in income could be
different from the amount that would be includable in the absence of such
deposit. Prospective investors are urged to consult their own tax advisors as to
the specific consequences to them of such deposit.
DESCRIPTION OF CAPITAL STOCK
General
The authorized capital stock of the Company consists of 40,000,000 shares
of Common Stock, without par value and 200,000 shares of Cumulative Preferred
Stock, par value $100 per share (the "Cumulative Preferred Stock"). Although the
Company's Amended Articles of Incorporation, as amended (the "Articles"),
authorize the issuance of not more than 17,349 shares of 11 1/2% Cumulative
Convertible Preference Stock, par value $100 per share, the Company has no
present intention to issue such shares. For a complete description of the
relative rights and preferences of the Company's capital stock, reference is
made to the Articles, a copy of which is an exhibit to the Registration
Statement of which this Prospectus is a part.
Each share of Common Stock and Cumulative Preferred Stock has one vote on
all matters upon which shareholders are entitled to vote and all classes vote as
a single class except as provided by law or the Articles. The holders of Common
Stock and Cumulative Preferred Stock are entitled to cumulative voting for the
election of directors. The Company's Board of Directors is divided into three
classes serving staggered three-year terms.
Of the total number of authorized shares of Common Stock, 10,562,877 were
issued and outstanding on November 30, 1994. In addition, as of November 30,
1994, 209,320 shares were reserved for issuance under the Employee Stock
Purchase Plan, 271,299 shares were reserved for issuance under the Dividend
Reinvestment and Stock Purchase Plan, 193,000 shares were reserved for issuance
under the Long-Term Stock Plan of 1989, 1,077,042 shares were reserved for
issuance under the Customer Stock Purchase Plan, and 100,000 shares were
reserved for issuance under the 401(k) Savings Plan.
The Cumulative Preferred Stock is issuable, subject to certain restrictions
contained in the Articles, in series with such variations as to dividend rate,
terms of redemption, amounts payable in the event of voluntary or involuntary
liquidation and sinking fund provisions and such conversion rights, if any, as
may be established by the Company's Board of Directors. As of December 20, 1994,
there were no issued and outstanding shares of Cumulative Preferred Stock.
16
<PAGE> 18
Dividend Reinvestment and Stock Purchase Plan
The Company has a Dividend Reinvestment and Stock Purchase Plan (the
"Plan") under which participating shareholders may have cash dividends on all or
a portion of their shares of Common Stock automatically reinvested and/or may
invest optional cash payments of not less than $25 or more than $10,000 per
quarter to purchase additional shares of Common Stock. Under the Plan, the price
of shares of Common Stock purchased through reinvestment of cash dividends is
95% of the average of the closing sale price of Common Stock for the period of
five trading days ending on the dividend payment date, and optional cash
payments are invested at 100% of such average. No commission or service charge
is paid by participants in connection with purchases under the Plan. Shares of
Common Stock are offered for sale under the Plan only by means of a separate
prospectus available upon request from the Company.
Restriction on Dividends
Under the provisions of the Articles, the Company is not permitted to pay
dividends on the Common Stock until full cumulative dividends on outstanding
shares of the Cumulative Preferred Stock have been paid and full cumulative
scheduled redemptions of outstanding shares of Cumulative Preferred Stock have
been made.
The Common Stock is entitled to dividends when, as and if declared by the
Company's Board of Directors, subject to various limitations on the declaration
or payment of dividends imposed by the provisions of the Mortgage and, for so
long as any shares of Cumulative Preferred Stock remain outstanding, the
Articles. See "Description of Debt Securities -- Description of Bonds --
Dividend Restrictions."
Restriction on Issuance of Funded Debt
Under the provisions of the Articles, for so long as any shares of
Cumulative Preferred remain outstanding, the Company is not permitted to issue,
incur, assume or guarantee or permit any of its subsidiaries to issue, incur,
assume or guarantee any Funded Debt if after giving effect thereto the aggregate
amount of Funded Debt of the Company and its subsidiaries (eliminating
intercompany items) would exceed 66 2/3% of the Total Consolidated
Capitalization of the Company and its subsidiaries. "Funded Debt" is defined as
all indebtedness maturing by its terms more than one year from the date of
creation or issuance thereof or payable on demand. "Total Consolidated
Capitalization" is defined as the sum of the total par or stated value of all
outstanding capital stock, plus paid-in surplus, capital surplus (or less
capital deficit) (excluding any surplus resulting from the revaluation of
capital assets), earned surplus (or less earned surplus deficit), premium on
capital stock and the aggregate principal amount of Funded Debt outstanding
determined on a consolidated basis for the Company and its subsidiaries.
Liquidation
In the event of liquidation, dissolution or winding up of the Company, the
holders of the Common Stock are entitled to receive pro rata such assets as may
remain upon discharge of all indebtedness and liabilities of the Company after
payment of the amounts payable on all the then outstanding shares of Cumulative
Preferred Stock.
Other
The Common Stock has no conversion rights, redemption provisions or
pre-emptive rights and is not liable for any further calls or assessments.
The Articles contain provisions which may deter changes in control or
significant restructurings of the Company. In addition to providing for a
classified board of directors as described above, the Articles (i) require that
certain business combinations be approved by holders of at least 80% of the
outstanding shares of voting stock of the Company unless all Disinterested
Directors (as defined in the Articles) have approved the transaction or certain
procedural and minimum price requirements are met; (ii) require that the
transfer during a twelve-month period of assets equaling 10% or more of the book
value of the assets of the Company
17
<PAGE> 19
be approved by at least 66 2/3% of the Company's directors; and (iii) impose
supermajority voting requirements for amending certain of the foregoing
provisions. The Illinois Business Corporation Act and the Virginia Stock
Corporation Act also contain provisions requiring a supermajority vote to
approve certain transactions. Further, the Company's Long-Term Stock Plan of
1989 provides that certain restrictions on options or restricted stock granted
to officers and employees of the Company will be removed or waived if a change
in control (as defined therein) of the Company occurs.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the Common Stock is Harris Trust and
Savings Bank, 311 W. Monroe Street, Chicago, Illinois 60690.
LEGAL OPINIONS
Certain legal matters in connection with the legality of the Securities
offered hereby will be passed upon for the Company by Chapman and Cutler,
Chicago, Illinois, and for any agents, underwriters or dealers by Jones, Day,
Reavis & Pogue, Chicago, Illinois. The statements as to matters of law and legal
conclusions made under "Description of Debt Securities -- Description of Bonds
- -- Security and Priority" are made on the authority of Chapman and Cutler, which
has relied, in part, on the opinions of local counsel.
EXPERTS
The consolidated financial statements and schedules included in the
Company's most recent Annual Report on Form 10-K, incorporated herein by
reference, have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto, and are so
incorporated herein in reliance upon the authority of said firm as experts in
giving said report. Reference is made to said report which includes an
explanatory paragraph with respect to the change in the method of accounting for
postretirement benefits other than pensions and income taxes effective January
1, 1993 as discussed in the notes to consolidated financial statements.
PLAN OF DISTRIBUTION
The Company may sell Securities through underwriters or dealers, directly
to one or more purchasers or through agents. The applicable Prospectus
Supplement will set forth the terms of the offering of any Securities, including
the names of any underwriters or agents, the purchase price of such Securities
and the proceeds to the Company from such sale, any underwriting discounts and
other items constituting underwriters' compensation, any initial public offering
price, any discounts or concessions allowed or reallowed or paid to dealers and
any securities exchanges on which such Securities may be listed.
If underwriters are used in the sale, Securities will be acquired by the
underwriters for their own account and may be resold from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. Such Securities may
be offered to the public either through underwriting syndicates represented by
managing underwriters or by underwriters without a syndicate. Unless otherwise
set forth in the applicable Prospectus Supplement, the obligations of the
underwriters to purchase such Securities will be subject to certain conditions
precedent, and the underwriters will be obligated to purchase all of such
Securities if any of such Securities are purchased. Any initial offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time. Only underwriters named in a Prospectus Supplement
are deemed to be underwriters in connection with the Securities offered thereby.
Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of Securities will be named, and any commissions payable by the Company to
such agent will be set forth in the applicable Prospectus Supplement. Unless
otherwise
18
<PAGE> 20
indicated in the applicable Prospectus Supplement, any such agent will act on a
best efforts basis for the period of its appointment.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Securities at the public offering price set forth in
such Prospectus Supplement pursuant to delayed delivery contracts providing for
payment and delivery on a future date specified in such Prospectus Supplement.
Such contacts will be subject only to those conditions set forth in the
applicable Prospectus Supplement and such Prospectus Supplement will set forth
the commissions payable for solicitation of such contracts.
Any underwriters, dealers or agents participating in the distribution of
Securities may be deemed to be underwriters and any discounts or commissions
received by them on the sale or resale of Securities may be deemed to be
underwriting discounts and commissions under the Securities Act of 1933, as
amended (the "Securities Act"). Agents and underwriters may be entitled under
agreements entered into with the Company to indemnification by the Company
against certain liabilities, including liabilities under the Securities Act or
to contribution with respect to payments that the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may be customers
of, engage in transactions with, or perform services for, the Company or its
affiliates in the ordinary course of business.
19
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC registration fee.............................................................. $ 68,966
Fees of state regulatory authorities.............................................. 5,000
Mortgage recording fees........................................................... 30,000
Printing expenses................................................................. 100,000
Accounting fees and expenses...................................................... 20,000
Legal fees and expenses........................................................... 150,000
Trustee fees...................................................................... 10,000
Transfer Agent and Registrar fee.................................................. 6,700
Blue Sky fees and expenses........................................................ 15,000
Rating Agency fees................................................................ 120,000
Miscellaneous expenses............................................................ 10,334
--------
Total........................................................................ $536,000
========
</TABLE>
All of the above amounts except the SEC registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Paragraph 56 of the Company's By-Laws provides in general that, subject to
applicable statutory limitations, each director or officer of the Company and
any person who, at the request of the Company, has served as a director or
officer of another corporation in which the Company has a financial interest
shall be indemnified against costs and expenses incurred (including any
judgments, fines or reasonable settlements) in connection with the defense of
any criminal or civil proceedings in which such person is named as a party by
reason of having been such director or officer, or by reason of any action taken
or not taken in such capacity unless such officer or director is finally
adjudged to have been liable for negligence or misconduct in the performance of
duty. Conviction or judgment in a criminal proceeding does not necessarily
constitute an adjudication of liability for negligence or misconduct in
performance of duty, under certain conditions. Paragraph 56 also provides that
the provisions thereof shall not be construed as a limitation on the general
power of the Company to enter into a contract or undertaking of indemnity with a
director or officer in any proper case not provided for in paragraph 56.
The Illinois Business Corporation Act and the Virginia Stock Corporation
Act generally provide that each corporation subject to such Acts shall have the
power to provide indemnification of the type summarized above, subject to
certain liabilities of its officers and directors.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------ ------------------------------------------------------------------------------------
<S> <C>
*1.01 Form of Underwriting Agreement and/or Distribution Agreement, as applicable (to be
filed under cover of Form 8-K).
*4.01 Amended Articles of Incorporation of Company, as amended April 29, 1994 (filed as
Exhibit 3.01 to Form 10-Q for the quarter ended March 31, 1994, File No. 0-1284).
*4.02 By-Laws of Company, as amended April 29, 1994 (filed as Exhibit 3.02 to Form 10-Q
for the quarter ended March 31, 1994, File No. 0-1284).
</TABLE>
II-1
<PAGE> 22
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------ ------------------------------------------------------------------------------------
<S> <C>
4.03 Indenture of Mortgage, dated as of July 15, 1959, from the Company to Bank of
America Illinois (successor to Continental Bank, National Association) and Robert J.
Donahue (successor to M.J. Kruger), as Trustees, and the following supplemental
indentures thereto, the First Supplemental Indenture, dated as of November 1, 1960,
the Second Supplemental Indenture, dated as of June 1, 1962, the Third Supplemental
Indenture, dated as of February 1, 1963, the Fourth Supplemental Indenture, dated as
of June 15, 1963, the Fifth Supplemental Indenture, dated as of November 15, 1964,
the Sixth Supplemental Indenture, dated as of March 15, 1968, the Seventh
Supplemental Indenture, dated as of August 1, 1970, the Eighth Supplemental
Indenture, dated as of September 1, 1972, the Ninth Supplemental Indenture, dated as
of January 1, 1974, the Tenth Supplemental Indenture, dated as of July 1, 1976, the
Eleventh Supplemental Indenture, dated as of December 1, 1976, the Twelfth
Supplemental Indenture, dated as of April 1, 1981, the Thirteenth Supplemental
Indenture, dated as of May 1, 1982, the Fourteenth Supplemental Indenture, dated as
of March 1, 1987, Fifteenth Supplemental Indenture, dated as of October 1, 1987, the
Sixteenth Supplemental Indenture, dated as of December 1, 1989, the Seventeenth
Supplemental Indenture, dated as of April 1, 1990, the Eighteenth Supplemental
Indenture, dated as of June 1, 1991, the Nineteen Supplemental Indenture, dated as
of May 1, 1992, and the Twentieth Supplemental Indenture, dated as of December 1,
1992.
4.04 Form of Supplemental Indenture relating to the Bonds.
4.05 Form of Bond (contained in Exhibit 4.04).
4.06 Form of Indenture between the Company and Bank of America Illinois, as trustee,
relating to the Notes.
4.07 Form of Note.
4.08 Form of Common Stock certificate.
5.01 Opinion of Chapman and Cutler.
12.01 Computation of Ratio of Consolidated Earnings to Fixed Charges.
23.01 Consent of Arthur Andersen LLP.
23.02 Consent of Chapman and Cutler (contained in Exhibit 5.01).
24.01 Power of Attorney is contained on Page II-5 of this Registration Statement.
25.01 Statement of Eligibility and Qualification of Bank of America Illinois on Form T-1
relating to the Bonds.
25.02 Statement of Eligibility and Qualification of Bank of America Illinois on Form T-1
relating to the Notes.
25.03 Statement of Eligibility and Qualification of Robert J. Donahue on Form T-2 relating
to the Bonds.
</TABLE>
- -------------------------
* Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
II-2
<PAGE> 23
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of any
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described under Item 15, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-3
<PAGE> 24
POWER OF ATTORNEY
EACH PERSON WHOSE SIGNATURE APPEARS BELOW CONSTITUTES AND APPOINTS GENE C.
KOONCE, JAMES B. FORD AND TOM S. HAWKINS, JR., OR ANY ONE OF THEM, HIS/HER TRUE
AND LAWFUL ATTORNEY-IN-FACT AND AGENTS, WITH FULL POWER OF SUBSTITUTION AND
RESUBSTITUTION, FOR HIM/HER AND IN HIS/HER NAME, PLACE AND STEAD, IN ANY AND ALL
CAPACITIES, TO EXECUTE IN THE NAME OF EACH SUCH PERSON WHO IS THEN AN OFFICER OR
DIRECTOR OF THE REGISTRANT ANY AND ALL AMENDMENTS (INCLUDING POST-EFFECTIVE
AMENDMENTS) TO THIS REGISTRATION STATEMENT AND TO FILE THE SAME, WITH ALL
EXHIBITS THERETO, AND OTHER DOCUMENTS IN CONNECTION THEREWITH, WITH THE
SECURITIES AND EXCHANGE COMMISSION, GRANTING UNTO SAID ATTORNEYS-IN-FACT AND
AGENTS, AND EACH OF THEM, FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND
EVERY ACT AND THING REQUISITE OR NECESSARY TO BE DONE IN AND ABOUT THE PREMISES,
AS FULLY TO ALL INTENTS AND PURPOSES AS HE/SHE MIGHT OR COULD DO IN PERSON,
HEREBY RATIFYING AND CONFIRMING ALL THAT SAID ATTORNEYS-IN-FACT AND AGENTS OR
ANY OF THEM, OR THEIR OR HIS/HER SUBSTITUTE OR SUBSTITUTES, MAY LAWFUL DO OR
CAUSE TO BE DONE BY VIRTUE HEREOF.
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF BRENTWOOD, STATE OF TENNESSEE, ON DECEMBER 20, 1994.
UNITED CITIES GAS COMPANY
By /s/ GENE C. KOONCE
-------------------------------------
Gene C. Koonce
President
II-4
<PAGE> 25
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- --------------------------- -------------------
<S> <C> <C>
/s/ DWIGHT C. BAUM Chairman of the Board December 20, 1994
- ---------------------------------------------
Dwight C. Baum
/s/ GENE C. KOONCE President and Director December 20, 1994
- --------------------------------------------- (Principal Executive
Gene C. Koonce Officer)
/s/ JAMES B. FORD Senior Vice President and December 20, 1994
- --------------------------------------------- Treasurer (Principal
James B. Ford Financial and Chief
Accounting Officer)
/s/ TOM S. HAWKINS, JR. Vice President of December 20, 1994
- --------------------------------------------- Finance and Planning
Tom S. Hawkins, Jr.
/s/ ADRIENNE H. BRANDON Controller December 20, 1994
- ---------------------------------------------
Adrienne H. Brandon
/s/ THOMAS J. GARLAND Director December 20, 1994
- ---------------------------------------------
Thomas J. Garland
/s/ VINCENT J. LEWIS Director December 20, 1994
- ---------------------------------------------
Vincent J. Lewis
/s/ DENNIS L. NEWBERRY, II Director December 20, 1994
- ---------------------------------------------
Dennis L. Newberry, II
/s/ STIRTON OMAN, JR. Director December 20, 1994
- ---------------------------------------------
Stirton Oman, Jr.
/s/ TIMOTHY W. TRIPLETT Director December 20, 1994
- ---------------------------------------------
Timothy W. Triplett
/s/ GEORGE C. WOODRUFF, JR. Director December 20, 1994
- ---------------------------------------------
George C. Woodruff, Jr.
</TABLE>
II-5
<PAGE> 26
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Page
Number Description of Exhibits Number
- ------ ----------------------- ------
<S> <C>
*1.01 Form of Underwriting Agreement and/or Distribution Agreement, as applicable (to be filed
under cover of Form 8-K) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*4.01 Amended Articles of Incorporation of Company, as amended April 29, 1994 (filed as Exhibit
3.01 to Form 10-Q for the quarter ended March 31, 1994, File No. 0-1284) . . . . . . . . . .
*4.02 By-Laws of Company, as amended April 29, 1994 (filed as Exhibit 3.02 to Form 10-Q for the
quarter ended March 31, 1994, File No. 0-1284) . . . . . . . . . . . . . . . . . . . . . . .
4 .03 Indenture of Mortgage, dated as of July 15, 1959, from the Company to Bank of America
Illinois (successor to Continental Bank, National Association) and Robert J. Donahue
(successor to M.J. Kruger), as Trustees, and the following supplemental indentures thereto,
the First Supplemental Indenture, dated as of November 1, 1960, the Second Supplemental
Indenture, dated as of June 1, 1962, the Third Supplemental Indenture, dated as of February
1, 1963, the Fourth Supplemental Indenture, dated as of June 15, 1963, the Fifth Supplemental
Indenture, dated as of November 15, 1964, the Sixth Supplemental Indenture, dated as of
March 15, 1968, the Seventh Supplemental Indenture, dated as of August 1, 1970, the
Eighth Supplemental Indenture, dated as of September 1, 1972, the Ninth Supplemental
Indenture, dated as of January 1, 1974, the Tenth Supplemental Indenture, dated as of July
1, 1976, the Eleventh Supplemental Indenture, dated as of December 1, 1976, the
Twelfth Supplemental Indenture, dated as of April 1, 1981, the Thirteenth Supplemental
Indenture, dated as of May 1, 1982, the Fourteenth Supplemental Indenture, dated as
of March 1, 1987, Fifteenth Supplemental Indenture, dated as of October 1, 1987, the
Sixteenth Supplemental Indenture, dated as of December 1, 1989, the Seventeenth
Supplemental Indenture, dated as of April 1, 1990, the Eighteenth Supplemental Indenture,
dated as of June 1, 1991, the Nineteen Supplemental Indenture, dated as of May 1, 1992,
and the Twentieth Supplemental Indenture, dated as of December 1, 1992 . . . . . . . . . . .
4 .04 Form of Supplemental Indenture relating to the Bonds . . . . . . . . . . . . . . . . . . . .
</TABLE>
<PAGE> 27
<TABLE>
<CAPTION>
Exhibit Page
Number Description of Exhibits Number
------- ----------------------- ------
<S> <C>
4.05 Form of Bond (contained in Exhibit 4.04). . . . . . . . . . . . . . . . . . . . . . . . . .
4.06 Form of Indenture between the Company and Bank of America Illinois, as trustee, relating to
the Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.07 Form of Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.08 Form of Common Stock certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.01 Opinion of Chapman and Cutler. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12.01 Computation of Ratio of Consolidated Earnings to Fixed Charges . . . . . . . . . . . . . . .
23.01 Consent of Arthur Andersen LLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23.02 Consent of Chapman and Cutler (contained in Exhibit 5.01). . . . . . . . . . . . . . . . . .
24.01 Power of Attorney is contained on Page II-5 of the Registration Statement. . . . . . . . . .
25.01 Statement of Eligibility and Qualification of Bank of America Illinois on Form T-1 relating
to the Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25.02 Statement of Eligibility and Qualification of Bank of America Illinois on Form T-1 relating
to the Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
25.03 Statement of Eligibility and Qualification of Robert J. Donahue on Form T-2 relating to the
Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
- ----------------
* Incorporated herein by reference as indicated.
</TABLE>
-2-
<PAGE> 1
EXHIBIT 4.03
[Conformed Copy]
================================================================================
UNITED CITIES GAS COMPANY
TO
CITY NATIONAL BANK AND TRUST COMPANY OF CHICAGO
AND
R. EMMETT HANLEY
TRUSTEES
_______________
INDENTURE OF MORTGAGE
DATED AS OF JULY 15, 1959
_______________
RELATING TO
FIRST MORTGAGE BONDS
INCLUDING
FIRST MORTGAGE BONDS, SERIES A, 5 3/8%, DUE JULY 15, 1984
================================================================================
<PAGE> 2
UNITED CITIES GAS COMPANY
Index to Indenture of Mortgage dated as of July 15, 1959
<TABLE>
<CAPTION>
SECTION PAGE
<S> <C>
Parties and recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Granting Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1 THE BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.01. Issue of bonds limited to Series A bonds and additional series . . . . . . . . . . . . . . . . . 3
Section 1.02. General designation of bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.03. Series A bonds, designation, date, rate and maturity . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.04. Additional series, restrictions on maturity and sinking fund . . . . . . . . . . . . . . . . . . 3
Section 1.05. Initial issue of Series A bonds to be fully registered bonds, denominations, provision for
coupon bonds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.06. Form and denominations of additional series . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.07. Printing and numbering of bonds, temporary bonds . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.08. Execution of bonds and coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.09. Bonds not valid unless certified by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.10. Who deemed owners of bonds and coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.11. Registration, transfer and exchange of bonds . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 1.12. Charges for transfer and exchange of bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.13. Date of bonds issued on transfer, exchange or substitution, such bonds evidence same debt . . . . 6
Section 1.14. Presentment for payment at office of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 1.15. Replacement of mutilated, destroyed, lost or stolen bonds . . . . . . . . . . . . . . . . . . . . 6
Section 1.16. Bonds held by Company, when not deemed outstanding . . . . . . . . . . . . . . . . . . . . . . . 7
Section 1.17. Transfer of coupons or claim for interest after maturity or extension of time for
payment--limitation on rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 2 ISSUANCE OF BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.01. Series A bonds limited to $3,500,000, certification by Trustee . . . . . . . . . . . . . . . . . 7
Section 2.02. Basis for issuance of additional series: Property Additions, deposit of cash, refunding
bonds; earnings requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.03. Requirements for issuance and certification of additional series . . . . . . . . . . . . . . . . 8
Section 2.04. Repayment of cash deposited on issuance of bonds, certain requirements . . . . . . . . . . . . 11
Section 2.05. Issue of bonds or withdrawal of cash when default exists . . . . . . . . . . . . . . . . . . . 11
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ARTICLE 3 PARTICULAR COVENANTS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.01. Covenants in Article 3 not deemed to limit other covenants in indenture . . . . . . . . . . . . 11
Section 3.02. To pay principal, interest and premium . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.03. To register, transfer and exchange bonds at office of Trustee . . . . . . . . . . . . . . . . . 12
Section 3.04. To pay, reimburse and indemnify Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.05. Further assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.06. Title and warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.07. To pay taxes, claims, etc., comply with laws, etc . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.08. To tile financial and other statements with Trustee . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.09. Not to create other liens except certain permitted liens . . . . . . . . . . . . . . . . . . . 13
Section 3.10. As to restriction on Stock Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.11. To maintain depreciation reserve, accelerated depreciation, establish tax reserve, etc . . . . 15
Section 3.12. To maintain property, existence, franchises, etc . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.13. To insure properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.14. As to application of insurance proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 3.15. To carry liability insurance, application of proceeds thereof . . . . . . . . . . . . . . . . . 17
Section 3.16. As to salaries, loans to officers, management contracts . . . . . . . . . . . . . . . . . . . . 18
Section 3.17. Limitation on Prior Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 4 REDEMPTION PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.01. Redemption of Series A bonds, restricted for refunding, notice, redemption price . . . . . . . 18
Section 4.02. Notice to Trustee, manner of selecting bonds for partial redemptions . . . . . . . . . . . . . 20
Section 4.03. Manner of giving notice of redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 4.04. Contents of notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.05. Deposit and application of redemption money--initial registered holders may endorse partial
payments without surrender of bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 4.06. Bonds due and payable on redemption date, limited rights thereafter . . . . . . . . . . . . . . 23
Section 4.07. Right of payment prior to redemption date if deposit made . . . . . . . . . . . . . . . . . . . 23
Section 4.08. Cancellation of redeemed bonds, notation of partial redemption . . . . . . . . . . . . . . . . 23
Section 4.09. Redemption provisions applicable to other series except as otherwise provided for other series 23
Section 4.10. No partial redemptions while default continuing without bondholders consent . . . . . . . . . . 23
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ARTICLE 5 SINKING FUND FOR SERIES A BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.01. Amounts and dates of deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.02. Selection of bonds to be redeemed, notice of redemption . . . . . . . . . . . . . . . . . . . . 24
Section 5.03. Application of sinking fund money, no premium on redemption . . . . . . . . . . . . . . . . . . 24
Section 5.04. Sinking fund payable in cash except under specified circumstances, surrender of bonds as credit 24
Section 5.05. Redeemed and deposited bonds to be cancelled . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 6 DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.01. Events of default designated, Trustee may take appropriate action . . . . . . . . . . . . . . . 25
Section 6.02. Company to perform covenants and pay sums due on demand of Trustee . . . . . . . . . . . . . . 26
Section 6.03. Powers of Trustee in event of defaults, acceleration, legal action, receiver, power of sale,
etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 6.04. Sale matures bonds, Trustee's deed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.05. Application of moneys collected by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 6.06. Specific remedies non-exclusive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.07. Restoration of rights on discontinuance of proceedings . . . . . . . . . . . . . . . . . . . . 29
Section 6.08. Right of bondholders to control action of Trustee . . . . . . . . . . . . . . . . . . . . . . . 29
Section 6.09. When Trustee may decline to follow bondholders direction . . . . . . . . . . . . . . . . . . . 29
ARTICLE 7 POSSESSION, RELEASE AND SUBSTITUTION OF THE MORTGAGED PROPERTY . . . . . . . . . . . . . . . . . . 30
Section 7.01. Company's possession until default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 7.02. Right of Company to abandon, sell or dispose of certain property without release . . . . . . . 30
Section 7.03. Partial releases of mortgaged property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.04. Release of property taken by eminent domain . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.05. Application of proceeds of released property . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 7.06. Purchaser need not inquire as to Trustee's authority . . . . . . . . . . . . . . . . . . . . . 32
Section 7.07. Release while default exists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 8 MERGER, CONSOLIDATION OR SALE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 8.01. Merger, consolidation or conveyance of all assets permitted under certain conditions . . . . . 32
Section 8.02. Lien of Indenture on properties of successor corporation . . . . . . . . . . . . . . . . . . . 32
</TABLE>
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ARTICLE 9 BONDHOLDERS' NOTICES, REQUESTS, ETC., AND LIMITED RIGHTS OF ACTION UNDER THIS INDENTURE . . . . . . 33
Section 9.01. Bondholders' notices, proof of execution, etc . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 9.02. Limitation of action by bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 9.03. Company's obligation on bonds remains unconditional . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 10 CONCERNING THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 10.01. Trustees' undertakings and responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 10.02. Resignation of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.03. Removal of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.04. Appointment of successor Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.05. Appointment of successor Individual Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.06. Acceptance by successor Trustee, vesting of properties and rights with successor Trustee . . . 37
Section 10.07. Effect of merger or consolidation of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.08. Reason for Individual Trustee; exercise of powers by Trustee . . . . . . . . . . . . . . . . . 38
Section 10.09. Occasion for action by Individual Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.10. Appointment of Co-Trustee or Co-Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 10.11. Investment of funds held by Trustee on direction of Company . . . . . . . . . . . . . . . . . . 38
ARTICLE 11 DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.01. Defeasance, satisfaction of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 11.02. Deposited moneys held for account of bondholders . . . . . . . . . . . . . . . . . . . . . . . 40
Section 11.03. Bondholders may receive deposited money at any time after deposit . . . . . . . . . . . . . . . 40
Section 11.04. Return of unclaimed moneys to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE 12 CERTAIN DEFINITIONS AND MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 12.01. Indenture for parties thereto and bondholders . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 12.02. Notices to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 12.03. Execution of Indenture in counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 12.04. Index, headings, etc., for convenience only . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 12.05. Definitions of certain terms used in Indenture . . . . . . . . . . . . . . . . . . . . . . . . 41
(a) Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(b) Trustee, Individual Trustee, Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(c) This Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(d) Hereof, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(e) Continuing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(f) Property Additions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
(g) Gross Amount of Property Additions, Net Amount of Property Additions, Cost . . . . . . . . . . 42
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(h) Retirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(i) Cost Basis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(j) Retirements Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(k) Funded Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
(l) Form of Certificate to Evidence Gross Amount of Property Additions . . . . . . . . . . . . . . 43
(m) Form of Certificate to Evidence Net Amount of Property Additions . . . . . . . . . . . . . . . 44
(n) Execution and Recording of Supplemental Indenture Pursuant to Counsel's Opinion . . . . . . . . 47
(o) Net Earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
(p) Net Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(q) President, Treasurer, Secretary, Board of Directors . . . . . . . . . . . . . . . . . . . . . . 48
(r) Counsel, Engineer, Independent Engineer, Independent Accountant . . . . . . . . . . . . . . . . 48
(s) Stock Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(t) Prior Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
(u) Prior Lien Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 12.06. Certain requirements for all certificates, reliance by counsel on Company statements . . . . . 49
Section 12.07. Invalidity of any provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 12.08. Supplemental indentures, amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Signature page . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Schedule A -- Form of Registered bond, Trustee's certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Schedule B -- Property descriptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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THIS INDENTURE OF MORTGAGE, dated as of July 15, 1959, made by
and between UNITED CITIES GAS COMPANY, an Illinois corporation (hereinafter
called the "Company"), party of the first part, and CITY NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, a national banking association having its office in
the City of Chicago, State of Illinois (hereinafter called the "Trustee"), and
R. EMMETT HANLEY residing in Oak Park, Illinois (hereinafter called the
"Individual Trustee"), parties of the second part (the Trustee and the
Individual Trustee being hereinafter collectively referred to as the
"Trustees")..c4.Parties and recitals;
WITNESSETH:
WHEREAS, the Company has the power and proposes from time to time to
issue its First Mortgage Bonds in one or more series (hereinafter collectively
called the "bonds"), to be issued under and to be secured by this indenture;
and
WHEREAS, all things necessary to make this indenture and the bonds
initially to be issued hereunder valid obligations of the Company according to
their tenor and effect, have been done or authorized;
NOW THEREFORE, in consideration of the premises and of the
certification and acceptance of the bonds and of other good and valuable
consideration, receipt whereof upon the delivery of this indenture the Company
hereby acknowledges, and in order to secure the equal and pro rata payment of
both the principal of and interest (except as provided in Section 1.17 hereof)
and premium, if any, upon the bonds at any time outstanding hereunder according
to their tenor and the provisions hereof, and to secure the faithful
performance and observance of all the covenants and provisions therein and
herein contained, and to declare the terms and conditions upon which the bonds
are and will be secured, certified, issued, transferred and exchanged, and upon
which the trusts hereof are to be administered by the Trustees,
THE COMPANY HEREBY GRANTS, CONVEYS, MORTGAGES TO THE TRUSTEES AND
WARRANTS and each of them and their respective successors in the trusts hereof,
and assigns, upon the trusts hereby established, all and singular the properties
and rights of the Company, except as otherwise expressly provided herein
(hereinafter, together with all moneys held by the Trustee pursuant to the terms
hereof, called the "mortgaged property"), including:
I. All lands and rights and interests therein now owned
or hereafter acquired by the Company, including, without limitation,
those more specifically described in Schedule B, Part I, hereof;
II. All gas distribution systems, pipelines, plants,
buildings, machinery and equipment now owned or hereafter acquired by
the Company, including, without limitation, those more specifically
described in Schedule B, Part II, hereof;
<PAGE> 8
III. All rights appertaining to any and all the foregoing
property, and all gas purchase contracts and other contracts, rights
and franchises, including, without limitation, those more specifically
described in Schedule B, Part III, and Part IV hereof, and all
indeterminate permits, certificates of convenience and necessity,
rights of way, easements, licenses and permits used by or useful to
the Company in the operation of its business, whether now owned or
hereafter acquired, and, subject to the provisions of Section 7.01
hereof, all income and earnings arising out of the mortgaged property,
including rents, issues and profits during any period of redemption
and prior to the execution of an absolute deed pursuant to a
foreclosure or other proceedings to enforce the lien of this
indenture;
IV. All property, real, personal and mixed, whether or
not hereinabove or in Schedule B specifically described, which the
Company now owns and all such property which it may hereafter acquire;
and
V. All property of any kind that may hereafter be
conveyed by the Company, or by any one on its behalf and with its
consent, to the Trustees, the Trustees being hereby authorized to
receive any property so conveyed and to hold it as additional security
hereunder, subject to all provisions hereof not inconsistent with the
terms of such conveyance;
SUBJECT TO such reservations and exceptions as are more specifically
set forth in Schedule B, Part I, hereof, including leases, if any, existing at
the date hereof, and to such liens and encumbrances as are of the character
specified in Section 3.09 hereof;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts
receivable not specifically pledged hereunder;
B. All stocks, bonds and securities not
specifically pledged hereunder;
C. All merchandise held for resale and
consumable materials and supplies;
D. The last day of the term of each leasehold
estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment.
PROVIDED, HOWEVER, that if the Trustee or Trustees, or any receiver
appointed hereunder, shall enter into possession of the mortgaged property such
Trustee or Trustees or receiver shall thereupon be entitled to take possession
of and use any of the excepted property then on hand and, so long as such
possession shall continue, this indenture shall be a lien on all such property,
subject to such liens and encumbrances as may then exist thereon.
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TO HAVE AND TO HOLD the mortgaged property unto the Trustees and each
of them and their respective successors in said trust and assigns forever, but
in trust nevertheless for the purposes hereinafter set forth and upon the terms
contained herein;
PROVIDED, HOWEVER, that if the Company, its successors or assigns,
shall pay or cause to be paid according to their tenor and effect the bonds and
all sums due thereon, and shall observe all the covenants and conditions
hereof, this indenture shall, pursuant to the provisions of Article 11 hereof,
be void, but otherwise shall remain in full force and effect.
AND IT IS FURTHER COVENANTED, declared, and agreed as follows:
ARTICLE 1
THE BONDS
Section 1.01. The aggregate principal amount of bonds which may be
issued hereunder is limited to the initial issue of Series A bonds, and to the
additional issuance of bonds of other series permitted by Article 2, except as
to transfers, substitutions and exchanges of bonds provided for herein.
Section 1.02. The bonds shall be generally designated the Company's
"First Mortgage Bonds," and shall be issued in such appropriately designated
series as the Board of Directors shall, from time to time, determine.
Section 1.03. The first series of bonds to be issued hereunder
(herein called generally the "Series A bonds" or "bonds of Series A") shall be
designated "First Mortgage Bonds, Series A, 53/8%, due July 15, 1984." The
Series A bonds shall, subject to the provisions of Section 1.13, be dated as
of, and shall bear interest from, July 15, 1959; shall mature July 15, 1984,
and shall bear interest at the rate of 53/8% payable semi-annually on January
15 and July 15 in each year until the principal thereof shall have become due
and payable, and shall bear interest on any overdue principal and on any
overdue installment of interest at the rate of 6% per annum, so far as the same
may be legally enforceable, from the due date thereof until fully paid.
Section 1.04. Bonds of any series other than Series A shall contain
such variant provisions, if any, as to date, maturity or serial maturities,
interest rate or interest rates, in the case of serial maturities, place of
payment, redemption, conversion, or deduction or reimbursement of taxes, shall
be entitled to such sinking fund and other special provisions (not contrary to
the provisions of this indenture), and shall be limited to such aggregate
principal amount, if any, as shall be determined by the Board of Directors and
set forth in an indenture supplemental hereto at the time any such other series
is created.
So long as any bonds of Series A shall remain outstanding no new
series of bonds shall be authorized having a maturity date earlier than July
15, 1984, and no provision shall be made for the retirement of any new series
of bonds prior to July 15, 1984 through a sinking fund or other retirement fund
in an amount in any year greater proportionately than
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<PAGE> 10
is provided in this indenture for the retirement during such year of the Series
A bonds by operation of the sinking fund established for bonds of said series.
Section 1.05. The Series A bonds initially to be issued shall be
fully registered bonds without coupons, in denominations of $1,000 and multiple
thereof, substantially in the form set forth in Schedule A hereof, with
appropriate insertions, omissions and changes, approved by the President of the
Company and the Trustee, as may be appropriate for different denominations
and/or in order to conform to usage or law. Upon receipt of a written request
from holders of not less than 25% in aggregate principal amount of the Series A
bonds at the time outstanding, stating their intention to exchange all or a
substantial part of their bonds for Series A bonds in coupon form, the Company
will promptly cause to be prepared Series A bonds in customary coupon form in
the denomination of $1,000, registrable as to principal only, and substantially
in the form of the fully registered Series A bond set forth in Schedule A
hereto, with appropriate insertions, omissions, and changes approved by counsel
satisfactory to the Trustee in an opinion filed with the Trustee, and by the
Trustee. Thereafter fully registered bonds and coupon bonds of Series A shall
be interchangeable, subject to the provisions of Section 1.11 hereof.
Section 1.06. Bonds of series other than Series A shall be fully
registered bonds without coupons, or coupon bonds which may or may not be
registrable as to principal, or both, shall be of such denomination or
denominations, interchangeable as between denominations and as between fully
registered bonds without coupons and coupon bonds, or not so interchangeable,
and shall be in such form or forms, not substantially different from the form
of Series A bonds, except as may be occasioned by variant provisions applicable
to such series in accordance with Section 1.04 hereof, as shall be determined
by the Board of Directors and set forth in an indenture supplemental hereto at
the time such other series is created. Bonds of any series may be endorsed
with such notations or legends as may be required by any indenture supplemental
hereto, or as may be required to conform to usage or law and be approved by the
Trustee.
Section 1.07. Bonds of each series shall be printed or lithographed
within engraved borders, or fully engraved, and shall be numbered and bear
distinguishing letters or symbols for the different denominations and forms, as
may be approved by the President of the Company and by the Trustee. Temporary
bonds of any series may be issued in customary form approved by the President
of the Company and the Trustee, containing substantially the provisions
required for permanent bonds of the series and expressed to be exchangeable for
such permanent bonds.
Section 1.08. The bonds shall be executed in the name and on behalf
of the Company by its President, and its corporate seal shall be thereunto
affixed and attested by its Secretary. The coupons appertaining to any coupon
bond shall bear the facsimile signature of the present or any future Treasurer
of the Company. In case any such officer who shall have executed or attested
any of the bonds, or whose facsimile signature shall appear on any coupon,
shall not have been such officer on the date home by the bonds, or shall cease
to be such officer before the bonds so executed or attested shall have been
actually certified and delivered, such bonds and coupons shall, nevertheless,
if presented to the Trustee for the
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<PAGE> 11
certification of such bonds or delivery, be thereby adopted by the Company and
may be certified by the Trustee and delivered, as herein provided, and
thereupon shall be binding as though said officer had been such officer of the
Company on the date borne by the bonds, and on the date of certification and
delivery thereof.
Section 1.09. No bond shall be valid or entitled to any benefit
under this indenture unless such bond shall be certified by the Trustee in the
space provided therefor. The Trustee's certification shall be the conclusive
and only evidence that the bond so certified has been approved in all respects
as required by this indenture, has been duly issued under this indenture and is
entitled to the benefits and security hereof.
Section 1.10. Any coupon bond, except while registered as to
principal otherwise than to bearer, shall be treated as negotiable and shall
pass by delivery. Registration of any coupon bond as to principal shall not
affect the negotiability of its coupons. The Company, the Trustee and all
persons may treat the registered owner of any fully registered bond without
coupons or of any coupon bond registered as to principal, and the bearer of any
coupon or coupon bond not registered as to principal, as the absolute owner
thereof for all purposes, and neither the Company nor the Trustee shall be
affected by any notice or knowledge to the contrary, whether payments on such
bond or coupon shall be overdue or not. The Company consents and agrees, and
every successive registered owner, bearer and assignee of bonds, by accepting
or holding the same, shall be deemed to have consented and agreed, to the
foregoing provisions of this Section and each shall be deemed to have invited
the others and all persons to rely thereon.
Section 1.11. The Company will keep or cause to be kept at the
principal office of the Trustee, appropriate registry books for the
registration and transfer of bonds, and will cause to be registered therein the
ownership or transfer of any bond entitled to be registered or transferred.
Under such reasonable regulations as the Company may prescribe with the
approval of the Trustee, and subject to the provisions of Sections 1.05 and
1.06 hereof,
(a) at the bearer's option, the ownership of any coupon
bond expressed to be so registrable may, from time to time, be
registered as to principal only, in the name of the bearer or his
nominee on such registry books, upon presentation thereof at the
principal office of the Trustee and notation of such registration
thereon by the Trustee, after which no transfer thereof shall be valid
unless duly executed to the satisfaction of the Trustee and similarly
registered and noted by the Trustee; but any bond so registered may be
discharged from registration, and transferability by delivery be
restored, by like transfer to bearer similarly registered and noted,
and such bond may again from time to time, in like manner, be so
registered or transferred to bearer;
(b) the registered owner of any fully registered bond
without coupons may transfer his bond upon surrender thereof at the
office of the Trustee for cancellation, accompanied by a duly executed
written instrument of transfer satisfactory to the Trustee; and
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<PAGE> 12
(c) the bearer or registered owner of any bond expressed
to be so exchangeable, whether in fully registered or coupon form, may
at any time surrender his bond at such office for cancellation,
accompanied by such written instrument of transfer if fully registered
or registered as to principal otherwise than to bearer, and with all
unmatured coupons, if any, attached thereto, in exchange for an equal
aggregate principal amount of bonds of the same series, either in
fully registered form or in coupon form, or partly one and partly the
other, in any authorized denominations.
The Company will execute and deliver to the Trustee and the Trustee shall
certify and deliver bonds required for any such transfer of a fully registered
bond and for any such exchange. Thereupon the bonds surrendered for transfer
or exchange shall forthwith be canceled by the Trustee. The Trustee is hereby
appointed the agent of the Company for the payment, registration, transfer and
exchange of bonds.
Section 1.12. The Company may require, as a condition precedent
thereto, the payment of a sum sufficient to pay any stamp tax or other
governmental charge imposed in relation to any transfer or exchange of bonds,
and in addition thereto, such charge for any such transfer or exchange as it
may deem proper, not exceeding $2.00 for each new bond issued upon such
transfer or exchange.
Section 1.13. All bonds executed, certified and delivered upon
transfer of or in exchange or substitution for bonds pursuant to Section 1.11
or Section 1.15 hereof shall be dated, in the case of fully registered bonds,
and accompanied by unmatured coupons in the case of coupon bonds, so that no
gain or loss of interest shall result, shall be valid obligations of the
Company, evidencing the same debt as the bonds surrendered or for which
substitution is made, and shall be entitled to all the benefits and security
hereof to the same extent as the bonds, upon transfer of or in exchange for
which, they were executed, certified and delivered. In the event any fully
registered bond without coupons initially issued shall be authenticated
subsequent to the first interest payment date of bonds of the series of which
it is a part, such registered bond if issued on an interest payment date shall
be dated as of such interest payment date and otherwise shall be dated as of
the next preceding interest payment date.
Section 1.14. The bonds may be presented for payment, and notices
or demands with respect thereto or to this Indenture may be served or made, at
the principal office of the Trustee.
Section 1.15. Upon receipt of evidence satisfactory to the Company
and the Trustee that any bond has been mutilated, destroyed, lost or stolen,
and upon proof of ownership and receipt of indemnity satisfactory to the
Company and the Trustee, and upon payment of all reasonable expenses incurred
by the Company and by the Trustee relating to the issuance of any new bond
under this section, the Company shall execute, and thereupon the Trustee in its
discretion may certify and deliver, a new bond for the same principal amount as
the bond so mutilated, destroyed, lost or stolen, of like tenor and bearing the
same or a different issue number, with such notations, if any, as the Company,
with the approval of the Trustee, shall
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<PAGE> 13
determine, upon surrender and cancellation of, and in exchange and substitution
for, such mutilated bond, or in lieu of and in substitution for the bond so
destroyed, lost or stolen. If any holder of bonds of Series A (or any other
series created by an indenture supplemental hereto containing a similar
provision) in whose name bonds of such Series were initially registered is the
holder of a bond that has been mutilated, destroyed, lost or stolen, the
affidavit of the president or treasurer of such bondholder, setting forth the
fact of mutilation, destruction, loss or theft, shall be accepted by the
Company and the Trustee as satisfactory evidence of such fact and no indemnity
shall be required as a condition precedent to the execution, certification and
delivery of a new bond under this Section to such bondholder other than the
written agreement of such bondholder to indemnify the Company and the Trustee.
Section 1.16. Any uncanceled bonds held or acquired by the Company
may be sold, pledged or otherwise disposed of by it before maturity, without
re-execution or re-certification, and such bonds shall thereafter be entitled
to all benefits of this indenture. Bonds owned by the Company, or owned by
another wholly for the benefit of the Company, shall be deemed to be
outstanding except (a) for the purpose of any computation under any provisions
of this indenture of percentages of bonds at the time outstanding, and (b) for
the purpose of any enforcement of rights or remedies hereunder or under the
bonds except after the prior payment of all bonds, coupons and claims for
interest not so owned; but the Trustee may presume conclusively that no bond is
so owned unless and until it shall have received written evidence to the
contrary satisfactory to it.
Section 1.17. No coupon or claim for interest which in any way at
or after its maturity shall have been transferred or pledged apart from the
bond to which it appertains, and no coupon or claim for interest the time for
the payment of which shall have been extended in any manner whatsoever, shall
be entitled to any of the benefits of this Indenture except after the prior
payment in full of all bonds, coupons and claims for interest not so
transferred, pledged or extended; provided, however, that the foregoing
provisions shall not apply to any coupon or claim for interest transferred,
pledged or extended pursuant to a plan accepted by and binding upon the holders
of not less than 75% in aggregate principal amount of bonds at the time
outstanding.
ARTICLE 2
ISSUANCE OF BONDS
Section 2.01. The Series A bonds shall be limited to $3,500,000 in
aggregate principal amount. Forthwith upon the execution and delivery of this
indenture the Company may execute and deliver to the Trustee said Series A
bonds, and thereupon and without farther action on the part of the Company the
Trustee shall certify the same and deliver them to, or on the written order of,
the President or Treasurer of the Company.
Section 2.02. Bonds of series other than Series A may be issued
hereunder (a) to a principal amount equal to 60% of the Net Amount of Property
Additions evidenced to the Trustee for the purpose; (b) to a principal amount
equal to the amount of cash deposited
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<PAGE> 14
with the Trustee for the purpose; and (c) to refund bonds of any series
voluntarily retired by the Company, by purchase or redemption, and bonds
retired by payment at their stated maturity; provided that in case bonds are
issued pursuant to clauses (a) and (b) of this Section, or pursuant to clause
(c) of this Section if such bonds are to be certified and delivered more than
one year prior to the maturity date of the bonds to be refunded and are to bear
a higher rate of interest than the bonds to be refunded, Net Earnings for any
period of 12 consecutive months within a 15 month period ending not more than
60 days prior to the date of such proposed issue shall have been at least equal
to 200% of the interest requirements for a period of 12 months on all bonds
(including Prior Lien Bonds) to be outstanding immediately thereafter.
Section 2.03. The Company may, from time to time, execute and
deliver bonds of series other than Series A, and the Trustee, upon application
of the Company, shall certify the same and deliver them to, or upon the written
order of, the President or Treasurer of the Company, but only upon prior
receipt of the following:
(a) in each case:
(1) if such bonds are the initial bonds of a
series other than Series A, a supplemental indenture executed
by the Company, setting forth the particular provisions
applicable to such series in accordance with Article 1 hereof,
and a certified copy of resolutions of the Board of Directors
authorizing the same;
(2) a certified copy of resolutions of the Board
of Directors authorizing the execution and delivery of such
bonds, specifying the basis for their issuance within the
provisions of Section 2.02 hereof, and requesting
certification thereof by the Trustee to a specified aggregate
principal amount;
(3) an opinion of counsel satisfactory to the
Trustee, who may be counsel for the Company, to the effect
that the Company has full corporate authority to issue such
bonds; that all corporate action necessary to their issuance
has been taken; that the authorization of all regulatory
bodies having jurisdiction over their issuance has been
obtained or that no such authorization is required; that any
supplemental indenture to be executed in connection therewith
will be valid and binding upon the Company in accordance with
its terms; that such issue of bonds is in accordance with this
indenture as supplemented or then to be supplemented by
indentures supplemental thereto; and that such bonds, when so
issued, will be valid obligations of the Company entitled to
the benefit and security of this indenture equally with all
bonds then outstanding;
(4) certified copies of all orders of regulatory
bodies, if any, referred to in the foregoing opinion of
counsel;
(5) a certificate signed by the President and the
Treasurer of the Company stating whether, and if so in what
respect and to what extent any
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<PAGE> 15
default exists hereunder or will exist immediately after the
issuance of such bonds in accordance with the resolutions of
the Board of Directors authorizing the same;
(b) in case of bonds to be issued against Property
Additions:
(1) a certificate pursuant to Section 12.05(m)
hereof evidencing a Net Amount of Property Additions equal in
value to at least 1662/3% of the aggregate principal amount of
such bonds;
(2) a certificate signed by the President and
Treasurer of the Company demonstrating that Net Earnings for
any period of 12 consecutive months within a 15 month period
ending not more than 60 days prior to the date of such
requested certification, have been at least equal to 200% of
the interest requirements for a period of 12 months on all
bonds (including Prior Lien Bonds) to be outstanding
immediately thereafter. Said certificate shall set forth in
summary form the calculation of such Net Earnings;
(3) in case any Property Additions shall consist
of any operating system acquired as an entirety, or
substantially as an entirety,
(A) the certificate pursuant to Section
12.05(m) hereof shall separately describe such
acquired system and state the principal amount of all
Prior Lien Bonds, if any, secured by a lien thereon;
(B) there shall be filed with the
Trustee a certificate of an Independent Engineer
stating (i) such property constitutes Property
Additions as herein defined, (ii) the fair value to
the Company of such property at the date of such
certificate, which determination of fair value shall
be conclusive for purposes of this indenture, and
(iii) that in the opinion of such Independent
Engineer the acquisition of such property is
desirable from the standpoint of the Company and of
the holders of the bonds issued hereunder; and
(C) there shall be deposited with the
Trustee cash sufficient to satisfy and discharge all
Prior Lien Bonds, if any, disclosed by the aforesaid
certificate, together with irrevocable instructions
to apply said cash for said purpose, and such
evidence as the Trustee may require to establish the
sufficiency of such cash for such purpose;
(4) an opinion of counsel to the effect set forth
in the certificate delivered pursuant to Section 12.05(m)
hereof;
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<PAGE> 16
(c) in case of bonds to be issued against cash:
(1) cash in an amount equal to the aggregate
principal amount of such bonds; and
(2) a certificate responsive to Section
2.03(b)(2) demonstrating Net Earnings as there required within
a 15 month period ending not more than 60 days prior to the
date of such requested certification;
(d) in case of bonds to be issued for refunding purposes:
(1) a certificate signed by the Treasurer of the
Company establishing an amount of refundable bonds equal in
aggregate principal amount to the bonds proposed to be issued:
(A) in the case of bonds voluntarily
retired by the Company by purchase, by specifying the
particular bonds so retired and the aggregate amount
thereof;
(B) in the case of bonds voluntarily
retired by the Company by redemption, by specifying
an aggregate amount of one or more series of bonds so
redeemed and the date or dates of redemption, and
stating further that none of such bonds was redeemed
through the operation of any sinking fund hereunder,
or pursuant to Section 3.14 or 7.05 hereof (relating
to insurance and eminent domain and release moneys,
respectively);
(C) in the case of bonds retired by
payment at maturity, by specifying an aggregate
amount of one or more series of bonds so paid and the
date or dates of maturity, and stating further that
none of such bonds was paid pursuant to Section
6.05(b) hereof (relating to moneys collected during a
period of default); and
(D) in each case, by stating that none
of the bonds certified to be refundable has
theretofore been certified as the basis of any action
pursuant to this subparagraph (d) of this Section or
surrendered to the Trustee in satisfaction of any
sinking fund obligation;
(2) the particular bonds specified pursuant to
subparagraph (d)(1)(A) of this Section, which bonds shall
thereupon be canceled by the Trustee;
(3) cash, irrevocably deposited with the Trustee,
in an amount sufficient to redeem at a date not more than 90
days thereafter, any bonds specified pursuant to subparagraph
(d)(1)(B) of this Section and not theretofore redeemed,
together with evidence satisfactory to the Trustee that notice
of such
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<PAGE> 17
redemption has been given, or waived as herein provided, or
with provision satisfactory to the Trustee for the giving of
such notice;
(4) cash, irrevocably deposited with the Trustee
in an amount sufficient to pay at their stated maturity and
within 90 days thereafter, any bonds specified pursuant to
subparagraph (d)(1)(C) of this Section and not theretofore
redeemed; and
(5) if the bonds to be issued are to be certified
and delivered more than one year prior to the maturity date of
the bonds to be refunded and are to bear a higher rate of
interest than the bonds to be refunded, a certificate
responsive to Section 2.03(b)(2) demonstrating Net Earnings as
there required within a 15 month period ending not more than
60 days prior to the date of such requested certification.
Section 2.04. Cash delivered to the Trustee against the issuance of
bonds shall be held as a part of the mortgaged property and shall, upon written
request therefor, be repaid by the Trustee to the Company upon prior receipt by
the Trustee of:
(a) a certificate pursuant to Section 12.05(m) hereof
evidencing a Net Amount of Property Additions equal to at least
1661/2% of the amount of such cash;
(b) an opinion of counsel to the effect set forth in the
certificate delivered pursuant to Section 12.05(m) hereof; and
(c) a certificate signed by the President and Treasurer
of the Company stating whether, and if so in what respect and to what
extent, any default exists hereunder.
Section 2.05. At any time when a default exists hereunder to the
knowledge of the Trustee, the Trustee shall not be required to permit the
issuance of bonds or the withdrawal of cash pursuant to the provisions of this
Article.
ARTICLE 3
PARTICULAR COVENANTS OF THE COMPANY
Section 3.01. The particular covenants and agreements of the
Company set forth in this Article 3 shall not be deemed to limit or restrict
any other covenant contained in or provision of this indenture.
Section 3.02. The Company will duly and punctually pay or cause to
be paid, without extension, except pursuant to the proviso in Section 1.17
hereof, the principal of and premium, if any, and interest on each of the bonds
at the time and place and in the manner mentioned in the bonds and herein; and
at least one business day before each date on which any principal of or
premium, if any, or interest on any of the bonds becomes payable, whether at
the stated maturity thereof, by call for redemption, by declaration or
otherwise,
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<PAGE> 18
or on such date in accordance with Section 4.05, the Company will deposit or
cause to be deposited with the Trustee under the trusts hereof, the entire
amount necessary to pay all the principal, premium, if any, and interest
payable on such date on all bonds then outstanding.
Section 3.03. The Company will register, transfer and exchange at
the principal office of the Trustee any of the bonds when presented for that
purpose pursuant to and in compliance with the provisions of the bonds and
hereof.
Section 3.04. The Company will from time to time pay the Trustees
reasonable compensation for their services, and will reimburse, indemnify and
save harmless the Trustees, and each of them, for and against all expenses,
liability and damage incurred by the Trustees, or either of them, in connection
with the execution of trusts and powers hereunder.
Section 3.05. The Company will execute, deliver, and record such
further instruments as may reasonably be required by the Trustees, or either of
them, for the protection of the Trustees and of the bondholders; and will take
all action necessary to maintain the recording and filing of this indenture and
all such further instruments.
Section 3.06. Subject to liens and encumbrances of the character
permited by Section 3.09 hereof, the Company has good and valid title to and is
now lawfully possessed of all the property, except after-acquired property,
granted hereby, and has full right to convey the same for the purposes hereof,
and will warrant and defend title thereto to the Trustees against claims of all
persons whatsoever.
Section 3.07. The Company will pay and discharge before the same
shall fall into arrears all taxes, assessments and municipal and governmental
charges lawfully levied or imposed upon it or upon or in respect of all or any
part of its properties, business and franchises; will comply with all laws,
rules, regulations and other requirements of governmental authorities having
jurisdiction over it and its properties; and will pay and discharge all lawful
claims for labor, material and supplies and all other debts, liabilities and
charges which, if unpaid, would by law be a lien or charge upon its property or
lead to the interruption or suspension of its business; provided, however, that
nothing in this Section 3.07 shall require the Company to make any such payment
or compliance so long as it shall in good faith contest its obligation so to
do.
Section 3.08. The Company will at all times keep proper books of
account and records and will furnish to the Trustee:
(a) As soon as practicable after the close of each of its
fiscal years and in any event within 180 days after such close, an
audit report containing a balance sheet as of the close of such year,
and an analysis of surplus and an income statement for such year, all
in reasonable detail, certified by an Independent Accountant, selected
by the Company and satisfactory to the Trustee, together with
computations verified by such Independent Accountant setting forth the
amount of Net Income applicable to such fiscal year. Such audit
report shall also contain or be accompanied by a written statement of
such Independent Accountant that in making the examination necessary
to
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<PAGE> 19
certification of such audit report no knowledge has been obtained of
any violation of any of the terms of covenants of this indenture,
including particularly the covenants contained in Section 3.10 hereof,
or if such Independent Accountant shall have obtained knowledge of any
such default such statement shall disclose the default or defaults and
the nature thereof, but such Independent Accountant shall not be
liable directly or indirectly to anyone for any failure to obtain
knowledge of any default.
(b) Within 60 days after the end of each quarterly fiscal
period of the Company, a copy of the balance sheet of the Company as
at the end of such quarterly period and an income statement of the
Company for the 12 months period ending at the date of such balance
sheet and for the corresponding date and period for the previous
fiscal year, all in reasonable detail and certified by an authorized
financial officer of the Company.
(c) Promptly after the preparation thereof, copies of
each annual report and all other reports which the Company shall from
time to time render to its stockholders.
(d) From time to time upon request of the Trustee, full
information pertinent to any covenant, condition or provision hereof.
(e) Not later than June 1, in each calendar year, a
certificate of the President or Treasurer of the Company stating (1)
that all taxes then due on the properties mortgaged hereunder have
been duly paid unless the Company shall in good faith, by appropriate
action, contest any of said taxes in which event such contest shall be
set forth; (2) that all insurance premiums required by the terms
hereof to be paid by the Company upon the properties mortgaged
hereunder have been duly paid; and (3) that the Company is not in
default under any of the covenants, terms and provisions of this
indenture, or, in case of any such default, a full statement as to the
nature thereof. Such certificate shall also fully describe all
insurance then in force covering the mortgaged property and shall
state which policies contain loss payable clauses as specified in
Section 3.13 hereof, and shall describe and state the amount of
liability insurance then in force carried pursuant to Section 3.15
hereof.
Section 3.09. The Company will not, directly or indirectly, create,
assume, incur or suffer to exist any mortgage, pledge, encumbrance, lien or
charge of any kind, other than the lien of this indenture, upon any of its
property or assets of any character, whether owned at the date hereof or
hereafter acquired and owned, or upon any income or proceeds therefrom, except,
unless delay in payment and discharge thereof be permitted by Section 3.07
hereof, the following, which shall be considered as not materially impairing
the security hereof:
(a) liens for taxes, assessments, or governmental charges
for the then current year or which are not yet due or delinquent;
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<PAGE> 20
(b) liens for taxes, assessments or governmental charges
already due, but the validity of which is being contested at the time
in good faith;
(c) liens and charges incidental to current operation or
construction which are not due or delinquent;
(d) liens for workmen's compensation awards not due or
delinquent;
(e) pledges or deposits to secure obligations of the
Company under workmen's compensation laws or similar legislation;
(f) good faith deposits in connection with tenders,
contracts or leases to which the Company is a party;
(g) deposits to secure public or statutory obligations of
the Company;
(h) deposits to secure surety, attachment or appeal bonds
to which the Company is a party;
(i) undetermined liens and charges, if any, incidental to
construction;
(j) any easements, rights of way, restrictions and
reservations (other than easements, rights of way, restrictions and
reservations securing or constituting a lien or charge for the payment
of money or its equivalent) existing by operation of law or otherwise
over, under, upon or against the mortgaged property or any part
thereof;
(k) alleys, streets and highways that may run across or
encroach upon lands forming a part of the mortgaged property; also
liens created by other than the Company on property with respect to
which the Company owns easements or rights of way for pipelines, mains
and services;
(l) liens arising out of judgments or awards against the
Company with respect to which it shall concurrently at the time be
prosecuting an appeal or proceedings for review and with respect to
which it shall have secured a stay of execution pending such appeal or
proceedings for review;
(m) liens or other encumbrances as to which cash
sufficient to pay or redeem all indebtedness secured thereby shall be
deposited with the Trustee to be held in trust for such purposes by
the Trustee;
(n) zoning laws and ordinances, easements, reservations,
restrictions and similar encumbrances, leases existing at the date
hereof and renewals and substitutions thereof, and minor defects or
irregularities of title which, in the opinion of counsel, are not such
as to interfere with the proper operation of the mortgaged property
affected thereby; and
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<PAGE> 21
(o) Prior Liens within the limitations provided in
Section 3.17.
Section 3.10. The Company will not, directly or indirectly, so long
as any Series A bonds shall remain outstanding:
(a) make any Stock Payment upon its common stock if,
after giving effect to such action, the aggregate amount of all Stock
Payments upon its common stock made subsequent to December 31, 1958
would exceed the sum of $200,000 plus the aggregate Net Income of the
Company accumulated subsequent to said date, or in case of a deficit,
minus such deficit; or
(b) make any Stock Payment upon its common stock at any
time at which, regardless of any grace period provided for in Article
6 hereof, it is in default under any provision of this indenture.
Section 3.11. The Company will in each fiscal year credit to a
depreciation reserve and charge against income an amount determined by the
application to its depreciable physical property of such depreciation rate or
rates as may be fixed from time to time by any public regulatory body or bodies
having jurisdiction in the premises, and until such time as such regulatory
body or bodies shall fix such rates, the Company will annually credit to such
depreciation reserve an amount not less than the amount computed on a straight
line basis used by the Company in determining depreciation claimed by the
Company for federal income tax purposes for such fiscal year.
Subject to the orders and requirements of public regulatory bodies
having jurisdiction in the premises, in case the Company shall in any fiscal
year accelerate deductions for depreciation pursuant to provisions of Section
167(b) of the United States Internal Revenue Code of 1954, or under such law as
hereafter amended, or under any similar law, it will in such year (a) credit to
a reserve for deferred income taxes and charge against income an amount equal
to the reduction in such taxes resulting from the excess of depreciation
claimed or allowed for such year over depreciation recorded in accordance with
the provisions of the preceding paragraph and (b) charge against such reserve
for deferred income taxes and credit to accrued taxes (or to such other account
as may be required by any such public regulatory body) an amount equal to the
increase in such taxes resulting when depreciation claimed or allowed for such
year is less than depreciation recorded in accordance with the provisions of
the preceding paragraph.
For the purposes of this Section, the phrases "accelerate deduction
for depreciation" and "accelerated depreciation" shall be deemed to refer to
the computation of depreciation or of deductions for depreciation by any method
authorized by Section 167 of the Internal Revenue Code of 1954 (or by such law
as hereafter amended or by any similar law) which results in a larger deduction
for depreciation in the early years of the useful life of the property being
depreciated than deductions computed on the straight line method.
Section 3.12. The Company will, in accordance with sound business
principles, except only as interrupted by causes beyond its control, adequately
maintain, repair, renew and
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<PAGE> 22
replace its property so that the business carried on may at all times be
properly and advantageously conducted, will preserve its corporate existence,
franchises and privileges, and will continuously conduct and carry on its usual
business and use its best efforts to make good, to the extent necessary for the
efficient and proper operation of its business, any impairment of its property
arising otherwise than in consequence of depreciation or obsolescence.
Section 3.13. The Company will keep the mortgaged property insured
against destruction or damage by fire or other accident or hazard, to the
extent and in the manner usually insured by companies operating similar
properties, to its reasonable insurable value in responsible insurance
companies, losses, if any, to be made payable to the Trustee as its interest
may appear, provided, however, that the Company shall not be required to
maintain such insurance on property which is fireproof and storm proof (such as
underground pipelines, mains and services), or on meters and other usual
installations on customers' premises, or on office furniture and equipment
except to the extent that any individual item thereof has a value of $500 or
more. In case of any default by the Company in fulfilling its covenant to
insure, the Trustee may at its option effect such insurance in the name of the
Company or in the name of the Trustees and all money paid by the Trustee for
such insurance shall be repaid by the Company on demand and if not so paid
shall become a lien prior to the lien of this indenture and be paid out of the
proceeds of any sale of said mortgaged property. Upon the happening of any
loss or damage covered by insurance, the Company shall make due proof of loss
containing a power of attorney in favor of the Trustee to endorse all drafts
drawn for the payment thereof to the order of the Trustee and to sign receipts
therefor and shall do all things necessary or desirable to cause the insuring
companies to make payment in full directly to the Trustee, which payment to the
Trustee is hereby authorized. In case of any loss covered by any policy of
insurance any appraisement or adjustment of such loss, and settlement and
payment of indemnity therefor which shall be agreed upon between the insured
and the insurance company shall be accepted by the Trustees and the Trustees
shall in no way be liable for the adjustment of such loss.
Section 3.14. Any moneys in excess of $5,000 in any one case paid
or payable in respect of any part of the mortgaged property as insurance
proceeds from any insurer of such property or as compensation from any
municipal or governmental authority damaging such property, shall be paid to
the Trustee and held as part of the mortgaged property and shall, upon written
request therefor, be repaid to the Company:
(a) to reimburse the Company for the reasonable cost of
replacing or repairing such property, upon receipt of a certificate
signed by the President and the Treasurer of the Company and
countersigned by an Engineer stating that such replacements or repairs
have been made, the actual cash expenditures therefor, and whether,
and if so in what respect and to what extent, any default exists
hereunder; or
(b) against Property Additions, upon receipt of (1) a
certificate pursuant to Section 12.05(1) evidencing a Gross Amount of
Property Additions equal to the amount of such moneys then to be paid
to the Company and an opinion of counsel to the effect set forth in
such certificate and (2) a certificate signed by the President and
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<PAGE> 23
Treasurer of the Company stating whether, and if so in what respect
and to what extent, any default exists hereunder.
Any balance of such moneys not repaid by the Trustee to the Company within 12
months from the date at which received, the Trustee, or within such period
thereafter as the Trustee may allow, or earlier at the request of the Company,
shall be applied by the trustee at the earliest practicable date to the
retirement of bonds of the latest maturities then outstanding at the redemption
price thereof then in effect and in the manner and with the effect specified in
Article 4 hereof. Any such moneys equal to or less than $5,000 in any one case
may be paid to and retained by the Company, and the Company agrees that it will
use the same for the purposes of repairing, replacing or adding to the
mortgaged property. At any time when a default exits hereunder to the
knowledge of the Trustee, the Trustee may in its discretion permit the
withdrawal of cash by, or the payment of insurance proceeds to, the Company
pursuant to the provisions of this section, but shall not be required so to do.
Section 3.15. The Company will carry and keep in force insurance
with responsible insurers in such amounts as the Company shall deem adequate to
protect the Company against liability by reason of the death or injury of
persons or damage to the property of others occurring in the operation of the
Company's business, which insurance shall, subject to the further provisions
hereof, be in an amount not less than $990,000, excluding the first $20,000 of
liability as to which the Company may provide self insurance. If at any time
the Board of Directors of the Company shall determine that the amount of such
insurance should be decreased, the Company will give at least 15 days prior
notice of such decrease to the Trustee and to each bondholder in whose name 5%
or more of the then outstanding bonds of any series are registered.
In the event the holders of 51% or more in principal amount of any
series of bonds at the time outstanding hereunder shall at any time request the
Company to increase the amount of insurance required to be maintained under the
preceding paragraph, or proposed to be maintained after any decrease by the
Company, the Company will either (i) immediately procure and thereafter
maintain such additional amount of insurance, provided such additional
insurance is obtainable, or (ii) if the Company in good faith believes that
such insurance is not necessary or cannot be obtained at a cost to the Company
which is reasonable in terms of the additional protection afforded by such
insurance, and the Company shall within 30 days after such request so notify
such bondholders, the Trustee shall on the written request of the holders of
51% or more in principal amount of any series of bonds then outstanding appoint
a firm of independent consulting engineers to determine whether such additional
insurance so requested is reasonably necessary, whether it is obtainable and
whether the cost thereof to the Company is reasonable in terms of the
additional protection afforded by such additional insurance. Copies of the
report made by such independent consulting engineers shall be delivered to the
Company, the bondholders requesting such additional insurance and the Trustee.
Upon receipt of such report determining that additional insurance is reasonably
necessary, that it is obtainable and that the cost thereof to the Company is
reasonable in terms of the additional protection afforded by such additional
insurance, the Company will forthwith procure and thereafter maintain such
additional amounts of insurance until such time as such amounts may be changed
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<PAGE> 24
pursuant to the provisions of this Section. All expenses and fees of such
independent consulting engineers shall be paid by the Company.
The Company will also carry and keep in force with responsible
insurers adequate insurance to protect the Company against liability arising
under any so-called workmen's compensation laws or similar laws. All insurance
carried pursuant to this Section shall be made payable to the Company and any
proceeds thereof shall be applied by the Company to the discharge of the
liability on account of which such insurance proceeds were received, and the
Trustees shall not be under any duty with respect to the maintenance of any
insurance of the character mentioned in this Section or the collection or
disposition of the proceeds thereof.
Section 3.16. All salaries or other compensation paid by the
Company to officers and employees of the Company will be reasonable in relation
to the value to the Company of the services rendered by such person and as
measured by salaries paid for similar services by other public utility
companies of like size and character. The Company will not make any loans to
any of its officers and employees except loans made in the usual course of its
business. Any fees paid under any management contract or for professional
services shall be reasonable as measured by the nature and extent of the
services performed and charges made for similar services to other companies of
similar size and character.
Section 3.17. The Company will not acquire any property subject to
Prior Liens if the aggregate amount of Prior Lien Bonds outstanding after such
acquisition will
(i) be in excess of 10% of the aggregate amount of bonds
at the time outstanding hereunder, or
(ii) exceed 60% of the cost or fair value of such
property, whichever is less, unless there shall be filed with the
Trustee a certificate pursuant to Section 12.05(l) evidencing a Gross
Amount of Property Additions in an amount not less than 166 2/3% of
such excess and all Property Additions certified for such purpose
shall constitute Funded Property.
The Company will pay and retire all Prior Lien Bonds at or before
maturity, will comply with all covenants and provisions of mortgages or other
instruments securing such Bonds and upon the maturity of all Bonds secured by
such mortgages or other instruments it will cause such mortgages or other
instruments to be effectively satisfied and discharged of record, and the
Company will not issue any additional Prior Lien Bonds under any such mortgage
or other instrument.
ARTICLE 4
REDEMPTION PROVISIONS
Section 4.01. All or any part of the Series A bonds outstanding at
any time, or any part of the principal amount of any fully registered Series A
bond constituting $1,000 or
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<PAGE> 25
any multiple thereof, may be redeemed at any time prior to maturity (subject to
the further provisions hereof), whether or not such time be an interest payment
date, at the principal office of the Trustee, upon not less than 30 days prior
notice given or waived as hereinafter provided, at the following redemption
prices, in each case together with the accrued and unpaid interest on the
principal amount of bonds called to the date fixed for redemption:
(a) if redeemed through operation of the sinking fund, at
their principal amount without premium;
(b) if redeemed through application of the proceeds of
the sale of all or part of the property of the Company to, or other
acquisition by, a municipality or other public body or authority, at
their principal amount together with a premium of 2.5% of such
principal amount less 1/10 of 1% of such principal amount for each
full year elapsed between July 15, 1959, and the redemption date; and
(c) in all other cases at the following redemption
prices, herein expressed as percentages of such principal amount,
during the respective periods hereinafter set forth:
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<PAGE> 26
<TABLE>
<CAPTION>
PERIOD REDEMPTION
(DATES INCLUSIVE) PRICE
<S> <C>
On or before July 14, 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105.375%
July 15, 1960 to July 14, 1961 . . . . . . . . . . . . . . . . . . . . . . . . . . 105.15%
July 15, 1961 to July 14, 1962 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.93%
July 15, 1962 to July 14, 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.70%
July 15, 1963 to July 14, 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.48%
July 15, 1964 to July 14, 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.25%
July 15, 1965 to July 14, 1966 . . . . . . . . . . . . . . . . . . . . . . . . . . 104.03%
July 15, 1966 to July 14, 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . 103.81%
July 15, 1967 to July 14, 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . 103.58%
July 15, 1968 to July 14, 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . 103.36%
July 15, 1969 to July 14, 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . 103.13%
July 15, 1970 to July 14, 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.91%
July 15, 1971 to July 14, 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.69%
July 15, 1972 to July 14, 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.46%
July 15, 1973 to July 14, 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.24%
July 15, 1974 to July 14, 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . 102.01%
July 15, 1975 to July 14, 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . 101.79%
July 15, 1976 to July 14, 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . 101.57%
July 15, 1977 to July 14, 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . 101.34%
July 15, 1978 to July 14, 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . 101.12%
July 15, 1979 to July 14, 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . 100.89%
July 15, 1980 to July 14, 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . 100.67%
July 15, 1981 to July 14, 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . 100.45%
July 15, 1982 to July 14, 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . 100.22%
July 15, 1983 to July 14, 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . 100.00%
</TABLE>
No bonds of Series A shall be redeemed prior to July 15, 1969 through
the issuance of new securities or from moneys borrowed in anticipation of the
issuance of new securities unless it shall be established as hereinafter
provided that the annual interest costs to the Company on new securities to be
issued to effect such redemption or payment of such borrowed moneys will be at
the rate of 5 3/8% or more per annum. In all cases of redemption of bonds of
Series A, except for sinking fund redemptions pursuant to Article 5 hereof,
there shall prior to the giving of notice of such redemption be filed with the
Trustee an affidavit of the President or the Treasurer of the Company stating
the source of moneys to be sued by the Company in effecting the proposed
redemption and stating the facts necessary to establish to the satisfaction of
the Trustee that the Company under the foregoing provisions is entitled to
redeem the Series A bonds proposed to be called for redemption.
Section 4.02. In case the Company shall elect to redeem Series A
bonds, it shall, at least 15 days before the date upon which the notice of
redemption herein provided for is to be given, notify the Trustee in writing of
such election and of the aggregate principal amount of such bonds to be
redeemed, and thereupon, if less than all the outstanding
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<PAGE> 27
Series A bonds are to be redeemed, the particular bonds to be redeemed in whole
or in part shall be designated or selected by lot by the Trustee in accordance
with the following provisions:
(i) if all the then outstanding bonds are fully
registered bonds registered in the names of not to exceed 10 holders,
the aggregate principal amount of bonds to be redeemed shall be
apportioned by the Trustee pro rata, as nearly as practicable, in
amounts of $1,000 or any integral multiple thereof, among the
registered holders of such bonds, in the proportion that the aggregate
principal amount of such bonds held by each such registered holder
bears to the aggregate principal amount of bonds then outstanding;
(ii) if all the then outstanding bonds are registered in
the names of more than 10 holders or consist of coupon and registered
bonds, but any of such bonds are fully registered bonds registered in
the name of any of the initial holders in whose names bonds were first
registered, the aggregate principal amount of bonds to be redeemed
shall be apportioned by the Trustee pro rata, as nearly as
practicable, in amounts of $1,000 or any multiple thereof, between
each such initial holder and, collectively, all of the other then
holders of outstanding bonds in the proportion that the aggregate
principal amount of registered bonds then held by such initial holder
concerned bears to the aggregate principal amount of bonds then
outstanding, and the amount so apportioned for redemption of bonds not
registered in the name of any of the said initial holders shall be
applied to the redemption of such of said bonds as are selected by lot
in any manner deemed proper by the Trustee; and
(iii) in cases not covered by the foregoing provisions the
bonds to be redeemed shall be selected by lot by the Trustee in any
manner deemed by it proper.
The Trustee shall within 10 days after such designation or selection
notify the Company in writing of the numbers and principal amounts of the bonds
so designated or selected by it.
Section 4.03. Notice of such call for redemption of Series A bonds
shall be given by the Company (a) by mail, not less than 30 days and not more
than 90 days prior to the date fixed for redemption, postage prepaid, to each
registered holder of bonds to be redeemed in whole or in part, at his address
upon the registry books and, if any coupon bond not registered as to principal
is to be redeemed, shall be given by the Company (b) by publication at least
once on any day in each three successive calendar weeks preceding the date
fixed for redemption, the first publication to be at least 30 and not more than
90 days before the redemption date, in a newspaper, printed in the English
language, customarily published on each business day and of general circulation
in Chicago, Illinois. Failure to give notice by mail if notice is given by
publication shall not affect any redemption proceedings. The Trustee may
accept the certificate of the President or the Treasurer of the Company as
sufficient evidence that the requirements of this section have been fully
complied with, or the Trustee may, at its option and at the expense and on
behalf of the Company, give such notice and take any other action required of
the Company in connection
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<PAGE> 28
with such redemption. No notice either by mail or publication need be given if
the holders of all bonds to be redeemed waive notice thereof in a writing filed
with the Trustee.
Section 4.04. Any such notice of redemption shall specify the
redemption price for the Series A bonds so called, the date and place
designated for redemption and, if a part only of such bonds is to be redeemed,
the issue numbers of the particular bonds selected for redemption and the
portion of the principal amount of any bond called only in part, and shall
state the effect of such redemption substantially, to the extent applicable, as
set forth in Sections 4.06 and 4.07 hereof.
Section 4.05. At least one business day before the date fixed for
redemption, or on such date, if the Company has notified the Trustee that the
bonds so called for redemption are to be used in whole or in part as the basis
for the issue of additional bonds pursuant to Section 2.03(d), the Company
shall irrevocably deposit with the Trustee an amount of money sufficient, with
any other money then held by the Trustee under the trusts hereof and available
for the purpose, for the payment of the redemption price of, and accrued and
unpaid interest to the redemption date on, the bonds designated or selected by
the Trustee for redemption in whole or in part. Such money shall be held upon
the trusts hereof for the account of the holders of the bonds so designated or
selected, and shall be applied by the Trustee to the payment of such redemption
price and interest upon presentation and surrender of such bonds, except in
cases of partial redemption covered by the next succeeding paragraph, with
their matured and maturing coupons, if any, whether presented with or apart
from the relevant bonds, accompanied in the case of fully registered bonds and
coupons bonds registered as to principal, by duly executed instruments of
transfer.
In the event of the payment of a portion of the principal amount of
any fully registered bond registered in the name of any initial purchaser in
whose name bonds were first registered, or registered in the name of any
subsequent holder designated in writing by the Company filed with the Trustee
and stating that the provisions of this paragraph shall be applicable thereto,
if there shall be filed with the Trustee a certificate of the Treasurer of the
Company stating that the registered holder of such bond (or the person for whom
such registered holder is a nominee) and the Company have entered into a
written agreement that payment of any portion of such bond may be made to the
registered holder thereof without presentation or surrender thereof, that such
registered holder will promptly make notation of any such payment on such bond,
and that such registered holder shall not sell, transfer or otherwise dispose
of such bond unless prior to delivery thereof such bond shall have been
presented to the Trustee for appropriate notation thereon of the portion of the
principal amount thereof which has been paid or such bond shall have been
surrendered in exchange for a new bond or bonds of the same series and
maturity, for the unpaid balance of the principal amount thereof, then, in that
event, the Trustee, in lieu of requiring the presentation or surrender of such
bond for notation by the Trustee of such payment thereon, shall transmit such
payment to such bondholder and instruct such bondholder to endorse such payment
on such bond and accept from such bondholder a certificate that such payment
has been so endorsed as conclusive evidence of such endorsement and payment.
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<PAGE> 29
Section 4.06. After such deposit and provision satisfactory to the
Trustee for giving the requisite notice of redemption shall have been made, the
bonds, to the extent so called, whether or not presented for redemption, shall
cease to be entitled to any benefit or security under this indenture, except
the right to receive payment of the moneys deposited and held for the payment
thereof; and thereupon such bonds, to the extent called, shall become due and
payable on the redemption date duly specified in said notice, no interest shall
accrue upon any such bonds, or upon the called part thereof if called only in
part, on or after said date, the relevant coupons, if any, maturing after that
date shall be void, and the holders of such bonds, to the extent so called,
shall, after that date, look, for the payment of the called principal, and
premium, if any, and accrued and unpaid interest, solely to the moneys so
deposited with and held by the Trustee for that purpose, and, except as
provided in Section 11.04 hereof, not to the Company.
Section 4.07. If the amount required to redeem any bonds called for
redemption shall be deposited with the Trustee before the date specified for
the redemption of such bonds, the holders thereof shall have the right to
receive prepayment of the redemption price therefor, including interest to such
redemption date, at any time after such deposit, and a statement of such right
shall be included in the notice of redemption herein provided for, if such
deposit shall have been made prior to the giving of any such notice.
Section 4.08. All bonds redeemed shall forthwith be canceled by the
Trustee, provided that if less than the whole principal amount of any fully
registered bond shall be redeemed, the holder of such bond may, at his option,
(a) surrender his bond for cancellation, with proper instruments of transfer,
at or after the time fixed for the redemption thereof, and shall be entitled to
receive without charge, in exchange therefor, one or more bonds of the same
series, for an aggregate principal amount equal to the uncalled and unpaid
balance of the principal amount of each bond so surrendered, or (b) present his
bond for notation thereon by the Trustee of payment of that part of the
principal amount thereof then called and paid, or (c) make such notation
thereon himself if permitted by Section 4.05 hereof.
Section 4.09. The provisions of this Article 4 shall be applicable
to the redemption of Series A bonds, and except for the provisions of Section
4.01 and except as otherwise expressly provided by the supplemental indenture
creating the same, to the redemption of bonds of any other series.
Section 4.10. Without the written consent, filed with the Trustee,
of the holders of all bonds at the time outstanding, not less than all the
outstanding bonds of all series shall be called for redemption while any event
of default hereunder shall be continuing.
ARTICLE 5
SINKING FUND FOR SERIES A BONDS
Section 5.01. So long as any Series A bonds shall remain
outstanding, the Company shall pay to the Trustee as and for a sinking fund for
the retirement of Series A bonds on
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<PAGE> 30
January 15, 1961, and on each January 15 thereafter to and including January
15, 1984, the sum of $105,000, payable in cash except to the extent the
surrender of bonds as a credit against the sinking fund payment is permitted by
Section 5.04 hereof. In the event the Company shall redeem Series A bonds from
the proceeds of the sale of any of its property to, or other acquisition by, a
municipality or other public body or agency, the amount of each such sinking
fund payment thereafter shall be reduced (to the nearest $1,000) by an amount
equal to 3% of the amount of Series A bonds so redeemed.
Section 5.02. On or before the thirtieth day prior to each sinking
fund payment date, the Trustee shall proceed to select for redemption in the
manner provided in Article 4 hereof Series A bonds in the aggregate principal
amount which are redeemable with the case required to be paid on the next
following sinking fund payment date and in the name of the Company shall give
notice as may be required by Article 4 of the redemption for the sinking fund
on such sinking fund payment date of the Series A bonds so selected.
Section 5.03. All cash deposited with the Trustee pursuant to
Section 5.01 hereof shall be held by the Trustee as part of the mortgaged
property, and shall be applied by the Trustee to the redemption of outstanding
Series A bonds, without premium, in the manner and with the effect specified in
Article 4 hereof; and the Company shall, in each case prior to the date fixed
for redemption thereof, pay to the Trustee in cash all unpaid interest accrued
on the bonds to be redeemed through the operation of said sinking fund to the
date fixed for redemption.
Section 5.04. So long as all outstanding Series A bonds remain
registered in the names of the initial holders in whose names bonds of such
series were first registered the sinking fund payment shall be made entirely in
cash. If none or less than all of the outstanding bonds of Series A are
registered in the names of the initial holders in whose names bonds of such
series were first registered, the following provisions shall be applicable.:
(i) If none of the then outstanding bonds of Series A are
registered in the names of the initial holders in whose names bonds of
such series were first registered, the Company may, in lieu of
depositing cash as provided in Section 5.01 hereof, surrender bonds of
such series acquired by the Company and receive credit against the
cash sinking fund payment to the extent of the principal amount of
bonds surrendered; and
(ii) If one or more but less than all of the then
outstanding bonds of Series A are registered in the name of any of the
initial holders in whose names bonds of such series were first
registered, the aggregate principal amount of the bonds of such series
to be redeemed shall be apportioned in the manner provided in clause
(ii) of Section 4.02 hereof and redemption shall be made in accordance
with the provisions of said clause (ii) except that the Company may,
in lieu of depositing cash for the redemption of bonds not held by any
such initial holder, surrender bonds of Series A acquired by the
Company and receive credit against the sinking fund payment to the
extent of the principal amount of bonds surrendered, not exceeding,
however, the
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<PAGE> 31
amount of cash which would otherwise be applied to the redemption of
bonds of Series A not registered in the name of any initial holder of
bonds of said series, and the amount which would otherwise be applied
to the redemption of such bonds not held by any initial holder of
bonds shall be reduced to the extent of the amount of such credit.
If the Company elects to surrender bonds as a credit against the
sinking fund payment pursuant to the foregoing provisions it shall deposit such
bonds, with all unmatured interest coupons pertaining thereto in the case of
coupon bonds, with the Trustee at least 35 days and not more than 45 days prior
to the date on which the next sinking fund payment becomes due. If the sinking
fund payment is satisfied entirely by the surrender of bonds pursuant to clause
(i) of this Section 5.04, compliance with Section 5.02 hereof shall be
unnecessary.
Section 5.05. All Series A bonds redeemed or surrendered to the
Trustee pursuant to this Article 5 (except fully registered Series A bonds
redeemed in part and upon which notations of partial payment are made as
provided in Article 4 hereof) together with any and all appertaining interest
coupons shall forthwith be cancelled by the Trustee and shall be delivered to
or upon the written order of the Company and shall not be made the basis for
issuance of any additional bonds hereunder.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. If one or more of the following events (herein termed
"events of default") shall have occurred:
(1) if default shall be made in the payment of any
installment of interest on any of the bonds when and as the same shall
become due and payable and any such default shall continue for a
period of 10 days; or
(2) if default shall be made in the payment of any
sinking fund installment, when and as the same shall become due and
payable; or
(3) if default shall be made in the payment of the
principal of or premium on any bond when and as the same shall become
due and payable, whether at its stated maturity, by call for
redemption, by declaration or otherwise; or
(4) if the Company shall fail to observe or perform any
other covenant, condition, agreement or condition of the bonds or of
this indenture, express or implied, and if written notice of such
failure shall be given to the Company by the Trustee and such failure
shall continue for a period of 60 days after the giving of such
notice, or forthwith upon such notice if the Company shall waive such
lapse of time, or, if in the opinion of the Trustee, evidenced by
written notice to the Company, the continuance of such default would
be likely to cause the loss to the Company of any
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<PAGE> 32
substantial portion of its property needed to maintain and operate
its business or property; or
(5) if the Company shall lose its charter, or shall admit
in writing its inability to pay its debts generally as they become
due, or shall make a general assignment for the benefit of creditors,
or shall file a voluntary petition in bankruptcy or under the
corporate reorganization provisions of The Bankruptcy Act of 1898, as
amended, or an answer admitting the material allegations of a petition
filed against the Company in bankruptcy or under such provisions, or
shall, by voluntary petition, answer or consent, seek relief under the
provisions of any other now existing or future bankruptcy or other law
providing for the reorganization, dissolution, liquidation or winding
up of corporations on the ground of insolvency; or
(6) if an order, judgment or decree shall be entered by
any court of competent jurisdiction, without the consent of the
Company, adjudicating the Company a bankrupt or insolvent, or
appointing a receiver or trustee of the Company or of the whole or any
substantial part of the mortgaged property, and such order shall not
have been vacated, set aside or stayed, or the receiver or trustee so
appointed shall not have been removed or discharged, as the case may
be, within 60 days thereafter; or if the Company shall consent to a
petition or application for its adjudication as a bankrupt or
insolvent, or for the appointment of a receiver of itself or the whole
or any substantial part of the mortgaged property; or
(7) if a petition against the Company in proceedings
under the corporate reorganization provisions of The Bankruptcy Act of
1898, as amended, shall be approved by any court of competent
jurisdiction and such approval shall not be withdrawn and the
proceeding dismissed within 60 days thereafter, or if, under the
provisions of any other now existing or future bankruptcy or other law
providing for the reorganization, dissolution, liquidation or winding
up of corporations on the ground of insolvency, any court of competent
jurisdiction shall assume jurisdiction, custody or control of the
Company or of the whole or any substantial part of the mortgaged
property and such jurisdiction, custody or control shall not be
relinquished or terminated within 60 days thereafter;
then in any such event, and during its continuance beyond any period of grace
hereinbefore specified in respect thereof, the Trustees may, in their
discretion, from time to time, take all appropriate steps for the protection
and enforcement of their rights and the rights of the bondholders, whether by
appropriate judicial proceedings or otherwise, as they shall deem most
expedient in the interests of the bondholders. In each such case the Trustees
may act without the possession of any bonds or the production thereof at any
trial or other proceedings, and may act in person or by such agents or
attorneys as they may select from time to time.
Section 6.02. Upon the occurrence of any such event of default the
Company shall, forthwith upon demand of the Trustees, duly perform each then
applicable covenant and provision hereof and of the bonds, and shall pay to the
Trustees, as trustees of an express
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trust, all sums then or during any default becoming due under any provision
hereof or of the bonds, with interest at the rate of 6% per annum on overdue
interest and principal, together with the costs and expenses of collection,
including attorneys' fees and of all action and proceedings taken by the
Trustees, together with all other amounts that may be due and payable by the
Company under any provision of this indenture.
Section 6.03. Without limiting any power or right which the
Trustees may otherwise have, if any event of default shall occur and be
continuing:
(a) the Trustees may by written notice to the Company
declare the principal of all bonds then outstanding, if not already
due, to be forthwith due and payable, and thereupon the same shall
become forthwith due and payable, anything in the bonds or in this
indenture to the contrary notwithstanding, and the bonds, upon such
declaration, shall forthwith be paid by the Company;
(b) the Trustees may in their own names and as trustees
of an express trust protect and enforce their rights and the rights of
the bondholders by such actions, at law or in equity or before any
administrative tribunal, as the Trustees, being advised by counsel,
shall deem appropriate, including without limitation, actions for the
specific performance of any covenant hereof, or of the bonds, and for
the foreclosure of this indenture; the Trustees shall be entitled, in
their own name and as trustees of an express trust, to recover
judgment for any and all sums then, or during any default becoming due
and payable by the Company under any provision hereof or of the bonds,
including, without limitation, any deficiency in the payment of all
amounts due under the provisions hereof or of the bonds remaining
after any sale of the mortgaged property in foreclosure proceedings or
by virtue of the Trustee's power of sale or otherwise, and, in
addition thereto, such amounts as shall be sufficient to cover the
costs and expenses of collection, including attorneys' fees, and of
other proceedings hereunder, and to collect out of the property of the
Company in any manner provided by law all amounts adjudged or decreed
to be payable;
(c) the Trustees as a matter of contract right and not as
a penalty shall be entitled to the appointment of a receiver of, or
may enter upon and take possession of, all or any part of the
mortgaged property and, in accordance with the granting clauses
hereof, any other property of the Company then on hand, and such
receiver or the Trustees shall thereupon be entitled to operate all or
any part of the business of the Company and to make all expenditures
and to take all actions necessary or desirable therefor, and to
collect and retain all income and earnings arising from such property
or business;
(d) the Trustees may, with or without entry as aforesaid,
sell all or any part of the mortgaged property and, in accordance with
the granting clauses hereof, any other property of the Company then on
hand, at public or private sale, upon such notice, in such manner, at
such time or times, and upon such terms consistent with the applicable
laws of the respective States wherein such property is located, as the
Trustees may determine; and
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(e) the Company, to the extent permitted by law, shall
not claim any rights under any stay, valuation, exemption or extension
law, and hereby waives any right of redemption which it may have in
respect of the mortgaged property.
Section 6.04. Upon any sale of all or substantially all the
mortgaged property, whether pursuant to the Trustees' power of sale or pursuant
to any judicial proceedings, all bonds then outstanding shall, without
declaration by the Trustees, forthwith become due and payable. Any purchaser
at any such sale (who may be the Trustees, or either of them, or any
bondholder) shall be entitled to apply any bond not affected by Section 1.17
hereof, to the payment of the purchase price of the property so sold at the sum
apportionable and applicable to such bond, including principal and interest
thereof, out of the net proceeds of such sale. The Trustees' deed or other
instrument of conveyance or transfer given pursuant to such sale or in the
exercise of any of its rights under this Article (which may be in the name of
the Trustees or as attorney for the Company hereby irrevocably appointed) shall
be effective to convey and transfer to the purchaser an indefeasible title to
the property covered thereby, discharged of all rights of redemption by the
Company or any person claiming under it, and to bar forever all claims by the
Company to the property covered thereby; and no purchaser from the Trustees
shall be under any duty to inquire as to the authority of the Trustees to
execute the same, or to see to the application of the purchase money.
Section 6.05. All moneys collected or received by the Trustees
pursuant to the provisions of this Article shall be held upon the trusts hereof
and shall, from time to time, be applied by the Trustees in the following order
and manner, subject, however, to Section 1.17 hereof:
(a) to the payment of the costs, expenses, compensation
and indemnity of the Trustees incurred in the performance of their
duties hereunder, including any amounts expended to discharge any
taxes, assessments, and charges or other liens superior to the lien of
this indenture, and of all other sums at the time payable to the
Trustees hereunder; then
(b) if the principal of all the bonds is not then due, by
declaration or otherwise, to the curing of the default or defaults
with respect to which the moneys have been collected, and thereafter
to the curing of any other default then existing (and in such case the
provisions of this indenture shall continue in full force and effect
until discharged as herein provided); or
(c) if the principal of all the bonds is so due, to the
ratable payment of the whole amount of principal and interest then
owing and unpaid upon the bonds, with interest on overdue principal
and interest at the rate of 6% per annum, without preference or
priority of principal over interest or of interest over principal, or
of any installment of interest over any other installment of interest;
and any balance then remaining, to the ratable payment of any premium
or other amount due and unpaid under the bonds and this indenture;
then
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(d) any balance then remaining, to be paid to the Company
or such other person as shall lawfully be entitled thereto;
provided, however, that any such payments of principal, premium and
interest shall be made only upon presentation and surrender of the
bonds or, if less than the full amount of principal, premium and
interest of any bond is so paid, upon presentation and notation
thereon of the amount so paid, and that all bonds so paid by the
Trustees and surrendered to them shall forthwith be canceled by the
Trustee.
Section 6.06. All powers, rights and remedies specifically
conferred upon the Trustees under this indenture shall be deemed cumulative and
nonexclusive of any other power, right or remedy hereby conferred upon or
available to the Trustees at law or in equity or otherwise, and every power,
right and remedy hereunder may be exercised concurrently with the exercise of
any other and from time to time and as often as shall be deemed expedient by
the Trustees. No delay or omission of the Trustees or any bondholder to
exercise any power, right or remedy accruing upon any fault shall impair any
such right or shall be construed to be a waiver or impairment of any such
power, right or remedy, or constitute any acquiescence in any default. Upon
the discontinuance or abandonment of, or on decision adverse to the Trustees
in, any proceedings under this indenture or upon the bonds, the Company and the
Trustees shall respectively be restored to their former positions and rights
hereunder and upon the bonds, and all powers, rights and remedies shall
continue as though no such proceedings had been taken.
Section 6.07. The Trustees may waive any default hereunder or upon
the bonds, other than a default in the payment of the principal of any bond at
its stated maturity, and may waive the consequences of any default and rescind
any declaration of maturity of principal, and shall do so upon the written
request of the holders of a majority in principal amount of all bonds at the
time outstanding, if prior to such waiver such default shall be made good and
any arrears of interest, with interest on overdue installments at said rate of
6% per annum and all expenses of the Trustees shall have been paid or provided
for; but no such waiver or rescission shall extend to or impair any rights or
remedies consequent on any other existing or any subsequent default.
Section 6.08. The holders of a majority in principal amount of the
bonds at the time outstanding shall have the right, subject to Section 10.01(a)
hereof, from time to time, to determine, direct and control the action of the
Trustees under this Article, by written direction delivered to the Trustees.
Unless such direction has been delivered to the Trustees, all the powers,
rights and remedies referred to in this Article may be exercised by the
Trustees in their sole discretion.
Section 6.09. The Trustees may decline to follow any direction of
bondholders under the preceding Section 6.08 hereof, if they be advised by
counsel that the action directed may not lawfully be taken, or if they, or
either of them, shall in good faith determine that the action directed will
involve the Trustees, or either of them, in a personal liability, or will be
unjustly prejudicial to non-assenting bondholders; and the Trustees shall not
without their consent, be required to enter or take possession of any part of
the mortgaged property.
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ARTICLE 7
POSSESSION, RELEASE AND SUBSTITUTION OF THE MORTGAGED PROPERTY
Section 7.01. Unless an event of default shall have occurred and be
continuing, the Company shall be permitted to possess and use the mortgaged
property, and to receive and retain all income and earnings arising therefrom,
other than moneys herein specifically required to be paid to the Trustee.
Section 7.02. Unless an event of default shall have occurred and be
continuing, the Company shall have the right, as the proper management of its
business may require, to:
(a) alter, repair, or add to any part of its physical
property;
(b) move any equipment from one part of the mortgaged
properties to another;
(c) discontinue or abandon the use of any part of its
physical property which may no longer be useful in the operation of
its business or necessary to maintain its earning capacity;
(d) sell, exchange or dispose of, free from the lien
hereof and without release by the Trustees, with or without
consideration or for a nominal consideration, any property other than
real property at any time subject to the lien hereof, which may have
become worn out, unserviceable, undesirable or unnecessary for use in
the conduct of its business, provided that the Company shall replace
the same, if necessary for the performance of its covenant contained
in Section 3.12 hereof and if not previously replaced, by other
property of equal or greater value or utility to the Company, which
shall forthwith become without further action subject to the lien
hereof, or, if not so necessary, and if the proceeds of disposition
thereof aggregate more than $5,000 in any one calendar year, the
Company shall deposit such proceeds in excess of $5,000 with the
Trustee and shall file with the Trustee a certificate of its President
or Treasurer describing such property, stating with respect to such
property that such property has become worn out, unserviceable,
undesirable or unnecessary for use in the conduct of the business of
the Company and that such disposition thereof will not impair the
operating integrity of the properties of the Company, and stating also
the consideration received from such sale or other disposition of any
such property;
(e) substitute for any existing permit, license,
franchise, easement, lease, or similar right, a new such right at
least equally advantageous to the Company in the operation of its
business, or renew at the expiration thereof any such right; and
(f) sell, free of the lien hereof and without release by
the Trustees, such stock in trade as is commonly dealt in by companies
operating like properties, such sale or sales being in the usual
course of trade with customers.
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Section 7.03. At any time when there is no default hereunder to the
knowledge of the Trustees, the Trustees shall execute a release covering any
part of the mortgaged property, but not the mortgaged property in its entirety,
for sale or exchange by the Company, free and clear of the lien hereof, for
cash or Property Additions at not less than the fair value of the property to
be released, upon receipt of:
(a) a written request for such release signed by the
President and Treasurer of the Company, and setting forth the terms of
the sale or exchange;
(b) a certified copy of a resolution of the Board of
Directors authorizing such sale or exchange and requesting such
release;
(c) a certificate of an Engineer stating the fair value
of the property to be released and of any additional property to be
acquired, as of a date within 60 days of the action requested of the
Trustee;
(d) cash in an amount equal to the cash consideration, if
any, received upon such sale or exchange as shown by said written
request, and being not less than such fair value;
(e) where applicable, a certificate pursuant to Section
12.05(1), including therein any Property Additions received upon such
sale or exchange, and evidencing a Gross Amount of Property Additions
equal to the fair value thereof, and an opinion of counsel to the
effect set forth in such certificate;
(f) a certificate signed by the President and Treasurer
of the Company stating that there is no default hereunder.
Section 7.04. Should any part of the mortgaged property be taken by
exercise of the power of eminent domain, or should any governmental body at any
time exercise any right which it may have to purchase any part of the mortgaged
property, the Trustees upon request of the Company shall release the part of
the mortgaged property so taken or purchased and shall be fully protected in
doing so upon the Trustee being furnished with an opinion of counsel to the
effect that such part of the mortgaged property has been taken by the exercise
of the power of eminent domain or purchased by a governmental body in the
exercise of the right which it had to purchase the same (specifying the amount
of the award made therein). Cash equal to the amount of such award or the sale
price of such property shall be paid to the Trustee prior to or concurrently
with delivery by it of such release.
Section 7.05. Any cash deposited with the Trustee pursuant to
Sections 7.02, 7.03 or 7.04 hereof shall be held by the Trustee as a part of
the mortgaged property, and shall, upon written request therefor, be repaid to
the Company upon receipt by the Trustee of:
(a) a certificate pursuant to Section 12.05(1) evidencing
a Gross Amount of Property Additions equal to 100% of the amount of
such cash, and an opinion of counsel to the effect set forth in such
certificate;
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(b) a certificate signed by the President and Treasurer
of the Company stating that there is no default hereunder.
Any balance of such moneys not repaid to the Company within two years from the
date of receipt by the Trustee, or within such period thereafter as the Trustee
may allow, or earlier at the request of the Company, shall be applied by the
Trustee to the retirement of bonds of the latest maturities then outstanding at
the redemption price thereof then in effect and in the manner and with the
effect specified in Article 4 hereof.
Section 7.06. No purchaser from the Company of any property
released by the Trustees pursuant to this Article shall be under any duty to
inquire as to the authority of the Trustees to give such release, or to see to
the application of the purchase money.
Section 7.07. At any time when a default exists hereunder to the
knowledge of the Trustees, the Trustees may, in their discretion, permit the
release of property and the withdrawal of cash pursuant to the provisions of
this Article, but shall not be required to do so except in the case of property
taken by eminent domain.
ARTICLE 8
MERGER, CONSOLIDATION OR SALE
Section 8.01. Nothing in this indenture contained shall prevent any
consolidation or merger of the Company with or into, or any conveyance or
transfer, subject to this indenture, of all or substantially all of the
mortgaged property as an entirety to, any corporation lawfully entitled to
acquire and operate the same, provided, however, that such consolidation,
merger, conveyance or transfer shall be upon such terms as in no respect to
impair the lien of this indenture, or any of the rights or powers of the
Trustees or the bondholders hereunder; and provided further that, upon any such
consolidation, merger, conveyance, or transfer, the due and punctual payment of
the principal of and interest and premium on all bonds according to their tenor
and the due and punctual performance and observance of all the terms, covenants
and conditions of this indenture to be kept or performed by the Company, shall
be assumed by the corporation formed by such consolidation, or into which such
merger shall have been made, or the corporation acquiring all the property
subject to this indenture as an entirety, as aforesaid, such corporation being
herein called the "successor corporation." The successor corporation shall
also forthwith execute and deliver to the Trustees and record a proper
instrument whereby such successor corporation shall assume the due and punctual
payment of the principal and interest of the bonds secured by this indenture
and the performance of all the covenants and conditions of this indenture on
the part of the Company, and thereupon shall succeed to and be substituted for
the Company with the same effect as if it had been named herein as party of the
first part hereto.
Section 8.02. In the absence of an express grant by the successor
corporation, this indenture shall not by reason of any such consolidation,
merger, conveyance or transfer or
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otherwise, constitute or become a lien upon, and the term "mortgaged property"
as used herein shall not include or comprise:
(1) Any property or franchises owned prior to such
consolidation, merger, conveyance or transfer by any such successor
corporation or which, prior to such consolidation, merger, conveyance
or transfer, was not subject to the lien of this indenture; and
(2) Any property or franchises which may be purchased,
constructed or otherwise acquired by the successor corporation after
the date of any such consolidation, merger, conveyance or transfer;
excepting only betterments, extensions, improvements, additions,
repairs, renewals, replacements, substitutions and alterations of, to,
upon and for, and comprising and constituting appurtenances of, or
fixtures to, the property subject to the lien hereof, and renewals,
modifications or substitutions of or for contracts mortgaged
hereunder, which may be purchased, constructed, or otherwise acquired
by such successor corporation from and after the date of such
consolidation, merger, conveyance or transfer, as the case may be,
which shall be and become subject to the lien and operation of this
indenture, notwithstanding any such consolidation, merger, conveyance
or transfer.
ARTICLE 9
BONDHOLDERS' NOTICES, REQUESTS, ETC., AND LIMITED RIGHTS OF
ACTION UNDER THIS INDENTURE
Section 9.01. Any notice, request or other writing required or
permitted by this indenture to be signed by holders of the bonds may be in one
or more concurrent writings of similar tenor and may be signed or executed by
such holders in person or by their agents appointed in writing or their duly
authorized representatives. Proof of the execution of any such writing, and of
the ownership of any bond, shall be sufficient for any purpose of this
indenture if such proof be made in the following manner:
(a) the fact and date of the execution by any person of
any such writing may be proved by the certificate of any notary public
or other office authorized to take acknowledgments of deeds to be
recorded, to the effect that the person signing such writing
acknowledged to him the execution thereof, or by the affidavit of a
witness to such execution;
(b) the fact of the holding, by any person executing any
such writing, of bonds transferable by delivery, the amount and issue
number of the bonds held, and the date of such holding, which holding
the Trustees may deem to continue until they receive written notice to
the contrary, may be proved by a sworn certificate satisfactory to the
Trustee of any trust company, bank, banker or other depositary,
showing that on the date therein mentioned such person had on deposit
with such depositary the bonds described in such certificate; and
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(c) the ownership of fully registered bonds without
coupons and of coupon bonds registered as to principal shall be proved
by the transfer registry of such bonds.
Any such writing by or on behalf of the holder of any bond shall bind all
future owners of the same bond, and of any bond or bonds issued in exchange
therefor or in place thereof, in respect of anything done, or suffered or
omitted by the Trustees, or either of them, to be done, in pursuance of such
writing.
Section 9.02. No holder of any bond shall have any right to
institute any action or proceeding for the enforcement of this indenture unless
such holder shall have previously given to the Trustees written notice
specifying one or more events of default, including the event of default in
which such action or proceeding is based, and unless the holders of at least
25% in aggregate principal amount of the bonds then outstanding shall have
given like written notice to the Trustees, shall have offered the Trustees
indemnity satisfactory to them and shall have given the Trustees reasonable
opportunity to institute such action or proceeding, and the Trustees shall have
refused or failed, within a reasonable period, to institute appropriate action
or proceedings; and such notification, request, offer or indemnity and refusal
or failure are hereby declared to be conditions precedent to any such
action or proceeding by any bondholder for the appointment of a receiver or for
the foreclosure of this indenture or the enforcement of any other remedy
hereunder; all to the end that the rights of the Trustees and the equal and
ratable rights of every holder of the bonds as herein provided shall be
protected and promoted, and multiplicity of suits avoided. For the enforcement
of the foregoing provisions of this Section, and for the protection of their
rights hereunder, each and every bondholder, and the Trustees, shall be
entitled to such relief as can be given either at law or in equity.
Section 9.03. Neither the foregoing provisions nor any other
provisions of this indenture shall limit or impair the unconditional and
absolute obligation of the Company to pay the principal of premium, if any, and
interest on the bonds at their maturities, nor limit or impair the right of any
holder of any bond or coupon to institute any action or proceeding for the
enforcement of any such payment, except that no such holder shall have any
right to institute any such action or proceeding if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would,
under applicable law, result in the surrender, impairment, waiver or loss of
any right or remedy under this indenture.
ARTICLE 10
CONCERNING THE TRUSTEES
Section 10.01. The Trustees accept and agree to execute the trusts
of this indenture upon, and only upon, the express condition, to which the
Company and the bondholders by the acceptance of the bonds agree, that neither
of the Trustees shall be responsible for any act or omission as Trustee
hereunder unless due to its or his own negligence or wilful default. Without
limiting the generality of the foregoing:
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(a) the Trustees, and either of them, shall be under no
duty to act under any of the provisions of Article 6 hereof, or
otherwise hereunder, whether or not requested so to do by bondholders,
unless they, or either of them, shall have received indemnity
satisfactory to them;
(b) the Trustees shall be under no duty to inquire as to
the performance or observance of any covenant or provision hereof to
be performed by the Company, nor to procure any instrument of further
assurance, and, unless and until the Trustees shall have received
notice in writing from holders of not less than 25% in aggregate
principal amount of the bonds then outstanding distinctly specifying
the happening of a default hereunder, the Trustees may conclusively
assume that the Company has made no default;
(c) subject to the provisions of Section 6.08 hereof, the
Trustees shall be under no liability for any act or omission taken or
suffered in accordance with any request from bondholders herein
provided for;
(d) the Trustee may act through its own officers and
employees and either of the Trustees may act by or through attorneys
or agents, and shall be under no liability for the acts or omissions
of such employees, attorneys or agents, as the case may be, when
selected with reasonable care;
(e) the Trustee may, at the expense of the Company, take
advice of counsel or of accountants or other experts who, if the
Trustees so desire, may be in the employ of the Company, and shall be
under no liability for any act or omission in accordance with such
advice;
(f) the Trustees shall be under no liability for relying
upon any instrument, writing or communication believed by them, or
either of them, in good faith to be genuine and properly authorized;
(g) the Trustees shall not be responsible for the truth
of any recitals herein or in the bonds, or for the validity of this
indenture or of the bonds, or for the recording of this indenture, or
for the validity of the lien hereof, or for the sufficiency of the
security hereof, nor shall they be under any duty to see to the
disposition of the bonds after delivery thereof as herein provided, or
to the disposition of the proceeds thereof;
(h) the Trustees shall be under no duty to recognize any
person as a bondholder unless and until such person shall furnish the
Trustee with proof of ownership satisfactory to the Trustee;
(i) the Trustee, either individually or in a fiduciary
capacity, and its directors, officers and employees, and the
Individual Trustee, may acquire, hold and dispose of bonds, and may be
interested in any transaction with the Company or with any holder of
bonds, including without limitation, secured and unsecured loans to
the Company, and may maintain any and all other general banking and
business relations
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with the Company, to the same extent as though they had no connection
with this indenture, and no implied covenant shall be read into this
indenture against the Trustee in respect of such matters;
(j) the Trustees shall have a lien on the mortgaged
property and any moneys held by the Trustee from time to time
hereunder as Trustee in priority to the rights and claims of
bondholders, to secure the payment of compensation and expenses of the
Trustees, including attorney's fees, and compliance by the Company
with Section 3.04 hereof;
(k) any moneys from time to time received by the Trustee
as Trustee hereunder, whether or not required by the terms hereof to
be held in trust for or on the account of the holders of bonds, shall,
unless and until applied for the purpose for which they are held, or
invested pursuant to Section 10.11 hereof, after compliance with and
subject to any applicable requirement of law, be deposited by the
Trustee to its credit as Trustee hereunder in the banking department
of the Trustee or in any bank or trust company approved by the Trustee
having a capital, surplus and undivided profits of not less than
$1,000,000;
(l) the Trustees may, whether or not an event of default
has occurred or is continuing, file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee and of the bondholders allowed in any
judicial proceedings relating to the Company, its creditors or its
property, but shall not be entitled on behalf of any bondholder to
accept or reject any plan of reorganization; and
(m) the Trustees may relay and shall be protected in
acting, unless bad faith on the part of the Trustees, or of either of
them, be shown, upon any certificate, opinion or other document
expressly provided for in this indenture.
Section 10.02. The Trustees, or either of them, and any successor or
successors hereafter appointed, may at any time resign from the trust hereby
created by giving 30 days' written notice to the Company and to the holders of
all registered bonds and bonds registered as to principal, and if any coupon
bonds not registered as to principal are outstanding, by also giving 30 days'
notice by one publication in the manner provided in Section 4.03 hereof, and
such resignation shall take effect at the end of such 30 days, or upon the
earlier appointment of a successor Trustee by the bondholders or by the
Company. Such notice may be served personally or sent by registered mail.
Section 10.03. The Trustees, or either of them, at any time acting
hereunder may be removed at any time by an instrument or concurrent instruments
in writing delivered to the Trustees and to the Company, and signed by the
holders of a majority in amount of the bonds hereby secured and then
outstanding.
Section 10.04. In case the Trustee hereunder shall resign or be
removed, or be dissolved, or shall be in course of dissolution or liquidation,
or otherwise become incapable
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of acting hereunder, or in case the Trustee shall be taken under the control of
any public officer or officers, or of a receiver appointed by a court, a
successor may be appointed by the holders of a majority in amount of the bonds
hereby secured and then outstanding, by an instrument or concurrent instruments
in writing signed by such holders, or by their attorneys in fact, duly
authorized; provided, nevertheless, that in case of such vacancy the Company by
an instrument executed by order of its Board of Directors, and signed by its
President and attested by its Secretary under its corporate seal, may appoint a
temporary Trustee to fill such vacancy until a successor Trustee shall be
appointed by the bondholders in the manner above provided; and any such
temporary Trustee so appointed by the Company shall immediately and without
further act be superseded by the Trustee so appointed by such bondholders.
Every such temporary Trustee so appointed by the Company shall be a trust
company or bank or bank and trust company located in the City of Chicago,
Illinois, in good standing, having a capital and surplus of not less than
$5,000,000, if there be such an institution willing, qualified and able to
accept the trust upon reasonable or customary terms.
Section 10.05. In the event of the death, removal, resignation or
incapacity to act of the Individual Trustee, a successor may be appointed by an
instrument in writing signed and acknowledged by the person who shall at the
time be the President of the Trustee, and delivered to the Company. Such
instrument shall be filed for record in each county where this indenture shall
have been recorded; and in the event of the failure of such person to make such
appointment within 60 days after the vacancy occurs, a successor may be
appointed in the same manner as is provided in Section 10.04 hereof with
respect to the appointment of a successor to the Trustee.
Section 10.06. Every successor Trustee or successor Individual
Trustee appointed hereunder shall execute, acknowledge and deliver to its or
his predecessor and also to the Company an instrument in writing accepting such
appointment hereunder, and thereupon such successor Trustee or successor
Individual Trustee, without any further act, deed or conveyance, shall become
fully vested with all the estates, properties, rights, powers, trusts, duties
and obligations of its or his predecessor; but such predecessor shall,
nevertheless, on the written request of the Company, or of its successor,
execute and deliver an instrument transferring to such successor all the
estate, properties, rights, powers and trusts of such predecessors hereunder;
and every predecessor Trustee shall deliver all securities and moneys held by
it to its successor. Should any deed, conveyance or instrument in writing from
the Company be required by any successor Trustee or Individual Trustee for more
fully and certainly vesting in such successor the estates, right, powers and
duties hereby vested or intend to be vested in the predecessor Trustee or
Individual Trustee, any and all such deeds, conveyances and instruments in
writing shall on request be executed, acknowledged and delivered by the
Company. The resignation of any Trustee or Individual Trustee, and the
instrument or instruments removing any Trustee or Individual Trustee and
appointing a successor hereunder, together with all deeds, conveyances and
other instruments provided for in this Article shall, at the expense of the
Company, be forthwith filed for recording by the successor Trustee or
Individual Trustee in each county where this indenture shall have been
recorded.
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Section 10.07. Any corporation into which the Trustee may be merged
or with which it may be consolidated or any corporation resulting from any
merger or consolidation to which the Trustee shall be a party or any
corporation to which substantially all the business and assets of the Trustee
may be transferred, provided such corporation shall be a corporation organized
under the laws of the State of Illinois and doing business in the City of
Chicago in said State, or shall be a national banking association and shall
have an office for the transaction of its business in said City of Chicago,
shall be successor Trustee under this indenture, without the execution or
filing of any instrument or the performance of any further act whatsoever,
anything herein to the contrary notwithstanding.
Section 10.08. The Individual Trustee has been joined as one of the
Trustees hereunder so that it any of the conveyances made by this indenture or
intended to be made thereby shall for any reason be ineffectual, or if by
reason of any present or future law in any jurisdiction which it may be
necessary to perform any act in the execution of the trusts herein created the
Trustee may be incompetent or unqualified to act as such Trustee (either as
sole Trustee or together with the Individual Trustee) then such conveyances
shall be deemed to be made to the Individual Trustee alone and to such extent
as may be legally necessary, all of the acts required to be performed in such
jurisdiction in the execution of the trusts hereby created shall be performed
by the Individual Trustee acting alone. Except as it may be deemed necessary
for the Individual Trustee solely to execute the trusts hereby created, the
Trustee may solely have and exercise the powers and shall be solely charged
with the performance of the duties hereinbefore declared on the part of the
Trustees or either of them to be had and exercised or to be performed.
Section 10.09. In case it shall at any time be impossible or be
deemed impossible by the Trustee for it lawfully to do or perform any act or
acts necessary or expedient for the due execution of the trusts or due exercise
of the trust powers hereby created and conferred, then and in every such case
the Individual Trustee shall, with the consent in writing of said Trustee, have
full power and authority to do and perform any such act or acts of whatever
nature as if he had been hereby specifically thereunto authorized. Any and all
acts so done by the Individual Trustee shall have the same effect as if done by
the said Trustee, and shall relieve the Trustee from any duty or obligation to
do such act. The Individual Trustee may act hereunder by attorney in fact,
which may be the Trustee, if permitted by law.
Section 10.10. At any time or times, in order to conform to any laws
of any State in which the Company now holds or at any time hereafter may hold
any property, or if the Trustee shall be advised by counsel that it is
necessary or prudent in the interest of the bondholders, the Company and the
Trustee shall have power to appoint and shall unite in the execution, delivery
and performance of all instruments and agreements necessary or proper to
constitute another trust company or bank or banking institution, or one or more
persons approved by the Trustee, either to act as co-trustee or co-trustees of
any or all of the property subject to the lien hereof jointly with the Trustee.
The Company and the Trustee shall have power, at any time, to remove any
co-trustee appointed hereunder.
Section 10.11. Upon the written direction of the Company signed by
its President the Trustee may invest funds held by the Trustee as a part of the
mortgaged property and
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deposited pursuant to clause (c) of Section 2.03 hereof (relating to issuance
of bonds against cash), or pursuant to Section 3.14 hereof (relating to
insurance proceeds), or pursuant to Sections 7.03 and 7.04 hereof (relating to
cash proceeds from the sale or condemnation of mortgaged property) in
obligations of the United States Government of a maturity of one year or less.
Such obligations shall constitute a part of the mortgaged property to the same
extent as the cash so invested. Any interest earned or profits realized from
the moneys so invested shall be paid to the Company.
ARTICLE 11
DEFEASANCE
Section 11.01. This indenture shall become void:
(a) if there shall be or shall have been delivered to the
Trustee, for immediate cancellation, all bonds then outstanding, and,
in such case, immediately upon such delivery;
(b) or if, when the principal of all bonds at the time
outstanding shall have become payable, or will become payable within 6
months, by their terms, on redemption, by declaration or in any other
manner, the Company shall irrevocably deposit or cause to be deposited
with the Trustee upon the trusts hereof, for the account of the
holders of such bonds, a sum sufficient, with any other moneys then
held by the Trustee upon such trusts applicable to that purpose, to
pay the whole amount of the principal, premium, if any, and interest
to the stated or accelerated maturities, as the case may be, due or to
become due on all of the bonds then outstanding, with interest on
overdue interest and principal at the rate of 6% per annum, and in
such cases, immediately upon such irrevocable deposit and, in case of
redemption, upon furnishing to the Trustee proof satisfactory to the
Trustee that the notice of redemption has been given or waived as
hereinbefore provided, or evidence satisfactory to the Trustee that
such notice will be so given or waived, and in the latter case such
indemnity as the Trustee shall deem necessary or desirable in order to
provide for additional interest or any other sums which the Trustee
may consider payable because of any defect in giving such notice or
otherwise in the premises;
(c) but only if in any such case the Company shall also
pay or cause to be paid all other sums payable by the Company to the
Trustees under any provision hereof;
then and in any case the bonds shall cease to be entitled to any benefit or
security under this indenture except the right to receive payment of the moneys
deposited and held for the payment thereof, the mortgaged property shall revert
to the Company, and the trusts and interest of the Trustees hereby created
shall determine, and, upon the request and at the cost of the Company, the
Trustees shall execute and deliver proper instruments discharging in this
indenture and pay and deliver to the Company all surplus moneys, if any, then
remaining in the possession of the Trustees the application of which is not
required to
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discharge any obligation of the Company under any provision hereof or of the
bonds; but otherwise, and until such payment and performance, this indenture
shall be and remain in full force and effect.
Section 11.02. Any moneys deposited with and held by the Trustee
shall be held upon the trusts hereof for the account of the holders of the
bonds in respect of which they were received, and shall be applied to the
payment of the principal, premium, if any, interest and interest on overdue
principal and interest, as aforesaid, upon presentation and surrender of the
bonds, with duly executed instruments of transfer and with all unmatured
coupons, if any, and, whether with or apart from the relevant bonds, of matured
or maturing coupons, and the Trustee shall thereupon cancel and deliver to the
Company the bonds and coupons so surrendered; but the Trustee shall in no event
be liable beyond the amount received.
Section 11.03. If the amount required to pay any bonds as their
stated maturity or to redeem any bonds called for redemption shall be deposited
with the Trustee before such payment or redemption date, the holders of such
bonds shall have the right to receive prepayment of such amounts, including
interest to the maturity or redemption date of such bonds, at any time after
such deposit.
Section 11.04. Any moneys so deposited with and held by the Trustee
and not so applied to the payment of bonds and coupons, if any, within 6 years
after the date on which the same shall have become due shall be repaid by the
Trustee to the Company, and thereafter bondholders shall be entitled to look
only to the Company for payment, and then only to the extent of the amount so
repaid, and the Company shall not be liable for any interest thereon and shall
not be regarded as a trustee of such money; provided, however, that the
Trustee, if any coupon bonds not registered as to principal are at the time
outstanding, before being required to make any such repayment may, at the
expense of the Company, give notice by publication at least once in each of 2
successive calendar weeks, on any day of each such weeks in a newspaper,
printed in the English language, of general circulation and customarily
published on each business day in Chicago, Illinois, stating that such moneys
have not been so applied and that after a date specified therein any unclaimed
balance of said moneys then remaining will be repaid to the Company.
ARTICLE 12
CERTAIN DEFINITIONS AND MISCELLANEOUS PROVISIONS
Section 12.01. All the covenants and provisions of this indenture
and of the bonds are for the sole exclusive benefit of the parties hereto and
the holders of the bonds, and no others shall have any legal, equitable or
other right, remedy or claim under or by reason of this indenture or of the
bonds.
Section 12.02. Any notice to or demand upon the Company herein
provided for shall be adequately served or made if mailed, postage prepaid, by
registered mail, addressed to "United Cities Gas Company, 938 Merchandise Mart,
Chicago 54, Illinois," or such other
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address as the Company may from time to time file with the Trustee, or if
delivered to the President or Treasurer of the Company in person.
Section 12.03. This indenture may be executed in any number of
counterparts, each of which shall be deemed an original, and all such
counterparts shall together constitute but one and the same instrument, which
instrument shall, for all purposes, be sufficiently evidenced by any such
executed counterpart.
Section 12.04. The cover of this indenture, the index and article
headings, and the marginal notes and headings, if any, are intended for
convenience only and shall not control or affect the meaning, construction or
effect of the text hereof.
Section 12.05. Whenever used in this indenture or in the bonds, the
terms hereinafter in this Section quoted shall have, unless the context
requires some other meaning, the respective meanings in this Section set forth;
(a) "Company" means not only United Cities Gas Company,
but also its successive successors and assigns.
(b) "Trustee" means City National Bank and Trust Company
of Chicago or its successor as trustee under this indenture for the
time being, but not individual Trustee, and not a co-trustee or
separate trustee appointed pursuant to the provisions of Section 10.10
hereof, unless otherwise provided in the instrument of appointment
executed pursuant to such section and then only to the extent therein
provided.
"Individual Trustee" means R. Emmett Hanley or his successors
as trustee under this indenture for the time being, but not a
co-trustee or separate trustee appointed pursuant to the provisions of
Section 10.10 hereof, unless otherwise provided in the instrument of
appointment executed pursuant to such section and then only to the
extent therein provided.
"Trustees" means the Trustee and the Individual Trustee for
the time being.
(c) "this indenture" means this instrument as from time
to time supplemented by any indentures expressly stated to be
supplemental hereto, pursuant to the provisions hereof.
(d) "hereof," "hereunder," "herein," "hereby" and other
like expressions in this instrument refer to this indenture as a
whole, and not to any particular division of this instrument or of the
bonds.
(e) "continuing," as applied to an event of default,
means any event of default not cured or waived.
(f) "Property Additions" means all property of a fixed or
permanent nature and of the character described in and not excepted
from the granting clauses hereof
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constructed or acquired by the Company after July 31, 1959, and used
or useful in the business of providing natural gas service, and free
from all liens or encumbrances other than those permitted by Section
3.09 hereof; provided, however, that Property Additions shall include
plants and properties constructed or acquired and used solely for the
purpose of furnishing other than natural gas to augment the supply of
natural gas in order to effect what is known in the industry as
"peak-shaving", and the term "Property Additions" shall include all
property of the character hereinabove in this subparagraph (f)
described in process of construction to the extent that the Company
has incurred a liability therefor, and proper charges for overhead in
accordance with generally accepted principles of accounting.
(g) "Gross Amount of Property Additions" means the amount
obtained by deducting from the cost or fair value, whichever is less,
of Property Additions the amount of all such Property Additions which
consist of Funded Property.
"Net Amount of Property Additions" means the amount obtained
by deducting from the Gross Amount of Property Additions an amount
equal to the Cost Basis of all Retirements not theretofore reflected
in a certificate filed with the Trustee pursuant to Section 12.05(m)
hereof, after deducting therefrom Retirements Credits, if any, to the
extent that the same have not previously been used as a Retirement
Credit.
The "cost" of Property Additions shall be determined in
accordance with the practice lawfully prescribed by a regulatory
commission or commissions having appropriate jurisdiction or, in the
absence of any practice so prescribed, in accordance with generally
accepted accounting principles. The "fair value" of Property
Additions shall mean the fair value thereof to the Company as
certified in the relevant certificates delivered hereunder with
respect thereto.
(h) "Retirements" shall mean (1) all Funded Property
which shall have been released from the lien of this Indenture, or
sold or otherwise disposed of without release, (2) all Funded Property
which shall have been worn-out, retired or abandoned or which has
otherwise permanently ceased to be used or useful in the gas business
of the Company and (3) all Funded Property which has been destroyed.
(i) "Cost Basis," when used with reference to
Retirements, shall mean, as to any property acquired subsequent to
July 31, 1959, the cost thereof, and as to any property acquired prior
to July 31, 1959, the amount at which the same was carried on the
books of the Company on July 31, 1959.
(j) "Retirements Credits" shall mean the following
credits, which may be applied against Retirements: (1) the amount of
cash or other consideration received by the Trustee in connection with
the release of any Funded Property and (2) the amount of insurance
moneys paid to the Trustee pursuant to Section 3.14 hereof on account
of the destruction of any Funded Property; but in each case only to
the extent that the same have not previously been used as a
Retirements Credit.
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(k) "Funded Property" shall mean (1) all mortgaged
property owned by the Company on July 31, 1959; (2) all Property
Additions which shall have been made the basis for the certification
and delivery of bonds pursuant to Section 2.03(b) or the withdrawal of
cash pursuant to Section 2.04 hereof; (3) all Property Additions which
shall have been made the basis for the release of either property
pursuant to Section 7.03 hereof or cash pursuant to Sections 3.14 or
7.05 hereof; and (4) all Property Additions subject to Prior Liens
unless there shall be deposited with the Trustee cash sufficient to
satisfy and discharge all Prior Lien Bonds secured by such Prior
Liens.
(l) Whenever a Gross Amount of Property Additions is
required to be evidenced as a condition to any action under this
indenture, there shall be delivered to the Trustee a certificate of
the Company in substantially the following form, with appropriate
exhibits annexed thereto and the blanks appropriately completed:
UNITED CITIES GAS COMPANY
CERTIFICATE OF GROSS AMOUNT OF PROPERTY ADDITIONS
SECTION 12.05(l) OF INDENTURE OF MORTGAGE
DATED AS OF JULY 15, 1959
_____________________________, the __________________________
President and ______________________, the Treasurer, of United Cities Gas
Company do hereby certify:
(1) The Company has constructed or acquired the Property Additions
described briefly in Exhibit A hereto during the period July 31, 1959 to
__________ (a date not more than 60 days prior to the application). A separate
description of each tract or parcel of real estate included in such Property
Additions is also set forth in Exhibit A (which description may incorporate by
reference prior descriptions filed with the Trustee).
(2) [Either] No part of said Property Additions consists of Funded
Property [or, in the alternative] The amount of said Property Additions which
consist of Funded Property is $____________.
(3) No part of said Property Additions is subject to any lien or
encumbrance other than those permitted by Section 3.09 of the indenture.
(4) There is no outstanding indebtedness of the Company for the
purchase price or construction of, or for labor, wages or materials in
connection with the construction of, said Property Additions, which, in the
opinion of signers of this certificate, could become the basis of a lien upon
said Property Additions prior to the lien of the indenture and which might
materially impair the security afforded thereby.
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(5) The cost to the Company of said Property Additions is
$________. The fair value thereof to the Company at the date of this
certificate is [either] $________ [or, in the alternative] not less than the
cost so specified.
(6) All said Property Additions constitute Property Additions as
said term is defined in Section 12.05(f) of the indenture.
(7) Attached hereto is an opinion of counsel to the effect that
the Property Additions described in Exhibit A are, or upon the execution,
delivery and proper recording (which shall be specified) of any supplemental
indenture required then to be executed will be, subject to the lien of the
indenture as a valid first lien and are subject to no liens or encumbrances
other than those permitted by Section 3.09 thereof, excluding, however, Prior
Liens; that appropriate provision has been made for the satisfaction and
discharge of all Prior Lien Bonds, if any, secured by Prior Liens on such
Property Additions; and that the Company possesses all needful authority to use
the same in the conduct of its business.
(8) Here insert statement responsive to Section 12.06.
Dated ___________________________, 19___
(same date as application)
UNITED CITIES GAS COMPANY
______________________________________
President or Vice President
______________________________________
Treasurer or Assistant Treasurer
(m) Whenever a Net Amount of Property Additions is required to be
evidenced as a condition to any action under this indenture, there shall be
delivered to the Trustee a certificate of the Company in substantially the
following form, with appropriate exhibits annexed thereto and the blanks
appropriately completed:
UNITED CITIES GAS COMPANY
CERTIFICATE OF NET AMOUNT OF PROPERTY ADDITIONS
SECTION 12.05(m) OF INDENTURE OF MORTGAGE
DATED AS OF JULY 15, 1959
__________________, the ________________ President and
__________________, the ______________________ Treasurer, of United Cities Gas
Company do hereby certify:
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(1) The Company has constructed or acquired the Property Additions
briefly described in Exhibit A hereto during the period July 31, 1959 to
________________ (a date not more than 60 days prior to the application). A
separate description of each tract or parcel of real estate included in such
Property Additions is also set forth in Exhibit A (which description may
incorporate by reference prior descriptions filed with the Trustee).
(2) [Either] No part of said Property Additions consists of Funded
Property [or, in the alternative] The amount of said Property Additions which
consist of Funded Property is $____________.
(3) No part of said Property Additions is subject to any lien or
encumbrance other than those permitted by Section 3.09 of the indenture.
(4) There is no outstanding indebtedness of the Company for the
purchase price or construction of, or for labor, wages or material in
connection with the construction of, said Property Additions, which, in the
opinion of signers of this certificate, could become the basis of a lien upon
said Property Additions prior to the lien of the indenture and which might
materially impair the security afforded thereby.
(5) The cost to the Company of said Property Additions is
$_____________. The fair value thereof to the Company at the date of this
certificate is [either] ______________ $________ [or, in the alternative] not
less than the cost so specified.
(6) All said Property Additions constitute Property Additions as
said term is defined in Section 12.05(f) of the indenture.
(7) The aggregate amount of all Retirements during the period
covered by this certificate which have not been included in a previous
certificate filed with the Trustee pursuant to Sections 2.03(b), 2.04, 7.03, or
7.05 of the indenture is $___________.
(8) The amounts [computed as required by Section 12.05(j) of the
indenture and stated separately accordingly to categories specified in Section
1.205(j)] of all Retirements Credits which have not been included in previous
certificate filed with the Trustee pursuant to any of the Sections specified in
clause (7) above and which are to be applied against such Retirement are as
follows:
Category(j)(1) $
Category(j)(2) $_________
TOTAL $
=========
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(9) [Either] The amount of bonds to be certified and delivered
pursuant to the present application is $______________ [or, in the alternative]
The amount of cash to be withdrawn pursuant to the present application is
$_______________.
(10) The following is summary of the amounts shown in this
certificate:
(a) The amount of Property Additions -- at
cost or fair value, as shown by clause (5), whichever
is less is $
(b) The amount of said Property Additions
which consists of Funded Property is $__________
(c) The Gross Amount of Property Additions
-- item (a) minus item (b) is $
(d) Retirements, as shown by clause (7) -- $
(e) Retirements Credits, as shown by clause (8) $__________
(f) Net Retirements -- item (d) minus item
(e), but in no event less than zero $__________
(g) Net Amount of Property Additions -- item
(c) minus item (f) $
(h) Net Amount of Property Additions which
will become Funded Property by reason of the present
application is (166 2/3% of amount of bonds to be
certified or cash to be withdrawn) $__________
(i) Excess of Net Amount of Property
Additions -- item (g) minus item (h) $__________
(11) Attached hereto is an opinion of counsel to the effect that
the Property Additions described in Exhibit A are, or upon the execution,
delivery and proper recording (which shall be specified) of any supplemental
indenture required then to be executed will be, subject to the lien of the
indenture as a valid first lien and are subject to no liens or encumbrances
other than those permitted by Section 3.09 thereof, excluding, however, Prior
Liens; that appropriate provision has been made for the satisfaction and
discharge of all Prior Lien Bonds, if any, secured by Prior Liens on such
Property Additions; and that the Company possesses all needful authority to use
the same in the conduct of its business.
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<PAGE> 53
(12) Here insert statement responsive to Section 12.06.
(13) No default exists under said Indenture of Mortgage.
Dated ___________________________, 19___
(same date as application)
UNITED CITIES GAS COMPANY
_______________________________________
President or Vice President
_______________________________________
Treasurer or Assistant Treasurer
(14) I certify that the statements contained the foregoing clauses
(1), (5), (6), (7) and (8) are correct.
(15) Here insert statement responsive to Section 12.06.
________________________________________
Engineer
(n) If the execution and recording of supplemental indenture is
necessary, in the opinion of counsel furnished pursuant to the foregoing
certificate or the certificate pursuant to Section 12.05(1), such supplemental
indenture shall, before the certificate furnished pursuant to subparagraph (1)
or subparagraph (m) shall be made the basis of any action by the Trustee
hereunder, or simultaneously therewith, be executed by the Company and
delivered to the Trustee, together with an opinion of such counsel that such
execution and delivery have been duly authorized, and that said supplemental
indenture is a valid and binding obligation of the Company. The Company will
forthwith cause said supplemental indenture to be recorded in the manner
specified in the mentioned opinion of counsel, and will, as soon as practicable
thereafter, cause to be delivered to the Trustee a supplementary opinion of
such counsel that such recording has been duly accomplished.
(o) "Net Earnings" of the Company for any period means the amount
obtained by deducting from the gross earnings derived from operation of the
mortgaged property all operating expenses of the Company, and by adding to the
remainder net non-operating earnings not in excess of 15% of such remainder.
In determining Net Earnings (i) there shall be included among operating
expenses all taxes except taxes imposed on or measured by income determined
after deduction of interest charges, and depreciation in an amount not less
than that required by
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Section 3.11 hereof; and (ii) there shall be included in Net Earnings the net
earnings (determined in the manner aforesaid) during the applicable period from
the operation of any properties acquired as an entirety, or substantially so,
and constituting a part of the mortgaged property during such period or to be
so constituted concurrently with the certification of bonds then applied for.
(p) "Net Income" means the net income of the Company for the
applicable period available for dividends on its common stock determined in
accordance with generally accepted accounting principles. In determining such
net income, however, there shall be deducted from income a charge to establish
a reserve for deferred income taxes as specified in Section 3.11 hereof and no
effect shall be given to any gains or losses or other additions or deductions
arising by reason of the issue, purchase, sale, conversion or retirement by the
Company of any of its securities, or arising by reason of any purchases, sales,
write-ups, write-downs, increase or decrease in book value, or other
transactions or changes in respect of capital assets, tangible or intangible.
The deduction for income taxes shall be adjusted by giving effect to the
elimination of any of the capital transactions or changes referred to in the
preceding sentence.
(q) "President" includes any vice president, "Treasurer" includes
any assistance treasurer, and "Secretary" includes any assistant secretary of
the Company; and "Board of Directors" means the board of directors of the
Company, or any committee thereof authorized to exercise the powers of said
board.
(r) "Counsel" means any counsel appointed by the Company and
approved by the Trustee, including any in the employ of the Company so
appointed and approved; "Engineer" means any engineer appointed by the Company
and satisfactory to the Trustee, including any in the employ of the Company so
appointed and approved, and "Independent Engineer" means any professional
engineer or firm thereof of recognized standing not regularly employed by the
Company appointed by the Company and approved by the Trustee; and "Independent
Accountant" means any certified or registered public accountant or firm thereof
of recognized standing selected by the Company and approved by the Trustee.
(s) "Stock Payment" means any dividend or distribution declared,
paid or made other than in shares of capital stock of the Company upon any
capital stock of the Company, or any direct or indirect redemption, retirement,
purchase or other acquisition for value by the Company of any shares of its
capital stock, except out of the net cash proceeds to the Company of any
capital stock of the Company issued after July 15, 1959.
(t) "Prior Liens" means any mortgages or other instruments
constituting a lien upon property hereafter acquired by the Company prior to
the lien of this Indenture.
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<PAGE> 55
(u) "Prior Lien Bonds" means any bonds, notes or other evidences
of indebtedness secured by Prior Liens.
Section 12.06. All certificates furnished to the Trustee hereunder shall
indicate the scope of the examination made by the person signing the same,
shall state that he has reviewed the pertinent provisions hereof, and that any
terms defined are used in such certificate in the sense intended hereby. Any
opinion of counsel pursuant hereto may expressly rely upon statements or
certificates of officers of the Company as to facts or conditions within the
knowledge of the Company and not otherwise readily ascertainable.
Section 12.07. If any provision hereof shall be held invalid or unenforceable
according to law, the remaining provisions hereof shall not be affected thereby
and shall continue in full force and effect.
Section 12.08. This indenture may, from time to time, be supplemented and
amended by indentures expressly stated to be supplemental hereto. Any such
supplemental indenture executed by the Company pursuant to a resolution of its
Board of Directors may be executed by the Trustees:
(a) to the extent permitted hereby and not inconsistent
herewith, to set out the provisions of bonds of a series other than
Series A, to subject other property to the lien hereof, including
without limitation any Property Additions covered by a certificate
pursuant to Section 12.05(l) or 12.05(m) hereof, to add further
covenants and conditions to be observed by the Company for the
further security of the bondholders, to limit the amount of any bond
or all bonds of any series that may be issued hereunder, to conform
to the requirements of the Trust Indenture Act of 1939 and
regulations thereunder as the same may from time to time be amended,
or to cure any ambiguity or to correct any defective or inconsistent
provisions herein or in any supplemental indenture contained; and
(b) upon receipt of the written consent of the holders of
not less than 66 2/3% in aggregate principal amount of each series of
bonds then outstanding and, if any coupon bonds not registered as to
principal are then outstanding, upon publication by the Company as
fully as in case of redemption pursuant to Article 4 hereof, of a
summary statement of the amendments to be effected, to make any other
changes in the provisions of this indenture, but no such supplemental
indenture shall be effective against any bondholder without his
consent, except as provided in Section 1.17 hereof, to change the
obligation of the Company in respect of the amount or time of payment
of the principal, interest, or premium on any bond then outstanding
as set forth therein, or to reduce the percentage in principal amount
of the bonds required to approve any such supplemental indenture, or
to subordinate the bonds or the lien hereof in favor of other
creditors of the Company, and no such supplemental indenture shall be
effective against the Trustees without their consent to modify their
rights and duties hereunder; provided, however, that the holders of
not less than 66 2/3% in principal amount of the bonds of any
particular series shall have the power to waive any right
specifically provided in respect of that series only and to assent to
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<PAGE> 56
any modification of such right which shall be proposed by the Company
and consented to by the Trustees, subject, however, to the
limitations hereinabove set forth which shall not be effective
against any bondholder without his consent.
-50-
<PAGE> 57
IN WITNESS WHEREOF said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said City National Bank and
Trust Company of Chicago, to evidence its acceptance of the trust hereby
created and in it reposed, has caused its corporate name to be hereunto
subscribed by one of its Vice Presidents and its corporate seal to be hereto
affixed and attested by one of its Trust Officers, and said R. Emmett Hanley,
to evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
By /s/ L. H. ALLEN
--------------------------------
Notary Public in and for the
County and State aforesaid
ATTEST:
/s/ GORDON B. WHEELER
- ------------------------------------
Secretary
[CORPORATE SEAL]
Witness as to United Cities Gas Company:
/s/ DAROLD DUSENBERY
- ------------------------------------
/s/ CATHERINE NUGENT
- ------------------------------------
CITY NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, AS TRUSTEE
By /s/ WM. W. HINSHAW, JR.
------------------------------
Vice President
ATTEST:
/s/ J. S. CROSSLEY
- --------------------------------
Trust Officer
[CORPORATE SEAL]
Witnesses as to City National Bank and
Trust Company of Chicago and
R. Emmett Hanley:
/s/ R. H. FLODIN
- ---------------------------------
/s/ R. A. MAGUIRE
- ---------------------------------
/s/ R. EMMETT HANLEY (SEAL)
-----------------------------
R. Emmett Hanley
(U.S. Documentary Tax Stamps in the amount required by law are affixed
to counterpart No. 1 hereof delivered to the Trustee, and cancelled.)
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<PAGE> 58
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, AMELIA LANG, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 16th day of November, 1959,
personally appeared before me L. H. ALLEN and GORDON B. WHEELER, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who, being by me duly sworn, did
say that they are Vice President and Secretary, respectively, of the United
Cities Gas Company, an Illinois corporation, that the seal affixed to the above
and foregoing instrument is the corporate seal of said corporation and that
said instrument was signed by them and sealed and delivered in behalf of said
corporation by authority of its Board of Directors duly given, and the said L.
H. ALLEN and GORDON B. WHEELER, acknowledged said instrument to be their free
and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
16th day of November, 1959.
/s/ AMELIA LANG
-------------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1962.
[SEAL]
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<PAGE> 59
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, M. B. HAGEL, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 16th day of November, 1959,
personally appeared before me WM. HINSHAW, JR., and J. S. CROSSLEY, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who, being by me duly sworn, did
say that they are Vice President and Trust Officer, respectively, of City
National Bank and Trust Company of Chicago, a national banking association
organized and existing under the national banking laws of the United States of
America, that the seal affixed to the above and foregoing instrument is the
corporate seal of said association and that said instrument was signed by them
and sealed and delivered in behalf of said association by authority of its
Board of Directors duly given, and the said WM. W. HINSHAW, JR., and J. S.
CROSSLEY, acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said association for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
16th day of November, 1959.
/s/ M. B. HAGEL
-------------------------------
Notary Public in and for the
County and State aforesaid
[SEAL]
My commission expires December 15, 1962.
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<PAGE> 60
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, M. B. HAGEL, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 16th day of November, 1959,
personally appeared before me R. EMMETT HANLEY, personally known to me to be
the person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
16th day of November, 1959.
/s/ M. B. HAGEL
---------------------------------
Notary Public in and for the
County and State aforesaid
[SEAL]
My commission expires December 15, 1962.
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<PAGE> 61
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me DAROLD DUSENBERY, who, being duly sworn,
says that he saw the corporate seal of the UNITED CITIES GAS COMPANY affixed to
the forgoing instrument and that he also saw L. H. ALLEN, VICE PRESIDENT, and
GORDON B. WHEELER, Secretary of said United Cities Gas Company, sign and attest
the same, and that he, with CATHERINE NUGENT, witnessed the execution and
delivery thereof as the act and deed of the said United Cities Gas Company.
/s/ DAROLD DUSENBERY
--------------------------------
Witness
Sworn to before me this 16th day
of November, 1959.
[SEAL]
/s/ AMELIA LANG
- -----------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1962.
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<PAGE> 62
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me R. H. FLODIN, who, being duly sworn,
says that he saw the corporate seal of the CITY NATIONAL BANK and TRUST COMPANY
OF CHICAGO affixed to the forgoing instrument and that he also saw WM. W.
HINSHAW, JR., Vice President, and J. S. CROSSLEY, Trust Officer of said City
National Bank and Trust Company of Chicago, sign and attest the same, and that
he, with R. A. MAGUIRE, witnessed the execution and delivery thereof as the act
and deed of the said City National Bank and Trust Company of Chicago.
/s/ R. H. FLODIN
--------------------------------------
Witness
Sworn to before me this 16th day
of November, 1959.
[SEAL]
/s/ M. B. HAGEL
- -----------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1962.
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<PAGE> 63
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me R. H. FLODIN, who, being duly sworn,
says that he saw the within named R. EMMETT HANLEY, sign, seal, and as his act
and deed, deliver the foregoing instrument and that he, with R. A. MAGUIRE,
witnessed the execution thereof.
/s/ R. H. FLODIN
-------------------------
Witness
Sworn to before me this 16th day
of November, 1959.
[SEAL]
/s/ M. B. HAGEL
- ------------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1962.
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<PAGE> 64
SCHEDULE A
FORM OF FULLY REGISTERED SERIES A BOND WITHOUT COUPONS
AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RA $__________
FIRST MORTGAGE BOND, SERIES A, 53/8%, DUE JULY 15, 1984
For value received, UNITED CITIES GAS COMPANY, an Illinois corporation
(hereinafter, with its successors and assigns, generally called the "Company"),
hereby promises to pay to ________________________ or registered assigns, on
July 15, 1984, or earlier as hereinafter referred to, the sum of
________________________________ Dollars ($____________), at the principal
office in Chicago, Illinois, of CITY NATIONAL BANK AND TRUST COMPANY OF CHICAGO
(hereinafter, with its successors in the trusts under the indenture mentioned
below, generally called the Trustee), or at the principal office of its
successor in said trusts, and to pay to said payee, or registered assigns,
interest thereon, from the date hereof, at the rate of five and three-eighths
per cent (5 3/8%) per annum, at said office, semi-annually on January 15 and
July 15 in each year until the principal sum hereof shall have become due and
payable, and to pay interest on any overdue principal and on any overdue
installment of interest at the rate of six percent (6%) per annum, so far as
the same may be legally enforceable, from the due date thereof until fully
paid.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, the initial series thereof (of which is bond is one) being
designated First Mortgage Bonds, Series A, 5 3/8%, due July 15, 1984, all such
bonds of all series being issued or to be issued under and subject to the
provisions of a certain Indenture of Mortgage, dated as of July 15, 1959
(hereinafter with all indentures supplemental thereto generally called the
"indenture"), by and between the Company and City National Bank and Trust
Company of Chicago and R. Emmett Hanley, as Trustees, to which indenture, an
executed counterpart of which is on file with the Trustee, reference is hereby
made for a description of the property mortgaged, a statement of the nature and
extent of the security thereby afforded, the terms and conditions upon which
release of property covered by the indenture may be made, the terms and
conditions upon which bonds of all series are or are to be issued and secured,
the rights and remedies under the indenture of the holders of said bonds, the
terms and conditions upon which the indenture may be modified or amended, and
the rights and obligations under the indenture of the Company and of said
Trustees; but neither the foregoing reference to the indenture, nor any
provision of this bond or of the indenture, shall affect or permit the
impairment of the absolute, unconditional and unalterable obligation of the
Company to pay, at the maturity date herein provided, the principal of and
interest on this bond as herein provided.
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<PAGE> 65
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consents and agrees to the
foregoing provisions and each invites the others, and all persons, to rely
thereon.
In certain events, on the conditions, in the manner, at the time, to
the extent and with the effect set forth in the indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, and (2) this bond may
be transferred or exchanged at the option of the registered owner hereof, and
(3) this bond, either singly or together with all or less than all other bonds,
or, if the principal amount of this bond is a multiple of one thousand dollars
($1,000), any part of the principal amount hereof constituting said sum or any
multiple thereof, may be called for redemption and payment at any time prior to
maturity, on notice given or waived as provided in the indenture, at the
applicable redemption price specified in the indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond and registered bonds of this series and
coupon bonds of this series are interchangeable, all in the manner and upon the
conditions prescribed in the indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the indenture, until the
certificate hereon shall have been signed by the Trustee.
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<PAGE> 66
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, all as of the ___ day of ____________, 19___.
UNITED CITIES GAS COMPANY
By
-----------------------
President
Attest:
- --------------------------
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, referred
to in the within-mentioned indenture.
CITY NATIONAL BANK AND TRUST COMPANY
OF CHICAGO, as Trustee
By
----------------------------------
Authorized Officer
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<PAGE> 67
SCHEDULE B
The properties referred to in the granting clauses of this indenture
include parcels of real estate and other property hereinafter more specifically
described; such descriptions are not intended, however, to limit or impair the
scope or intent of the general descriptions contained in the granting clauses
of this indenture.
PART I--REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
STATE OF ILLINOIS
In Fayette County, Illinois:
(1) Beginning at the Northeast corner of Outlot Number 50
of the Six-Acre Outlots of the Town (now City) of Vandalia, running
thence West a distance of 85 feet, thence South to the right of way of
the Illinois Central Railroad Company switch, thence in a
Northeasterly direction along the right of way of said Illinois
Central Railroad Company right of way switch to the East line of said
Outlot Number 50, thence North along the East line of said Outlot
Number 50 to the Northeast corner thereof, to the place of beginning.
In Saline County, Illinois:
(2) Lots One (1) and Two (2) in Block Four (4) in Gohen's
addition to the City of Eldorado.
(3) Blocks Forty-four (44) and Forty-five (45) of Sloan's
First Enlargement to the City of Harrisburg excepting and reserving
the coal, salt, gas, oil and other minerals under the surface of said
premises, together with the right to mine and remove the same situated
in the County of Saline, in the State of Illinois, together with a
strip of land beginning at the Southwest (SW) Corner of Block
Forty-four (44) in Sloan's First Enlargement to the City of Harrisburg
and running thence East to the West line of the right of way of the
C.C.C & St. L. Railway; thence Southwesterly along said right of way
line to the North line of Block Forty-five (45) in said Sloan's First
Enlargement; thence West to the Northwest (NW) corner of said Block
Forty-five (45); thence North fourteen (14) feet to the place of
beginning.
Said strip of land was formerly an alley lying between Block
Forty-four (44) and Block Forty-five (45) in said Enlargement or
Addition, which alley was vacated by the City Council of the City of
Harrisburg by an ordinance, No. 431, on the seventh day of January,
1930.
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<PAGE> 68
In Massac County, Illinois:
(4) All of Block One Hundred Twelve (112) which lies West
of the right of way of the Illinois Central Railroad as now located
through said block, as per recorded plat thereof, except One Hundred
(100) feet off the West side thereof, of the City of Metropolis.
STATE OF TENNESSEE
In Obion County, Tennessee:
(5) The following described real estate, situated in the
13th Civil District of Obion County, Tennessee, and located in the
Town of Union City, Tennessee, described as follows, to-wit:
Beginning at a stake, or Rock Fence of Turner Field, the
northeast corner of the lot conveyed to the Board of Commissioners of
Union City, in the case of the Board of Commissioners of Union City
vs. Tennessee Gas Company, September Term 1937 of the Circuit Court of
Obion County, Tennessee, Decree appearing in Minute Book 2-x, pages
46-8 of said Court, said stake also being in the south line of E. A.
Craddock, runs thence South with the Rock Fence, 180 feet to a stake
70.5 feet east of center of an alley; thence South 31 1/2 deg. West 40
feet, to State Armory line; thence South 57.25 feet with east line of
a lot heretofore conveyed by Tennessee Gas Co., to the State of
Tennessee, to a stake, the southeast corner of the State Armory lot,
and in M. R. Powell's north line; thence East 114 feet to a stake the
southeast corner of the original lot conveyed to Tennessee Gas Company
by C. W. Miles, Jr.; thence North 275 feet to the northeast corner of
the original lot of which this is a part and at Craddock's southeast
corner; thence West 81 feet 4 inches more or less with Craddock's
south line to the beginning.
SAVING AND EXCEPTING from the foregoing described property
that portion thereof conveyed to the State of Tennessee and described
as follows:
BEGINNING at a stake, the southwest corner of that certain lot
or parcel of land belonging to the Tennessee Gas Company as a location
for its meter shop, said point of beginning also being the original
southeast corner of triangular lot sold by the Tennessee Gas Company
to the State of Tennessee on September 23, 1940, as shown of record in
Deed Book W-10, page 286, records of the Register's Office of Obion
County, Tennessee, to which particular reference is here made; runs
thence east a distance of 14 feet to a stake, the northwest corner of
a lot belonging to Sam Davis; runs thence north a distance of 80 feet
to a stake or a point in a stone fence now surrounding Turner Memorial
Field; runs thence in a southwesterly direction, with said stone
fence, a distance of 25 feet to a stake in the east margin of a tract
of land belonging to the State of Tennessee and used by it as the
location for the Union City building; runs thence south, with the east
margin of said property belonging to the State of Tennessee, a
distance of 59 feet to the point or place of beginning, and being a
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<PAGE> 69
portion of the property acquired by the Tennessee Gas Company by deed
of C. W. Miles, Jr., et ux., shown of record in Deed Book I-10, page
480, records of said Register's Office.
In Maury County, Tennessee:
(6) The following described real estate, situated in the
9th Civil District of Maury County, Tennessee, in the Fourth Ward of
the City of Columbia, Tennessee, described as follows, to-wit:
Beginning at the northeast corner of Columbia Canning
Company's lot, thence east one hundred and fifty (150) feet to a
stake; thence south two hundred and forty-six (246) feet, more or
less, to a fence (11th Street if extended); thence west one hundred
and fifty (150) feet to the Columbia Canning Company's lot; thence
north two hundred forty-six (246) feet, more or less, to the
beginning, and being a lot of off the northern edge of the Smith tract
of the property of Horace Rainey.
This is the same realty conveyed to Tennessee Gas Company by
Horace Rainey, et ux., by deed dated February 6, 1930, and recorded in
Deed Book 179, Page 209, Register's Office of Maury County, Tennessee.
In Bedford County, Tennessee:
(7) The following described real estate, situated in the
7th Civil District of Bedford County, Tennessee, within the corporate
limits of Shelbyville, Tennessee, described as follows, to-wit:
Beginning at the Southwest corner of the original tract
purchased by Tennessee Gas Company form Hubert Lawwell and Nell
Lawwell, his wife, by deed recorded June 27, 1949 in Deed Book 60,
page 546, Register's Office of the aforesaid County, the same being
the Southwest corner of the tract herein described; thence in a
Northwesterly direction with the East margin of Jefferson Street
Extension 23 feet to a point, being the Southwest corner of the
original tract purchased by Tennessee Gas Company from Prentice
Cooper; thence continuing in a Northwesterly direction with the East
margin of Jefferson Street Extension 43.05 feet to a point in line
with the North wall of a one-story brick building owned by Tennessee
Gas Company and 42.35 feet West form the Northwest corner of said
building; thence in a Northeasterly direction 42.35 feet to the
Northwest corner of said building, and continuing with its North wall
25 feet to the Northeast corner of said building; thence leaving the
Northeast corner of said building and running in a straight line 105
feet to a point 33 feet West of the center of N. C. & St. L. R. R.
industrial track and 64.5 feet south of an unended railroad rail,
marking the Northeast corner of the original tract of land purchased
by Tennessee Gas Company from Prentice Cooper; thence in a Southerly
direction with the West right-of-way line of the N. C. & St. L. R. R.
and at all points 33 feet from the center of said industrial track a
distance of 62.5 feet to a point, being the Northeast corner of the
tract conveyed by Tennessee Gas Company to Hubert
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<PAGE> 70
Lawwell and Nell Lawwell, his wife, by deed recorded June 27, 1949 in
Deed Book 60, page 546 in the Register's Office of the aforesaid
County and 23 feet North of the Southeast corner of the original tract
purchased by Tennessee Gas Company from Prentice Cooper; thence
Westerly 168.2 feet, more or less, to the place of beginning.
This is a portion of the realty conveyed to Tennessee Gas
Company by Prentice Cooper by deed dated July 21, 1930, and recorded
in Deed Book 35, page 85, Register's Office of the aforesaid County,
and all of the property conveyed to said Company by Hubert Lawwell and
Nell Lawwell, his wife, by the aforementioned deed recorded in Deed
Book 60, page 546.
(8) The following described real estate situated in the
7th Civil District of Bedford County, Tennessee, described as follows,
to-wit:
Beginning on a stake in the wire fence at the northwest corner
of this tract and the northwest corner of a station site located for
the East Tennessee Natural Gas Company. Said point is North 86 deg.
45 min. West 754.0 feet from the center line of Highway No. 241 and
runs South 3 deg. 15 min. W. 100.0 feet to a stake; thence North 86
deg. 45 min. W. 50.0 feet to a stake; thence North 3 deg. 15 min. East
100.0 feet to a stake in the wire fence; thence South 86 deg. 45 min.
East 50.0 feet with the wire fence to the beginning, containing 0.115
acres.
This is the same realty conveyed to Tennessee Gas Company by
Stanley Henley and wife, I. C. Henley, by deed dated September 13,
1950 of record in Deed Book 77, Page 465, Register's Office of Bedford
County, Tennessee.
(9) The following described real estate situated in the
7th Civil District of Bedford County, Tennessee, within the corporate
limits of Shelbyville, Tennessee, described as follows, to-wit:
Land lying and being in the 7th Civil District of Bedford
County, Tennessee, described according to survey and plat of the
property of Shelbyville Pure Mile Co. Inc., made by V. A. Cline,
Eng'r., dated May 30, 1953, filed August 10, 1953, and recorded in
Deed Book 67, page 355, Register's Office for said County, as follows:
Beginning at a point 17 feet 3 inches west of the westerly
margin of North Main Street, being Roy Cooper's southeast corner;
thence with Cooper's southerly line north 87 deg. 11 min. west 295
feet 2 inches to an iron pipe in the easterly margin of North Spring
Street; thence, with the easterly margin of North Spring Street south
1 deg. 49 min. west 130 feet to an iron pin, being the northwest
corner of property of Mrs. Sam Cannon, Sr.; thence with her northerly
line south 86 deg. 00 min. east 142 feet, thence south 82 deg. 35 min.
east 33 feet 6 inches to a point in branch; thence with branch south 2
deg. 10 min. west 4 feet to a point in branch, being C. L. Gibson's
northwest corner; thence with Gibson's north line south 85 deg. 50
min. east 119 feet 3 inches to a point and continuing in same
direction 17 feet 3 inches, in all 136 feet 6 inches to the westerly
margin of North Main Street;
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<PAGE> 71
thence with said Street north 2 deg. 10 min. east 142 feet; thence
north 87 deg. 11 min. west 17 feet 3 inches to the beginning.
Being the same property conveyed to United Cities Gas Company
by National Dairy Products Corporation by deed dated August 12, 1958
of record in Deed Book 75 page 266, Register's Office of Bedford
County, Tennessee.
In Rutherford County, Tennessee:
(10) The following described real estate, situated in the
5th Ward of Murfreesboro, Tennessee, within the 13th Civil District of
Rutherford County, Tennessee, described as follows, to-wit:
Beginning at the northeast corner of the Gulf Refining
property, running thence in a northwesterly direction parallel with
the main line of the Nashville, Chattanooga and St. Louis Railway
track, ninety (90) feet, more or less, to the Stone's River Woolen
Mills property (formerly the Planter's Warehouse property) thence in a
southwesterly direction parallel with the southeast line of the said
Stone's River Woolen Mills property, a straight line one hundred
eighty-seven (187) feet, more or less, to Cannon Avenue; thence
southeasterly with said Cannon Avenue ninety (90) feet, more or less,
to the northwest corner of the said Gulf Refining property; thence in
a northeasterly direction, parallel with the northwestern line of the
said Gulf Refining property, one hundred and eighty-eight (188) feet,
more or less, to the beginning.
This is the same realty conveyed to the Tennessee Gas Company
by the Planter's Warehouse Company, by deed dated April 14, 1930, and
recorded in Deed Book 76, Page 299-300, Register's Office of
Rutherford County, Tennessee.
In Hamblen County, Tennessee:
(11) The following described real estate, situated in the
First Civil District of Hamblen County, Tennessee, and located in the
Town of Morristown, Tennessee, described as follows, to-wit:
Beginning at an iron pin on the east side of the East Avenue
Corner to Lots No. 2 and 3 in Block No. 34 of T. C. Cain addition;
thence N. 52 deg. 30 min. E--141.16 feet to an iron pin; thence N. 30
deg. 00 min. W--98.14 feet to an iron pin 25 feet west of the middle
line of the Southern Railway Company's tract (formerly M. and C. G.
Railroad) and on the north side of Lot No. 1 in Block No. 34 of said
addition; thence with the line of Lot No. 1 N. 53 deg. 00 min. E--8.5
feet to an iron pin on the west side of the right-of-way of said
railway company; thence with said right-of-way S. 45 deg. 45 min.
E--16.5 feet; thence S. 47 deg. 50 min. E--144.52 feet to a stake in
said railway right-of-way corner to property of Metrogas Company of
Tennessee; thence with the lines of Metrogas Company (crossing Turkey
Creek) S. 55 deg. 35 min. W--139.0 feet to a stake; thence S. 34 deg.
50 min. W--104.4 feet to a stake in the line Morristown Knitting Mill
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<PAGE> 72
Property; thence with the line of same S. 61 deg. 10 min. W--56.7 feet
to an iron pin on the east side of said East Avenue; thence with the
east side of said Avenue N. 34 deg. 20 min. W--150.0 feet to the
point of beginning.
(12) The following described property, all situated in the
Fifth Civil District of Hamblen County, Tennessee:
Beginning at a point in the western margin of U.S. Highway
25-E, corner to Stroud; thence in a northwestwardly direction
approximately 100 feet to a point in the eastern margin of the right
of way of the Southern Railway Company; thence North with the right of
way of the Southern Railway Company, 100 feet to a point, corner to
Bewley; thence in a southeasterly direction with the lands of Bewley,
about 100 feet to a point in the western margin of said U.S. Highway
25-E; thence with the western margin of said Highway South 100 feet to
the beginning, and being the same premises conveyed to the Tennessee
Gas Company by deed of record in Deed Book 92, at pages 546, in the
Register's Office of Hamblen County, Tennessee.
SAVINGS AND EXCEPTING from the above described premises, that
portion thereof which has been conveyed to R. A. Yoakum and wife,
Mary Yoakum, described as follows:
Beginning at a point in the western edge of U.S. Highway 25-E,
the northeast corner of the Tennessee Gas Company gas metering station
property; thence North 30 deg. 0 min. West 100 feet to the Southern
Railway Property; thence with the said railway property, South 33 deg.
35 min. East 40 feet to a point; thence South 53 deg. 20 min. East 100
feet more or less to the point of beginning on U. S. Highway 25-E.
This is the same property conveyed to R. A. Yoakum and wife,
Mary Yoakum, by Tennessee Gas Company by deed dated September 8, 1955
of record in Deed Book 98 page 397, Register's office of Hamblen
County, Tennessee.
(13) And the following adjacent tract which was conveyed
to the Tennessee Gas Company by R. A. Yoakum and wife, Mary Yoakum,
described as follows:
Beginning at a point in the western edge of U.S. Highway 25-E,
the southeast corner of the Tennessee Gas Company gas metering station
property and the northeast corner of R. A. Yoakum property; thence
with the present south line of the gas metering station property,
North 30 deg. 0 min. West 100 feet to the Southern Railway property;
thence with said railway property, South 33 deg. 35 min. West 40 feet
to line of R. A. Yoakum; thence South 53 deg. 20 min. East 100 feet
more or less to the beginning point on U.S. Highway 25-E.
This is the same property conveyed to Tennessee Gas Company by
R. A. Yoakum and wife, Mary Yoakum, by deed dated September 8, 1955,
Deed Book 98 page 397, Register's office of Hamblem County, Tennessee.
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<PAGE> 73
STATE OF NORTH CAROLINA
In Henderson County, North Carolina:
(14) The following described real property lying and being
in Hendersonville:
BEGINNING at a nail in a cross tie, the Northwest corner of
that tract of land conveyed by C. E. Brooks, Trustee, to Wing Paper
Box Company, and running thence with the line of said lot the
following courses and distances: South 24 deg. 57 min. West 21 feet
to an iron pipe; thence South 60 deg. 57 min. West 15.5 feet to an
iron pipe; thence South 23 deg. 57 min. West 158.2 feet to a stake in
the center of a ditch or branch; thence leaving the line of the Wing
Paper Box Company lot and running up the branch or ditch North 79 deg.
56 min. West 82.3 feet to a stake in the branch; thence North 23 deg.
57 min. East 218.7 feet to an iron pin in the right of way of the
Brevard Railroad; thence with said right of way of said Railroad South
61 deg. 21 min. East 90.1 feet to the beginning.
(15) The following described real property lying and being
in Balfour:
Being part of the property formerly owned by Berkeley Mills
located at Balfour, North Carolina and adjoining the right of way of
the Southern Railroad, and BEGINNING at a point in said right of way
located where a line running North 59 deg. 40 min. West from the
center of the tank of the Berkeley Mills intersects said right of way
line of Southern Railroad, said point being also located as the point
where a line running North 39 deg. 20 min. West from the center of the
stack of said Berkeley Mills intersects the line of said right-of-way,
and running thence from said beginning point with the line of the
right of way of the Southern Railroad North 11 deg. 30 min. West 50
feet to a stake in said line; thence North 78 deg. 30 min. East 50
feet to a stake; thence parallel with the second line above set out,
South 78 deg. 30 min. West 50 feet to the place of beginning.
STATE OF SOUTH CAROLINA
In Cherokee County, South Carolina:
(16) All that certain lot or parcel of land, lying being
and situated in Limestone Township, Cherokee County, State of South
Carolina, and having the following courses and distances:
Beginning on stake on line of Limestone Mills property, on a
fifty foot street, unnamed, and running thence N 85 40' E. 80 feet to
a stake on Limestone Mills property, thence S. 4 20' E. 60 feet to a
stake on line of Limestone Mills property; thence S. 85 40' W. 80 feet
to a stake on line of fifty foot unnamed street, at a point one
hundred and sixty-two feet from the corner of the Limestone Mills
property, which is located fifteen feet from the center of the track
of the South Carolina and Georgia Extension Railway Company; thence N.
4 20' W. sixty feet along the line of
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<PAGE> 74
the fifty foot unnamed street, to the beginning corner, containing
4,800 square feet, more or less as shown by plat made by J. Vernon
Phillips, Surveyor, September 26, 1930 and attached to deed recorded
December 23, 1930 in Book "2-K" page 125, in the office of the Clerk
of Court of Cherokee County, and also as shown on the additional plat
which locates the lot in question, as it appears on a plat of the land
purchased by Limestone Mills from Lula Turner, on May 24, 1900, which
deed is recorded in the office of the Clerk of Court of Cherokee
County, March 12, 1902, in Vol. "E", at page 435, the said lot being
shaded and designated by the letters "A", "B", "C", and "D", and also
as shown by deed from Susan Turner, et al., to Limestone Mills, dated
April 28, 1900, and recorded in Book "F", page 7, in the office of the
Clerk of Court of Cherokee County, South Carolina, and also as shown
by deed from J. Eb Jefferies, as Clerk of Court, to Limestone Mills,
dated June 22, 1900, recorded in Book "D" at page 141, office of Clerk
of Court of Cherokee County, South Carolina; being a portion of a
certain tract or parcel of land originally owned by Michael Gaffney,
and by him conveyed to Thos. W. Gaffney, by deed dated September 2nd,
1854, recorded in office of R. M. C., Spartanburg County, in Book
"DD", page 386; and by Thos. W. Gaffney to Andrew J. Perry, by deed
dated April 7, 1860, recorded in office of R. M. C., Spartanburg
County, South Carolina, in Book "GG", page 124; and by deed of Wm. H.
Perry, Andrew J. Perry, and Jane E. Perry, to C. P. Turner, dated
January 13, 1866, recorded in office of R. M. C., Spartanburg County,
South Carolina, in Book "HH", page 291; and subsequently conveyed by
the heirs at law of C. P. Turner to Limestone Mills, as shown by deed
of Lula Turner, to Limestone Mills, dated May 24, 1900, recorded in
office of Clerk of Court of Cherokee County, South Carolina, in Book
"E", page 435; also deed of Susan Turner, J. H. Turner, Fannie H.
Kilgo, N. S. Turner, E. S. Turner, F. V. Turner, and W. A. Turner, to
Limestone Mills, dated April 28, 1900, recorded in office of Clerk of
Court of Cherokee County, South Carolina, in Book "F", page 7; also by
deed of J. Eb Jefferies, as Clerk of Court of Cherokee County, South
Carolina, to Limestone Mills, dated June 22, 1900, recorded in the
office of Clerk of Court of Cherokee County, South Carolina, in Book
"D", page 141.
(17) All that certain lot or parcel of land, lying, being
situated in Limestone Township, Cherokee County, State of South
Carolina, and having the following courses and distances:
Beginning at iron pin, corner of Church lot and South Carolina
Gas Company property, and running N. 85-54 E. 20 feet to iron pin;
thence S. 2-30 E. 117 feet to iron pin; thence in a due West
direction 100 feet to iron pin on Pecan Street; thence along with
Pecan Street N. 3-15 W. 50 feet to iron pin, corner of South Carolina
Gas Company property; thence along the line of the South Carolina Gas
Company property N. 85-54 E. 80 feet to iron pin; thence along the
line of the South Carolina Gas Company property N. 315 W. 60 feet to
the beginning corner, and containing 6,545 square feet, more or less,
as shown on plat made by John M. Jenkins, Surveyor, dated August 10,
1949, and recorded in the Office of the Clerk of Court for Cherokee
County, South Carolina, in Vol. "3-S" at Page 31, and designated as
vacant lot No. 109 on plat of Limestone Manufacturing Company, Mill
No. 1, made by Pickell &
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<PAGE> 75
Pickell, Engineers, dated July, 149, and recorded in the said Clerk's
office for Cherokee County, South Carolina in Vol. "3.5", pages 4 and
5; being property conveyed by deed of Limestone Manufacturing Company
to South Carolina Gas Company by deed recorded in said Clerk's office
for Cherokee County, South Carolina, in Deed Book 3-U, page 151.
STATE OF GEORGIA
In Hall County, City of Gainesville, Georgia:
(18) Beginning at a stake at the intersection of Gordon
Avenue and Banks Street, said point being the southeast corner of said
lot; thence a northerly direction with Gordon Avenue 100 feet to a
stake; thence an easterly direction 219.5 feet to a stake on the
Gainesville Midland Railway Company right of way; thence a southerly
direction with said right of way to a stake on Banks Street, a
distance of 104.2 feet; thence a westerly direction with Banks Street
190 feet to beginning corner. Containing 48/100 acres, more or less
and being part of the lands described in the certificate of title No.
1 of Registered Title No. 5 in the office of the Clerk of the Superior
Court of Hall County, Georgia.
(19) Beginning at a point on the line between the property
of Gainesville Mill, Inc., and the right of way of the Gainesville
Midland Railroad, said point being 76 ft. South of the center of Clay
Road leading to mill dump; and running thence in a Westerly direction
from said point 100 ft. to a stake on the South side of Clay Road;
running thence in Southerly direction 100 ft. to a stake; then running
thence in an Easterly direction 100 ft. to a stake on the Western line
of the Gainesville Midland Railroad right of way; then running thence
North 19 degrees 30 minutes West 100 ft. to the beginning point, said
property being more fully described in a plat thereof recorded in plat
book 11 page 31 of the deed records of Hall County, Georgia.
In Jackson County, Georgia:
(20) The following described real estate situated in the
248th District, G.M., in Jackson County, Georgia:
All that tract or parcel of land lying and being in the 248th
District, G.M., Jackson County, Georgia, and containing 0.68 acres,
more or less, according to plat and survey of same of Nat Hancock,
Surveyor, dated February 1957 (as said tract is described by plat of
same recorded in Plat Book 3, Page 120, Clerk's office, Superior
Court, Jackson County, Georgia) and being more particularly described
according to said plat as follows: Beginning at iron pin in southwest
corner, said iron pin being 50 feet north of the center line of the
Jefferson-Braselton Highway and where said land joins other lands of
DeLaPerriere and running thence North 6 degrees 30 minutes East 150
feet to an iron pin, thence South 83 degrees 30 minutes East 200 feet
to an iron pin, thence South 6 degrees 30 minutes West 150 feet to an
iron pin, said iron pin being 50 feet north of center line of
Jefferson-Braselton Highway, thence North 83
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<PAGE> 76
degrees 30 minutes West 200 feet to the beginning iron pin corner.
Said land bounded according to said plat as follows: On the North,
East and West by other lands of DeLaPerriere and on the South by the
Jefferson-Braselton Paved Highway (Georgia Highway No. 124).
This is the same property conveyed to Georgia Gas Company by
Reba P. DeLaPerriere and Herman P. DeLaPerriere, Jr., as co-executors
of the estate of H. P. DeLaPerriere, Sr., by Deed recorded in Book
3-Z, page 290, of the Deed Records of Jackson County, Georgia.
(21) The following described real estate situated in the
248th District, G.M., Jackson County Georgia:
BEGINNING at an iron pin on the northwest corner of the
present property of grantee being a common corner between grantee and
grantors and being the northwest corner of the tract conveyed by
earlier deed referred to above, thence fifty (50) feet in a northerly
direction as an extension of the present western boundary of grantee's
tract, thence at right angles two hundred (200) feet, thence at right
angles fifty (50) feet to an iron pin which is the present northeast
corner of the tract heretofore conveyed by grantors to grantee, thence
at right angles two hundred (200) feet along the present common
boundary between grantors and grantee back to the point of beginning.
The tract herein conveyed is immediately north of and adjacent to the
tract referred to above which was conveyed earlier by grantors to
grantee; and the earlier tract and the tract herein conveyed together
form a tract of total dimensions of two hundred (200) feet by two
hundred (200) feet by two hundred (200) feet by two hundred (200) feet
fronting on the right of way of Georgia Highway No. 124 between
Jefferson and Braselton, Georgia. The first tract heretofore conveyed
by grantors to grantee is fully described by plat recorded in Plat
Book 3, page 120, of the Clerk's office, Superior Court, Jackson
County, Georgia, said plat and the earlier deed referred to above are
incorporated herein by reference thereto.
This is the same property conveyed to Georgia Gas Company by
Reba P. DeLaPerriere and Herman P. DeLaPerriere, Jr., as co-executors
of the estate of H. P. DeLaPerriere, Sr., by Deed recorded in Book
3-X, page 321, of the Deed Records of Jackson County, Georgia.
PART II--DISTRIBUTION SYSTEMS AND PIPELINES
DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connections, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances, apparatus,
facilities, machinery and other property used or provided for use in the
construction, maintenance, repair or operation thereof and together also with
all of the rights, privileges, rights-of-way, franchises, licenses, easements,
grants and permits with respect to the construction, maintenance, repair and
operation of such gas distribution systems, including, but not limited to, the
plants and systems owned and operated
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<PAGE> 77
by the Company for the distribution and sale of gas located in the
following named cities, town, or villages and environs thereof in the
States of Illinois, Tennessee, Georgia, South Carolina and North
Carolina:
IN THE STATE OF ILLINOIS
<TABLE>
<CAPTION>
CITY COUNTY
<S> <C>
Vandalia . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fayette
Metropolis . . . . . . . . . . . . . . . . . . . . . . . . . . . Massac
Eldorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . Saline
Harrisburg . . . . . . . . . . . . . . . . . . . . . . . . . . . Saline
IN THE STATE OF TENNESSEE
Shelbyville . . . . . . . . . . . . . . . . . . . . . . . . . . . Bedford
Murfreesboro . . . . . . . . . . . . . . . . . . . . . . . . . . Rutherford
Morristown . . . . . . . . . . . . . . . . . . . . . . . . . . . Hamblen
Maryville . . . . . . . . . . . . . . . . . . . . . . . . . . . . Blount
Alcoa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Blount
Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maury
Union City . . . . . . . . . . . . . . . . . . . . . . . . . . . Obion
Lynchburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . Moore
(unincorporated area) . . . . . . . . . . . . . . . . . . . . . . Weakley
IN THE STATE OF GEORGIA
Gainesville . . . . . . . . . . . . . . . . . . . . . . . . . . . Hall
IN THE STATE OF SOUTH CAROLINA
Gaffney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Cherokee
IN THE STATE OF NORTH CAROLINA
Hendersonville . . . . . . . . . . . . . . . . . . . . . . . . . Henderson
PIPE LINES
</TABLE>
1. North Carolina:
A natural gas transmission line situated in Henderson County, North
Carolina, constructed of four and one half inch outside diameter (41/2" O.D.)
coated and wrapped steel pipe, commencing at the natural gas delivery station of
Public Service Company of North Carolina, Inc., which station is located in
Henderson County,
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<PAGE> 78
North Carolina on a road known as Howard Gap Road and immediately
adjacent to the property of Nicholas Semaschko, Jr. and Ruth T. Semaschko, said
property also being along said road; and running in a south, southwesterly
direction (S23 deg. -- 0" W) for a distance of 1.53 miles to a terminus at a
pressure regulator and odorizer station located at Balfour, Henderson, County,
North Carolina, which station site is described as Parcel 5 under Part I of this
Schedule B.
2. Georgia:
A natural gas pipeline system of the Company constructed of 41/2" O.D.
coated and wrapped steel pipe designated for a working pressure of six hundred
pounds per square inch (600 PSI), commencing at the delivery station of the
Transcontinental Gas Pipeline Corporation located at a point on the main
pipeline of said corporation approximately two (2) miles South of the town of
Bogart, all in Oconee County, Georgia, running in a northwesterly direction for
a distance of approximately thirty-one (31) miles through Barrow, Jackson and
Hall Counties, Georgia, to a terminus at the Gainesville Town Border Station
located adjacent to the junction of the main line of the Gainesville Midland
Railroad with the Corporate Limits of the City of Gainesville, in Hall County,
Georgia, and connecting to the inlet valve provided at the Gainesville Town
Border Station.
PART III--CONTRACTS
A. GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions, supplements or
amendments thereof, between the Company (or a predecessor corporation) and the
respective suppliers named below providing for the supply of natural gas to the
Company for distribution and resale in the respective cities and towns and
areas adjacent thereto set forth under the caption "Service Area."
<TABLE>
<CAPTION>
SERVICE CONTRACT TERM OR
AREA SUPPLIER DATE EXPIRATION DATE
<S> <C> <C> <C>
Vandalia Texas Illinois Natural Gas Pipeline May 21, 1959 18 yrs., 10 mos. from
Ill. Company (effective July 1, 1959 July 1, 1959
Eldorado- Harrisburg Texas Eastern Transmission July 8, 1959 Sept. 1, 1979
Ill. Corporation (effective Sept. 1, 1959)
Metropolis Trunkline Gas Company August 16, 1954 Dec. 31, 1972
Ill. (effective Nov. 1, 1954)
</TABLE>
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<PAGE> 79
<TABLE>
<CAPTION>
SERVICE CONTRACT TERM OR
AREA SUPPLIER DATE EXPIRATION DATE
<S> <C> <C> <C>
Gaffney Transcontinental Gas Pipe Line July 15, 1955 20 yrs.
S. C. Corporation (effective Nov. 1, 1955)
Gainesville Transcontinental Gas Pipe Line Oct. 16, 1958 20 yrs.
Ga. Corporation (effective Dec. 1, 1958)
Union City Texas Gas Transmission Corporation Sept. 1, 1959 20 yrs.
Tenn. (effective Nov. 1, 1959)
Morristown East Tennessee Natural Gas Company Sept. 1, 1953 15 yrs.
Tenn. (effective Jan. 1, 1954)
Murfreesboro Texas Eastern Transmission Oct. 6, 1958 Sept. 1, 1978
Tenn. Corporation (effective Sept. 1, 1958)
Columbia East Tennessee Natural Gas Company July 15, 1958 Jan. 1, 1970
Tenn.
Shelbyville East Tennessee Natural Gas Company July 15, 1958 Jan. 1, 1970
Tenn.
Lynchburg East Tennessee Natural Gas Company July 15, 1958 Jan. 1, 1970
Tenn.
Maryville, Alcoa East Tennessee Natural Gas Company July 15, 1958 Jan. 1, 1970
Tenn.
Hendersonville Transcontinental Gas Pipe Line July 25, 1955 20 yrs.
N.C. Corporation (effective Nov. 1, 1955)
</TABLE>
B. TRANSPORTATION CONTRACTS
Agreement between Tennessee Gas Pie Line Company and Tennessee Gas
Company (assigned to the Company by merger of Tennessee Gas Company into the
Company) dated March 26, 1953, providing for the transportation of gas by
Tennessee Gas Pipe Line Company for the Company for distribution and Agreement
between the same parties dated March 20, 1953 providing for the purchase by the
Company of the pipeline owned by Tennessee Gas Pipe Line Company upon the
happening of certain contingencies.
Agreement between Gaffney Pipe Line Company and South Carolina Gas
Company (assigned to the Company by merger of South Carolina Gas Company into
the Company) dated June 13, 1951 providing for the transportation of gas for the
Company.
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<PAGE> 80
Agreement between V-M Pipeline Company and the Company dated October 22,
1951 providing for the transportation of gas for the Company.
Lease Agreement between B. V. Pipeline Company and the Company dated
November 1, 1958 providing for the lease to the Company of certain
transportation or distribution lines owned by B.V. Pipeline Company.
PART IV--FRANCHISES
The following franchises granted to the Company, or to its predecessors
and assigned to the Company or acquired by the Company by merger of predecessors
into the Company, authorizing the construction, operation and maintenance of gas
distribution systems in the following cities or municipalities and all renewals,
extensions or substitutions thereof or therefor:
<TABLE>
<CAPTION>
CITY AND STATE EXPIRATION DATE
<S> <C>
STATE OF TENNESSEE
Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . February 1, 1980
Maryville . . . . . . . . . . . . . . . . . . . . . . . . . . . . January 7, 1980
Morristown . . . . . . . . . . . . . . . . . . . . . . . . . . . November 26, 1979
Murfreesboro. . . . . . . . . . . . . . . . . . . . . . . . . . . December 12, 1979
Shelbyville . . . . . . . . . . . . . . . . . . . . . . . . . . . November 5, 1967
Union City . . . . . . . . . . . . . . . . . . . . . . . . . . . June 30, 1970
Lynchburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 5, 1981
Alcoa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . May 27, 2004
STATE OF ILLINOIS
Vandalia . . . . . . . . . . . . . . . . . . . . . . . . . . . . July 21, 1988
Harrisburg. . . . . . . . . . . . . . . . . . . . . . . . . . . . August 5, 1988
Eldorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . August 18, 1988
Metropolis. . . . . . . . . . . . . . . . . . . . . . . . . . . . August 11, 1988
STATE OF GEORGIA
Gainesville . . . . . . . . . . . . . . . . . . . . . . . . . . . August 14, 1980
STATE OF SOUTH CAROLINA
Gaffney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . April 11, 1990
STATE OF NORTH CAROLINA
Hendersonville . . . . . . . . . . . . . . . . . . . . . . . . . February 6, 1990
</TABLE>
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<PAGE> 81
RECORDING DATA
The foregoing Indenture of Mortgage was filed for record and recorded as
a real estate mortgage in each of the states and counties hereinbelow set forth,
was filed as a chattel mortgage in the State of Illinois in each of the
counties, on the dates and given the document numbers hereinbelow set forth, and
was indexed or cross-indexed as a chattel mortgage in the States of Tennessee,
North Carolina, South Carolina and Georgia in each of the counties hereinbelow
set forth:
<TABLE>
<CAPTION>
ILLINOIS
DOCUMENT NO.
DATE BOOK-REAL CHATTEL
COUNTY FILED MORTGAGES PAGE MORTGAGES
<S> <C> <C> <C> <C>
Fayette . . . . . . . . 11/23/59 466 753 64415
Saline . . . . . . . . 11/23/59 412 Real Estate Mortgages 91 9020
Massac . . . . . . . . 11/23/59 54 Mortgages 460 91762
TENNESSEE
Obion . . . . . . . . . 11/20/59 Misc. 29-I 89
Maury . . . . . . . . . 11/21/59 438 39
Bedford . . . . . . . . 11/19/59 Trust Deed 115 405
Rutherford . . . . . . 11/20/59 A106 273
Hamblen . . . . . . . . 11/21/59 Trust 118 160
Weakley . . . . . . . . 11/20/59 Trust 177 101
Moore . . . . . . . . . 11/20/59 Trust 23 187
Blount . . . . . . . . 11/21/59 169 160
NORTH CAROLINA
Henderson . . . . . . . 11/218/59 Deed Trust 209 209
SOUTH CAROLINA
Cherokee . . . . . . . 11/20/59 Real Estate Mortgages 134 137
GEORGIA
Hill 11/20/59 210 527
Jackson 11/19/59 4-G 5
Barrow 11/19/59 II 451
Oconee 11/19/59 GG 337
</TABLE>
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<PAGE> 82
[CONFORMED COPY]
================================================================================
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 1, 1960
_______________
UNITED CITIES GAS COMPANY
TO
CITY NATIONAL BANK AND TRUST COMPANY OF CHICAGO
AND
R. EMMETT HANLEY
TRUSTEES
_______________
SUPPLEMENTING INDENTURE OF MORTGAGE
DATED AS OF JULY 15, 1959
================================================================================
<PAGE> 83
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 1, 1960, made
by and between UNITED CITIES GAS COMPANY, an Illinois corporation (hereinafter
called the "Company"), party of the first part, and CITY NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, a national banking association having its office in
the City of Chicago, State of Illinois, and R. EMMETT HANLEY, residing in Oak
Park, Illinois (hereinafter collectively referred to as the "Trustees"),
parties of the second part,
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to the Trustee
its Indenture of Mortgage dated as of July 15, 1959, providing for the issuance
thereunder of First Mortgage Bonds of the Company and wherein and whereby the
Company did grant, convey, mortgage and warrant to the Trustees, and each of
them, and their respective successors and assigns, certain property of the
Company in said Indenture of Mortgage more particularly described for the
security of all First Mortgage Bonds issued and to be issued thereunder; and
WHEREAS, said Indenture of Mortgage was filed for record and recorded
as a real estate mortgage in, among other places, Saline County, Illinois, and
Blount County, Tennessee, as hereinafter set forth:
<TABLE>
<CAPTION>
DATE BOOK-REAL
COUNTY AND STATE FILED MORTGAGES PAGE
<S> <C> <C> <C>
Saline, Illinois 11/23/59 412 91
Blount, Tennessee 11/21/59 169 160
</TABLE>
WHEREAS, in order to fulfill its covenants and warranties contained in
said Indenture of Mortgage, the Company desires to correct the description of
certain real estate described in said Indenture of Mortgage and to subject to
the lien thereof an additional parcel of real estate owned by the Company.
NOW, THEREFORE, pursuant to the provisions of said Indenture of
Mortgage, the Company hereby grants, conveys, mortgages and warrants to the
Trustees, and each of them, and their respective successors in the trust
established by the said Indenture of Mortgage, and assigns, upon the trusts
established by said Indenture of Mortgage, the following described real estate
situated in District No. 11 of Blount County, Tennessee, and more particularly
described as follows:
BEGINNING at an iron pin on the eastern boundary line of the
Southern Railway's right of way, said pin being 107 feet North of said
Railway's depot at Rockford, Tennessee, and 100 feet East from the
center line of the said Railway's main line track to Maryville,
Tennessee; thence North 1 deg. 48 min. East 35 feet along said right
of way boundary to an iron pin; thence South 88 deg. 12 min. East 25
<PAGE> 84
feet to an iron pin; thence South 1 deg. 48 min. West 35 feet to an
iron pin; thence North 88 deg. 12 min. West 25 feet to an iron pin,
the point of beginning, and containing 0.02 acres more or less.
Subject to reverter contained in habendum clause of Deed dated August
24, 1954 between Ernest Koella, Jr., and wife, Jean M. Koella, Jr., and
Tennessee Gas Company (predecessor to the Company) reading as follows:
"TO HAVE AND TO HOLD the said premises to the said
party of the second part, its successors, and assigns, so long
as the premises herein conveyed are used to maintain a gas
regulator station, and so long as the party of the second part
shall save harmless the parties of the first part from all
damage growing out of the use of this property as a gas
regulator station."
The description of the real estate of the Company situated in the City of
Harrisburg, Saline County, Illinois, described under Parcel (3), PART I of
Schedule B to said Indenture of Mortgage is hereby corrected to read as
follows:
Blocks Forty-four (44) and Forty-five (45) of Sloan's First
Enlargement to the City of Harrisburg excepting and reserving the
coal, salt, gas, and oil and all other minerals under the surface of
said premises, together with the right to mine and remove the same
situated in the County of Saline, in the State of Illinois, together
with a strip of land beginning at the Southwest (SW) corner of Block
Forty-five (45) in Sloan's First Enlargement to the City of Harrisburg
and running thence East to the West line of the right of way of the
C. C. C. & St. L. Railway; thence Southwesterly along said right of way
line to the North line of Block Forty-four (44) in said Sloan's First
Enlargement; thence West to the Northwest (NW) corner of said Block
Forty-four (44); thence North fourteen (14) feet to the place of
beginning.
Said strip of land was formerly an alley lying between Block
Forty-four (44) and Block Forty-five (45) in said enlargement or
addition, which alley was vacated by the city council of the City of
Harrisburg by an ordinance, No. 431, on the seventh day of January,
1930.
TO HAVE AND TO HOLD the property hereinabove described unto the said
Trustees, and each of them, and their respective successors in the trust
established by said Indenture of Mortgage and their assigns forever, but in
trust nevertheless for the same purposes and upon the same terms and conditions
contained in said Indenture of Mortgage.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be deemed an original, and all such
counterparts shall together constitute but one and the same instrument, which
instrument shall, for all purposes, be sufficiently evidenced by any such
executed counterpart.
-2-
<PAGE> 85
IN WITNESS WHEREOF said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said City National Bank and
Trust Company of Chicago, to evidence its acceptance of the trust hereby
created and in it reposed, has caused its corporate name to be hereunto
subscribed by one of its Vice Presidents and its corporate seal to be hereto
affixed and attested by one of its Trust Officers, and said R. Emmett Hanley,
to evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
By /S/ R. L. SIEBEN
-----------------------------
President
ATTEST:
/S/ GORDON B. WHEELER
- ------------------------------------
Secretary
Witnesses as to United Cities Gas Company:
/S/ DAROLD DUSENBERY
- ------------------------------------
/S/ CATHERINE NUGENT
- ------------------------------------
-3-
<PAGE> 86
CITY NATIONAL BANK AND TRUST COMPANY
OF CHICAGO,
as Trustee
By /S/ WM. W. HINSHAW, JR.
-----------------------------------
Vice President
ATTEST:
/S/ J.S. CROSSLEY
- ---------------------------------
Trust Officer
Witnesses as to City National Bank
and Trust Company of Chicago
and R. Emmett Hanley:
/S/ J. W. HERMANN
- ---------------------------------
/S/ D. V. DOOTSON
- ---------------------------------
By /S/ R. EMMETT HANLEY (SEAL)
------------------------------
R. Emmett Hanley
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I, AMELIA LANG, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 23rd day of November, 1960,
personally appeared before me R. L. SIEBEN and GORDON B. WHEELER, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who, being by me duly sworn, did
say that they are President and Secretary, respectively, of the United Cities
Gas Company, an Illinois corporation, that the seal affixed to the above and
foregoing instrument is the corporate seal of said corporation and that said
instrument was signed by them and sealed and delivered in behalf of said
corporation by authority of its Board of Directors duly given, and the said R.
L. SIEBEN and GORDON B. WHEELER, acknowledged said instrument to be their free
and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
23rd day of November, 1960.
/S/ AMELIA LANG
-------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1962.
-4-
<PAGE> 87
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I, F. RENSCH, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 28th day of November, 1960,
personally appeared before me W. HINSHAW, JR. and J. S. CROSSLEY, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who, being by me duly sworn, did
say that they are Vice President and Trust Officer, respectively, of the City
National Bank and Trust Company of Chicago, a national banking association
organized and existing under the national banking laws of the United States of
America, that the seal affixed to the above and foregoing instrument is the
corporate seal of said association by authority of its Board of Directors duly
given, and the said WM. W. HINSHAW, JR. and J. S. CROSSLEY acknowledged said
instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said association for the uses and purposes therein
set forth.
IN WITNESS WHEREOf, I have hereunto set my hand and official seal this
28th day of November, 1960.
/S/ F. RENSCH
--------------------------------
Notary Public in and for the
County and State aforesaid
My Commission expires January 20, 1963.
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I, F. RENSCH, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 28th day of November, 1960,
personally appeared before me R. Emmett Hanley, personally known to me to be
the person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOf, I have hereunto set my hand and official seal this
28th day of November, 1960.
/S/ F. RENSCH
----------------------------------
Notary Public in and for the
County and State aforesaid
My Commission expires January 20, 1963.
-5-
<PAGE> 88
RECORDING DATA
ILLINOIS
The foregoing First Supplemental Indenture was filed for record and
recorded as a real estate mortgage and was filed as a chattel mortgage in the
State of Illinois as hereinbelow set forth:
<TABLE>
<CAPTION>
DOCUMENT NO.
DATE BOOK-REAL CHATTEL
COUNTY FILED MORTGAGES PAGE MORTGAGES
<S> <C> <C> <C> <C>
Saline December 9, 1960 418 527 3334
</TABLE>
TENNESSEE
The foregoing First Supplemental Indenture was filed for record and
recorded as a real estate mortgage and was indexed or cross-indexed as a
chattel mortgage in the State of Tennessee as hereinbelow set forth:
<TABLE>
<CAPTION>
DATE BOOK-REAL
COUNTY FILED MORTGAGES PAGE
<S> <C> <C> <C>
Blount December 2, 1960 180 280
</TABLE>
-6-
<PAGE> 89
[CONFORMED COPY]
================================================================================
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 1, 1962
________________
UNITED CITIES GAS COMPANY
TO
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
AND
R. EMMETT HANLEY
TRUSTEES
________________
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
================================================================================
<PAGE> 90
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of June 1, 1962, made by
and between UNITED CITIES GAS COMPANY, an Illinois corporation (hereinafter
called the "Company"), party of the first part, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office in the City of Chicago, State of Illinois, and R. EMMETT
HANLEY, residing in Oak Park, Illinois (hereinafter collectively referred to as
the "Trustees"), parties of the second part.
WITNESSETH:
Whereas, the Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 15, 1959, providing for the issuance
thereunder of First Mortgage Bonds of the Company and wherein and whereby the
Company did grant, convey, mortgage and warrant to the said Trustees, and each
of them, and their respective successors and assigns, certain property of the
Company in said Indenture of Mortgage more particularly described for the
security of all First Mortgage Bonds issued and to be issued thereunder; and
Whereas, the Company as of November 1, 1960, executed and delivered a First
Supplemental Indenture to City National Bank and Trust Company of Chicago and
R. Emmett Hanley, as Trustees, conveying additional property and amending said
Indenture of Mortgage as to a property description, said Indenture of Mortgage
and First Supplemental Indenture being hereinafter collectively referred to as
the "Indenture"; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became Corporate Trustee under the
Indenture as provided therein; and
WHEREAS, said Indenture of Mortgage was filed for record and recorded
as a real estate mortgage in, among other places, Massac County, Illinois, as
hereinafter set forth:
<TABLE>
<CAPTION>
DATE BOOK-REAL
COUNTY AND STATE FILED MORTGAGES PAGE
<S> <C> <C> <C>
Massac, Illinois 11/23/59 54 460
</TABLE>
WHEREAS, in order to fulfill its covenants and warranties contained in
said Indenture, the Company desires to subject to the lien of said Indenture an
additional parcel of real estate owned by the company.
NOW, THEREFORE, pursuant to the provisions of said Indenture, the
Company hereby grants, conveys, mortgages and warrants to the Trustees, and
each of them, and their respective successors in the trust established by the
said Indenture, and assigns, upon the trusts established by said Indenture, the
following described real estate situated in the
<PAGE> 91
Southeast Quarter (SE1/4) of Section Two (2), Township Sixteen (16) South,
Range Four (4) East of the 3rd Principal Meridian, Massac County, State of
Illinois and more particularly described as follows:
The East Ten Feet to Lot Numbered Six Hundred Twenty One (621)
in Block Numbered Forty Nine (49), Said Parcel of Ground fronting 10
feet on the South Side of Seventh (7th) Street, and running southerly
between Parallel Lines Seventy Five (75) feet; AND
A part of Lot Numbered Six Hundred Nineteen (619) in Block
Numbered Forty Nine (49) Described as Follows; The Northerly Ninety
(90) feet off of the Northerly end of the Westerly One-half (1/2) of
Lot Six Hundred Nineteen (619) Block Forty Nine (49) in the City of
Metropolis, Illinois, as per recorded plat thereof and all
improvements thereon; together with an easement for ingress to and
egress from said parcels heretofore described over the following
described lands lying South and South East thereof; said Easements
being recorded in Vol. 70 of Deed Records, Page 130, and another
Easement for ingress to and egress from the lands herein conveyed
recorded in Volume 75 page 286, said Easements being on and over
lands, described as follows:--Commence in the southerly boundary line
of Lot Six Hundred Nineteen (619) Block Forty Nine (49) that is Ten
(10) feet West of the South East corner of said lot; run thence North
on a line parallel with the East boundary line of said Lot Six Hundred
Nineteen (619), a distance of Fifty-two (52) feet to lands . . . . .
conveyed to Milburn C. Johnson and Maxine C. Johnson; run thence West
on a line parallel with the Southerly boundary line of said lot, a
distance of Twenty (20) feet; run thence Northerly on a line parallel
with the East boundary line of said lot a distance of Eight (8) Feet;
thence at right angles, Westerly on a line parallel with the Southerly
boundary line of said Block, a distance of Twelve (12) feet; thence at
right angles Southerly on a line parallel with the Easterly boundary
line of said Block a distance of Nineteen feet to the lands of W. F.
Lasley; thence at right angles Easterly on a line parallel with the
Southerly boundary line of said Block a distance of Twenty-Two Feet
(22); thence run at right angles Southerly on a line parallel with the
Easterly boundary line of said Lot, a distance of Forty-one (41) feet;
thence East 10 ft. to place of beginning. Others to whom easements
have been conveyed are D. H. Krueter, J. M. Krueter, W. F. Lasley,
George Arensman, deceased, Milburn C. Johnson and Maxine C. Johnson
and their grantees, assigns, successors, tenants, employees, servants,
agents and customers.
Subject to the rights of Milburn C. Johnson and Maxine C.
Johnson to use the East wall of the building on the premises herein
conveyed, the same comprising the Johnson building, and the right of
their heirs, assigns and executors, whatever those rights may be; and
subject further to the right of Charles E. Crain and Elwanda Crain, to
connect to and use the West wall of the building now standing upon
these premises, or their heirs, executors, or assigns, and whatever
their rights may be.
TO HAVE AND TO HOLD the property hereinabove described unto
the said Trustees, and each of them, and their respective successors
in the trust established by said Indenture
-2-
<PAGE> 92
and their assigns forever, but in trust nevertheless for the same
purposes and upon the same terms and conditions contained in said
Indenture.
This Second Supplemental Indenture may be executed in any
number of counterparts, each of which shall be deemed an original, and
all such counterparts shall together constitute but one and the same
instrument, which instrument shall, for all purposes, be sufficiently
evidenced by any such executed counterpart.
-3-
<PAGE> 93
IN WITNESS WHEREOF said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby crated and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
hereto affixed and attested by one of its Assistant Secretaries, and said R.
Emmett Hanley, to evidence his acceptance of the trust hereby created and in
him reposed, has hereunto subscribed his name and affixed his seal, all as of
the day and year first above written.
UNITED CITIES GAS COMPANY
By /s/ R. L. SIEBEN
------------------------------
President
ATTEST:
/s/ GORDON B. WHEELER
- -------------------------------
Secretary
Witnesses as to United Cities Gas Company:
/s/ DAROLD DUSENBERY
- -------------------------------
/s/ CATHERINE NUGENT
- -------------------------------
CONTINENTAL ILLINOIS BANK AND TRUST
COMPANY OF CHICAGO,
AS TRUSTEE
BY /s/ RAY F. MYERS
------------------------------
Vice President
ATTEST:
/s/ J. W. HERMANN
- -------------------------------
Assistant Secretary
-4-
<PAGE> 94
Witnesses as to Continental Illinois National Bank
and Trust Company of Chicago and R.
Emmett Hanley:
/s/ E. F. HARTMAN
- ------------------------------
/s/ M. A. CLARK
- ------------------------------
/s/ R. EMMETT HANLEY (SEAL)
--------------------------------
R. Emmett Hanley
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, AMELIA LANG, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 12th day of June 1962, personally
appeared before me R. L. SIEBEN and GORDON B. WHEELER, to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who, being by me duly sworn, did say that they are
President and Secretary, respectively, of United Cities Gas Company, an
Illinois corporation, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said R. L. SIEBEN and
GORDON B. WHEELER, acknowledged said instrument to be their free and voluntary
act and deed and the free and voluntary act and deed of said corporation for
the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of June, 1962.
/s/ AMELIA LANG
--------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1962.
-5-
<PAGE> 95
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, E. W. FAHRENBACH, a Notary Public in and for the county and state
aforesaid, do hereby certify that on this 12th day of June, 1962, personally
appeared before me RAY F. MYERS, and J. W. HERMANN, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who, being by me duly sworn, did say that they are Vice
President and Assistant Secretary, respectively, of Continental Illinois
National Bank and Trust Company of Chicago, a national banking association
organized and existing under the national banking laws of the United States of
America, that the seal affixed to the above and foregoing instrument is the
corporate seal of said association and that said instrument was signed by them
and sealed and delivered in behalf of said association by authority of its
Board of Directors duly given, and the said RAY F. MYERS and J. W. HERMANN,
acknowledged said instrument to be their free and voluntary act and deed and
the free and voluntary act and deed of said association for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of June, 1962.
/s/ E. W. FAHRENBACH
--------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires March 26, 1965.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, E. W. FAHRENBACH, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 12th day of June, 1962, personally
appeared before me R. EMMETT HANLEY, personally known me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument
as his free and voluntary act and deed for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
12th day of June, 1962.
/s/ E. W. FAHRENBACH
--------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires March 26, 1965.
-6-
<PAGE> 96
RECORDING DATA
ILLINOIS
The foregoing Second Supplemental Indenture was filed for record as a
real estate mortgage in the State of Illinois as hereinbelow set forth:
<TABLE>
<CAPTION>
DATE BOOK-REAL
COUNTY FILED MORTGAGES PAGE
<S> <C> <C> <C>
Massac June 20, 1962 62 5
</TABLE>
The right of Charles Crain and Elwanda Crain under the conveyance is
specified by the terms of a judgment entered on April 9, 1962, in the Circuit
Court of Massac County in a chancery cause bearing General Number 6982.
-7-
<PAGE> 97
[CONFORMED COPY]
================================================================================
THIRD SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 1, 1963
----------------
UNITED CITIES GAS COMPANY
To
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
And
R. EMMETT HANLEY
TRUSTEES
----------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
================================================================================
Filed as a Financing Statement pursuant to the provisions of the Illinois
Uniform Commercial Code in the office of the Secretary of State of the State of
Illinois on March 4, 1963, at 9:51 A.M. as No. 40105.
<PAGE> 98
THIS THIRD SUPPLEMENTAL INDENTURE, dated as of February 1, 1963, made
by and between UNITED CITIES GAS COMPANY, an Illinois corporation (hereinafter
called the "Company"), whose address is 938 Merchandise Mart, Chicago,
Illinois, the Debtor, party of the first part, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office at 231 South LaSalle Street in the City of Chicago, State of
Illinois (hereinafter called the "Trustee"), and R. EMMETT HANLEY, residing at
634 S. Elmwood Street in Oak Park, Illinois (the Trustee and R. EMMETT HANLEY
being hereinafter collectively referred to as the "Trustees"), the Secured
Parties, parties of the second part,
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 15, 1959, providing for the issuance
thereunder from time to time of First Mortgage Bonds of the Company, issuable
in one or more series, and wherein and whereby the Company did grant, convey,
mortgage and warrant to the said Trustees, and each of them, and their
respective successors and assigns, certain property of the Company in said
Indenture of Mortgage more particularly described for the security of all First
Mortgage Bonds issued and to be issued thereunder; and
WHEREAS, the Company thereafter executed and delivered a First
Supplemental Indenture, dated as of November 1, 1960, to City National Bank and
Trust Company of Chicago and R. Emmett Hanley, as Trustees, conveying and
mortgaging additional property and amending said Indenture of Mortgage as to a
property description, and a Second Supplemental Indenture dated as of June 1,
1962, to the Trustees, conveying and mortgaging additional property, said
Indenture of Mortgage and all Supplemental Indentures thereto being hereinafter
collectively referred to as the "Indenture"; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became Corporate Trustee under the
Indenture as provided therein; and
WHEREAS, said Indenture of Mortgage was filed for record and recorded
as a real estate mortgage and filed as a Chattel Mortgage in the State of
Illinois as hereinafter set forth:
<PAGE> 99
DOCUMENT NO.
DATE BOOK-REAL CHATTEL
COUNTY FILED MORTGAGES PAGE MORTGAGES
Fayette 11/23/59 466 753 64415
Saline 11/23/59 412 Real Estate Mortgages 91 9020
Massac 11/23/59 54 Mortgages 460 91762
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, due July
15, 1984, of which bonds $3,185,000 aggregate principal amount is now
outstanding; and
WHEREAS, a security interest has been created by the Indenture and will
continue to exist and remain in the property described in the Indenture (other
than property specifically reserved and excepted from the lien thereof and
property heretofore released pursuant to the provisions of the Indenture) for
the benefit and security of all First Mortgage Bonds of the Company heretofore
or hereafter issued thereunder and, without limiting the foregoing, a security
interest has been created and will continue to exist in the property hereafter
more specifically described in this Third Supplemental Indenture; and
WHEREAS, in order to fulfill its covenants and warranties contained in
the Indenture, in order to comply with the requirements of the Indenture to
permit the Trustee to pay to the Company certain moneys now held by the
Trustee, and in order to comply with the requirements of the Illinois Uniform
Commercial Code, the Company desires to execute and deliver this Third
Supplemental Indenture;
NOW, THEREFORE, the Company hereby grants a security interest to the
Trustees and their respective successors and assigns, the secured parties
hereunder, in all properties hereafter described, except as otherwise expressly
provided herein:
I. All personal property and fixtures located upon the real
estate more specifically described in Schedule A, Part I, hereof.
II. All gas distribution systems, pipelines, plants,
buildings, machinery and equipment now owned or hereafter acquired by
the Company, including without limitation, those more specifically
described in Schedule A, Part II, hereof;
III. All rights appertaining to any and all the foregoing
property, and all gas purchase contracts and other contracts, rights
and franchises, including without limitation, those more specifically
described in Schedule A, Part III, and Part IV hereof, and all
indeterminate permits, certificates of convenience and necessity,
rights of way, easements, licenses and permits used by or useful to
the Company in the operation of its business, whether now owned or
hereafter acquired, and all income and earnings arising out of the
mortgaged property, except that (as provided in Section 7.01 of said
Indenture of Mortgage) unless an event of default (as defined in
-2-
<PAGE> 100
said Indenture of Mortgage) shall have occurred and be continuing,
the Company shall be permitted to possess and use the properties
mortgaged under the Indenture and in which a security interest has
been created, and to receive and retain all income and earnings
arising therefrom, other than moneys specifically required by the
Indenture to be paid to the Trustee.
IV. All other property, whether or not hereinabove or in
Schedule A specifically described, which the Company now owns and all
such property which it may hereafter acquire, which is not
specifically reserved and excepted from the security interest hereby
created.
BUT SPECIFICALLY RESERVING AND EXCEPTING from the security interest
hereby created:
A. All cash, notes, bills and accounts receivable not
specifically pledged hereunder;
B. All stocks, bonds and securities not specifically pledged
hereunder;
C. All merchandise held for resale and consumable materials
and supplies;
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment.
PROVIDED, HOWEVER, that if the Trustee or Trustees, or any receiver
appointed under the Indenture shall enter into possession of the property of
the Company such Trustee or Trustees or receiver shall thereupon be entitled to
take possession of and use any of the excepted property then on hand and, so
long as such possession shall continue, a security interest shall exist in all
such property, subject to such liens and encumbrances as may then exist
thereon.
To HAVE AND TO HOLD the property hereinabove described unto the said
Trustees, and each of them, and their respective successors in the trust
established by said Indenture and their assigns forever, but in trust
nevertheless for the same purposes and upon the same terms and conditions
contained in said Indenture.
This Third Supplemental Indenture may be executed in any number of
counterparts, each of which shall be deemed an original, and all such
counterparts shall together constitute but one and the same instrument, which
instrument shall, for all purposes, be sufficiently evidenced by any such
executed counterpart.
-3-
<PAGE> 101
IN WITNESS WHEREOF said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
hereto affixed and attested by one of its Assistant Secretaries, and said R.
Emmett Hanley, to evidence his acceptance of the trust hereby created and in
him reposed, has hereunto subscribed his name and affixed his seal, all as of
the day and year first above written.
UNITED CITIES GAS COMPANY
By /s/ R. L. SIEBEN
----------------------------------
President
ATTEST:
/s/ GORDON B. WHEELER
---------------------------
Secretary
Witnesses as to United Cities Gas Company: [CORPORATE SEAL]
DAROLD DUSENBERY
CATHERINE NUGENT
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By /s/ RAY F. MYERS
----------------------------------
Vice President
ATTEST:
/s/ J. W. HERMANN
---------------------------
Assistant Secretary
-4-
<PAGE> 102
Witnesses as to Continental Illinois [CORPORATE SEAL]
National Bank and Trust Company of
Chicago and R. Emmett Hanley:
/s/ R. BROWN
---------------------------
/s/ M. A. CLARK
---------------------------
/s/ R. EMMETT HANLEY (SEAL)
----------------------------------
R. Emmett Hanley
-5-
<PAGE> 103
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, AMELIA LANG, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 27th day of February, 1963, personally
appeared before me R. L. SIEBEN and GORDON B. WHEELER, to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who, being by me duly sworn, did say that they are
President and Secretary, respectively, of United Cities Gas Company, an
Illinois corporation, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said R. L. SIEBEN and
GORDON B. WHEELER, acknowledged said instrument to be their free and voluntary
act and deed and the free and voluntary act and deed of said corporation for
the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
27th day of February, 1963.
/s/ AMELIA LANG
----------------------------
(NOTARIAL SEAL) Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1966.
-6-
<PAGE> 104
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, THOMAS TRITSCHLER, a Notary Public in and for the county and state
aforesaid, do hereby certify that on this 28th day of February, 1963,
personally appeared before me RAY F. MYERS, and J. W. HERMANN, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, did say
that they are Vice President and Assistant Secretary, respectively, of
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association organized and existing under the national banking laws of
the United States of America, that the seal affixed to the above and foregoing
instrument is the corporate seal of said association and that said instrument
was signed by them and sealed and delivered in behalf of said association by
authority of its Board of Directors duly given, and the said RAY F. MYERS and
J. W. HERMANN, acknowledged said instrument to be their free and voluntary act
and deed and the free and voluntary act and deed of said association for the
uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
28th day of February, 1963.
/s/ THOMAS TRITSCHLER
----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires January 14, 1964.
(NOTARIAL SEAL)
-7-
<PAGE> 105
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, THOMAS TRITSCHLER, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 28th day of FEBRUARY, 1963,
personally appeared before me R. EMMETT HANLEY, personally known to me to be
the person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
28th day of February, 1963.
/s/ THOMAS TRITSCHLER
----------------------------
Notary Public in and for the
County and State aforesaid
(NOTARIAL SEAL)
My commission expires January 14, 1964.
-8-
<PAGE> 106
SCHEDULE A
The properties referred to in this Third Supplemental Indenture in
which a security interest has been created include personal property and
fixtures located upon parcels of real estate hereinafter described and other
property hereinafter more specifically described; such descriptions are not
intended, however, to limit or impair the scope or intent of the general
descriptions contained in this Third Supplemental Indenture.
PART I-REAL ESTATE UPON WHICH PERSONAL PROPERTY AND FIXTURES ARE
LOCATED
Those certain tracts, pieces or parcels of land described as follows:
STATE OF ILLINOIS
In Fayette County, Illinois:
(1) Beginning at the Northeast corner of Outlot Number 50 of
the Six-Acre Outlots of the Town (now City) of Vandalia, running
thence West a distance of 85 feet, thence South to the right of way of
the Illinois Central Railroad Company switch, thence in a
Northeasterly direction along the right of way of said Illinois
Central Railroad Company right of way switch to the East line of said
Outlot Number 50, thence North along the East line of said Outlot
Number 50 to the Northeast corner thereof, to the place of beginning.
In Saline County, Illinois:
(2) In Sloan's First Enlargement to the City of Harrisburg:
Beginning at the Northwest (NW) corner of Block forty-five (45),
thence South 89' 42' East along the North line of said Block 45 a
distance of sixteen (16) feet; thence South 0 (degree) 0' and
parallel with the West line of said Block 45 a distance of eighty-six
one-half (86.5) feet; thence South 89 (degree) 42' East and parallel
with the North line of said Block 45 a distance of twenty-five (25)
feet; thence South 0 (degree) 0' and parallel with the West line of
said Block 45 a distance of fifty-one one-half (51.5) feet; thence
North 89 (degree) 42' West and parallel with the North line of said
Block 45 a distance of forty-one (41) feet; thence North 0 (degree) 0'
along the West line of said Block 45 a distance of one hundred
thirty-eight (138) feet to the point of beginning.
In Massac County, Illinois:
(3) The following described real estate situated in the
Southeast Quarter (SE 1/4 ) of Section Two (2), Township Sixteen (16)
South, Range Four (4) East of the 3rd Principal Meridian, Massac
County, State of Illinois and more particularly described as follows:
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<PAGE> 107
The East Ten Feet to Lot Numbered Six Hundred Twenty One (621)
in Block Numbered Forty Nine (49), Said Parcel of Ground fronting 10
feet on the South Side of Seventh (7th) Street, and running southerly
between Parallel Lines Seventy Five (75) feet; AND
A part of Lot Numbered Six Hundred Nineteen (619) in Block
Numbered Forty Nine (49) Described as Follows; The Northerly Ninety
(90) feet off of the Northerly end of the Westerly One-half (1/2) of
Lot Six Hundred Nineteen (619) Block Forty Nine (49) in the City of
Metropolis, Illinois, as per recorded plat thereof and all
improvements thereon; together with an easement for ingress to and
egress from said parcels heretofore described over the following
described lands lying South and South East thereof; said Easements
being recorded in Vol. 70 of Deed Records, Page 130, and another
Easement for ingress to and egress from the lands herein conveyed
recorded in Volume 75 page 286, said Easements being on and over
lands, described as follows:--Commence in the southerly boundary line
of Lot Six Hundred Nineteen (619) Block Forty Nine (49) that is Ten
(10) feet West of the South East corner of said lot; run thence North
on a line parallel with the East Boundary line of said Lot Six Hundred
Nineteen (619), a distance of Fifty-two (52) feet to lands . . .
conveyed to Milburn C. Johnson and Maxine C. Johnson; run thence West
on a line parallel with the Southerly boundary line of said lot, a
distance of Twenty (20) feet; run thence Northerly on a line parallel
with the East boundary line of said lot a distance of Eight (8) Feet;
thence at right angles, Westerly on a line parallel with the Southerly
boundary line of said Block, a distance of Twelve (12) feet; thence at
right angles Southerly on a line parallel with the Easterly boundary
line of said Block a distance of Nineteen feet to the lands of W. F.
Lasley; thence at right angles Easterly on a line parallel with the
Southerly boundary line of said Block a distance of Twenty-Two Feet
(22); thence run at right angles Southerly on a line parallel with the
Easterly boundary line of said Lot, a distance of Forty-one (41) feet;
thence East 10 ft. to place of beginning. Others to whom easements
have been conveyed are D. H. Krueter, J. M. Krueter, W. F. Lasley,
George Arensman, deceased, Milburn C. Johnson and Maxine C. Johnson
and their grantees, assigns, successors, tenants, employees, servants,
agents and customers.
PART II--DISTRIBUTION SYSTEMS AND PIPELINES
DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connections, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances, apparatus,
facilities, machinery and other property used or provided for use in the
construction, maintenance, repair or operation thereof and together also with
all of the rights, privileges, rights-of-way, franchises, licenses, easements,
grants and permits with respect to the construction, maintenance, repair and
operation of such gas distribution systems, including, but not limited to, the
plants and systems owned and operated by the Company for the distribution and
sale of gas located in the following named cities, towns, or villages and
environs thereof in the State of Illinois:
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<PAGE> 108
IN THE STATE OF ILLINOIS
CITY COUNTY
Vandalia . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fayette
Harrisburg . . . . . . . . . . . . . . . . . . . . . . . . . . . Saline
Eldorado . . . . . . . . . . . . . . . . . . . . . . . . . . . . Saline
Metropolis . . . . . . . . . . . . . . . . . . . . . . . . . . . Massac
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<PAGE> 109
PART III--CONTRACTS
A. GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions,
supplements or amendments thereof, between the Company (or a predecessor
corporation) and the respective suppliers named below providing for the supply
of natural gas to the Company for distribution and resale in the respective
cities and towns and areas adjacent thereto set forth under the caption
"Service Area."
<TABLE>
<CAPTION>
TERM OR
SERVICE CONTRACT EXPIRATION
AREA SUPPLIER DATE DATE
<S> <C> <C> <C>
Vandalia, Natural Gas Pipeline September 15, 1961 20 years
Illinois Company of America (effective Dec. 1, 1961)
Eldorado- Texas Eastern January 2, 1963 Feb. 1,1983
Harrisburg, Transmission (effective Feb. 1, 1963)
Illinois Corporation
Metropolis, Trunkline Gas Company July 12, 1962 Dec. 31, 1972
Illinois (effective April 1, 1962)
Union City, Texas Gas Transmission July 30, 1962 20 years
Tennessee Corporation (effective Nov. 1, 1962)
Columbia, East Tennessee Natural November 1, 1962 May 1, 1979
Tennessee Gas Company
Shelbyville, East Tennessee Natural November 1, 1962 May 1, 1979
Tennessee Gas Company
Lynchburg, East Tennessee Natural November 1, 1962 May 1, 1979
Tennessee Gas Company
Murfreesboro, Texas Eastern January 3, 1963 Feb. 1, 1983
Tennessee Transmission (effective Feb. 1, 1963)
Corporation
Maryville, Alcoa, East Tennessee Natural November 1, 1962 May 1, 1979
Tennessee Gas Company
Morristown, East Tennessee Natural September 1, 1953 15 years
Tennessee Gas Company (effective Jan. 1, 1954)
Hendersonville, Transcontinental Gas Pipe October 25, 1962 20 years
North Line Corporation (effective Nov. 1, 1962)
Carolina
Gaffney, Transcontinental Gas Pipe September 12, 1962 20 years
South Carolina Line Corporation (effective Nov. 1, 1962)
Gainesville, Transcontinental Gas Pipe October 1, 1962 20 years
Georgia Line Corporation (effective Nov. 1, 1962)
</TABLE>
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<PAGE> 110
B. TRANSPORTATION CONTRACTS
Agreement between Tennessee Gas Pipe Line Company and Tennessee Gas
Company (assigned to the Company by merger of Tennessee Gas Company into the
Company) dated March 26, 1953, providing for the transportation of gas by
Tennessee Gas Pipe Line Company for the Company for distribution and Agreement
between the same parties dated March 20, 1953 providing for the purchase by the
Company of the pipeline owned by Tennessee Gas Pipe Line Company upon the
happening of certain contingencies.
Agreement between Gaffney Pipeline Company and South Carolina Gas
Company (assigned to the Company) dated June 23, 1951 providing for the
transportation of gas for the Company.
Agreement between V-M Pipeline Company and the Company dated October
22, 1951 providing for the transportation of gas for the Company, and Amendment
and Extension Agreement thereto dated June 15, 1962.
Lease Agreement between B. V. Pipeline Company and the Company dated
November 1, 1958 providing for the lease to the Company of certain
transportation or distribution lines owned by B. V. Pipeline Company.
PART IV--FRANCHISES
The following franchises granted to the Company, or to its
predecessors and assigned to the Company or acquired by the Company by merger
of predecessors into the Company, authorizing the construction, operation and
maintenance of gas distribution systems in the following cities or
municipalities and all renewals, extensions or substitutions thereof or
therefor:
CITY AND STATE EXPIRATION DATE
STATE OF ILLINOIS
Vandalia . . . . . . . . . . . . . . . . . . July 21, 1988
Harrisburg . . . . . . . . . . . . . . . . . August 5, 1988
Eldorado . . . . . . . . . . . . . . . . . . August 18, 1988
Metropolis . . . . . . . . . . . . . . . . . August 11, 1988
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<PAGE> 111
STATE OF TENNESSEE
Union City . . . . . . . . . . . . . . . . . June 30, 1970
Columbia . . . . . . . . . . . . . . . . . . February 1, 1980
Shelbyville . . . . . . . . . . . . . . . . . November 5, 1967
Lynchburg . . . . . . . . . . . . . . . . . . July 5, 1981
Murfreesboro . . . . . . . . . . . . . . . . December 12, 1979
Maryville . . . . . . . . . . . . . . . . . . January 7, 1980
Alcoa . . . . . . . . . . . . . . . . . . . . May 27, 2004
Morristown . . . . . . . . . . . . . . . . . November 26, 1979
STATE OF NORTH CAROLINA
Hendersonville . . . . . . . . . . . . . . . February 6, 1990
STATE OF SOUTH CAROLINA
Gaffney . . . . . . . . . . . . . . . . . . . April 11, 1990
STATE OF SOUTH CAROLINA
Gainesville . . . . . . . . . . . . . . . . . August 14, 1980
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<PAGE> 112
[CONFORMED COPY]
================================================================================
FOURTH SUPPLEMENTAL INDENTURE
Dated as of June 15, 1963
--------------
UNITED CITIES GAS COMPANY
to
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
and
R. EMMETT HANLEY
TRUSTEES
--------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959 and
Creating First Mortgage Bonds, Series B,
4.95%, Due June 15, 1988
================================================================================
<PAGE> 113
THIS FOURTH SUPPLEMENTAL INDENTURE, dated as of June 15, 1963, made by
and between United Cities Gas Company, an Illinois corporation (hereinafter
called the "Company"), party of the first part, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office in the City of Chicago, State of Illinois (hereinafter called
the "Trustee"), and R. EMMETT HANLEY, residing in Oak Park, Illinois (the
Trustee and R. Emmett Hanley being hereinafter collectively referred to as the
"Trustees"), parties of the second part,
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes
referred to as the "Original Indenture"), providing for the issuance thereunder
from time to time of First Mortgage Bonds of the Company, issuable in one or
more series, and wherein and whereby the Company did grant, convey, mortgage
and warrant to the said Trustees, and each of them, and their respective
successors and assigns, certain property of the Company in said Indenture of
Mortgage more particularly described for the security of all First Mortgage
Bonds issued and to be issued thereunder; and
WHEREAS, the Company thereafter executed and delivered its First,
Second and Third Supplemental Indentures respectively dated as of November 1,
1960, June 1, 1962 and February 1, 1963, for the purpose of subjecting to the
lien of the Indenture certain additional property acquired by the Company and
complying with its covenant of further assurances, said Indenture of Mortgage
and all Supplemental Indentures thereto being hereinafter collectively referred
to as the "Indenture" or "indenture in the form of Series B bonds; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became Corporate Trustee under the
Indenture as provided therein; and
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, due July
15, 1984, of which bonds $3,185,000 aggregate principal amount is now
outstanding; and
WHEREAS, the Company desires to create a new series of bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, Series B, 4.95%, Due June 15, 1988" (herein called "Series B
bonds"), to be limited to $1,000,000 in aggregate principal amount; and
WHEREAS, the Company also desires to subject to the lien of the
Indenture certain properties acquired or constructed by the Company since the
date of execution and delivery
<PAGE> 114
of the Original Indenture and a parcel of real estate which was not described
in the Original Indenture but was intended to be subject to the lien thereof;
and
WHEREAS, all things necessary to make the Series B bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Fourth Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed have been done and performed; and the issue of Series B bonds,
as herein provided, has been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of the
One Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons thereto
appertaining, without any preference, priority or distinction whatsoever, as
follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal of and
interest (and premium, if any) on all of the bonds of the Company at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions in the
Indenture contained, has granted, conveyed, mortgaged and warranted, and by
these presents does hereby grant, convey, mortgage and warrant to the Trustees
and each of them, and to their successors in said trust forever, all property
and rights acquired and constructed by the Company since the date of execution
and delivery of the Original Indenture, except property of the character
specifically reserved and excepted from the lien of the Original Indenture and
property heretofore released from the lien thereof, and also the following
described real estate:
I
That certain lot or parcel of ground situated in the City of
Murfreesboro and the 13th Civil District of Rutherford County,
Tennessee, and more particularly described as follows:
BEING LOT No. 9 of the Lasseter Subdivision, Murfreesboro,
Tennessee, as shown by plat appearing of record in the Register's
Office of Rutherford County, Tennessee, in Plat Book 2, page 20,
and being a lot located at the Southeast intersection of Memorial
Boulevard and North Lokey Avenue, the dimensions, location and
description being fully shown on said plat, to which reference is
hereby made for full particulars thereof.
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<PAGE> 115
BEING the same property conveyed to United Cities Gas Company by
deed of record in Deed Book 148, page 403, of the Register's Office
of Rutherford County, Tennessee.
II
That certain tract or parcel of land situated and being in the
Fifth Ward of the City of Columbia and the Ninth Civil District of
Maury County, Tennessee, and more particularly described as follows:
BOUNDED on the North by Crozier; East by remaining portion of
American Legion property; South by The American Legion 50 foot road
or right of way; West by U.S. Highway 31; and more particularly
described as follows:
BEGINNING at a stake in the East margin of U.S. 31 Highway, said
point being North 49 degrees 15 minutes East, 162.5 feet from the
Northwest corner of The American Legion's original property, also
Columbia Water System's corner; thence with the East margin of U.S.
31 Highway North 49 degrees 15 minutes East, 112.75 feet to an iron
pin; thence leaving Highway and with Crazier South 40 degrees 45
minutes East, 60.25 feet to an iron pin; thence with same South 85
degrees 19 minutes East, 196.15 feet to a stake; thence with
American Legion's remaining property South 49 degrees 15 minutes
West, 250.40 feet to a stake in margin of 50 foot road or right of
way; thence with road or right of way North 40 degrees 45 minutes
West, 200.0 feet to point of beginning. Being the same property
conveyed to United Cities Gas Company by deed of record in Deed
Book 415, page 55, of the Registrar's Office of Maury County,
Tennessee.
TOGETHER WITH all right, title and interest of said United Cities
Gas Company in an "easement over an area 50 feet in width and 200
feet in length along the South boundary of the property herein
conveyed. It is the intention of the grantors to eventually
construct a private street along this 50 foot strip and when said
street is completed, the grantee will have the privilege of using
this street and will have access to same at any and all points
adjacent to the tract herein conveyed. Until such time as such a
street is constructed the grantee will be permitted to use as a
driveway so much of the 50 foot strip as will be necessary for
such purposes. The grantors agree that no structure shall be
placed on this 50 foot strip adjoining the tract herein conveyed."
as granted to said United Cities Gas Company, its successors and
assigns, by deed of record in Deed Book 415, page 55, of the Register's
Office of Maury County, Tennessee.
-3-
<PAGE> 116
III
The following described real estate located in the Township of
Hendersonville, Henderson County, State of North Carolina:
BEGINNING at a stake in the West margin of Whitted Street, said
stake standing South 22 deg. 13 min. East 85 feet from the point
where the West margin of Whitted Street intersects with the South
margin of 1st Avenue West, and running thence from said beginning
point with Whitted Street, South 22 deg. 13 min. East 15 feet to a
stake in said margin of said Whitted Street; thence South 78 deg.
West 10 feet to a stake; thence North 22 deg. 13 min. West 15 feet
to a stake; thence North 78 deg. East 10 feet to a stake in the
West margin of Whitted Street, the point of BEGINNING.
TOGETHER WITH all rights belonging or in any wise appertaining to any and
all the aforesaid property or any part thereof with the reversion and, subject
to the provisions of Section 7.01 of the Original Indenture, all income and
earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
reservations, covenants, conditions, uses and trusts set forth in the Original
Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same conditions
as are set forth in the Original Indenture.
ARTICLE 2
SERIES B BONDS
Section 2.01. There is hereby created for issuance under the Indenture, a
series of bonds, limited to the aggregate principal amount of $1,000,000, to be
designated as "First Mortgage Bonds, Series B, 4.95%, Due June 15, 1988." The
Series B bonds shall, subject to the provisions of Section 1.13 of the Original
Indenture, be dated as of, and shall bear interest from, June 15, 1963; shall
mature June 15, 1988, and shall bear interest at the rate of 4.95% payable
semiannually on June 15 and December 15 in each year until the principal
thereof shall have become due and payable and thereafter, if default be made in
the payment of such principal, at the rate of 6% per annum until the principal
thereof shall be paid.
Section 2.02. The Series B bonds initially to be issued shall be fully
registered bonds without coupons, in denominations of $500 and multiples
thereof, substantially in the form set forth in Section 2.03 hereof, with
appropriate insertions, omissions and changes,
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<PAGE> 117
approved by the President of the Company and the Trustee, as may be appropriate
for different denominations and/or in order to conform to usage or law. Upon
receipt of a written request from holders of not less than 25% in aggregate
principal amount of the Series B bonds at the time outstanding, stating their
intention to exchange all or a substantial part of their bonds for Series B
bonds in coupon form, the Company will promptly cause to be prepared Series B
bonds in customary coupon form in the denomination of $500 and/or $1,000, as
requested, registrable as to principal only, and substantially in the form of
the fully registered Series B bond set forth in Section 2.03 hereof, with
appropriate insertions, omissions, and changes approved by counsel satisfactory
to the Trustee in an opinion filed with the Trustee, and by the Trustee.
Thereafter fully registered bonds and coupons bonds of Series B shall be
interchangeable, subject to the provisions of Section 1.11 of the Original
Indenture.
Section 2.03. The registered Series B bonds without coupons shall be in
substantially the following form:
FORM OF FULLY REGISTERED SERIES B BOND WITHOUT COUPONS
AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RB $______________
FIRST MORTGAGE BOND, SERIES B, 4.95%, DUE JUNE 15, 1988
For value received, UNITED CITIES GAS COMPANY, an Illinois corporation
(hereinafter, with its successors and assigns, generally called the "Company"),
hereby promises to pay to ___________________________ or registered assigns, on
June 15, 1988, or earlier as hereinafter referred to, the sum of
________________ Dollars ($__________), at the principal office in Chicago,
Illinois, of CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO
(hereinafter, with its successors in the trusts under the indenture mentioned
below, generally called the "Trustee"), or at the principal office of its
successor in said trusts, and to pay to said payee, or registered assigns,
interest thereon, from the date hereof, at the rate of four and ninety-five
hundredths percent (4.95%) per annum, at said office, semiannually on June 15
and December 15 in each year until the principal sum hereof shall have become
due and payable and thereafter, if default be made in the payment of such
principal, at the rate of six percent (6%) per annum until the principal hereof
shall be paid.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company, of a series designated First Mortgage Bonds, Series B, 4.95%, Due June
15, 1988, all such bonds of this series and all other series being issued or to
be issued under and subject to the provisions of a certain Indenture of
Mortgage, dated as of July 15, 1959 (hereinafter with all indentures
supplemental thereto generally called the "indenture"), by and between the
Company and City National Bank and Trust Company of Chicago (which has been
succeeded
-5-
<PAGE> 118
by Continental Illinois National Bank and Trust Company of Chicago as Corporate
Trustee) and R. Emmett Hanley, as Trustees, to which indenture, an executed
counterpart of which is on file with the Trustee, reference is hereby made for
a description of the property mortgaged, a statement of the nature and extent
of the security thereby afforded, the terms and conditions upon which release
of property covered by the indenture may be made, the terms and conditions upon
which bonds of all series are or are to be issued and secured, the rights and
remedies under the indenture of the holders of said bonds, the terms and
conditions upon which the indenture may be modified or amended, and the rights
and obligations under the indenture of the Company and of said Trustees; but
neither the foregoing reference to the indenture, nor any provision of this
bond or of the indenture, shall affect or permit the impairment of the
absolute, unconditional and unalterable obligation of the Company to pay, at
the maturity date herein provided, the principal of and interest on this bond
as herein provided.
The Company, the Trustee and all other persons may for all purposes treat
the registered owner hereof for the time being, as the absolute owner hereof,
an neither the Company nor the Trustee shall be affected by any notice or
knowledge to the contrary, whether any payment on this bond shall be overdue or
not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consents and agrees to the
foregoing provisions and each invites the others, and all persons, to rely
thereon.
In certain events, on the conditions, in the manner, at the times, to the
extent and with the effect set forth in the indenture, and all as more fully
provided therein, (1) the principal of this bond may be declared and become due
and payable before the stated maturity hereof, (2) this bond may be transferred
or exchanged at the option of the registered owner hereof, and (3) this bond,
either singly or together with all or less than all other bonds, or, if the
principal amount of this bond is a multiple of five hundred dollars ($500), any
part of the principal amount hereof constituting said sum or any multiple
thereof, may be called for redemption and payment at any time prior to
maturity, on notice given or waived as provided in the indenture, at the
applicable redemption price specified in the indenture.
This bond is transferable by the registered owner either in person or by
attorney duly authorized in writing at the office of the Trustee upon surrender
and cancellation of this bond and registered bonds of this series and coupons
bonds of this series are interchangeable, all in the manner and upon the
conditions prescribed in the indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the indenture.
This bond shall not be valid or become obligatory for any purpose, or be
entitled to any protection or benefit under the indenture, until the
certificate hereon shall have been signed by the Trustee.
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<PAGE> 119
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to be
executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated.
UNITED CITIES GAS COMPANY
ATTEST: By ________________________________
President
__________________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, referred to in
the within-mentioned indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By__________________________________
Authorized Officer
Section 2.04. All or any part of the Series B bonds outstanding at any
time, or any part of the principal amount of any fully registered Series B
bonds constituting $500 or any multiple thereof, may be redeemed at any time
prior to maturity (subject to the further provisions hereof), whether or not
such time be an interest payment date, at the principal office of the Trustee,
upon not less than thirty (30) days prior notice given or waived as hereinafter
or in the Indenture provided, at the following redemption prices, in each case
together with the accrued and unpaid interest on the principal amount of bonds
called to the date fixed for redemption:
(a) if redeemed through operation of the sinking fund or if
redeemed through application of the proceeds of the sale or transfer of
all or part of the property of the Company to a municipality or other
public body or authority pursuant to condemnation proceedings or an
agreement in lieu of condemnation, at their principal amount, and
(b) in all other cases at the following redemption prices,
herein expressed as percentages of such principal amount, during the
respective periods hereinafter set forth:
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<PAGE> 120
PERIOD REDEMPTION
(DATES INCLUSIVE) PRICE
On or before June 15, 1964..................... 106.50%
June 16, 1964 to June 15, 1965................. 106.23%
June 16, 1965 to June 15, 1966................. 105.96%
June 16, 1966 to June 15, 1967................. 105.69%
June 16, 1967 to June 15, 1968................. 105.42%
June 16, 1968 to June 15, 1969................. 105.15%
June 16, 1969 to June 15, 1970................. 104.88%
June 16, 1970 to June 15, 1971................. 104.61%
June 16, 1971 to June 15, 1972................. 104.34%
June 16, 1972 to June 15, 1973................. 104.07%
June 16, 1973 to June 15, 1974................. 103.80%
June 16, 1974 to June 15, 1975................. 103.53%
June 16, 1975 to June 15, 1976................. 103.26%
June 16, 1976 to June 15, 1977................. 102.99%
June 16, 1977 to June 15, 1978................. 102.72%
June 16, 1978 to June 15, 1979................. 102.45%
June 16, 1979 to June 15, 1980................. 102.18%
June 16, 1980 to June 15, 1981................. 101.91%
June 16, 1981 to June 15, 1982................. 101.64%
June 16, 1982 to June 15, 1983................. 101.37%
June 16, 1983 to June 15, 1984................. 101.10%
June 16, 1984 to June 15, 1985................. 100.83%
June 16, 1985 to June 15, 1986................. 100.56%
June 16, 1986 to June 15, 1987................. 100.29%
June 16, 1987 to June 15, 1988................. 100.00%
Series B bonds shall be redeemed upon the notice, in the manner and
with the effect provided in Article 4 of the Original Indenture and the
provisions of Article 4 of the Original Indenture, except Section 4.01 thereof,
shall be applicable to the Series B bonds.
Section 2.05. So long as any Series B bonds shall remain outstanding, the
Company shall pay to the Trustee as and for a sinking fund for the retirement
of Series B bonds on June 15, 1964, and on each June 15 thereafter to and
including June 15, 1987, cash in the amount specified in the following schedule
for each such year:
SINKING FUND DATE SINKING FUND
JUNE 15 AMOUNT
1964 . . . . . . . . . . . . . $26,000
1965 . . . . . . . . . . . . . 26,000
1966 . . . . . . . . . . . . . 26,000
1967 . . . . . . . . . . . . . 22,000
-8-
<PAGE> 121
1968 . . . . . . . . . . . . . 26,000
1969 . . . . . . . . . . . . . 26,000
1970 . . . . . . . . . . . . . 26,000
1971 . . . . . . . . . . . . . 22,000
1972 . . . . . . . . . . . . . 26,000
1973 . . . . . . . . . . . . . 26,000
1974 . . . . . . . . . . . . . 26,000
1975 . . . . . . . . . . . . . 22,000
1976 . . . . . . . . . . . . . 26,000
1977 . . . . . . . . . . . . . 26,000
1978 . . . . . . . . . . . . . 26,000
1979 . . . . . . . . . . . . . 22,000
1980 . . . . . . . . . . . . . 26,000
1981 . . . . . . . . . . . . . 26,000
1982 . . . . . . . . . . . . . 26,000
1983 . . . . . . . . . . . . . 22,000
1984 . . . . . . . . . . . . . 26,000
1985 . . . . . . . . . . . . . 26,000
1986 . . . . . . . . . . . . . 26,000
1987 . . . . . . . . . . . . . 22,000
In the event the Company shall redeem Series B bonds from the proceeds of
the sale of any of its property to a municipality or other public body or
agency, the amount of each such sinking fund deposit thereafter shall be
reduced by an amount equal to 2.5% of the amount of Series B bonds so redeemed.
On or before the thirtieth day prior to each sinking fund payment date, the
Trustee shall proceed to select for redemption in the manner provided in
Article 4 of the Original Indenture, Series B bonds in the aggregate principal
amount which are redeemable with the cash required to be paid on the next
following sinking fund payment date and in the name of the Company shall give
notice as may be required by said Article 4 of the redemption for the sinking
fund on such sinking fund payment date of the Series B bonds so selected.
All cash received by the Trustee pursuant to this Section 2.05 shall be
held by the Trustee as part of the mortgage property, and shall be applied by
the Trustee to the redemption of outstanding Series B bonds, without premium,
in the manner and with the effect specified in the preceding paragraph hereof;
and the Company shall, in each case prior to the date fixed for redemption
thereof, pay to the Trustee in cash all unpaid interest accrued on the bonds to
be redeemed through the operation of said sinking fund to the date fixed for
redemption.
So long as all outstanding Series B bonds remain registered in the names of
the initial holders in whose names bonds of such series were first registered
the sinking fund payment shall be made entirely in cash. If none or less than
all of the outstanding bonds of Series B are registered in the names of the
initial holders in whose names bonds of such series were first registered, the
following provisions shall be applicable:
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<PAGE> 122
(i) If none of the then outstanding bonds of Series B are
registered in the names of the initial holders in whose names bonds of such
series were first registered, the Company may, in lieu of depositing cash
as hereinabove provided, surrender bonds of such series acquired by the
Company and receive credit against the cash sinking fund payment to the
extent of the principal amount of bonds surrendered; and
(ii) If one or more but less than all of the then outstanding
bonds of Series B are registered in the name of any of the initial holders
in whose names bonds of such series were first registered, the aggregate
principal amount of the bonds of such series to be redeemed shall be
apportioned in the manner provided in clause (ii) of Section 4.02 of the
Original Indenture and redemption shall be made in accordance with the
provisions of said clause (ii) except that the Company may, in lieu of
depositing cash for the redemption of bonds not held by any such initial
holder, surrender bonds of Series B acquired by the Company and receive
credit against the sinking fund payment to the extent of the principal
amount of bonds surrendered, not exceeding, however, the amount of cash
which would otherwise be applied to the redemption of bonds of Series B not
registered in the name of any initial holder of bonds of said series, and
the amount which would otherwise be applied to the redemption of such bonds
not held by any initial holder of bonds shall be reduced to the extent of
the amount of such credit.
If the Company elects to surrender bonds as a credit against the sinking
fund payment pursuant to the foregoing provisions it shall deposit such bonds,
with all unmatured interest coupons pertaining thereto in the case of coupon
bonds, with the Trustee at least 35 days and not more than 45 days prior to the
date on which the next sinking fund payment becomes due.
All Series B bonds redeemed or delivered to the Trustee for cancellation
pursuant to this Section 2.05 (except fully registered Series B bonds redeemed
in part and upon which notations of partial payment are made as provided in
Article 4 of the Original Indenture) together with any and all appertaining
interest coupons shall forthwith be cancelled by the Trustee and shall be
delivered to or upon the written order of the Company and shall not be made the
basis for issuance of any additional bonds hereunder.
Section 2.06. Upon the execution and delivery of this Fourth Supplemental
Indenture and upon compliance with the provisions of the Original Indenture the
Company may execute and deliver to the Trustee, and the Trustee shall certify
and deliver to or upon the written order of the President or Treasurer of the
Company, Series B bonds in an aggregate principal amount not exceeds
$1,000,000.
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<PAGE> 123
ARTICLE 3
ADDITIONAL COVENANTS AND MISCELLANEOUS
Section 3.01. So long as any Series B bonds remain outstanding, the
provisions of Section 1.15 of the Original Indenture which are expressed to be
applicable to bonds of Series A shall also be applicable to the Series B bonds
and the holders thereof.
Section 3.02. So long as any Series B bonds shall remain outstanding, no
new series of bonds shall be authorized having a maturity date earlier than
June 15, 1988 and no provision shall be made for the retirement of any new
series of bonds prior to June 15, 1988 through a sinking fund or other
retirement fund in an amount in any year greater than 3% of the aggregate
principal amount of such bonds theretofore issued.
Section 3.03. So long as any Series B bonds remain outstanding, the Company
will not declare or pay any dividends on shares of its Common Stock (except
dividends payable in shares of Common Stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares of Common Stock (except out of
the proceeds derived from the issuance of other shares of Common Stock), or
make any other distribution on shares of Common Stock (such non-excepted
declarations, payments, purchases, redemptions or other acquisitions and
distributions being hereinafter called "Restricted Payments"), unless after
giving effect thereto the aggregate of all such Restricted Payments made during
the period from December 31, 1962 to and including the date of the making of
the Restricted Payment in question does not exceed the sum of $300,000 plus (or
minus in case of a deficit) the amount of Consolidated Net Income Available for
Common Stock Dividends for such period (computed on a cumulative basis for said
entire period).
As used in this Section 3.03 the term "Consolidated Net Income Available for
Common Stock Dividends" shall mean the net income of the Company and its
subsidiaries for the applicable period available for dividends on stock after
deducting therefrom dividends paid and accrued on preferred stock determined on
a consolidated basis in accordance with generally accepted principles of
accounting; provided, however, that no effect shall be given to any gains or
losses or other additions or deductions arising by reason of the issue,
purchase, sale, conversion or retirement by the Company or any subsidiary of
any of its or their securities, or arising by reason of any purchases, sales,
write-ups, write-downs, increase or decrease in book value, or other
transactions or changes in respect of capital assets, tangible or intangible
and the deduction for income taxes shall be adjusted by giving effect to any
change in the amount thereof resulting from the elimination of any of the
capital transactions or changes referred to above.
Section 3.04. This Fourth Supplemental Indenture shall be construed in
connection with and as a part of the Original Indenture and all terms,
conditions and covenants contained in the Original Indenture, except as
restricted in the Original Indenture to bonds of another series, shall apply to
and be deemed to be for the equal benefit, security and protection of the
Series B bonds and the holders thereof. All terms used in this Fourth
-11-
<PAGE> 124
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 3.05. Whenever in this Fourth Supplemental Indenture either of the
parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Fourth Supplemental Indenture contained shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so
expressed or not.
Section 3.06. This Fourth Supplemental Indenture may be simultaneously
executed in any number of counterparts and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
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<PAGE> 125
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its corporate
name to be hereunto subscribed by its President or one of its Vice Presidents
and its corporate seal to be hereunto affixed and attested by its Secretary or
by an Assistant Secretary and the said Continental Illinois National Bank and
Trust Company of Chicago, to evidence its acceptance of the trust hereby
created and in its reposed, has caused its corporate name to be hereunto
subscribed by one of its Vice Presidents and its corporate seal to be hereto
affixed and attested by an Assistant Secretary, and said R. Emmett Hanley, to
evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
[CORPORATE SEAL] By /s/ R. L. SIEBEN
----------------------------------
President
ATTEST:
/s/ GORDON B. WHEELER
- --------------------------------
Secretary
Witnesses as to United Cities Gas
Company:
/s/ DABOLD DUSENBERY
- --------------------------------
/s/ CATHERINE NUGENT
- --------------------------------
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, as
Trustee
[CORPORATE SEAL] By /s/ RAY F. MYERS
----------------------------------
Vice President
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<PAGE> 126
ATTEST:
/s/ J. W. HERMANN
- ---------------------------------
Assistant Secretary
Witnesses as to Continental Illinois
National Bank and Trust Company of
Chicago and R. Emmett Hanley:
/s/ E. F. HARTMANN
- ---------------------------------
/s/ E. F. HARTMANN
- ---------------------------------
/s/ R. BROWN By /s/ R. EMMETT HANLEY
---------------------------------
R. Emmett Hanley (SEAL)
(U.S. Documentary Tax Stamps in the amount required by law are affixed to
an executed counterpart of the Original Indenture in the possession of the
Trustee, and cancelled.)
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<PAGE> 127
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I, AMELIA LANG, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 5th day of September, 1963,
personally appeared before me R. L. SIEBEN and GORDON B. WHEELER, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who, being by me duly sworn, did
say that they are President and Secretary, respectively, of the United Cities
Gas Company, an Illinois corporation, that the seal affixed to the above and
foregoing instrument is the corporate seal of said corporation and that said
instrument was signed by them and sealed and delivered in behalf of said
corporation by authority of its Board of Directors duly given, and the said R.
L. SIEBEN and GORDON B. WHEELER, acknowledged said instrument to be their free
and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
5th day of September, 1963.
By: /s/ AMELIA LANG
-----------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires October 2, 1966
-15-
<PAGE> 128
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
I, LOIS A. LESNIAK, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 5th day of September, 1963,
personally appeared before me RAY F. MYERS and J. W. HERMANN, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, did say
that they are Vice President and Assistant Secretary, respectively, of the
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association organized and existing under the national banking laws of
the United States of America, that the seal affixed to the above and foregoing
instrument is the corporate seal of said association and that said instrument
was signed by them and sealed and delivered in behalf of said association by
authority of its Board of Directors duly given, and said RAY F. MYERS and J. W.
HERMANN acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said association for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
5th day of September, 1963.
By: /s/ LOIS A. LESNIAK
----------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires November 30, 1965
-16-
<PAGE> 129
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, LOIS A. LESNIAK, a Notary Public in and for the county and state
aforesaid, do hereby certify that on this 5th day of September, 1963,
personally appeared before me R. EMMET HANLEY, personally known to me to be the
person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
5th day of September, 1963.
By: /s/ LOIS A. LESNIAK
--------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires November 30, 1965
-17-
<PAGE> 130
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me DAROLD DUSENBERY, who, being duly sworn,
says that he saw the corporate seal of the UNITED CITIES GAS COMPANY affixed to
the foregoing instrument and that he also saw R. L. SIEBEN, President, and
GORDON B. WHEELER, Secretary of said United Cities Gas Company, sign and attest
the same, and that he, with CATHERINE NUGENT, witnessed the execution and
delivery thereof as the act and deed of the said UNITED CITIES GAS COMPANY.
By: /s/ DAROLD DUSENBERG
------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 5th
day of September, 1963.
/s/ AMELIA LANG
- ------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1966
-18-
<PAGE> 131
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me E. F. HARTMAN, who, being duly sworn,
says that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he
also saw RAY F. MYERS, Vice President, and J. W. HERMANN, Assistant Secretary
of said Continental Illinois National Bank and Trust Company of Chicago, sign
and attest the same, and that he, with R. BROWN, witnessed the execution and
delivery thereof as the act and deed of the said Continental Illinois National
Bank and Trust Company of Chicago.
By: /s/ E. F. HARTMAN
------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 5th
day of September, 1963.
/s/ LOIS A. LESNIAK
- -------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires November 30, 1965
-19-
<PAGE> 132
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me E. F. HARTMAN, who, being duly sworn,
says that he saw the within named R. EMMETT HANLEY, sign, seal, and as his act
and deed, deliver the foregoing instrument and that he, with R. BROWN,
witnessed the execution thereof.
By: /s/ E. F. HARTMAN
-----------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 5th
day of September, 1963.
/s/ LOIS A. LESNIAK
- --------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires November 30, 1965
-20-
<PAGE> 133
RECORDING DATA
The foregoing Fourth Supplemental Indenture was filed for record and
recorded as a real estate mortgage in each of the states and counties
hereinbelow set forth, and was indexed or cross-indexed as a chattel mortgage
in the State of Tennessee, North Carolina, South Carolina and Georgia in each
of the counties hereinbelow set forth:
ILLINOIS
DATE BOOK-REAL
COUNTY FILED MORTGAGES PAGE
Fayette . . . . . . . . 9/23/63 494 197
Saline . . . . . . . . 9/19/63 437 570
Massoc . . . . . . . . 9/20/63 63 1
TENNESSEE
Obion . . . . . . . . . 9/20/63 Misc. 31P 1
Maury . . . . . . . . . 9/23/63 534 515
Bedford . . . . . . . . 9/18/63 Trust Deed 137 193
Rutherford . . . . . . 9/19/63 A 138 221
Hamblen . . . . . . . . 9/20/63 Trust 146 531
Weakley . . . . . . . . 9/19/63 194 300
Moore . . . . . . . . . 9/19/63 Trust 24 565
Blount . . . . . . . . 9/20/63 Trust 204 276
NORTH CAROLINA
Henderson . . . . . . . 9/16/63 Deed Trust 229 401
SOUTH CAROLINA
Cherokee . . . . . . . 9/17/63 Real Estate Mortgages 157 102
GEORGIA
Hall . . . . . . . . . 9/17/63 10-Z 99
Jackson . . . . . . . . 9/17/63 4-O 441
Barrow . . . . . . . . 9/18/63 MM 575
Oconee . . . . . . . . 9/17/63 LL 219
-21-
<PAGE> 134
[CONFORMED COPY]
================================================================================
FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF NOVEMBER 15, 1964
_________________
UNITED CITIES GAS COMPANY
To
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO
And
R. EMMETT HANLEY
TRUSTEES
_________________
Supplementing Indenture of Mortgage
Dated as of July 15, 1959 and
Creating First Mortgage Bonds, Series C,
4-7/8%, Due November 15, 1989
================================================================================
<PAGE> 135
THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of November 15, 1964, made
by and between UNITED CITIES GAS COMPANY, an Illinois corporation (hereinafter
called the "Company"), party of the first party, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office in the City of Chicago, State of Illinois (hereinafter called
the "Trustee"), and R. EMMETT HANLEY, residing in Oak Park, Illinois (the
Trustee and R. Emmett Hanley being hereinafter collectively referred to as the
"Trustees"), parties of the second part,
W I T N E S S E T H:
WHEREAS, the Company heretofore executed and delivered to City National
Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees, its
Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes referred
to as the "Original Indenture"), providing for the issuance thereunder from
time to time of First Mortgage Bonds of the Company, issuable in one or more
series, and wherein and whereby the Company did grant, convey, mortgage and
warrant to the said Trustees, and each of them, and their respective successors
and assigns, certain property of the Company in said Indenture of Mortgage more
particularly described for the security of all First Mortgage Bonds issued and
to be issued thereunder; and
WHEREAS, the Company thereafter executed and delivered its First,
Second, Third, and Fourth Supplemental Indentures respectively dated as of
November 1, 1960, June 1, 1962, February 1, 1963, and June 15, 1963, for the
purpose of subjecting to the lien of the Indenture certain additional property
acquired by the Company and complying with its covenant of further assurances,
and, with respect to the said Fourth Supplemental Indenture, for the further
purpose of creating First Mortgage Bonds, Series B, 4.95%, Due June 15, 1988,
said Indenture of Mortgage and all Supplemental Indentures thereto being herein
collectively referred to as the "Indenture" or "indenture" in the form of
Series C bonds; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became corporate trustee under the
Indenture as provided therein; and
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, due July
15, 1984, of which bonds $3,080,000 aggregate principal amount is now
outstanding, and $1,000,000 aggregate principal amount of First Mortgage Bonds,
Series B, 4.95%, Due June 15, 1988, of which bonds $974,000 aggregate principal
amount is now outstanding; and
WHEREAS, the Company desires to create a new series of bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, Series C, 4-7/8%, Due November 15, 1989" (herein called "Series
C Bonds"), to be limited to $1,000,000 in aggregate principal amount; and
<PAGE> 136
WHEREAS, the Company also desires to subject to the lien of the
Indenture certain properties acquired or constructed by the Company since the
date of execution and delivery of the Original Indenture; and
WHEREAS, all things necessary to make the Series C bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Fifth Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed have been done and performed; and the issue of Series C bonds,
as herein provided, has been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal of
and interest (and premium, if any) on all of the bonds of the Company at any
time outstanding under the Indenture according to their tenor and effect and
the performance of and compliance with the covenants and conditions in the
Indenture contained, has granted, conveyed, mortgaged and warranted, and by
these presents does hereby grant, convey, mortgage and warrant to the Trustees
and each of them, and to their successors in said trust forever, all property
and rights acquired and constructed by the Company since the date of execution
and delivery of the Original Indenture, except property of the character
specifically reserved and excepted from the lien of the Original Indenture and
property heretofore released from the lien thereof, and the following described
additional property:
I.
The real estate specifically described in Schedule A, Part I, hereof;
II.
Those gas pipelines specifically described in Schedule A, Part II, hereof;
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<PAGE> 137
III.
The franchise granted to the Company authorizing the construction,
operation and maintenance of a gas distribution system in Joppa,
Illinois and all renewals, extensions or substitutions thereof or
thereafter, the expiration date of which is September 30, 1993.
TOGETHER WITH all rights belonging or in any wise appertaining to any
and all the aforesaid property or any part thereof with the reversion and,
subject to the provisions of Section 7.01 of the Original Indenture, all income
and earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture and in Schedule A hereof.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture.
ARTICLE 2
SERIES C BONDS
Section 2.01. There is hereby created for issuance under the Indenture,
a series of bonds, limited to the aggregate principal amount of $1,000,000, to
be designated as "First Mortgage Bonds, Series C, 4-7/8%, Due November 15,
1989." The Series C bonds shall, subject to the provisions of Section 1.13 of
the Original Indenture, be dated as of, and shall bear interest from, November
15, 1964; shall mature November 15, 1989, and shall bear interest at the rate
of 4-7/8% payable semiannually on May 15 and November 15 in each year until the
principal thereof shall have become due and payable and thereafter, if default
be made in the payment of such principal, at the rate of 6% per annum until the
principal thereof shall be paid.
Section 2.02. The Series C bonds initially to be issued shall be fully
registered bonds without coupons, in denominations of $500 and multiples
thereof, substantially in the form set forth in Section 2.03 hereof, with
appropriate insertions, omissions and changes, approved by the President of the
Company and the Trustee, as may be appropriate for different denomina-
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tions and/or in order to conform to usage or law. Upon receipt of a
written request from a holder or holders of not less than 25% in aggregate
principal amount of the Series C bonds at the time outstanding, stating its or
their intention to exchange all or a substantial part of their bonds for Series
C bonds in coupon form, the Company will promptly cause to be prepared Series C
bonds in customary coupon form in the denomination of $500 and/or $1,000, as
requested, registrable as to principal only, and substantially in the form of
the fully registered Series C bond set forth in Section 2.03 hereof, with
appropriate insertions, omissions, and changes approved by counsel satisfactory
to the Trustee in an opinion filed with the Trustee, and by the Trustee.
Thereafter fully registered bonds and coupon bonds of Series C shall be
interchangeable, subject to the provisions of Section 1.11 of the Original
Indenture.
Section 2.03. The registered Series C bonds without coupons shall be in
substantially the following form:
Form of Fully Registered Series C Bond Without Coupons
and Trustee's Certificate
UNITED CITIES GAS COMPANY
No. RC ______________________ $_____________________
FIRST MORTGAGE BOND, SERIES C, 4-7/8%, DUE NOVEMBER 15, 1989
For value received, UNITED CITIES GAS COMPANY, an Illinois corporation
(hereinafter, with its successors and assigns, generally called the "Company"),
hereby promises to pay to ________________________ or registered assigns, on
November 15, 1989, or earlier as hereinafter referred to, the sum of
_______________ Dollars ($__________), at the principal office in Chicago,
Illinois, of CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO
(hereinafter, with its successors in the trusts under the indenture mentioned
below, generally called the "Trustee"), or at the principal office of its
successor in said trusts, and to pay to said payee, or registered assigns,
interest thereon, from the date hereof, at the rate of four and seven-eighths
percent (4-7/8%) per annum, at said office, semiannually on May 15 and November
15 in each year until the principal sum hereof shall have become due and
payable and thereafter, if default be made in the payment of such principal, at
the rate of six percent (6%) per annum until the principal hereof shall be
paid.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series C, 4-7/8%, Due
November 15, 1989, all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "indenture"), by and
between the Company and City National Bank and Trust Company of Chicago (which
has been succeeded by Continental Illinois National Bank and Trust Company of
Chicago as Corporate Trustee) and R. Emmett Hanley, as Trustees, to which
indenture, an executed counterpart of which is on file with the Trustee,
reference is hereby made for a description of the property mortgaged, a
statement of the nature and extent of the security thereby afforded, the terms
and conditions upon which release of property covered by the indenture may be
made, the terms and conditions upon which bonds of all series are or are to be
issued
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<PAGE> 139
and secured, the rights and remedies under the indenture of the holders
of said bonds, the terms and conditions upon which the indenture may be
modified or amended, and the rights and obligations under the indenture of the
Company and of said Trustees; but neither the foregoing reference to the
indenture, nor any provision of this bond or of the indenture, shall affect or
permit the impairment of the absolute, unconditional and unalterable obligation
of the Company to pay, at the maturity date herein provided, the principal of
and interest on this bond as herein provided.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, or,
if the principal amount of this bond is a multiple of five hundred dollars
($500), any part of the principal amount hereof constituting said sum or any
multiple thereof, may be called for redemption and payment at any time prior to
maturity, on notice given or waived as provided in the indenture, at the
applicable redemption price specified in the indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond and registered bonds of this series and
coupon bonds of this series are interchangeable, all in the manner and upon the
conditions prescribed in the indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the indenture, until the
certificate hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated ___________________.
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<PAGE> 140
UNITED CITIES GAS COMPANY
By:_______________________________
President
Attest:
____________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, referred to
in the within-mentioned indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By:_________________________________
Authorized Officer
Section 2.04. All or any part of the Series C bonds outstanding at
any time, or any part of the principal amount of any fully registered Series C
bond constituting $500 or any multiple thereof, may be redeemed at any time
prior to maturity (subject to the further provisions hereof), whether or not
such time be an interest payment date, at the principal office of the Trustee,
upon not less than thirty (30) days prior notice given or waived as hereinafter
or in the Indenture provided, at the following redemption prices, in each case
together with the accrued and unpaid interest on the principal amount of bonds
called to the date fixed for redemption:
(a) if redeemed through operation of the sinking fund or if
redeemed through application of the proceeds of the sale or transfer of
all or part of the property of the Company to a municipality or other
public body or authority pursuant to condemnation proceedings or an
agreement in lieu of condemnation, at their principal amount, and
(b) in all other cases at the following redemption prices,
herein expressed as percentages of such principal amount, during the
respective periods hereinafter set forth:
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PERIOD
(DATES INCLUSIVE) REDEMPTION PRICE
On or before November 15, 1965 . . . . . . . . . 106.375%
November 16, 1965 to November 15, 1966 . . . . . 106.110%
November 16, 1966 to November 15, 1967 . . . . . 105.845%
November 16, 1967 to November 15, 1968 . . . . . 105.580%
November 16, 1968 to November 15, 1969 . . . . . 105.315%
November 16, 1969 to November 15, 1970 . . . . . 105.050%
November 16, 1970 to November 15, 1971 . . . . . 104.785%
November 16, 1971 to November 15, 1972 . . . . . 104.520%
November 16, 1972 to November 15, 1973 . . . . . 104.255%
November 16, 1973 to November 15, 1974 . . . . . 103.990%
November 16, 1974 to November 15, 1975 . . . . . 103.725%
November 16, 1975 to November 15, 1976 . . . . . 103.460%
November 16, 1976 to November 15, 1977 . . . . . 103.195%
November 16, 1977 to November 15, 1978 . . . . . 102.930%
November 16, 1978 to November 15, 1979 . . . . . 102.665%
November 16, 1979 to November 15, 1980 . . . . . 102.400%
November 16, 1980 to November 15, 1981 . . . . . 102.135%
November 16, 1981 to November 15, 1982 . . . . . 101.870%
November 16, 1982 to November 15, 1983 . . . . . 101.605%
November 16, 1983 to November 15, 1984 . . . . . 101.340%
November 16, 1984 to November 15, 1985 . . . . . 101.075%
November 16, 1985 to November 15, 1986 . . . . . 100.810%
November 16, 1986 to November 15, 1987 . . . . . 100.545%
November 16, 1987 to November 15, 1988 . . . . . 100.280%
November 16, 1988 to November 15, 1989 . . . . . 100.000%
Series C bonds shall be redeemed upon the notice, in the manner and
with the effect provided in Article 4 of the Original Indenture and the
provisions of Article 4 of the Original Indenture and the provisions of Article
4 of the Original Indenture, except Section 4.01 thereof, shall be applicable
to the Series C bonds.
Section 2.05. So long as any Series C bonds shall remain outstanding,
the Company shall pay to the Trustee as and for a sinking fund for the
retirement of Series C bonds on November 15, 1965, and on each November 15
thereafter to and including November 15, 1988, cash in the amount of $25,000.
In the event the Company shall redeem Series C bonds from the proceeds
of the sale of any of its property to a municipality or other public body or
agency, the amount of each such sinking fund deposit thereafter shall be
reduced by an amount equal to 2.5% of the amount of Series C bonds so redeemed.
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<PAGE> 142
On or before the thirtieth day prior to each sinking fund payment date,
the Trustee shall proceed to select for redemption in the manner provided in
Article 4 of the Original Indenture, Series C bonds in the aggregate principal
amount which are redeemable with the cash required to be paid on the next
following sinking fund payment date and in the name of the Company shall give
notice as may be required by said Article 4 of the redemption for the sinking
fund on such sinking fund payment date of the Series C bonds so selected.
All cash received by the Trustee pursuant to this Section 2.05 shall be
held by the Trustee as part of the mortgaged property, and shall be applied by
the Trustee to the redemption of outstanding Series C bonds, without premium,
in the manner and with the effect specified in the preceding paragraph hereof;
and the Company shall, in each case prior to the date fixed for redemption
thereof, pay to the Trustee in cash all unpaid interest accrued on the bonds to
be redeemed through the operation of said sinking fund to the date fixed for
redemption.
So long as all outstanding Series C bonds remain registered in the
names of the initial holders in whose names bonds of such series were first
registered the sinking fund payment shall be made entirely in cash. If none or
less than all of the outstanding bonds of Series C are registered in the names
of the initial holders in whose names bonds of such series were first
registered, the following provisions shall be applicable:
(i) If none of the then outstanding bonds of Series C are
registered in the names of the initial holders in whose names bonds of
such series were first registered, the Company may, in lieu of
depositing cash as hereinabove provided, surrender bonds of such series
acquired by the Company and receive credit against the cash sinking
fund payment to the extent of the principal amount of bonds
surrendered; and
(ii) If one or more but less than all of the then
outstanding bonds of Series C are registered in the name of any of the
initial holders in whose names bonds of such series were first
registered, the aggregate principal amount of the bonds of such series
to be redeemed shall be apportioned in the manner provided in clause
(ii) of Section 4.02 of the Original Indenture and redemption shall be
made in accordance with the provisions of said clause (ii) except that
the Company may, in lieu of depositing cash for the redemption of bonds
not held by any such initial holder, surrender bonds of Series C
acquired by the Company and receive credit against the sinking fund
payment to the extent of the principal amount of bonds surrendered, not
exceeding, however, the amount of cash which would otherwise be applied
to the redemption of bonds of Series C not registered in the name of
any initial holder of bonds of said series, and the amount which would
otherwise be applied to the redemption such bonds not held by any
initial holder of bonds shall be reduced to the extent of the amount of
such credit.
If the Company elects to surrender bonds as a credit against the
sinking fund payment pursuant to the foregoing provisions it shall deposit such
bonds, with all unmatured interest coupons pertaining thereto in the case of
coupon bonds, with the Trustee at least 35 days and
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<PAGE> 143
not more than 45 days prior to the date on which the next sinking fund
payment becomes due.
All Series C bonds redeemed or delivered to the Trustee for
cancellation pursuant to this Section 2.05 (except fully registered Series C
bonds redeemed in part and upon which notations of partial payment are made as
provided in Article 4 of the Original Indenture) together with any and all
appertaining interest coupons shall forthwith be cancelled by the Trustee and
shall be delivered to or upon the written order of the Company and shall not be
made the basis for issuance of any additional bonds hereunder.
Section 2.06. Upon the execution and delivery of this Fifth Supplemental
Indenture and upon compliance with the provisions of the Original Indenture
the Company may execute and deliver to the Trustee, and the Trustee shall
certify and deliver to or upon the written order of the President or Treasurer
of the Company, Series C bonds in an aggregate principal amount not exceeding
$1,000,000.
ARTICLE 3
ADDITIONAL COVENANTS AND MISCELLANEOUS
Section 3.01. So long as any Series C bonds remain outstanding, the
provisions of Section 1.15 of the Original Indenture which are expressed to be
applicable to bonds of Series A shall also be applicable to the Series C bonds
and the holders thereof.
Section 3.02. So long as any Series C bonds shall remain outstanding, no
new series of bonds shall be authorized having a maturity date earlier than
November 15, 1989 and no provision shall be made for the retirement of any new
series of bonds prior to November 15, 1989 through a sinking fund or other
retirement fund in an amount in any year greater than 3% of the aggregate
principal amount of such bonds theretofore issued.
Section 3.03. So long as any Series C bonds remain outstanding, the
Company will not declare or pay any dividends on shares of its Common Stock
(except dividends payable in shares of Common Stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares of Common Stock (except out of
the proceeds derived from the issuance of other shares of Common Stock), or
make any other distribution on shares of Common Stock (such non-excepted
declarations, payments, purchases, redemptions or other acquisitions and
distributions being hereinafter called "Restricted Payments"), unless after
giving effect thereto the aggregate of all such Restricted Payments made during
the period from December 31, 1963 to and including the date of the making of
the Restricted Payment in question does not exceed the sum of $300,000 plus (or
minus in case of a deficit) the amount of Consolidated Net Income Available for
Common Stock Dividends for such period (computed on a cumulative basis for said
entire period).
As used in this Section 3.03 the term "Consolidated Net Income
Available for Common Stock Dividends" shall mean the net income of the Company
and its subsidiaries for the applicable period available for dividends on stock
after deducting therefrom dividends paid
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and accrued on preferred stock determined on a consolidated basis in
accordance with generally accepted principles of accounting; provided, however,
that no effect shall be given to any gains or losses or other additions or
deductions arising by reason of the issue, purchase, sale, conversion or
retirement by the Company or any subsidiary of any of its or their securities,
or arising by reason of any purchases, sales, write-ups, write-downs, increase
or decrease in book value, or other transactions or changes in respect of
capital assets, tangible or intangible and the deduction for income taxes shall
be adjusted by giving effect to any change in the amount thereof resulting from
the elimination of any of the capital transactions or changes referred to
above.
Section 3.04. This Fifth Supplemental Indenture shall be construed in
connection with and as a part of the Original Indenture and all terms,
conditions and covenants contained in the Original Indenture, except as
restricted in the Original Indenture to bonds of another series, shall apply to
and be deemed to be for the equal benefit, security and protection of the
Series C bonds and the holders thereof. All terms used in this Fifth
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 3.05. Whenever in this Fifth Supplemental Indenture either of
the parties hereto is named or referred to, this shall be deemed to include the
successors or assigns of such party, and all the covenants and agreements in
this Fifth Supplemental Indenture contained shall bind and inure to the benefit
of the respective successors and assigns of such parties, whether so expressed
or not.
Section 3.06. This Fifth Supplemental Indenture may be simultaneously
executed in any number of counterparts and all said counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
hereto affixed and attested by an Assistant Secretary, and said R. Emmett
Hanley, to evidence his acceptance of the trust hereby created and in him
reposed, has hereunto subscribed his name and affixed his seal, all as of the
day and year first above written.
UNITED CITIES GAS COMPANY
[Corporate Seal]
By /s/ L. H. ALLEN
--------------------------
Vice President
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<PAGE> 145
ATTEST:
/s/ GORDON B. WHEELER
- -------------------------------
Secretary
Witnesses as to United Cities Gas Company:
/s/ DAROLD DUSENBERY
- -------------------------------
/s/ WALTER E. RIEGER
- -------------------------------
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
[Corporate Seal] By /s/ L. L. REID
----------------------------
Vice President
ATTEST:
/s/ J. W. HERMANN
- ------------------------------
Assistant Secretary
Witnesses as to Continental Illinois National
Bank And Trust Company Of Chicago And
R. Emmett Hanley:
/s/ R. BOYD
- -------------------------------
/s/ R. A. MASTERS
- -------------------------------
By /s/ R. EMMETT HANLEY (Seal)
-------------------------
R. Emmett Hanley
(U.S. Documentary Tax Stamps in the amount required by law are affixed
to an executed counterpart of the Original Indenture in the possession of the
Trustee, and cancelled.)
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<PAGE> 146
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
I, AMELIA LANG, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 2nd day of December, 1964, personally
appeared before me L. H. ALLEN and GORDON B. WHEELER, to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who, being by me duly sworn, did say that they are a
Vice President and Secretary, respectively, of United Cities Gas Company, an
Illinois corporation, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said L. H. ALLEN and
GORDON B. WHEELER acknowledged said instrument to be their free and voluntary
act and deed and the free and voluntary act and deed of said corporation for
the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
2nd day of December, 1964.
/s/ AMELIA LANG
--------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires October 2, 1996
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<PAGE> 147
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
I, E. W. FAHRENBACH, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 2nd day of December, 1964, personally
appeared before me L. L. REID and J.W. HERMANN, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who, being by me duly sworn, did say that they are Vice
President and Assistant Secretary, respectively, of Continental Illinois
National Bank and Trust Company of Chicago, a national banking association
organized and existing under the national banking laws of the United States of
America, that the seal affixed to the above and foregoing instrument is the
corporation seal of said association and that said instrument was signed by
them and sealed and delivered in behalf of said association by authority of its
Board of Directors duly given, and the said L. L. REID and J. W. HERMANN
acknowledged said instrument to be their free and voluntary act and deed and
the free and voluntary act and deed of said association for the uses and
purposes therein set Forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
2nd day of December, 1964.
/s/ E. W. FAHRENBACH
-----------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires March 26, 1965
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<PAGE> 148
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
I, E. W. FAHRENBACH, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 2nd day of December, 1964, personally
appeared before me R. EMMETT HANLEY, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument
as his free and voluntary act and deed for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
2nd day of December, 1964.
/s/ E. W. FAHRENBACH
--------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires March 26, 1965
-14-
<PAGE> 149
STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
Personally appeared before me DAROLD DUSENBERY, who, being duly sworn,
says that he saw the corporate seal of UNITED CITIES GAS COMPANY affixed to the
foregoing instrument and that he also saw L. H. ALLEN, a Vice President, and
GORDON B. WHEELER, Secretary of said United Cities Gas Company, sign and attest
the same, and that he, with WALTER E. RIEGER, witnessed the execution and
delivery thereof as the act and deed of the said United Cities Gas Company.
/s/ DAROLD DUSENBERY
-------------------------------
witness
[NOTARIAL SEAL]
Sworn To before me this 2nd day of
December, 1964
/s/ AMELIA LANG
- ---------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 2, 1966
-15-
<PAGE> 150
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me R. Boyd, who, being duly sworn, says that
he saw the corporate seal of the CONTINENTAL NATIONAL BANK AND TRUST COMPANY OF
CHICAGO affixed to the foregoing instrument and that he also saw L. L. REID,
Vice President, and J. W. HERMANN, Assistant Secretary of said Continental
Illinois National Bank and Trust Company of Chicago, sign and attest the same,
and that he, with R. A. MASTERS, witnessed the execution and delivery thereof
as the act and deed of the said Continental Illinois National Bank and Trust
Company of Chicago.
/s/ R. BOYD
-------------------------------
witness
[NOTARIAL SEAL]
Sworn To before me this 2nd day of
December, 1964
/s/ E. W. FAHRENBACH
- ----------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires March 26, 1965
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<PAGE> 151
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me R. BOYD, who, being duly sworn, says that
he saw the within named R. EMMETT HANLEY, sign, seal and as his act and deed,
deliver the foregoing instrument and that he, with R. A. MASTERS, witnessed the
execution thereof.
/s/ R. BOYD
------------------------------
witness
[NOTARIAL SEAL]
Sworn To before me this 2nd day of
December, 1964
/s/ E. W. FAHRENBACH
- ----------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires March 26, 1965
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<PAGE> 152
SCHEDULE A
The properties referred to in the granting clauses of this Supplemental
Indenture include parcels of real estate and other property hereinafter more
specifically described. Such description are not intended, however, to limit
or impair the scope or intent of the general description contained in the
granting clauses of the Indenture.
PART I -- Real Estate and Interests Therein
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
STATE OF ILLINOIS
In Saline County, Illinois:
Parcel ONE
A portion of the Northeast Quarter (NE 1/4) of the Northwest Quarter
(NW 1/4) of Section 20 in Township 8 South, Range 7 East of the 3rd
Principal Meridian, in Saline County, Illinois, more particularly
described as follows:
Beginning at the intersection of the existing Northerly right-of-way
line of State Aid Route 10 and the Westerly right of way of the existing
public road along the east side of the said Northeast Quarter (NE 1/4) of
the Northwest Quarter (NW 1/4) of Sec. 20, Twp. 8 South, Range 7 East,
thence in a Westerly direction along said right-of-way line of State Aid
Route 10 for a distance of sixty (60) feet, thence in a Northeasterly
direction to a point on the said west right of way line of the existing
public road, said point being eighty (80) feet Northerly of point of
beginning, thence Southerly along said Westerly right of way of the
existing public road for a distance of eighty (80) feet to the point of
beginning; containing 0.06 acres more or less.
SUBJECT, HOWEVER, to the leasehold estate and the rights thereunder of
the Lessee and his assignees created by that certain Oil and Gas lease, dated
May 8, 1954, and recorded in the Office of the Recorder of Deeds of Saline
County, Illinois on July 14, 1954, in Book 333 of Oil and Gas, Page 253,
demising and leasing the foregoing described parcel of real estate for a term
commencing on May 8, 1954 and extending for, during and so long as oil or gas
shall continue to be produced by the Lessee or his assignees on said parcel of
real estate.
AND FURTHER SUBJECT, HOWEVER, to the lien of that certain Indenture of
Mortgage and Deed of Trust, dated September 1, 1958, from B.V. Pipeline Company
(subsequently merged into the Company) to City National Bank and Trust Company
of Chicago, as Trustee (subsequently merged with Continental Illinois National
Bank and Trust Company of Chicago, which thereupon became Trustee) recorded on
December 16, 1958, in the office
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<PAGE> 153
of the Recorder of Deeds of Saline County, Illinois, as Document No.
4745, on Page 17 of Vol. No. 404 of the Book of Mortgages.
Parcel TWO
A part of the West Half (W 1/2) of the Southwest
Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) of Section 10 in
Township 9 South, Range 6 East of the 3rd Principal Meridian, described
as follows:
From the Northwest corner of said Southwest Quarter (SW 1/4) of
the Southwest Quarter (SW 1/4) of said Section Ten (10), measure
Eastwardly the distance of forty (40) feet and thence measure
Southwardly to the south boundary line of a public road lying north and
adjacent to said Southwest Quarter (SW 1/4) of the Southwest Quarter
(SW 1/4) of said Section Ten, as the point of beginning; thence run
South along the east boundary line of S.B.I. Route No. 143 right of way
for the distance of twenty (20) feet; thence run east for the distance
of thirty-five (35); thence run North for the distance of twenty (20)
feet; thence run West for the distance of thirty-five (35) feet to the
point of beginning, excepting the coal and other minerals under the
surface of the above-described real estate together with the right to
mine and remove the same therefrom.
SUBJECT, HOWEVER, to the lien of that certain Indenture of Mortgage and
Deed of Trust, dated September 1, 1958, from B.V. Pipeline Company
(subsequently merged into the Company) to City National Bank and Trust Company
of Chicago, as Trustee (subsequently merged with Continental Illinois National
Bank and Trust Company of Chicago, which thereupon became Trustee) recorded on
December 16, 1958, in the office of the Recorder of Deeds of Saline County,
Illinois, as Document No. 4745, on Page 17 of Vol. No. 404 of the Book of
Mortgages.
In Massac County Illinois:
Parcel THREE
A parcel of ground out of the Southeast Quarter (SE 1/4) of the
Northwest Quarter (NW 1/4) of Section 2, Township 16 South, Range 4
East of the 3rd Principal Meridian, described as follows:
Beginning at a point in the West line of Wilson Stove Plant
Public Road where the Southerly line of the private road conveyed by
Mattie Miller to S.H. Long by deed dated June 19, 1920 [said point
being approximately thirty (30) feet south of the north line of said
Southeast Quarter (SE 1/4) of the Northwest Quarter (NW 1/4)] and from
said point of beginning run Westerly along the Southerly side line of
said private road a distance of one hundred (100) feet; thence run
Southerly fifty (50) feet; thence run Easterly on a line parallel with
the Southerly line of said private road one hundred (100) feet to the
west side of Wilson Stove Plant public road; thence run Northerly
-19-
<PAGE> 154
along the west line of said public road to the point of
beginning, being in the Northwest corner of the land conveyed by the
Heirs of Mattie Miller to Arthur H. Miller.
SUBJECT, HOWEVER, to the lien of that certain Indenture of Mortgage and
Deed of Trust, dated May 15, 1962, from V.M. Pipeline Company (subsequently
merged into the Company) to Continental Illinois National Bank and Trust
Company of Chicago, as Trustee, recorded on June 13, 1962, in the office of the
Recorder of Deeds of Massac County, Illinois, as Document No. 1290-62, on Page
503 of Vol. No. 58 of Mortgages.
STATE OF SOUTH CAROLINA
In Cherokee County, South Carolina:
Parcel FOUR
All that certain piece, parcel or lot of land lying and being
situate in Cherokee County, South Carolina and described as follows:
Beginning at the intersection of Thirteenth Street and State Highway
No. 41, and running with said highway S. 69 1/2 E. 1.50 chains to a
point under the bridge of Peoples Creek; thence down and with the said
Peoples Creek N. 74 1/2 E. 5.50 chains to the mouth of a small branch;
thence up and with the said branch as it meanders to a point in the
center of Thirteenth Street; thence along and with Thirteenth Street to
the beginning corner, and containing eight-tenths (8/10) of an acre,
more or less, and being Lot No. Thirteen (13) as shown on plat made by
John M. Jenkins, Surveyor, dated June 15, 1927 and recorded in the
office of the Clerk of Court for Cherokee County, South Carolina in
Vol. "2-F," page 222.
PART II -- Gas Pipelines and Related Equipment
Those following described natural gas transmission pipelines of the
Company, together with all rights of way and easements for the construction,
maintenance and operation of the same, including all pipes, compressors, pumps,
boilers, engines, buildings, structures, conduits, meters, gauges, valves,
machinery, equipment, tools, appliances and other property used or for use in
connection therewith.
STATE OF ILLINOIS
In Saline County, Illinois:
Pipeline ONE
The natural gas transmission pipeline of the Company lying wholly
within the County of Saline, State of Illinois, consisting of two connected but
separate sections, described as follows:
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<PAGE> 155
Section 1 -- consisting of approximately 6.68 miles of 4 1/2
inch O.D. to 3 1/2 inch O.D. steel pipe, commencing at the Texas
Eastern Transmission Corporation Measuring Station E-39 located
approximately 0.7 miles Northwest of the intersection of Illinois State
Highway 34 and Illinois State Aid Route 10 near Raleigh, Illinois,
running from that point in a Southeasterly direction along the north
and east side of State Highway 34 to the point of connection with the
below described Section 2 of said pipeline, being a point at the
northeast corner of the above-described intersection of Highway 34 and
Route 10; then continuing in a Southerly direction to the Harrisburg
Town Border Station of the Company at the intersection of the dead end
head of Dorris Heights Road and Highway 34; then continuing from said
Border Station in a Southerly direction and connecting with the
distribution system of the Company in the City of Harrisburg;
Section 2--consisting of approximately 4.57 miles of 4-1/2 inch
O.D. steel pipe commencing at the point of connection with the above
described Section 1 at the northeast corner of the intersection of
Illinois Highway 34 and Illinois State Aid Route 10 near Raleigh,
Illinois, and running from that point in an Easterly direction and
terminating at the Eldorado Town Border Station of the Company at the
northwest corner of the intersection of Illinois State Aid Route 10 and
Wolf Creek Road;
SUBJECT, HOWEVER, to the lien of that certain Indenture of Mortgage and
Deed of Trust, dated September 1, 1958, from B. V. Pipeline Company
(subsequently merged into the Company) to City National Bank and Trust Company
of Chicago, as Trustee, (subsequently merged with Continental Illinois National
Bank and Trust Company of Chicago, which thereupon became Trustee) recorded on
December 16, 1958, in the office of the Recorder of Deeds of Saline County,
Illinois, as Document No. 4745, on Page 17 of Vol. No. 404 of the Book of
Mortgages.
In Fayette County, Illinois:
Pipeline TWO
The natural gas transmission pipeline of the Company consisting of
approximately 15.64 miles of 4 1/2 inch O.D. steel pipe, commencing at the
Vandalia Meter of Natural Gas Pipeline Company of America located approximately
2 miles Northeast of St. Elmo, Illinois, and running from that point in a
Southwesterly direction and terminating at the Vandalia Town Border Station of
the Company in Vandalia, Illinois located approximately 150 feet east of Second
Street and 83 feet north of Fillmore Street extended.
SUBJECT, HOWEVER, to the lien of that certain Indenture of Mortgage and
Deed of Trust, dated May 15, 1962, from V-M Pipeline Company (subsequently
merged into the Company) to Continental Illinois National Bank and Trust
Company of Chicago, as Trustee, recorded on June 13, 1962, in the office of the
Recorder of Deeds of Fayette County, Illinois, as Document No. 72067, on Page
417 of Mortgage Book no. 482.
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<PAGE> 156
In Massac County, Illinois:
Pipeline THREE
The natural gas transmission line of the Company consisting of
approximately 8.89 miles of 4 1/2 inch O.D. steel pipe, commencing at the
metering station of Trunkline Gas Company located approximately 1.5 miles
Northwest of Joppa, Illinois, and running from that point in a Southeasterly
direction and terminating at the Metropolis Town Border Station of the Company,
located on the real estate described as Parcel THREE of PART I of this SCHEDULE
A;
SUBJECT, HOWEVER, to the lien of that certain Indenture of Mortgage and
Deed of Trust, dated May 15, 1962, from V-M Pipeline Company (subsequently
merged into the Company) to Continental Illinois National Bank and Trust
Company of Chicago, as Trustee, recorded on June 13, 1962, in the office of the
Recorder of Deeds of Massac County, Illinois, as Document No. 1290-62, on Page
503 of Vol. No. 58 of Mortgages.
STATE OF SOUTH CAROLINA
In Cherokee County, South Carolina:
Pipeline FOUR
The natural gas transmission pipeline of the Company consisting of
approximately 1.33 miles of 4 1/2 inch O.D. steel pipe, commencing at a point
of connection with the Transcontinental Gas Pipe Line Corporation transmission
line which point of connection is located Southeast of the City of Gaffney,
Cherokee County, South Carolina, at the point of crossing of State Highway 41
and said Transcontinental Gas Pipe Line Corporation transmission line, and
running from that point in a Northwesterly direction and terminating at the
Gaffney Town Border Station of the Company, which is located at the junction of
State Highway 41 and Thirteenth Street in the said City of Gaffney on the real
estate described as Parcel FOUR of PART I of this SCHEDULE A.
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<PAGE> 157
RECORDING DATA
The foregoing Fifth Supplemental Indenture was filed for record and
recorded as a real estate mortgage in each of the states and counties
hereinbelow set forth, and was indexed or cross-indexed as a chattel mortgage
in the States of North Carolina, South Carolina and Georgia in each of the
counties hereinbelow set forth. In addition thereto, a financing statement in
respect of the Indenture of Mortgage of United Cities Gas Company dated as of
July 15, 1959, as supplemented, was filed in the Office of the Secretary of
State of Tennessee and in the Office of the Register of Deeds in each of the
counties in the State of Tennessee hereinbelow set forth:
ILLINOIS
<TABLE>
<S> <C> <C> <C> <C> <C>
County Date Filed Book-Real Mortgages Page File No. of
Financing Statements
Fayette . . . . . . . . . . . 12/7/64 499 705
Saline . . . . . . . . . . . 12/7/64 451 568
Massac . . . . . . . . . . . 12/8/64 Indentures 1 14
TENNESSEE
Secretary of State . . . . . 12/9/64 12758
Obion . . . . . . . . . . . . 12/9/64 Misc. Book 33A 168 1218
Weakley . . . . . . . . . . . 12/9/64 194 520 995
Maury . . . . . . . . . . . . 12/14/64 564 229 2078
Bedford . . . . . . . . . . . 12/8/64 Trust Deed 144 507 1170
Moore . . . . . . . . . . . . 12/9/64 Trust Book 25 409 208
Rutherford . . . . . . . . . 12/9/64 A147 600 2818
Blount . . . . . . . . . . . 12/10/64 Trust Book 216 55 1486
Hamblen . . . . . . . . . . . 12/10/64 Trust Book 155 526 1382
NORTH CAROLINA
Henderson . . . . . . . . . . 12/4/64 236 463
SOUTH CAROLINA
Cherokee . . . . . . . . . . 12/5/64 Real Estate Mortgages 163 511
GEORGIA
Hall . . . . . . . . . . . . 12/7/64 295 502
Jackson . . . . . . . . . . . 12/7/64 4T 125
Barrow . . . . . . . . . . . 12/7/64 RR 456
Oconee . . . . . . . . . . . 12/7/64 NN 470
</TABLE>
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<PAGE> 158
CONFORMED COPY
================================================================================
SIXTH SUPPLEMENTAL INDENTURE
Dated as of March 15, 1968
---------------
UNITED CITIES GAS COMPANY
to
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
and
RAY F. MYERS
TRUSTEES
---------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959 and
Creating First Mortgage Bonds, Series D,
7-1/8% Due March 15, 1993
================================================================================
<PAGE> 159
THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of March 15, 1968, made by
and between UNITED CITIES GAS COMPANY, a corporation organized under the laws
of the State of Illinois and the Commonwealth of Virginia (hereinafter called
the "Company"), party of the first part, and CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, a national banking association having its office
in the City of Chicago, State of Illinois (hereinafter called the "Trustee"),
and RAY F. MYERS, residing in the Village of Flossmoor, Illinois (the Trustee
and Ray F. Myers being hereinafter collectively referred to as the "Trustees"),
parties of the second part.
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes
referred to as the "Original Indenture"), providing for the issuance thereunder
from time to time of First Mortgage Bonds of the Company, issuable in one or
more series, and wherein and whereby the Company did grant, convey, mortgage
and warrant to the said Trustees, and each of them, and their respective
successors and assigns, certain property of the Company in said Indenture of
Mortgage more particularly described for the security of all First Mortgage
Bonds issued and to be issued thereunder; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company
of Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became corporate trustee under the
Indenture as provided therein; and
WHEREAS, on October 15, 1966, Ray F. Myers became individual trustee
under the Indenture as successor to R. Emmett Hanley, resigned; and
WHEREAS, the Company has heretofore executed and delivered its First,
Second, Third, Fourth and Fifth Supplemental Indentures respectively dated as
of November 1, 1960, June 1, 1962, February 1, 1963, June 15, 1963 and November
15, 1964, for the purpose of subjecting to the lien of the Indenture certain
additional property acquired by the Company and complying with its covenant of
further assurances, and, with respect to the said Fourth and Fifth Supplemental
Indentures, for the further purposes of creating additional First Mortgage
Bonds (said Indenture of Mortgage and all Supplemental Indentures thereto being
herein collectively referred to as the "Indenture" or "indenture" in the form
of Series D bonds); and
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, Due July
15, 1984, $2,660,000 aggregate principal amount of which remain outstanding;
$1,000,000 aggregate principal amount of First Mortgage Bonds, Series B, 4.95%,
Due June 15, 1988, $900,000 aggregate principal amount of which remain
outstanding; and $1,000,000 aggregate principal amount
<PAGE> 160
of First Mortgage Bonds, Series C, 4-7/8%, Due November 15, 1989, $925,000
aggregate principal amount of which remain outstanding; and
WHEREAS, the Company desires to create a new series of bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, Series D, 7-1/8%, Due March 15, 1993" (herein called "Series D
bonds"), to be limited to $2,000,000 in aggregate principal amount; and
WHEREAS, the Company also desires to subject to the lien of the
Indenture certain properties acquired or constructed by the Company since the
date of execution and delivery of the Fifth Supplemental Indenture and which is
not excluded or reserved from the lien of the Original Indenture; and
WHEREAS, all things necessary to make the Series D bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Sixth Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed have been done and performed; and the issue of Series D bonds,
as herein provided, has been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal
of and interest (and premium, if any) on all of the bonds of the Company at any
time outstanding under the Indenture according to their tenor and effect and
the performance of and compliance with the covenants and conditions in the
Indenture contained, has granted, conveyed, mortgaged and warranted, and by
these presents does hereby grant, convey, mortgage and warrant to the Trustees
and each of them, and to their successors in said trust forever, all property
and rights acquired and constructed by the Company since the date of execution
and delivery of the Fifth Supplemental Indenture, except property of the
character specifically reserved and excepted from the lien of the Original
Indenture and property heretofore released from the lien thereof, and the
following described additional property:
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<PAGE> 161
I.
The real estate specifically described in Schedule A, Part I, hereof;
II.
Those distribution systems specifically described in Schedule A, Part
II, hereof;
III.
The gas supply contracts specifically described in Schedule A, Part
III, hereof;
IV.
The franchises of the Company specifically described in Schedule A,
Part IV, hereof, and all renewals, extensions or substitutions thereof or
thereafter.
TOGETHER WITH all rights belonging or in any wise appertaining to any
and all the aforesaid property or any part thereof with the reversion and,
subject to the provisions of Section 7.01 of the Original Indenture, all income
and earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture and in Schedule A hereof.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture.
ARTICLE 2
SERIES D BONDS
Section 2.01. There is hereby created for issuance under the
Indenture, a series of bonds, limited to the aggregate principal amount of
$2,000,000, to be designated as "First Mortgage Bonds, Series D, 7-1/8%, Due
March 15, 1993." The Series D bonds shall, subject to the provisions of
Section 1.13 of the Original Indenture, be dated as of, and shall bear interest
from, March 15, 1968; shall mature March 15, 1993, and shall bear interest at
the rate of 7-1/8% payable semiannually on March 15 and September 15 in each
year until the principal thereof shall have become due and payable and
thereafter, if default be made in
-3-
<PAGE> 162
the payment of such principal, at the rate of 7-3/4% per annum until the
principal thereof shall be paid.
Section 2.02. The Series D bonds initially to be issued shall be
fully registered bonds without coupons, in denominations of $500 and multiples
thereof, substantially in the form set forth in Section 2.03 hereof, with
appropriate insertions, omissions and changes, approved by the President of the
Company and the Trustee, as may be appropriate for different denominations
and/or in order to conform to usage or law. Upon receipt of a written request
from a holder or holders of not less than 25% in aggregate principal amount of
the Series D bonds at the time outstanding, stating its or their intention to
exchange all or a substantial part of their bonds for Series D bonds in coupon
form, the Company will promptly cause to be prepared Series D bonds in
customary coupon form in the denomination of $500 and/or $1,000, as requested,
registrable as to principal only, and substantially in the form of the fully
registered Series D bond set forth in Section 2.03 hereof, with appropriate
insertions, omissions, and changes approved by counsel satisfactory to the
Trustee in an opinion filed with the Trustee, and by the Trustee. Thereafter
fully registered bonds and coupon bonds of Series D shall be interchangeable,
subject to the provisions of Section 1.11 of the Original Indenture.
Section 2.03. The registered Series D bonds without coupons shall
be in substantially the following form:
FORM OF FULLY REGISTERED SERIES D BOND WITHOUT COUPONS
AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RD $
FIRST MORTGAGE BOND, SERIES D, 7-1/8%, DUE MARCH 15, 1993
For value received, UNITED CITIES GAS COMPANY, as corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to __________________________ or registered assigns, on March 15, 1993, or
earlier as hereinafter referred to, the sum of _______________________ Dollars
($_______________), at the principal office in Chicago, Illinois, of
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO (hereinafter,
with its successors in the trusts under the indenture mentioned below,
generally called the "Trustee"), or at the principal office of its successor in
said trusts, and to pay to said payee, or registered assigns, interest thereon,
from the date hereof, at the rate of seven and one-eighth percent (7-1/8%) per
annum, at said office, semiannually on March 15 and September 15 in each year
until the principal sum hereof shall have become due and payable and
thereafter, if default be made in the payment of such principal, at the rate of
seven and three quarters percent (7-3/4%) per annum until the principal hereof
shall be paid.
-4-
<PAGE> 163
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series D, 7-1/8%, Due
March 15, 1993, all such bonds of this series and all other series being issued
or to be issued under and subject to the provisions of a certain Indenture of
Mortgage, dated as of July 15, 1959 (hereinafter with all indentures
supplemental thereto generally called the "indenture"), by and between the
Company and City National Bank and Trust Company of Chicago (which has been
succeeded by Continental Illinois National Bank and Trust Company of Chicago as
Corporate Trustee) and R. Emmett Hanley (who has been succeeded by Ray F.
Myers), as Trustees, to which indenture, an executed counterpart of which is on
file with the Trustee, reference is hereby made for a description of the
property mortgaged, a statement of the nature and extent of the security
thereby afforded, the terms and conditions upon which release of property
covered by the indenture may be made, the terms and conditions upon which bonds
of all series are or are to be issued and secured, the rights and remedies
under the indenture of the holders of said bonds, the terms and conditions upon
which the indenture may be modified or amended, and the rights and obligations
under the indenture of the Company and of said Trustees; but neither the
foregoing reference to the indenture, nor any provision of this bond or of the
indenture, shall affect or permit the impairment of the absolute, unconditional
and unalterable obligation of the Company to pay, at the maturity date herein
provided, the principal of and interest on this bond as herein provided.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, or,
if the principal amount of this bond is a multiple of five hundred dollars
($500), any part of the principal amount hereof constituting said sum or any
multiple thereof, may be called for redemption and payment at any time prior to
maturity, on notice given or waived as provided in the indenture, at the
applicable redemption price specified in the indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond and registered bonds of this series and
coupon bonds of this series are interchangeable, all in the manner and upon the
conditions prescribed in the indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the
-5-
<PAGE> 164
Company for the collection of any indebtedness evidenced by this bond, or for
the enforcement of any right or claim under or in connection with this bond or
the indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the indenture, until the
certificate hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated _______________.
UNITED CITIES GAS COMPANY
By ______________________________
President
ATTEST:
_____________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, referred
to in the within-mentioned indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By ______________________________
Authorized Officer
Section 2.04. All or any part of the Series D bonds outstanding at
any time, or any part of the principal amount of any fully registered Series D
bond constituting $500 or any multiple thereof, may be redeemed at any time
prior to maturity (subject to the further provisions hereof), whether or not
such time be an interest payment date, at the principal office of the Trustee,
upon not less than thirty (30) days' prior notice given or waived as
hereinafter or in the Indenture provided, at the following redemption prices,
in each case together with the accrued and unpaid interest on the principal
amount of bonds called to the date fixed for redemption:
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<PAGE> 165
(a) if redeemed through operation of the sinking fund or
if redeemed through application of the proceeds of the sale or
transfer of all or part of the property of the Company to a
municipality or other public body or authority pursuant to
condemnation proceedings or an agreement in lieu of condemnation, at
their principal amount, and
(b) in all other cases at a redemption price equal to
100% of the principal amount of the Series D bonds to be redeemed,
plus, in the event of redemption on or before March 15, 1992, a
premium equal to 7.125% of the principal amount of Series D bonds so
to be redeemed, such premium to be reduced by .300 of 1% for each full
year expired after March 15, 1969; provided, however, that the Series
D bonds shall not be redeemable at the option of the Company prior to
March 15, 1973, by the application, directly or indirectly, of funds
received from the proceeds of the sale of securities, or from the
creation of any other indebtedness or borrowings, in each case having
an interest rate or cost to the Company (computed in accordance with
accepted financial practice) of less than 7-1/8% per annum; and
provided further, that if during the period from March 16, 1973, to
and including March 15, 1978, the Series D bonds are redeemed by the
application, directly or indirectly, of funds received from the
proceeds of the sale of securities or from the creation of any other
indebtedness or borrowings, in each case having an interest rate or
cost to the Company (computed in accordance with accepted financial
practice) of less than 7-1/8% per annum, then the redemption price of
the Series D bonds so to be redeemed shall be the then applicable
redemption price set forth above in this subsection (b), plus an
additional premium equal to 6% of the principal amount of the Series D
bonds so to be redeemed.
Series D bonds shall be redeemed upon the notice, in the manner and
with the effect provided in Article 4 of the Original Indenture and the
provisions of Article 4 of the Original Indenture, except Section 4.01 thereof,
shall be applicable to the Series D bonds.
Section 2.05. So long as any Series D bonds shall remain
outstanding, the Company shall pay to the Trustee as and for a sinking fund for
the retirement of Series D bonds on March 15, 1969, and on each March 15
thereafter to and including March 15, 1992, cash in the amount of $50,000.
In the event the Company shall redeem Series D bonds from the proceeds
of the sale of any of its property to a municipality or other public body or
agency, the amount of each such sinking fund deposit thereafter shall be
reduced by an amount equal to 2.5% of the amount of Series D bonds so redeemed.
On or before the thirtieth day prior to each sinking fund payment
date, the Trustee shall proceed to select for redemption in the manner provided
in Article 4 of the Original Indenture, Series D bonds in the aggregate
principal amount which are redeemable with the cash required to be paid on the
next following sinking fund payment date and in the name of the Company shall
give notice as may be required by said Article 4 of the redemption for the
sinking fund on such sinking fund payment date of the Series D bonds so
selected.
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<PAGE> 166
All cash received by the Trustee pursuant to this Section 2.05 shall
be held by the Trustee as part of the mortgaged property, and shall be applied
by the Trustee to the redemption of outstanding Series D bonds, without
premium, in the manner and with the effect specified in the preceding paragraph
hereof; and the Company shall, in each case prior to the date fixed for
redemption thereof, pay to the Trustee in cash all unpaid interest accrued on
the bonds to be redeemed through the operation of said sinking fund to the date
fixed for redemption.
So long as all outstanding Series D bonds remain registered in the
names of the initial holders in whose names bonds of such series were first
registered, the sinking fund payment shall be made entirely in cash. If none
or less than all of the outstanding bonds of Series D are registered in the
names of the initial holders in whose names bonds of such series were first
registered, the following provisions shall be applicable:
(i) If none of the then outstanding bonds of Series D are
registered in the names of the initial holders in whose names bonds of
such series were first registered, the Company may, in lieu of
depositing cash as hereinabove provided, surrender bonds of such
series acquired by the Company and receive credit against the cash
sinking fund payment to the extent of the principal amount of bonds
surrendered; and
(ii) If one or more but less than all of the then
outstanding bonds of Series D are registered in the name of any of the
initial holders in whose names bonds of such series were first
registered, the aggregate principal amount of the bonds of such series
to be redeemed shall be apportioned in the manner provided in clause
(ii) of Section 4.02 of the Original Indenture and redemption shall be
made in accordance with the provisions of said clause (ii) except that
the Company may, in lieu of depositing cash for the redemption of
bonds not held by any such initial holder, surrender bonds of Series D
acquired by the Company and receive credit against the sinking fund
payment to the extent of the principal amount of bonds surrendered,
not exceeding, however, the amount of cash which would otherwise be
applied to the redemption of bonds of Series D not registered in the
name of any initial holder of bonds of said series, and the amount
which would otherwise be applied to the redemption of such bonds not
held by any initial holder of bonds shall be reduced to the extent of
the amount of such credit.
If the Company elects to surrender bonds as a credit against the
sinking fund payment pursuant to the foregoing provisions it shall deposit such
bonds, with all unmatured interest coupons pertaining thereto in the case of
coupon bonds, with the Trustee at least 35 days and not more than 45 days prior
to the date on which the next sinking fund payment becomes due.
All Series D bonds redeemed or delivered to the Trustee for
cancellation pursuant to this Section 2.05 (except fully registered Series D
bonds redeemed in part and upon which notations of partial payment are made as
provided in Article 4 of the Original Indenture) together with any and all
appertaining interest coupons shall forthwith be cancelled by the
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<PAGE> 167
Trustee and shall be delivered to or upon the written order of the Company and
shall not be made the basis for issuance of any additional bonds hereunder.
Section 2.06. Upon the execution and delivery of this Sixth
Supplemental Indenture and upon compliance with the provisions of the Original
Indenture the Company may execute and deliver to the Trustee, and the Trustee
shall certify and deliver to or upon the written order of the President or
Treasurer of the Company, Series D bonds in an aggregate principal amount not
exceeding $2,000,000.
ARTICLE 3
ADDITIONAL COVENANTS AND MISCELLANEOUS
Section 3.01. So long as any Series D bonds remain outstanding, the
provisions of Section 1.15 of the Original Indenture which are expressed to be
applicable to bonds of Series A shall also be applicable to the Series D bonds
and the holders thereof.
Section 3.02. So long as any Series D bonds shall remain
outstanding, no new series of bonds shall be authorized having a maturity date
earlier than March 15, 1993 and no provision shall be made for the retirement
of any new series of bonds prior to March 15, 1993 through a sinking fund or
other retirement fund in an amount in any year greater than 3% of the aggregate
principal amount of such bonds theretofore issued.
Section 3.03. So long as any Series D bonds remain outstanding, the
Company will not declare or pay any dividends on shares of its Common Stock
(except dividends payable in shares of Common Stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares of Common Stock (except out of
the proceeds derived from the issuance of other shares of Common Stock), or
make any other distribution on shares of Common Stock (such non-excepted
declarations, payments, purchases, redemptions or other acquisitions and
distributions being hereinafter called "Restricted Payments"), unless after
giving effect thereto the aggregate of all such Restricted Payments made during
the period from December 31, 1966 to and including the date of the making of
the Restricted Payment in question does not exceed the sum of $500,000 plus (or
minus in case of a deficit) the amount of Consolidated Net Income Available for
Common Stock Dividends for such period (computed on a cumulative basis for said
entire period).
As used in this Section 3.03 the term "Consolidated Net Income
Available for Common Stock Dividends" shall mean the net income of the Company
and its subsidiaries for the applicable period available for dividends on stock
after deducting therefrom dividends paid and accrued on preferred stock,
determined on a consolidated basis in accordance with generally accepted
principles of accounting; provided, however, that no effect shall be given to
any gains or losses or other additions or deductions arising by reason of the
issue, purchase, sale, conversion or retirement by the Company or any
subsidiary of any of its or their securities, or arising by reason of any
purchases, sales, write-ups, write-downs, increase or decrease in book value,
or other transactions or changes in respect of capital assets, tangible or
intangible and the deduction for income taxes shall be adjusted by
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<PAGE> 168
giving effect to any change in the amount thereof resulting from the
elimination of any of the capital transactions or changes referred to above.
Section 3.04. This Sixth Supplemental Indenture shall be construed
in connection with and as a part of the Original Indenture and all terms,
conditions and covenants contained in the Original Indenture, except as
restricted in the Original Indenture to bonds of another series, shall apply to
and be deemed to be for the equal benefit, security and protection of the
Series D bonds and the holders thereof. All terms used in this Sixth
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 3.05. Whenever in this Sixth Supplemental Indenture either
of the parties hereto is named or referred to, this shall be deemed to include
the successors or assigns of such party, and all the covenants and agreements
in this Sixth Supplemental Indenture contained shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so
expressed or not.
Section 3.06. This Sixth Supplemental Indenture may be
simultaneously executed in any number of counterparts and all said counterparts
executed and delivered, each as an original, shall constitute but one and the
same instrument.
IN WITNESS WHEREOF said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
hereto affixed and attested by an Assistant Secretary, and said Ray F. Myers,
to evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
[CORPORATE SEAL]
UNITED CITIES GAS COMPANY
By /s/ John H. Maxheim
------------------------
Executive Vice President
ATTEST:
/s/ Clyde A. Johnson
- --------------------
Secretary
Witnesses as to United Cities Gas
Company:
/s/ L. E. Jirikovec
- --------------------
/s/ Fred C. Holbrook
- --------------------
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<PAGE> 169
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
As Trustee
[CORPORATE SEAL]
By /s/ Donald H. Remmers
---------------------
Vice President
ATTEST:
/s/ J. W. Hermann
- -------------------
Assistant Secretary
Witnesses as to Continental Illinois
National Bank and Trust Company
of Chicago and Ray F. Myers:
/s/ D. R. Hart
- -------------------
/s/ M. A. Clark
- -------------------
/s/ RAY F. MYERS (SEAL)
---------------------
Ray F. Myers
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<PAGE> 170
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
I, Marian C. Richardson, a Notary Public in and for the County and
State aforesaid, do hereby certify that on this 18th day of March, 1968,
personally appeared before me John H. Maxheim and Clyde A. Johnson, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who, being by me duly sworn, did
say that they are a Vice President and Secretary, respectively, of United
Cities Gas Company, a corporation organized under the laws of the State of
Illinois and the Commonwealth of Virginia, that the seal affixed to the above
and foregoing instrument is the corporate seal of said corporation and that
said instrument was signed by them and sealed and delivered in behalf of said
corporation by authority of its Board of Directors duly given, and the said
John H. Maxheim and Clyde A. Johnson acknowledged said instrument to be their
free and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
18th day of March, 1968.
[NOTARIAL SEAL]
/s/ MARIAN C. RICHARDSON
----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 29, 1969.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, R. Slater, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 19th day of March, 1968, personally
appeared before me Donald H. Remmers and J. W. Hermann, to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who being by me duly sworn, did say that they are
Vice President and Assistant Secretary, respectively, of Continental Illinois
National Bank and Trust Company of Chicago, a national banking association
organized and existing under the national banking laws of the United States of
America, that the seal affixed to the above and foregoing instrument is the
corporate seal of said association and that said instrument was signed by them
and sealed and delivered in behalf of said association by authority of its
Board of Directors duly given, and the said Donald H. Remmers and J. W.
Hermann acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said association for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
19th day of March, 1968.
[NOTARIAL SEAL]
/s/ R. SLATER
----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires January 5, 1970.
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<PAGE> 171
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, R. Slater, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 19th day of March, 1968, personally
appeared before me Ray F. Myers, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument
as his free and voluntary act and deed for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
19th day of March, 1968.
[NOTARIAL SEAL]
/s/ R. SLATER
----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires January 5, 1970.
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
Personally appeared before me L. E. Jirikovec, who, being duly sworn,
says that he saw the corporate seal of UNITED CITIES GAS COMPANY affixed to the
foregoing instrument and that he also saw John H. Maxheim, a Vice President,
and Clyde A. Johnson, Secretary of said United Cities Gas Company, sign and
attest the same, and that he, with Fred C. Holbrook, witnessed the execution
and delivery thereof as the act and deed of said United Cities Gas Company.
[NOTARIAL SEAL]
/s/ L. E. JIRIKOVEC
----------------------------
Witness
Sworn to before me this 18th
day of March, 1968.
/s/ MARIAN C. RICHARDSON
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires October 29, 1969.
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<PAGE> 172
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me M. A. Clark, who, being duly sworn, says
that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he also
saw Donald H. Remmers, Vice President, and J. W. Hermann, Assistant Secretary
of said Continental Illinois National Bank and Trust Company of Chicago, sign
and attest the same, and that he, with D. R. Hart, witnessed the execution and
delivery thereof as the act and deed of the said Continental Illinois National
Bank and Trust Company of Chicago.
[NOTARIAL SEAL]
/s/ M. A. CLARK
---------------
Witness
Sworn to before me this 19th
day of March, 1968.
/s/ R. SLATER
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires January 5, 1970.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me M. A. Clark, who, being duly sworn, says
that he saw the within named RAY F. MYERS, sign, seal, and as his act and deed,
deliver the foregoing instrument and that he, with D. R. Hart, witnessed the
execution thereof.
[NOTARIAL SEAL]
/s/ M. A. CLARK
---------------
Witness
Sworn to before me this 19th
day of March, 1968.
/s/ R. SLATER
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires January 5, 1970.
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<PAGE> 173
SCHEDULE A
The properties referred to in the granting clauses of this
Supplemental Indenture include parcels of real estate and other property
hereinafter more specifically described. Such descriptions are not intended,
however, to limit or impair the scope or intent of the general descriptions
contained in the granting clauses of the Indenture.
PART I--REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
STATE OF ILLINOIS
In Saline County, Illinois
(1) A tract of land situated and lying in the Northwest Quarter of
the Southwest Quarter of Section 10, Township 9 South, Range 6 East of the
Third Principal Meridian, and more particularly described as follows:
Beginning at a point in the west line of said Section 10 that
is 50 feet north of the southwest corner of said Northwest Quarter of
the Southwest Quarter of Section 10; thence measure easterly along a
line that is parallel with and 50 feet distant measured northerly at
right angles from the south line of said Northwest Quarter of the
Southwest Quarter of Section 10 a distance of 670 feet to a point;
thence measure northerly along a line that is parallel with said west
line of Section 10 a distance of 400 feet to a point; thence measure
southwesterly a distance of 730 feet, more or less, to a point in said
west line of Section 10, said point being 108 feet north of the point
of beginning as measured along said west line of Section 10; thence
measure southerly along said west line of Section 10 a distance of 108
feet to the point of beginning; containing an area of 3.91 acres, more
or less.
Saving and Excepting from the foregoing described property that
portion thereof reserved by Chicago and Harrisburg Coal Company, an Illinois
corporation, its lessees, successors and assigns and described as follows:
All coal, oil, gas and other minerals underlying the
above-described property with the right to mine, dig, ventilate, drain
and remove said minerals, also the right to use passageways and
entries under said property for the purpose of hauling, mining and
removing other coal belonging to said Chicago and Harrisburg Coal
Company, its lessees, successors and assigns. The foregoing described
reserved property is the same property reserved by said Chicago and
Harrisburg Coal Company in a quitclaim deed to United Cities Gas
Company, dated November 23, 1966, and recorded in Deed Book 469 pages
555-556, Recorder's Office, Saline County, Illinois.
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<PAGE> 174
(2) A tract of land situated and lying in the Southwest Quarter of
the Southwest Quarter of Section 7, Township 8 South, Range 6 East of the Third
Principal Meridian, and more particularly described as follows:
Commencing at the intersection of the west line of the
Southwest Quarter of the Southwest Quarter of Section 7, and the south
right-of-way line of State Bond Issue Route 143, and running south 64
deg. - 01 min. east along said right-of-way for a distance of 22.3
feet to the point of beginning; thence continuing southeast, along said
right-of-way line for a distance of 205.9 feet; thence running
southwest with an angle of 90 deg. - 00 min. for a distance of 125
feet; thence running north 64 deg. - 01 min. west parallel to said
right-of-way line for a distance of 145 feet to a point on the
right-of-way line of the Township highway; thence running north along
the east right-of-way line of said Township highway for a distance of
139.05 feet to the point of beginning, containing 0.50 acres, more or
less.
Saving and Excepting from the foregoing described property that
portion thereof reserved by Ray Field and Zella Field, each in his and her
individual capacity and as husband and wife and described as follows:
The oil and gas and minerals under the above-described
premises. The foregoing described reserved property is the same
property reserved by Ray and Zella Field in a deed to United Cities
Gas Company, dated July 6, 1967, and recorded in Deed Book 473, Page
156, Recorder's Office, Saline County, Illinois.
STATE OF TENNESSEE
In Maury County, Tennessee
(3) The following described real estate, situated in the Ninth
Civil District of Maury County, Tennessee, described as follows:
Lying on a private road or right-of-way which is an extension
of Sunset Lane adjacent to Sunset Park Subdivision, and fronting 100
feet on the south side of said private road or right-of-way or
extension of Sunset Lane, and running back between parallel lines a
distance of 141 feet to a line, and being bounded on the east by the
100-foot lot of East Tennessee Natural Gas Company; on the south by
the lands of Patterson; on the west by the lands of Patterson; and on
the north by said private road or right-of-way or extension of Sunset
Lane.
This is the same realty conveyed to United Cities Gas Company
by Franklin Fulton, Clerk and Master of the Chancery Court for Maury
County, Tennessee, by deed dated March 29, 1967, and recorded in Deed
Book 463, Page 379, Register's Office of Maury County, Tennessee,
pursuant to a Decree of the Chancery Court for Maury County,
Tennessee, in the case of Daisy Patterson, et al., v. David Lee
Patterson, et al., entered on Minute Book 86 at Page 144 of said
Court.
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<PAGE> 175
In Bedford County, Tennessee
(4) The following described real estate, situated in the
Twenty-First Civil District of Bedford County, Tennessee, described as follows:
Beginning in the center of a rock fence, the south boundary of
lands of William S. Russell and the north boundary of lands of
Hughlett L. White, et ux., at a point 82.5 feet south 76 east from
the crossing of said boundary with the gas transmission line of East
Tennessee Gas Company, running thence north 76 west 627.25 feet to a
stake at the northwest corner of the property herein described;
thence south 14 west 400 feet to a stake; thence south 76 east
(parallel with rock fence and north boundary) and at 379.63 feet
passing a point in the line drawn between the points at which the gas
transmission line crosses the north boundary and the south boundary of
the property of Hughlett L. White, et ux., and continuing, in all,
462.13 feet to a stake; thence north 36 deg. - 24 min. east 432.62
feet to the beginning, containing 5 acres.
This is the same realty conveyed to United Cities Gas Company
by Hughlett L. White, et ux., by deed dated June 25, 1966, and
recorded in Deed Book 99, Page 421, Register's Office of Bedford
County, Tennessee; and by Deed of Correction, dated April 26, 1967,
recorded in Deed Book 102, Page 351, Register's Office of Bedford
County, Tennessee.
In Blount County, Tennessee
(5) The following described real estate, situated in District No.
19 of Blount County, Tennessee, described as follows:
Beginning at an iron pin in the east edge of Maryville
By-Pass, corner to Blount County; thence with the east edge of said
By-Pass south 19 deg. - 03 min. west 352 feet to a concrete marker;
thence continuing with said By-Pass south 19 deg. - 51 min. west 189.2
feet to an iron pin, corner to Blount County; thence with Blount
County north 64 deg. - 32 min. east 147.2 feet to an iron pin in the
west edge of a 20-foot right-of-way; thence with the west edge of
said 20-foot right-of-way, north 42 deg. - 52 min. east 245.6 feet to
an iron pin, corner to Blount County; thence with Blount County north
18 deg. - 18 min. west 175.6 feet to an iron pin, corner of Blount
County and East Tennessee Gas Company; thence continuing with Blount
County north 45 deg. - 38 min. west 133.8 feet to the point of
beginning, containing 1.51 acres, more or less, all as shown by survey
of R. J. Franklin, dated November 4, 1965.
SAVING AND EXCEPTING from the foregoing property an easement to
Tennessee Valley Authority across the north portion thereof, all as shown by
survey hereinbefore referred to.
This is the same realty conveyed to United Cities Gas Company by
Blount County Children's Home, by deed dated November 5, 1965, and recorded in
Deed Book 281, Page 526, Register's Office of Blount County, Tennessee.
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<PAGE> 176
In Sullivan County, Tennessee
(6) The following described real estate, situated in the
Seventeenth Civil District of Sullivan County, Bristol, Tennessee, described as
follows:
Beginning at an iron pipe in the south property line of Shelby
Street 326 feet east of the southeast corner of Shelby Street and
Ninth Street, thence along the south side of Shelby Street south 87
deg. - 09 min. east 112.0 feet to an iron pin, thence south 2 deg. -
51 min. west, 171.5 feet, thence south 4 deg. - 56 min. west, 207.8
feet to the north side of Broad Street, thence along the north side of
Broad Street north 89 deg. - 11 min. west, 179.5 feet to an iron pin,
thence north 31 deg. - 27 min. west, 251.8 feet to an iron pin on the
north side of Crumley Alley, thence along the north side of Crumley
Alley south 88 deg. - 17 min. east, 129.9 feet to an iron pipe, thence
north 2 deg. - 51 min. east, 69.1 feet to an iron pipe, thence south
86 deg. - 51 min. east, 87.0 feet to an iron pin, thence north 2 deg.
- 51 min. east, 106.3 feet to the point of beginning, containing
approximately 1.80 acres, subject to such rights as may be vested in
the City of Bristol, Tennessee, and the public to rights-of-way for
Paps Alley and Crumley Alley, being the same realty conveyed to
Bristol Gas Corporation by East Tennessee Light & Power Company by
deed dated June 29, 1945, and recorded in Deed Book 73, Page 571,
Register's Office of Sullivan County at Bristol, Tennessee.
SAVING AND EXCEPTING from the foregoing described property:
(a) A certain tract of land conveyed to the United States
of America by the Bristol Gas Corporation by deed dated April 23,
1947, and recorded in Deed Book 106, Page 563, Register's Office of
Sullivan County at Bristol, Tennessee, which tract is more
particularly described as follows: Beginning at a point where the
west line of the land of Bristol Gas Corporation, which is the east
line of the present Bristol, Tennessee, Shelby Street Substation Tract
(U.S.-T.V.A. Tract No. ETSS-2), intersects the north line of Crumley
Alley; thence with the line of the present substation tract north 2
deg. - 51 min. east, 69.1 feet to a point; thence south 86 deg. - 51
min. east, 81.5 feet to a point; thence leaving the line of the
present substation tract south 2 deg. - 51 min. west, 67.1 feet to a
point in the north line of Crumley Alley; thence with the north line
of the Alley, north 88 deg. - 17 min. west, 81.5 feet to the point of
beginning and containing 0.13 acres more or less;
(b) A steam pipe line easement for the benefit of the
City of Bristol, Tennessee, said pipe line running over and across the
land hereinabove described, which easement is more particularly
described in said deed dated June 29, 1945, and recorded in Deed Book
73, Page 571; and
(c) A right-of-way easement for the benefit of the
Bristol Tennessee Electric System, consisting of the right to install,
operate and maintain its lines for the transmission of electric energy
and the right of ingress and egress to said lines for servicing, all
as set out in a Right-Of-Way Easement, dated April 5, 1957, from
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<PAGE> 177
Bristol Gas Corporation to Bristol Tennessee Electric System and
recorded in Deed Book 106, Page 478, Register's Office of Sullivan
County at Bristol, Tennessee.
(7) The following described real estate, situated in the
Seventeenth Civil District of Sullivan County, Bristol, Tennessee, described as
follows:
Beginning at a 2-inch pipe in the south line of Shelby Street
at the northeast corner of the present Bristol, Tennessee, Shelby
Street Substation tract; thence with the line of the substation tract
south 2 deg. - 51 min. west, 106.3 feet to a 3/4-inch pin; thence
north 86 deg. - 51 min. west, 5.5 feet to a 1-1/2-inch pin; thence
leaving the line of the substation tract, north 2 deg. - 51 min. east,
96.3 feet to a 1-1/2-inch pipe; thence north 19 deg. - 01 min. west,
10.8 feet to a cross mark cut in a concrete drive, in the north line
of the substation tract, and in the south line of Shelby Street;
thence with the line of the substation tract and the south line of
Shelby Street south 87 deg. - 09 min. east, 9.5 feet to the point of
beginning, and containing 0.01 acre, more or less, being the same
realty conveyed to Bristol Gas Corporation by the United States of
America by deed dated April 3, 1957, and recorded in Deed Book 107,
Page 128, Register's Office of Sullivan County, at Bristol, Tennessee.
SAVING AND EXCEPTING from the foregoing described property the right
of the United States of America, its agents, successors, and assigns, to
disperse, spread, or deposit above or upon the land hereinabove described,
without liability for any damage to persons or property which may result
therefrom, such matter of any type or description as may be issued, emitted or
released into the atmosphere as a direct or indirect result of the
construction, operation, or maintenance of any of the United States of
America's existing plants for the generation of power, any expansions thereof
or additions thereto, or of any plants of any type which may be constructed,
operated, or maintained in the future for the generation of power by the United
States of America, its agents, successors and assigns, including expansions
thereof or additions thereto, or of any incidental features, equipment or
devices connected with such present or future plants. The foregoing right is
the same right reserved by the United States of America in deed to Bristol Gas
Corporation, dated April 3, 1957, and recorded in Deed Book 107, Page 128,
Register's Office of Sullivan County, at Bristol, Tennessee.
STATE OF SOUTH CAROLINA
In Cherokee County, South Carolina
(8) All that certain piece, parcel or lot of land lying and being
situate in Cherokee County, State of South Carolina and having the following
courses and distances:
Beginning at a stake on South Carolina Highway S-11-111 and
running south 65 deg. - 45 min. west 300 feet to stake; thence north
24 deg. - 15 min. west 290.4 feet to stake; thence north 65 deg. - 45
min. east 300 feet to stake; thence south 24 deg. - 15 min. east 290.4
feet to stake, the beginning corner, and containing Two (2) Acres,
more or less, as shown on plat made by L. Marion Wood, Registered Land
Surveyor, dated August 12, 1966, said plat
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<PAGE> 178
recorded in the office of the Clerk of Court for Cherokee County,
South Carolina in Volume 6-K, page 352; being property conveyed by
deed of Joseph W. McCluney to United Cities Gas Company by deed dated
August 26, 1966, and recorded in said Clerk's office for Cherokee
County, South Carolina, in Volume 6-K, page 353.
(9) All that certain parcel or lot of land lying and being situate
about two miles east of the City of Gaffney, Cherokee County, State of South
Carolina, adjoining the Gaffney Meter Station of the Trans-Continental Gas Pipe
Line Co. and described according to a drawing recorded in Deed Book 6-C, at
page 180, Clerk of Court's Office for Cherokee County, South Carolina, and
having the following courses and distances:
Beginning at edge of lot conveyed to Trans-Continental Gas
Pipe Line Co. by H. C. Moore by deed recorded in Deed Book 3-V, at
page 550, and shown on plat recorded in Deed Book 3-W, at page 254,
Clerk of Court's Office for Cherokee County, S. C. six (6) feet west
of center of Gaffney Pipe Line and running thence in a northerly
direction parallel with Gaffney Pipe Line twenty-six (26) feet to
stake; thence parallel with Trans-Continental Gas Pipe Line Co. lot
and crossing Gaffney Pipe Line twelve (12) feet; thence parallel with
Gaffney Pipe Line twenty-six (26) feet to edge of Trans-Continental
Gas Pipe Line Co. lot; thence with line of Trans-Continental Gas Pipe
Line Co. lot twelve (12) feet to the beginning corner; and being a
rectangular lot 12 x 26 feet and containing 312 square feet, more or
less.
Also: A right-of-way or easement for the purposes of ingress,
egress and regress into the above described lot from the Draytonville
Highway (S. C. Highway S-11-41) over and across the parcel or strip of
land shown on said drawing and being a strip of land having a uniform
width of three (3) feet and extending from the center of the said
Draytonville Highway along and contiguous with the line of the
Trans-Continental Gas Pipe Line Co. lot to the above described lot a
distance of approximately one hundred seventeen (117) feet.
This is the same property conveyed by deed of Margaret Russell Moore
to United Cities Gas Company by deed dated April 14, 1966, and recorded in the
Office of the Clerk of Court for Cherokee County, South Carolina, in Volume
6-I, page 625.
PART II--DISTRIBUTION SYSTEMS AND
PIPELINES DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connections, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances, apparatus,
facilities, machinery and other property used or provided for use in the
construction, maintenance, repair or operation thereof and together also with
all of the rights, privileges, right-of-way, franchises, licenses, easements,
grants and permits with respect to the construction, maintenance, repair and
operation of such gas distribution systems, including, but not limited to, the
plants and systems owned and operated by the Company for the distribution and
sale of gas located in the following named
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<PAGE> 179
cities, towns, or villages and environs thereof in the States of Illinois,
Georgia, Tennessee and Virginia:
IN THE STATE OF ILLINOIS
City County
- ---- ------
Galatia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Saline
IN THE STATE OF GEORGIA
City County
- ---- ------
Oakwood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Hall
IN THE STATE OF TENNESSEE
City County
- ---- ------
Bristol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sullivan
IN THE STATE OF VIRGINIA
City County
- ---- ------
Bristol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Washington
PART III--GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions,
supplements or amendments thereof, between the Company (or a predecessor
corporation) and the respective suppliers named below providing for the supply
of natural gas to the Company for distribution and resale in the respective
cities and towns and areas adjacent thereto set forth under the caption
"Service Area."
<TABLE>
<CAPTION>
TERM OR
SERVICE AREA SUPPLIER CONTRACT DATE EXPIRATION
DATE
<S> <C> <C> <C>
Galatia, Illinois Texas Eastern Transmission Corporation July 26, 1967 11-1-87
(effective Nov. 1, 1967)
Bristol, East Tennessee Natural Gas Company January 1, 1953 15 years
Tennessee-Virginia
</TABLE>
PART IV--FRANCHISES
The following franchises granted to the Company, or to its
predecessors and assigned to the Company, or acquired by the Company by merger
of predecessors into the Company, authorizing the construction, operation and
maintenance of gas distribution systems in the
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<PAGE> 180
following cities or municipalities and all renewals, extensions or
substitutions thereof or therefor:
CITY AND STATE EXPIRATION DATE
-------------- ---------------
STATE OF ILLINOIS
Raleigh . . . . . . . . . . . . . . . . . . . . . February 9, 1989
Joppa . . . . . . . . . . . . . . . . . . . . . . September 20, 1993
Carrier Mills . . . . . . . . . . . . . . . . . . October 11, 1997
Brookport . . . . . . . . . . . . . . . . . . . . March 13, 1997
STATE OF TENNESSEE
Bluff City . . . . . . . . . . . . . . . . . . . . September 21, 1997
Bell Buckle . . . . . . . . . . . . . . . . . . . August 25, 1997
Wartrace . . . . . . . . . . . . . . . . . . . . . October 12, 1997
Bristol . . . . . . . . . . . . . . . . . . . . . May 4, 1983
STATE OF VIRGINIA
Bristol . . . . . . . . . . . . . . . . . . . . . October 12, 1996
-22-
<PAGE> 181
[CONFORMED COPY]
================================================================================
SEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 1, 1970
---------------
UNITED CITIES GAS COMPANY
TO
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
AND
RAY F. MYERS
TRUSTEES
---------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959 and
Creating First Mortgage Bonds, Series E,
10-3/8% Due September 1, 1995
================================================================================
<PAGE> 182
THIS SEVENTH SUPPLEMENTAL INDENTURE, DATED AS OF AUGUST 1, 1970, MADE
BY AND BETWEEN UNITED CITIES GAS COMPANY, a corporation organized under the
laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), party of the first part, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office in the City of Chicago, State of Illinois (hereinafter called
the "Trustee"), and RAY F. MYERS, residing in the Village of Flossmoor,
Illinois (the Trustee and Ray F. Myers being hereinafter collectively referred
to as the "Trustees"), parties of the second part.
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes
referred to as the "Original Indenture"), providing for the issuance thereunder
from time to time of First Mortgage Bonds of the Company, issuable in one or
more series, and wherein and whereby the Company did grant, convey, mortgage
and warrant to the said Trustee, and each of them, and their respective
successors and assigns, certain property of the Company in said Indenture of
Mortgage more particularly described for the security of all First Mortgage
Bonds issued and to be issued thereunder; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became corporate trustee under the
Indenture as provided therein; and
WHEREAS, on October 15, 1966, Ray F. Myers became individual trustee
under the Indenture as successor to R. Emmett Hanley, resigned; and
WHEREAS, the Company has heretofore executed and delivered its First,
Second, Third, Fourth, Fifth and Sixth Supplemental Indentures respectively
dated as of November 1, 1960, June 1, 1962, February 1, 1963, June 15, 1963,
November 15, 1964, and March 15, 1968, for the purpose of subjecting to the
lien of the Indenture certain additional property acquired by the Company and
complying with its covenant of further assurances, and, with respect to the
said Fourth, Fifth and Sixth Supplemental Indentures, for the further purpose
of creating additional First Mortgage Bonds (said Indenture of Mortgage and all
Supplemental Indentures thereto being herein collectively referred to as the
"Indenture" or "indenture" in the form of Series E bonds); and
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, Due July
15, 1984, $2,450,000 aggregate principal amount of which remain outstanding;
$1,000,000 aggregate principal amount of First Mortgage Bonds, Series B, 4.95%,
Due June 15, 1988, $822,000 aggregate principal amount of which remain
outstanding; $1,000,000 aggregate principal amount of
<PAGE> 183
First Mortgage Bonds, Series C, 4-7/8%, Due November 15, 1989, $875,000
aggregate principal amount of which remain outstanding; and $2,000,000
aggregate principal amount of First Mortgage Bonds, Series D, 7-1/8% Due March
15, 1993, $1,900,000 aggregate principal amount of which remain outstanding;
and
WHEREAS, the Company desires to create a new series of bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, Series E, 10-3/8%, Due September 1, 1995" (herein called
"Series E bonds"), to be limited to $3,300,000 in aggregate principal amount;
and
WHEREAS, the Company also desires to subject to the lien of the
Indenture certain properties, including properties acquired or constructed by
the Company since the date of execution and delivery of the Sixth Supplemental
Indenture, which are not excluded or reserved from the lien of the Original
Indenture; and
WHEREAS, all things necessary to make the Series E bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Seventh Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed have been done and performed; and the issue of Series E bonds,
as herein provided, has been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal
of and interest (and premium, if any) on all of the bonds of the Company at any
time outstanding under the Indenture according to their tenor and effect and
the performance of and compliance with the covenants and conditions in the
Indenture contained, has granted, conveyed, mortgaged and warranted, and by
these presents does hereby grant, convey, mortgage and warrant to the Trustees
and each of them, and to their successors in said trust forever, all property
and rights acquired and constructed by the Company since the date of execution
and delivery of the Sixth Supplemental Indenture, except property of the
character specifically reserved and excepted from the lien of the Original
Indenture and property heretofore released from the lien thereof, and the
following described additional property:
-2-
<PAGE> 184
I.
The real estate specifically described in Schedule A, Part I, hereof;
II.
Those distribution systems specifically described in Schedule A, Part
II, hereof;
III.
The franchises of the Company specifically described in Schedule A,
Part III, hereof, and all renewals, extensions or substitutions thereof or
thereafter.
TOGETHER WITH all rights belonging or in any wise appertaining to any
and all the aforesaid property or any part thereof with the reversion and,
subject to the provisions of Section 7.01 of the Original Indenture, all income
and earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture and in Schedule A hereof.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture.
ARTICLE 2
SERIES E BONDS
Section 2.01. There is hereby created for issuance under the
Indenture, a series of bonds, limited to the aggregate principal amount of
$3,300,000, to be designated as "First Mortgage Bonds, Series E, 10-3/8%, Due
September 1, 1995." The Series E bonds shall, subject to the provisions of
Section 1.13 of the Original Indenture, be dated as of, and shall bear interest
from, the date of their authentication, shall mature September 1, 1995, and
shall bear interest at the rate of 10-3/8% payable semiannually on March 1 and
September 1 in each year until the principal thereof shall have become due and
payable and shall bear interest on any overdue principal and (to the extent
permitted by law) on any overdue installment of interest, at the rate of 11%
per annum.
Section 2.02. The Series E bonds initially to be issued shall be
fully registered bonds without coupons, in denominations of $500 and multiples
thereof, substantially in the form
-3-
<PAGE> 185
set forth in Section 2.03 hereof, with appropriate insertions, omissions and
changes, approved by the President of the company and the Trustee, as may be
appropriate for different denominations and/or in order to conform to usage or
law. Upon receipt of a written request from a holder or holders of not less
than 25% in aggregate principal amount of the Series E bonds at the time
outstanding, stating its or their intention to exchange all or a substantial
part of their bonds for Series E bonds in coupon form, the Company will
promptly cause to be prepared Series E bonds in customary coupon form in the
denomination of $500 and/or $1,000, as requested, registrable as to principal
only, and substantially in the form of the fully registered Series E bond set
forth in Section 2.03 hereof, with appropriate insertions, omissions, and
changes approved by counsel satisfactory to the Trustee in an opinion filed
with the Trustee, and by the Trustee. Thereafter fully registered bonds and
coupon bonds of Series E shall be interchangeable, subject to the provisions of
Section 1.11 of the Original Indenture.
Section 2.03. The registered Series E bonds without coupons shall
be in substantially the following form:
FORM OF FULLY REGISTERED SERIES E BOND WITHOUT COUPONS
AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RE
FIRST MORTGAGE BOND, SERIES E, 10-3/8%, DUE SEPTEMBER 1, 1995
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to __________________________ or registered assigns, on September 1, 1995, or
earlier as hereinafter referred to, the sum of __________________________
Dollars at the principal office in Chicago, Illinois, of CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO (hereinafter, with its successors in
the trusts under the indenture mentioned below, generally called the
"Trustee"), or at the principal office of its successor in said trusts, and to
pay to said payee, or registered assigns, interest thereon, from the date
hereof, at the rate of ten and three-eighths percent (10-3/8%) per annum, at
said office, semiannually on March 1 and September 1 in each year until the
principal sum hereof shall have become due and payable and shall bear interest
on any overdue principal and (to the extent permitted by law) on any overdue
installment of interest, at the rate of eleven percent (11%).
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series E, 10-3/8%,
Due September 1, 1995, all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "indenture"), by
-4-
<PAGE> 186
and between the Company and City National Bank and Trust Company of Chicago
(which has been succeeded by Continental Illinois National Bank and Trust
Company of Chicago as Corporate Trustee) and R. Emmett Hanley (who has been
succeeded by Ray F. Myers), as Trustees, to which indenture, an executed
counterpart of which is on file with the Trustee, reference is hereby made for
a description of the property mortgaged, a statement of the nature and extent
of the security thereby afforded, the terms and conditions upon which release
of property covered by the indenture may be made, the terms and conditions upon
which bonds of all series are or are to be issued and secured, the rights and
remedies under the indenture of the holders of said bonds, the terms and
conditions upon which the indenture may be modified or amended, and the rights
and obligations under the indenture of the Company and of said Trustees; but
neither the foregoing reference to the indenture, nor any provision of this
bond or of the indenture, shall affect or permit the impairment of the
absolute, unconditional and unalterable obligation of the Company to pay, at
the maturity date herein provided, the principal of and interest on this bond
as herein provided.
The Company, the Trustee and all other persons may for all
purposes treat the registered owner hereof for the time being, as the absolute
owner hereof, and neither the Company nor the Trustee shall be affected by any
notice or knowledge to the contrary, whether any payment on this bond shall be
overdue or not; and the Company, and every successive registered owner and
assignee of this bond, by accepting or holding the same, consent and agree to
the foregoing provisions and each invites the others, and all persons, to rely
thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, or,
if the principal amount of this bond is a multiple of five hundred dollars
($500), any part of the principal amount hereof constituting said sum or any
multiple thereof, may be called for redemption and payment at any time prior to
maturity, on notice given or waived as provided in the indenture, at the
applicable redemption price specified in the indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond and registered bonds of this series and
coupon bonds of this series are interchangeable, all in the manner and upon the
conditions prescribed in the indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the indenture.
-5-
<PAGE> 187
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the indenture, until the
certificate hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated
UNITED CITIES GAS COMPANY
By _______________________________
President
ATTEST:
____________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the Bonds, of the series designated therein, referred
to in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By _______________________________
Authorized Officer
Section 2.04. All or any part of the Series E bonds outstanding at
any time, or any part of the principal amount of any fully registered Series E
bond constituting $500 or any multiple thereof, may be redeemed at any time
prior to maturity (subject to the further provisions hereof), whether or not
such time be an interest payment date, at the principal office of the Trustee,
upon not less than thirty (30) days prior notice given or waived as hereinafter
or in the Indenture provided, at the following redemption prices in each case
together with the accrued and unpaid interest on the principal amount of bonds
called to the date fixed for redemption:
(a) if redeemed through operation of the sinking fund, at
their principal amount, and
-6-
<PAGE> 188
(b) in all other cases, including, without limitation, a
redemption through the application of the proceeds of the sale or
transfer of all or part of the property of the Company to a
municipality or other public body or authority pursuant to
condemnation proceedings or an agreement in lieu of condemnation, at a
redemption price equal to 100% of the principal amount of the Series E
bonds to be redeemed, plus, in the event of redemption on or before
September 1, 1994, a premium equal to 10-3/8% of the principal amount
of Series E bonds so to be redeemed, such premium to be reduced by
.4325 of 1% for each full year expired after September 1, 1970;
provided, however, that the Series E bonds shall not be redeemable at
the option of the Company on or before September 1, 1975, by the
application, directly or indirectly, of funds received from the
proceeds of the sale of securities, or from the creation of any other
indebtedness or borrowings, in each case having an interest rate or
cost to the Company (computed in accordance with accepted financial
practice) of less than 10-3/8% per annum; and provided further, that
if during the period from September 2, 1975, to and including
September 1, 1980, the Series E bonds are redeemed by the application,
directly or indirectly, of funds received from the proceeds of the
sale of securities or from the creation of any other indebtedness or
borrowings, in each case having an interest rate or cost to the
Company (computed in accordance with accepted financial practice) of
less than 10-3/8% per annum, then the redemption price of the Series E
bonds so to be redeemed shall be the then applicable redemption price
set forth above in this subsection (b), plus an additional premium
equal to 6% of the principal amount of the Series E bonds so to be
redeemed.
Series E bonds shall be redeemed upon the notice, in the manner and
with the effect provided in Article 4 of the Original Indenture and the
provisions of Article 4 of the Original Indenture, except Section 4.01 thereof,
shall be applicable to the Series E bonds.
Section 2.05. So long as any Series E bonds shall remain
outstanding, the Company shall pay to the Trustee as and for a sinking fund for
the retirement of Series E bonds on September 1, 1971, and on each September 1
thereafter to and including September 1, 1994, cash in the amount of $82,500.
In the event the Company shall redeem Series E bonds from the proceeds
of the sale of any of its property to a municipality or other public body or
agency, the amount of each such sinking fund deposit thereafter shall be
reduced by an amount equal to 2.5% of the amount of Series E bonds so redeemed.
On or before the thirtieth day prior to each sinking fund payment
date, the Trustee shall proceed to select for redemption in the manner provided
in Article 4 of the Original Indenture, Series E bonds in the aggregate
principal amount which are redeemable with the cash required to be paid on the
next following sinking fund payment date and in the name of the Company shall
give notice as may be required by said Article 4 of the redemption for the
sinking fund on such sinking fund payment date of the Series E bonds so
selected.
All cash received by the Trustee pursuant to this Section 2.05 shall
be held by the Trustee as part of the mortgaged property, and shall be applied
by the Trustee to the
-7-
<PAGE> 189
redemption of outstanding Series E bonds, without premium, in the manner and
with the effect specified in the preceding paragraph hereof; and the Company
shall, in each case prior to the date fixed for redemption thereof, pay to the
Trustee in cash all unpaid interest accrued on the bonds to be redeemed through
the operation of said sinking fund to the date fixed for redemption.
So long as all outstanding Series E bonds remain registered in the
names of the initial holders in whose names bonds of such series were first
registered, the sinking fund payment shall be made entirely in cash. If none
or less than all of the outstanding bonds of Series E are registered in the
names of the initial holders in whose names bonds of such series were first
registered, the following provisions shall be applicable:
(i) If none of the then outstanding bonds of Series E are
registered in the names of the initial holders in whose names bonds of
such series were first registered, the Company may, in lieu of
depositing cash as hereinabove provided, surrender bonds of such
series acquired by the Company and receive credit against the cash
sinking fund payment to the extent of the principal amount of bonds
surrendered; and
(ii) If one or more but less than all of the then
outstanding bonds of Series E are registered in the name of any of the
initial holders in whose names bonds of such series were first
registered, the aggregate principal amount of the bonds of such series
to be redeemed shall be apportioned in the manner provided in clause
(ii) of Section 4.02 of the Original Indenture and redemption shall be
made in accordance with the provisions of said clause (ii) except that
the Company may, in lieu of depositing cash for the redemption of
bonds not held by any such initial holder, surrender bonds of Series E
acquired by the Company and receive credit against the sinking fund
payment to the extent of the principal amount of bonds surrendered,
not exceeding, however, the amount of cash which would otherwise be
applied to the redemption of bonds of Series E not registered in the
name of any initial holder of bonds of said series, and the amount
which would otherwise be applied to the redemption of such bonds not
held by any initial holder of bonds shall be reduced to the extent of
the amount of such credit.
If the Company elects to surrender bonds as a credit against the
sinking fund payment pursuant to the foregoing provisions it shall deposit such
bonds, with all unmatured interest coupons pertaining thereto in the case of
coupon bonds, with the Trustee at least 35 days and not more than 45 days prior
to the date on which the next sinking fund payment becomes due.
All Series E bonds redeemed or delivered to the Trustee for
cancellation pursuant to this Section 2.05 (except fully registered Series E
bonds redeemed in part and upon which notations of partial payment are made as
provided in Article 4 of the Original Indenture) together with any and all
appertaining interest coupons shall forthwith be cancelled by the Trustee and
shall be delivered to or upon the written order of the Company and shall not be
made the basis for issuance of any additional bonds hereunder.
-8-
<PAGE> 190
Section 2.06. Upon the execution and delivery of this Seventh
Supplemental Indenture and upon compliance with the provisions of the Original
Indenture the Company may execute and deliver to the Trustee, and the Trustee
shall certify and deliver to or upon the written order of the President or
Treasurer of the Company, Series E bonds in an aggregate principal amount not
exceeding $3,300,000.
ARTICLE 3
ADDITIONAL COVENANTS AND MISCELLANEOUS
Section 3.01. So long as any Series E bonds remain outstanding, the
provisions of Section 1.15 of the Original Indenture which are expressed to be
applicable to bonds of Series A shall also be applicable to the Series E bonds
and the holders thereof.
Section 3.02. So long as any Series E bonds shall remain
outstanding, no new series of bonds shall be authorized having a maturity date
earlier than September 1, 1995 and no provision shall be made for the
retirement of any new series of bonds prior to September 1, 1995 through a
sinking fund or other retirement fund in an amount in any year greater than 3%
of the aggregate principal amount of such bonds theretofore issued.
Section 3.03. So long as any Series E bonds remain outstanding, the
Company will not declare or pay any dividends on shares of its Common Stock
(except dividends payable solely in shares of Common Stock), or directly or
indirectly purchase, redeem or otherwise acquire any shares of Common Stock
(except out of the proceeds derived from the issuance of other shares of Common
Stock), or make any other distribution on shares of Common Stock (such
non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions being hereinafter called "Restricted Payments"),
unless after giving effect thereto the aggregate of all such Restricted
Payments made during the period from December 31, 1968 to and including the
date of the making of the Restricted Payment in question does not exceed the
sum of $850,000 plus (or minus in case of a deficit) the amount of Consolidated
Net Income Available for Common Stock Dividends for such period (computed on a
cumulative basis for said entire period).
As used in this Section 3.03 the term "Consolidated Net Income
Available for Common Stock Dividends" shall mean the net income of the Company
and its subsidiaries for the applicable period available for dividends on stock
after deducting therefrom dividends paid and accrued on preferred stock,
determined on a consolidated basis in accordance with generally accepted
principles of accounting; provided, however, that no effect shall be given to
any gains or losses or other additions or deductions arising by reason of the
issue, purchase, sale, conversion or retirement by the Company or any
subsidiary of any of its or their securities, or arising by reason of any
purchases, sales, write-ups, write-downs, increase or decrease in book value,
or other transactions or changes in respect of capital assets, tangible or
intangible and the deduction for income taxes shall be adjusted by giving
effect to any change in the amount thereof resulting from the elimination of
any of the capital transactions or changes referred to above.
-9-
<PAGE> 191
Section 3.04. This Seventh Supplemental Indenture shall be
construed in connection with and as a part of the Original Indenture and all
terms, conditions and covenants contained in the Original Indenture, except as
restricted in the Original Indenture to bonds of another series, shall apply to
and be deemed to be for the equal benefit, security and protection of the
Series E bonds and the holders thereof. All terms used in this Seventh
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 3.05. Whenever in this Seventh Supplemental Indenture either
of the parties hereto is named or referred to, this shall be deemed to include
the successors or assigns of such party, and all the covenants and agreements
in this Seventh Supplemental Indenture contained shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so
expressed or not.
Section 3.06. This Seventh Supplemental Indenture may be
simultaneously executed in any number of counterparts and all said counterparts
executed and delivered, each as an original, shall constitute but one and the
same instrument.
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<PAGE> 192
In Witness Whereof, said United Cities Gas Company has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
hereto affixed and attested by an Assistant Secretary, and said Ray F. Myers,
to evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
[CORPORATE SEAL]
ATTEST: By /s/ CHARLES BENSON DUSHANE, JR.
-------------------------------
President
/s/ CLYDE A. JOHNSON
- -------------------------
Secretary
Witnesses as to United Cities Gas
Company:
/s/ D. R. HART
- -------------------------
/s/ R. SLATER
- -------------------------
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
As Trustee
[CORPORATE SEAL] By /s/ R. PAULSEN
-------------------------------
Second Vice President
ATTEST:
/s/ M. A. CLARK
- -------------------------
Trust Officer
Witnesses as to Continental Illinois
National Bank and Trust Company
of Chicago and Ray F. Myers:
/s/ D. R. HART
- -------------------------
/s/ R. SLATER
- -------------------------
By /s/ RAY F. MYERS (SEAL)
-------------------------
Ray F. Myers
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<PAGE> 193
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, J. W. Austin, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 28th day of August, 1970, personally
appeared before me Charles Benson Dushane, Jr. and Clyde A. Johnson, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who, being by me duly sworn, did
say that they are President and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and
the Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate sale of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said Charles Benson
Dushane, Jr. and Clyde A. Johnson acknowledged said instrument to be their free
and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
28th day of August, 1970.
/s/ J. W. AUSTIN
------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires November 2, 1970.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, J. W. Austin, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 28th day of August, 1970, personally
appeared before me R. Paulsen and M. A. Clark, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who being by me duly sworn, did say that they are Second
Vice President and Trust Officer, respectively, of Continental Illinois
National Bank and Trust Company of Chicago, a national banking association
organized and existing under the national banking laws of the United States of
America, that the seal affixed to the above and foregoing instrument is the
corporate sale of said association and that said instrument was signed by them
and sealed and delivered in behalf of said association by authority of its
Board of Directors duly given, and the said R. Paulsen and M. A. Clark
acknowledged said instrument to be their free and voluntary act and deed and
the free and voluntary act and deed of said association for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
28th day of August, 1970.
/s/ J. W. AUSTIN
------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires November 2, 1970.
-12-
<PAGE> 194
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, J. W. Austin, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 28th day of August, 1970, personally
appeared before me Ray F. Myers, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument
as his free and voluntary act and deed for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
28th day of August, 1970.
/s/ J. W. AUSTIN
------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires November 2, 1970.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me D. R. Hart, who, being duly sworn, says
that he saw the corporate seal of UNITED CITIES GAS COMPANY affixed to the
foregoing instrument and that he also saw Charles Benson Dushane, Jr.,
President, and Clyde A. Johnson, Secretary of said United Cities Gas Company,
sign and attest the same, and that he, with R. Slater, witnessed the execution
and delivery thereof as the act and deed of said United Cities Gas Company.
/s/ D. R. HART
------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 28th day of
August, 1970.
/s/ J. W. AUSTIN
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires November 2, 1970.
-13-
<PAGE> 195
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me D. R. Hart, who, being duly sworn, says
that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he also
saw R. Paulsen, Second Vice President, and M. A. Clark, Trust Officer of said
Continental Illinois National Bank and Trust Company of Chicago, sign and
attest the same, and that he, with R. Slater, witnessed the execution and
delivery thereof as the act and deed of the said Continental Illinois National
Bank and Trust Company of Chicago.
/s/ D. R. HART
------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 28th day of
August, 1970.
/s/ J. W. AUSTIN
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires November 2, 1970.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me D. R. Hart, who, being duly sworn, says
that he saw the within named RAY F. MYERS sign, seal, and as his act and deed,
deliver the foregoing instrument and that he, with R. Slater, witnessed the
execution thereof.
/s/ D. R. HART
------------------------------
Witness
[NOTORIAL SEAL]
Sworn to before me this 28th day of
August, 1970.
/s/ J. W. AUSTIN
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires November 2, 1970.
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<PAGE> 196
SCHEDULE A
The properties referred to in the granting clauses of this
Supplemental Indenture include parcels of real estate and other property
hereinafter more specifically described. Such descriptions are not intended,
however, to limit or impair the scope or intent of the general descriptions
contained in the granting clauses of the Indenture.
PART I--REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
STATE OF ILLINOIS
In Saline County, Illinois
(1) A tract of land situated and lying in the Southwest Quarter of
the Southwest Quarter of Section 25, Township 8 South, Range 5 East of the
Third Principal Meridian, Saline County, Illinois, and more particularly
described as follows:
Commencing at the Southwest corner of the Southwest Quarter of
the Southwest Quarter of Section 25, Township 8 South, Range 5 East of
the Third Principal Meridian, Saline County, Illinois, and running
North 21 feet to a stake for the place of beginning, thence East 88.8
feet to an Iron pipe, thence North 80.0 feet to an Iron pipe, thence
West 90.0 feet to a stake, thence South 0 deg. 54 min. East 80.0 feet
to the place of beginning, containing in all 0.16 acres, more or less.
SAVING AND EXCEPTING from the foregoing described property that
portion thereof reserved by James O. Upton and June Evelyn Upton, each in his
and her individual capacity and as husband and wife and described as follows:
The coal, oil and mineral rights under the above-described
premises. The foregoing described reserved property is the same
property reserved by James and June Upton in a deed to United Cities
Gas Company, dated March 4, 1969, and recorded in Deed Book 488, Page
213, Recorder's Office, Saline County, Illinois.
(2) A tract of land situated and lying in the Northwest Quarter of
the Northwest Quarter of Section 35, Township 9 South, Range 5 East of the
Third Principal Meridian, Saline County, Illinois, and more particularly
described as follows:
Commencing at the Southwest Corner of the Northwest Quarter of
the Northwest Quarter of Section 35, Township 9
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<PAGE> 197
South, Range 5 East of the Third Principal Meridian, and running East
31.9 feet to a concrete R.O.W. marker, thence North along the East
R.O.W. line of Black Top 33 feet to an iron pipe, the place of
beginning, thence continuing North 50.0 feet to an iron pipe, thence
East 50.0 feet to an iron pipe, thence South 50.0 feet to an iron
pipe, thence West 50.0 feet to the point of beginning, containing 0.06
acres, more or less.
(3) The right, title and interest of United Cities Gas Company to
build, construct and maintain a gas measuring and regulating station, together
with any and all other improvements incident and necessary thereto, or useful
in connection therewith, and the right of ingress and egress to and from said
station for the purpose of operating, maintaining and repairing the station and
any and all other improvements, on a tract of land situated and lying in the
Southeast Quarter of the Southeast Quarter of Section 9, Township 8 South,
Range 6 East of the Third Principal Meridian, Saline County, Illinois, and more
particularly described as follows:
Beginning at a point on the North right of way line of State
Highway 34, said point being 50 feet North of the Southwest corner of
the Southeast Quarter of the Southeast Quarter of Section 9 and
running thence East on the North right of way of said Highway 34 a
distance of 50 feet for a place of beginning, thence continuing East
along the North right of way line of said Highway 34 20 feet, thence
North 75 feet, thence West 20 feet, thence South 75 feet to the place
of beginning.
The foregoing described rights are the same rights granted by Dick
Gann to United Cities Gas Company in a Grant, dated October 10, 1967, and
recorded in Deed Book 475, Page 45, Recorder's Office, Saline County, Illinois,
and will continue in effect until such time as said gas measuring station is
actually abandoned.
PART II--DISTRIBUTION SYSTEMS AND
PIPELINES DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connections, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances, apparatus,
facilities, machinery and other property used or provided for use in the
construction, maintenance, repair or operation thereof and together also with
all of the rights, privileges, rights-of-way, franchises, licenses, easements,
grants and permits with respect to the construction, maintenance, repair and
operation of such gas distribution systems, including, but not limited to, the
plants and systems owned and operated by the Company for the distribution and
sale of gas located in the following named cities, towns, or villages and
environs thereof in the States of Illinois and Tennessee:
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<PAGE> 198
[CONFORMED COPY]
================================================================================
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of September 1, 1972
---------------
UNITED CITIES GAS COMPANY
TO
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
AND
RAY F. MYERS
TRUSTEES
---------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959 and
Creating First Mortgage Bonds, Series F,
8-1/2%, Due September 1, 1995
================================================================================
<PAGE> 199
THIS EIGHTH SUPPLEMENTAL INDENTURE, dated as of September 1, 1972, made
by and between UNITED CITIES GAS COMPANY, a corporation organized under the laws
of the State of Illinois and the Commonwealth of Virginia (hereinafter called
the "Company"), party of the first part, and CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, a national banking association having its office
in the City of Chicago, State of Illinois (hereinafter called the "Trustee"),
and RAY F. MYERS, residing in the Village of Flossmoor, Illinois (the Trustee
and Ray F. Myers being hereinafter collectively referred to as the "Trustees"),
parties of the second part.
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes
referred to as the "Original Indenture"), providing for the issuance thereunder
from time to time of First Mortgage Bonds of the Company, issuable in one or
more series, and wherein and whereby the Company did grant, convey, mortgage
and warrant to the said Trustees, and each of them and their respective
successors and assigns, certain property of the Company in said Indenture of
Mortgage more particularly described for the security of all First Mortgage
Bonds issued and to be issued thereunder; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became corporate trustee under the
Indenture as provided therein; and
WHEREAS, October 15, 1966, Ray F. Myers became individual trustee
under the Indenture as successor to R. Emmett Hanley, resigned; and
WHEREAS, the Company his heretofore executed and delivered its First,
Second, Third, Fourth, Fifth, Sixth and Seventh Supplemental Indentures
respectively dated its of November 1, 1960, June 1, 1962, February 1, 1963,
June 15, 1963, November 15, 1964, March 15, 1968 and August 1, 1970, for the
purpose of subjecting to the lien of the Indenture certain additional property
acquired by the Company and complying with its covenant of further assurances,
and, with respect to the said Fourth, Fifth, Sixth and Seventh Supplemental
Indentures, for the further purpose of creating additional First Mortgage Bonds
(said Indenture of Mortgage and all Supplemental Indentures thereto being
herein collectively referred to as the "Indenture"); and
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, Due July
15, 1984, $2,240,000 aggregate principal amount of which remain outstanding;
$1,000,000 aggregate principal amount of First Mortgage Bonds, Series B, 4.95%,
Due June 15, 1988, $774,000 aggregate principal amount of which remain
outstanding; $1,000,000 the principal amount of First
<PAGE> 200
Mortgage Bonds, Series C, 4-7/8%, Due November 15, 1989, $825,000 aggregate
principal amount of which remain outstanding; $2,000,000 aggregate principal
amount of First Mortgage Bonds, Series D, 7-1/8% Due March 15, 1993, $1,800,000
principal amount of which remain outstanding; and $3,300,000 aggregate
principal amount of First Mortgage Bonds, Series E, 10-3/8%, Due September 1,
1995, $3,135,000 aggregate principal amount of which remain outstanding; and
WHEREAS, the Company desires to create a new series of bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, Series F, 8-1/2%, Due September 1, 1995" (herein called "Series
F bonds"), to be limited to $2,000,000 in aggregate principal amount; and
WHEREAS, the Company also desires to subject to the lien of the
Indenture certain properties, including properties acquired or constructed by
the Company since the date of execution and delivery of the Seventh
Supplemental Indenture, which are not excluded or reserved from the lien of the
Original Indenture; and
Whereas, all things necessary to make the Series F bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Eighth Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed have been done and performed; and the issue of Series F bonds,
as herein provided, has been in all respects to duly authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trust under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE I
MORTGAGE OR ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal
of and interest (and premium, if any) on all of the bonds of the Company at any
time outstanding under the Indenture according to their tenor and effect and
the performance of and compliance with the covenants and conditions in the
Indenture contained, has granted, conveyed, mortgaged and warranted, and by
these presents does hereby grant, convey, mortgage and warrant to the Trustees
and each of them, and to their successors in said trust forever, all property
and rights acquired and constructed by the Company since the date of execution
and delivery of the Seventh Supplemental Indenture, except property of the
character specifically reserved
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<PAGE> 201
and excepted from the lien of the Original Indenture and property heretofore
released from the lien thereof, and the following described additional
property:
I.
The real estate specifically described in Schedule A hereof.
TOGETHER WITH all rights belonging or in any wise appertaining to any
and all the aforesaid property or any put thereof with the reversion and,
subject to the provisions of Section 7.01 of the Original Indenture, all income
and earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture and in Schedule A hereof.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture.
ARTICLE 2
SERIES F BONDS
Section 2.01. There is hereby created for issuance under the
Indenture, a series of bonds, limited to the aggregate principal amount of
$2,000,000, to be designated as "First Mortgage Bonds, Series F, 8-1/2%, Due
September 1, 1995." The Series F Bonds shall, subject to the provisions of
Section 1.13 of the Original Indenture, be dated as of, and shall bear interest
from, the date of their authentication, shall mature September 1, 1995, and
shall bear interest at the rate of 8-1/2% payable semiannually on March 1 and
September 1 in each year until the principal thereof shall have become due and
payable and shall bear interest on any overdue principal and (to the extent
permitted by law) on any overdue installment of interest, at the rate of 9-1/2%
per annum.
Section 2.02. The Series F bonds initially to be issued shall be
fully registered bonds without coupons, in denominations of $500 and multiples
thereof, substantially in the form set forth in Section 2.03 hereof, with
appropriate insertions, omissions and changes, approved by the President of the
Company and the Trustee, as may be appropriate for different denominations
and/or in order to conform to usage or law. Upon receipt of a written request
from a holder or holders of not less than 25% in aggregate principal amount of
the Series F bonds at the time outstanding, stating its or their intention to
exchange all or a substantial part of their bonds for Series F bonds in coupon
form, the Company will
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<PAGE> 202
promptly cause to be prepared Series F bonds in customary coupon form in the
denomination of $500 and/or $1,000, as requested, registrable as to principal
only, and substantially in the form of the fully registered Series F bond set
forth in Section 2.03 hereof, with appropriate insertions, omissions, and
changes approved by counsel satisfactory to the Trustee in an opinion filed
with the Trustee, and by the Trustee. Thereafter fully registered bonds and
coupon bonds of Series F shall be interchangeable, subject to the provisions of
Section 1.11 of the Original Indenture.
Section 2.03. The registered Series F bonds without coupons shall
be in substantially the following form:
FORM OF FULLY REGISTERED SERIES F BONDS WITHOUT COUPONS
AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RF
FIRST MORTGAGE BOND, SERIES F, 8-1/2%, DUE SEPTEMBER 1, 1995
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to __________________ or registered assigns, on September 1, 1995, or earlier
as hereinafter referred to, the sum of __________________ Dollars at the
principal office in Chicago, Illinois, of CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO (hereinafter, with its successors in the trusts
under the indenture mentioned below, generally called the "Trustee"), or at the
principal office of its successor in said trusts, and to pay to said payee, or
registered assigns, interest thereon, from the date hereof, at the rate of
eight and one-half percent (8-1/2%) per annum, at said office, semiannually on
March 1, and September 1 in each year until the principal sum hereof shall have
become due and payable and shall bear interest on any overdue principal and (to
the extent permitted by law) on any overdue installment of interest, at the
rate of nine and one half percent (9-1/2%).
The bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series F, 8-1/2%, Due
September 1, 1995, all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "Indenture"), by and
between the Company and City National Bank and Trust Company of Chicago (which
has been succeeded by Continental Illinois National Bank and Trust Company of
Chicago as Corporate Trustee) and R. Emmett Hanley (who has been succeeded by
Ray F. Myers), as Trustees, to which Indenture, an executed counterpart of
which is on file with the Trustee, reference is hereby made for a description
of the property mortgaged, a statement of the nature and extent of the security
thereby afforded, the terms and conditions upon which
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<PAGE> 203
release of property covered by the Indenture may be made, the terms and
conditions upon which bonds of all series an or are to be issued and secured,
the rights and remedies under the Indenture of the holders of said bonds, the
terms and conditions upon which the Indenture may be modified or amended, and
the rights and obligations under the Indenture of the Company and of said
Trustees; but neither the foregoing reference to the Indenture, nor any
provision of this bond or of the Indenture, shall affect or permit the
impairment of the absolute, unconditional and unalterable obligation of the
Company to pay, at the maturity date herein provided, the principal of and
interest on this bond as herein provided.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, or,
if the principal amount of this bond is a multiple of five hundred dollars
($500), any part of the principal amount hereof constituting said sum or any
multiple thereof, may be called for redemption and payment at any time prior to
maturity, on notice given or waived as provided in the Indenture, at the
applicable redemption price specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond and registered bonds of this series and
coupon bonds of this series are interchangeable, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
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<PAGE> 204
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated
UNITED CITIES GAS COMPANY
By_____________________________
President
ATTEST:
__________________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, referred
to in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By_____________________________
Authorized Officer
Section 2.04. All or any part of the Series F bonds outstanding at
any time, or any part of the principal amount of any fully registered Series F
bond constituting $500 or any multiple thereof, may be redeemed at any time
prior to maturity (subject to the further provisions hereof), whether or not
such time be an interest payment date, at the principal office of the Trustee,
upon not less than thirty (30) days prior notice given or waived as hereinafter
or in the Indenture provided, at the following redemption prices in each case
together with the accrued and unpaid interest on the principal amount of bonds
called to the date fixed for redemption:
(a) if redeemed through operation of the sinking fund, at
their principal amount, and
(b) in all other cases, including, without limitation, a
redemption through the application of the proceeds of the sale or
transfer of all or part of the property of the Company to a
municipality or other public body or authority pursuant to
condemnation proceedings or an agreement in lieu of condemnation, at a
redemption price equal to 100% of the principal amount of the Series F
bonds to be redeemed,
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<PAGE> 205
plus, in the event of redemption on or before September 1, 1994, a
premium equal to 8-1/2% of the principal amount of Series F bonds so
to be redeemed, such premium to be reduced by .3863 of 1% for each
full year expired after September 1, 1972; provided, however, that the
Series F bonds shall not be redeemable at the option of the Company on
or before September 1, 1982, by the application, directly or
indirectly, of funds received from the proceeds of the sale of
securities, or from the creation of any other indebtedness or
borrowings, in each case having an interest rate or cost to the
Company (computed in accordance with accepted financial practice) of
less than 8-1/2% per annum.
Series F bonds shall be redeemed upon the notice, in the manner and
with the effect provided in Article 4 of the Original Indenture and the
provisions of Article 4 of the Original Indenture, except Section 4.01 thereof,
shall be applicable to the Series F bonds.
Section 2.05. So long as any Series F bonds shall remain
outstanding, the Company shall pay to the Trustee as and for a sinking fund for
the retirement of Series F bonds on September 1, 1973, and on each September 1
thereafter to and including September 1, 1994, cash in the amount of $60,000.
In the event the Company shall redeem Series F bonds from the proceeds
of the sale of any of its property to a municipality or other public body or
agency, the amount of each such sinking fund deposit thereafter shall be
reduced by an amount equal to 3% of the amount of Series F bonds so redeemed.
On or before the thirtieth day prior to each sinking fund payment
date, the Trustee shall proceed to select for redemption in the manner provided
in Article 4 of the Original Indenture, Series F bonds in the aggregate
principal amount which are redeemable with the cash required to be paid on the
next following sinking fund payment date and in the name of the Company shall
give notice as may be required by said Article 4 of the redemption for the
sinking fund on such sinking fund payment date of the Series F bonds so
selected.
All cash received by the Trustee pursuant to this Section 2.05 shall
be held by the Trustee as part of the mortgaged property, and shall be applied
by the Trustee to the redemption of outstanding Series F bonds, without
premium, in the manner and with the effect specified in the preceding paragraph
hereof; and the Company shall, in each case prior to the date fixed for
redemption thereof, pay to the Trustee in cash all unpaid interest accrued on
the bonds to be redeemed through the operation of said sinking fund to the date
fixed for redemption.
So long as all outstanding Series F bonds remain registered in the
names of the initial holders in whose names bonds of such series were first
registered, the sinking fund payment shall be made entirely in cash. If none
or less than all of the outstanding bonds of Series F are registered in the
names of the initial holders in whose names bonds of such series were first
registered, the following provisions shall be applicable:
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(i) If none of the then outstanding bonds of Series F are
registered in the names of the initial holders in whose names bonds of
such series were first registered, the Company may, in lieu of
depositing cash as hereinabove provided, surrender bonds of such
series acquired by the Company and receive credit against the cash
sinking fund payment to the extent of the principal amount of bonds
surrendered; and
(ii) If one or more but less than all of the then
outstanding bonds of Series F are registered in the name of any of the
initial holders in whose names bonds of such series were first
registered, the aggregate principal amount of the bonds of such series
to be redeemed shall be apportioned in the manner provided in clause
(ii) of Section 4.02 of the Original Indenture and redemption shall be
made in accordance with the provisions of said clause (ii) except that
the Company may, in lieu of depositing cash for the redemption of
bonds not held by any such initial holder, surrender bonds of Series F
acquired by the Company and receive credit against the sinking fund
payment to the extent of the principal amount of bonds surrendered,
not exceeding, however, the amount of cash which would otherwise be
applied to the redemption of bonds of Series F not registered in the
name of any initial holder of bonds of said series, and the amount
which would otherwise be applied to the redemption of such bonds not
held by any initial holder of bonds shall be reduced to the extent of
the amount of such credit.
If the Company elects to surrender bonds as a credit against the
sinking fund payment pursuant to the foregoing provisions it shall deposit such
bonds, with all unmatured interest coupons pertaining thereto in the case of
coupon bonds, with the Trustee at least 35 days and not more than 45 days prior
to the date on which the next sinking fund payment becomes due.
All Series F bonds redeemed or delivered to the Trustee for
cancellation pursuant to this Section 2.05 (except fully registered Series F
bonds redeemed in part and upon which notations of partial payment are made as
provided in Article 4 of the Original Indenture) together with any and all
appertaining interest coupons shall forthwith be cancelled by the Trustee and
shall be delivered to or upon the written order of the Company and shall not be
made the basis for issuance of any additional bonds hereunder.
Section 2.06. Upon the execution and delivery of this Eighth
Supplemental Indenture and upon compliance with the provisions of the Original
Indenture the Company may execute and deliver to the Trustee, and the Trustee
shall certify and deliver to or upon the written order of the President or
Treasurer of the Company, Series F bonds in an aggregate principal amount not
exceeding $2,000,000.
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ARTICLE 3
ADDITIONAL COVENANTS AND MISCELLANEOUS
Section 3.01. So long as any Series F bonds remain outstanding, the
provisions of Section 1.15 of the Original Indenture which are expressed to be
applicable to bonds of Series A shall be applicable to the Series F bonds and
the holders thereof.
Section 3.02. So long as any Series F bonds remain outstanding, no
new series of bonds shall be authorized having a maturity date earlier than
September 1, 1995 and no provision shall be made for the retirement of any new
series of bonds prior to September 1, 1995 through a sinking fund or other
retirement fund in an amount in any year greater than 3% of the aggregate
principal amount of such bond theretofore issued.
Section 3.03. So long as any Series F bonds remain outstanding, the
Company will not declare or pay any dividends on shares of its Common Stock
(except dividends payable solely in shares of Common Stock), or directly or
indirectly purchase, redeem or otherwise acquire any shares of Common Stock
(except out of the proceeds derived from the issuance of other shares of Common
Stock), or make any other distribution on shares of Common Stock (such
non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions being hereinafter called "Restricted Payments"),
unless after giving effect thereto the aggregate of all such Restricted
Payments made during the period from December 31, 1971 to and including the
date of the making of the Restricted Payment in question does not exceed the
sum of $500,000 plus (or minus in case of a deficit) the amount of Consolidated
Net Income Available for Common Stock Dividends for such period (computed on a
cumulative basis for said entire period).
As used in this Section 3.03 the term "Consolidated Net Income
Available for Common Stock Dividends" shall mean the net income of the Company
and its subsidiaries for the applicable period available for dividends on stock
after deducting therefrom dividends paid and accrued on preferred stock,
determined on a consolidated basis in accordance with generally accepted
principles of accounting; provided, however, that no effect shall be given to
any gains or losses or other additions or deductions arising by reason of the
issue, purchase, sale, conversion or retirement by the Company or any
subsidiary of any of its or their securities, or arising by reason of any
purchases, sales, write-ups, write-downs, increase or decrease in book value,
or other transactions or changes in respect of capital assets, tangible or
intangible and the deduction for income taxes shall be adjusted by giving
effect to any change in the amount thereof resulting from the elimination of
any of the capital transactions or changes referred to above.
Section 3.04. This Eighth Supplemental Indenture shall be construed
in connection with and as a part of the Original Indenture and other terms,
conditions and covenants contained in the Original Indenture, except as
restricted in the Original Indenture to bonds of another series, shall apply to
and be deemed to be for the equal benefit, security and protection of the
Series F bonds and the holders thereof. All terms used in this Eighth
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<PAGE> 208
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 3.05. Whenever in this Eighth Supplemental Indenture either
of the parties hereto is named or referred to, this shall be deemed to include
the successors or assigns of such party, and all the covenants and agreements
in this Eighth Supplemental Indenture contained shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so
expressed or not.
Section 3.06. This Eighth Supplemental Indenture may be
simultaneously executed in any number of counterparts and all said counterparts
executed and delivered, each as an original, shall constitute but one and the
same instrument.
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<PAGE> 209
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate name to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Second Vice Presidents and its corporate seal
to be hereto affixed and attested by a Trust Officer, and said Ray F. Myers, to
evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
[CORPORATE SEAL] By /s/ JOHN H. MAXHEIM
-----------------------------
President
ATTEST:
/s/ CLYDE A. JOHNSON
- --------------------------
Secretary
Witnesses as to United Cities Gas
Company:
/s/ ROBERT J. SEBASTIAN
- --------------------------
/s/ SHIRLEY M. HAWKINS
- --------------------------
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
As Trustee
[CORPORATE SEAL] By /s/ V. L. BEDINGFIELD
-----------------------------
Second Vice President
ATTEST:
/s/ M. A. CLARK
- --------------------------
Trust Officer
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<PAGE> 210
Witnesses as to Continental Illinois
National Bank and Trust Company
of Chicago and Ray F. Myers:
/s/ J. M. ROSE
- --------------------------
/s/ D. J. POPE
- --------------------------
By /s/ RAY F. MYERS SEAL
---------------------------
Ray F. Myers
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<PAGE> 211
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
I, Jack C. Boone, Notary Public in and for the County and State
aforesaid, do hereby certify that on this 14th day of August, 1972 personally
appeared before me John H. Maxheim and Clyde A. Johnson, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, did say
that they are President and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and
the Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the John H. Maxheim and
Clyde A. Johnson acknowledged said instrument to be their free and voluntary
act and deed and the free and voluntary act and deed of said corporation for
the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
14th day of August, 1972.
/s/ JACK C. BOONE
---------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires 4-8-75.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, D. R. Hart, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 16th day of August, 1972, personally
appeared before me V. L. Bedingfield and M. A. Clark, to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who being by me duly sworn, did say that they are
Second Vice President and Trust Officer, respectively, of Continental Illinois
National Bank and Trust Company of Chicago, a national banking association
organized and existing under the national banking laws of the United States of
America, that the seal affixed to the above and foregoing instrument is the
corporate seal of said association and that said instrument was signed by them
and sealed and delivered in behalf of said association by authority of its
Board of Directors duly given, and the said V. L. Bedingfield and M. A. Clark
acknowledged said instrument to be their free and voluntary act and deed and
the free and voluntary act and deed of said association for the uses and
purposes therein set forth.
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<PAGE> 212
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
16th day of August, 1972.
/s/ D. R. HART
---------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires 5-17-75.
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<PAGE> 213
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, D. R. Hart, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 16th day of August, 1972, personally
appeared before me Ray F. Myers, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument
as his free and voluntary act and deed for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
16th day of August, 1972.
/s/ D. R. HART
---------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires 5-17-75.
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
Personally appeared before me Robert J. Sebastian, who, being duly
sworn, says that he saw the corporate seal of UNITED CITIES GAS COMPANY affixed
to the foregoing instrument and that he also saw John H. Maxheim, President, and
Clyde A. Johnson, Secretary of said United Cities Gas Company, sign and attest
the same, and that he, with Shirley Hawkins, witnessed the execution and
delivery thereof as the act and deed of said United Cities Gas Company.
/s/ ROBERT J. SEBASTIAN
---------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 14th
day of August, 1972.
/s/ JACK C. BOONE
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires 4-8-75.
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<PAGE> 214
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me D. J. Pope, who, being duly sworn, says
that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he also
saw V. L. Bedingfield, Second Vice President, and M. A. Clark, Trust Officer of
said Continental Illinois National Bank and Trust Company of Chicago, sign and
attest the same, and that he, with J.M. Rose, witnessed the execution and
delivery thereof as the act and deed of the said Continental Illinois National
Bank and Trust Company of Chicago.
/s/ D. J. POPE
---------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 16th
day of August, 1972.
/s/ D. R. HART
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires 5-17-75.
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<PAGE> 215
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me D. J. Pope, who, being duly sworn, says
that he saw the within named RAY F. MYERS sign, seal, and as his act and deed,
deliver the foregoing instrument and that he, with J. M. Rose, witnessed the
execution thereof.
/s/ D. J. POPE
---------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 16th
day of August, 1972.
/s/ D. R. HART
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires 5-17-75.
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<PAGE> 216
SCHEDULE A
The properties referred to in the granting clauses of this
Supplemental Indenture include parcels of real estate and other property
hereinafter more specifically described. Such descriptions are not intended,
however, to limit or impair the scope or intent of the general descriptions
contained in the granting clauses of the Indenture.
REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
STATE OF ILLINOIS
In Saline County, Illinois
(1) A certain tract or parcel of land being part of the South East
Quarter of the North West Quarter of Section 15, in Township 9 South, Range 6
East of the Third principal meridian and being known, numbered and designated
as the South half of the West 20 feet of Lot No. 7 and the South half of Lot
No. 8, all in Block No. 15 of John W. Mitchell's Division of the Railroad
Addition to the Town (now city) of Harrisburg, Illinois, and being more
particularly bounded and described as follows: Beginning at an "X" mark cut in
the concrete pavement, said mark being at the Southwest corner of said Lot No.
8 in Block 15, said corner also being the point of intersection of the North
right of way line of East Poplar Street and the East right of way line of Seten
Avenue, and running thence East along the North right of way line of East
Poplar Street a distance of 70 feet to a point, the inside running North 0 deg.
15 min. East a distance of 101.63 feet to an iron pin; thence running West a
distance of 70 feet to an iron pin in the East right of way line of Seten
Avenue; thence running along said East right of way line of Seten Avenue South
0 deg. 15 min. West a distance of 101.63 feet to the place of beginning.
(2) A Part of Lots Six (6) and Seven (7) in Block Number Fifteen
(15) of John W. Mitchell Division of the Railroad Addition of the Town, now
City, of Harrisburg described as follows: Commencing at the Northwest Corner of
Lot Eight (8) in said Block No. Fifteen (15) and running thence east on the
north line of said block for a distance of Seventy (70) feet to the place of
beginning, running thence south Eighty One (81) feet and Three (3) inches,
running thence east Seventy (70) feet extending into Lot No. Six (6) of said
Block, running thence north Eighty One (81) feet and Three (3) inches to the
North boundary line of said Lot No. Six (6) in said Block, and running thence
west along the North boundary line of said Block for a distance of Seventy (70)
feet to the place of beginning, being a subdivision of the Southeast Quarter
(SE 1/4) of the Northwest Quarter (NW 1/4) of Section Fifteen (15), Township
Nine (9) South, Range Six (6) East of the Third Principal Meridian.
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<PAGE> 217
(3) The North Half (N1/2) of the West Two-Fifths (2/5ths) of Lot
Number Seven (7) and the North Half (N1/2) of Lot Number Eight (8) in Block
Number Fifteen (15) in John W. Mitchell Division of the Railroad Addition To
The Town, Now City, of Harrisburg, being a subdivision of the Southeast Quarter
(SE 1/4) of the Northwest Quarter (NW 1/4) of Section Fifteen (15), Township
Nine (9) South, Range Six (6) East of the Third Principal Meridian.
(4) All that certain tract or parcel of land situate in the City
of Harrisburg, in Saline County, Illinois, being part of the South East Quarter
of the North West Quarter of Section 15, in Township 9 South, Range 6 East of
the Third principal meridian and being known, numbered and designated as the
South half of the West 20 feet of Lot No. 7 and the South half of lot No. 8,
all in Block No. 15 of John W. Mitchell's Division of the Railroad Addition to
the Town (now city) of Harrisburg, Illinois, and being more particularly
bounded and described as follows:
Beginning at an "X" mark cut in the concrete pavement, said
mark being at the Southwest corner of said Lot No. 8 in Block 15, said
corner also being the point of intersection of the North right of way
line of East Poplar Street and the East right of way line of Seten
Avenue, and running thence East along the North right of way line of
East Poplar Street a distance of 70 feet to a point, the inside
running North 0 deg. 15 min. East a distance of 101.63 feet to
an iron pin; thence running West a distance of 70 feet to an iron pin
in the East right of way line of Seten Avenue; thence running along
said East right of way line of Seten Avenue South 0 deg. 15 min. West
a distance of 101.63 feet to the place of beginning.
Being the same property conveyed to Grantor by Randall Reed by
deed dated July 16, 1964, of record in the Recorder's Office of Saline
County, Illinois in Deed Book 452, at Page 271.
Subject to all legal highways and to all easements and restrictions of
record affecting or related to the above described property.
(5) Lots Thirteen (13), Fourteen (14) and Fifteen (15) in Block
Three (3) in G. W. Robinsons Garden Heights Subdivision of the SW 1/4 NE 1/4;
the NW 1/4 SE 1/4 and the SW 1/4 SE 1/4 of Section 22, Township 9 South, Range
6 East of the Third Principal Meridian, Saline County, Illinois, except coal
and minerals underlying said premises together with the right to mine and
remove the same Lot Fifteen (15) being also described as follows: Commencing
at the Northwest Corner of the SW 1/4 SE 1/4 of Section 22, Township 9 South,
Range 6 East of the Third P.M., and running South 20 feet, thence East 192 feet
and 8 inches for a place of beginning, from thence South 452 feet; thence east
192 feet and 8 inches, thence North 452 feet; thence West 192 feet and 8 inches
to the place of beginning; Lot 13 being also described as follows: Commencing
at the Northwest Corner of the SW 1/4 of the SE 1/4 of Section 22, Township 9
South, Range 6 East of the Third Principal Meridian and running South 472 feet
for a place of beginning, from thence east 385 feet and 4 inches, thence South
184 feet and 4 inches, thence West 385 feet and 4 inches,
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<PAGE> 218
thence North 180 feet and 4 inches to the place of beginning, except coal and
minerals underlying the foregoing land with the right to mine and remove the
same.
In Massac County, Illinois
(6) Part of the South One-half of the Southwest Quarter (SW 1/4)
of the Southeast Quarter (SE 1/4) of Section Eleven (11), Township Sixteen (16)
South, Range 5 East described as follows:
Beginning at a point Three Hundred Eighty (380) feet North of the
South line and Thirty (30) feet East of the West line of the above described
tract thence North Fifty (50) feet; thence East Fifty (50) feet; thence South
Fifty (50) feet; thence West Fifty (50) feet to the beginning point.
(7) A tract of land situated in the Southeast fourth of the
Northwest quarter of section two, Township 16 South, Range 4 East of the 3rd
P.M. More particularly described as follows:
Beginning at an iron pipe that is 30 feet Southerly from the
North line of aforesaid quarter-quarter measured perpendicular thereto
and 20 feet Westerly from the East line of aforesaid quarter-quarter
measured perpendicular thereto, thence N88 deg. 40 min. W parallel
with the North line of said quarter-quarter a distance of 800 feet to
an iron pipe, thence S31 deg. 01 min. 36 sec. W a distance of 275.20
feet to an iron pipe set on the North easterly ROW line of the CB &
Q.R.R., thence S13 deg. 02 min. E along said ROW line of the CB & QRR
a distance of 98.84 feet to an Iron pin being the Northwest corner the
Good Luck Glove Co. property, thence S8 deg. 30 min. 19 sec. a
distance of 622.01 feet along the Northerly line of the Good Luck
Glove Factory Tract as evidenced by a fence along part of the line to
a fence corner, thence S76 deg. 43 min. 34 sec. E a distance of 237.14
feet to an iron pipe located 20 feet westerly of and measured
perpendicular to the East line of aforesaid quarter-quarter, thence
North 397.97 feet to the point of beginning.
SUBJECT TO THE FOLLOWING EXCEPTIONS AND RESERVATIONS:
1. There is excepted a parcel of ground 50 feet by 100
feet in the Northeast corner of the property herein conveyed described
in Warranty Deed dated November 3, 1951, and recorded December 5,
1951, deed recorded in Record 75 at page 43, Massac County, Illinois,
from Paul Miller and others to the V.M. Pipeline Company together with
an easement for said pipeline running in a generally East and West
direction across the conveyed premises.
2. Lease dated May 26, 1969, to the City of Metropolis
for a sanitary land fill.
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<PAGE> 219
3. The terms and conditions as contained in Warranty
Deed dated June 19, 1920, recorded September 23, 1920, in Book 35 of
Deeds, pages 345-449, Massac County, Illinois, from Mattie Miller to
S.H. Long insofar as the terms and conditions thereof relate to the
use of the private road located on the North and West side of the
foregoing described premises.
4. There is reserved to the Grantors in the conveyance
to United Cities Gas Company the right to use the existing private
driveway in the Southeast corner of the foregoing described premises
that runs from the public road on the East to an irregular parcel of
ground retained by the Grantors immediately South of the conveyed
premises and East of the Good Luck Glove Company property provided,
however, that said roadway shall revert to the Grantee in the event
said irregular parcel is conveyed to a landowner adjoining said
irregular parcel.
STATE OF TENNESSEE
In Hamblen County, Tennessee
(7) A tract of land situated, lying and being in the Fifth Civil
District of Hamblen County, Tennessee, and being more particularly bounded and
described as follows:--
Beginning at a point in the eastern edge of the Sugar Hollow
Road (also known as Maple Valley Road), corner to Rines, thence
running in a generally southern direction with the eastern edge of
said road a distance of 34 feet 2 inches to a point in the eastern
edge of said road, corner to remaining lands of the undersigned
grantors; thence running in a generally eastern direction with the
line of grantors 43 feet 5 inches to an iron stake, corner to lands of
the undersigned; thence running in a generally northern direction 34
feet 2 inches to an iron stake, corner to Rines; thence in a generally
western direction, with the line of Rines, 43 feet 5 inches to the
point of
Beginning; said lot being bounded on the north by Rines, on
the south and east by the remaining lands of grantors and on the west
by Sugar Hollow Road (Maple Valley Road). Being a part of the real
estate conveyed to J.G. Wallace et ux by deed of Anna B. Kilgore,
single, dated November 29, 1961, and of record in the Register's
Office of Hamblen County, Tennessee, in Deed Book 122, at page 235,
the premises herein conveyed being a part of Tract 2 therein.
In Sullivan County, Tennessee.
(8) A tract of land located in the Seventeenth Civil District of
Sullivan County, Tennessee, to-wit:
Beginning at an iron pin in an old fence line extended at the
Northeasterly end of the Northwest line of Old Shankel Mill Road (said
30 ft. road being abandoned to the Northeast of said Beginning point),
Southeast corner to property of the G. H.
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<PAGE> 220
Harr heirs, said Beginning point being N 51 deg. 00 min. E 527 ft.,
more or less, from the East line of Meadow View Road; thence with the
Northeasterly line fence of the G. H. Harr heirs N 51 deg. 38 min. W
200.00 ft. to an iron pin in the line, thence by a new line with other
lands of Bessie C. Shortt (Mrs. A.D.L. Shortt) N21 deg. 29 min. E
152.12 ft. to an iron pin at point on a curve in the South line of
U.S. Route 11-W (said point being N 88 deg. 30 min. 36 sec. E 30.00
ft. from a concrete highway monument opposite center line survey
station 1088 + 00), thence three courses with the South Right of Way
line of U.S. Route 11-W; by the arc of a curve to the left in a
Northeasterly direction (Central Angle 05 deg. 23 min. 13 sec., Radius
2,964.79 ft., Chord bearing N 85 deg. 31 min. 36 sec. E 278.65 ft.) an
arc distance of 278.75 ft. to a concrete highway monument, thence an
offset away from the road S 06 deg. 07 min. E 29.92 ft. to a concrete
highway monument, thence by the arc of a curve to the left is a
Northeasterly direction (Central Angle 03 deg. 44 min. 28 sec., Radius
2,994.79 ft., Chord bearing N81 deg. 18 min. 41 sec. E 195.41 ft.) an
arc distance of 195.54 ft. to an iron pin in the former North line of
Old Shankel Mill Road, thence with the former North line of the old
road, now Paul E. Harr's line, S 52 deg. 26 min. W 470.83 ft. to the
Beginning: containing 1.769 acres.
Being a part of that portion set apart and vested in the said
Mrs. Bessie Shortt (the same as Elizabeth Shortt) by Chancery Decree
in Minute Book 18, page 94, in Chancery Court for Bristol, Tennessee.
There is also conveyed all right, title, and interest in a 30 feet
roadway adjoining the South boundary line, known as Shankels Mill Road.
In Cherokee County, South Carolina
(9) All that certain piece, parcel or lot of land lying, being and
situate in the State of South Carolina, County of Cherokee, just West of City
of Gaffney, fronting on S. C. Hwy. 388, and being further described as follows:
Beginning at stake on Northern edge of Hwy. Right-of-way,
Corner of Littlejohn Lands and running thence N. 17-35 W. 69 feet to
I.P. on Southern Railway Company R/W; thence along said right of way,
N. 65-00 E. 50 feet to I.P.; thence a new line, S. 17-35 E. 38 feet to
stake on R/W of S.C. Road 388; thence, along edge of R/W of said road,
S. 35-05 W. 63 feet to stake, the beginning point, containing 2,375
sq. feet, more or less.
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[CONFORMED COPY]
================================================================================
NINTH SUPPLEMENTAL INDENTURE
Dated as of January 1, 1974
---------------
UNITED CITIES GAS COMPANY
TO
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
AND
RAY F. MYERS
TRUSTEES
---------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959 and
Creating First Mortgage Bonds, Series G,
8.45%, Due September 1, 1995
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<PAGE> 222
THIS NINTH SUPPLEMENTAL INDENTURE, dated as of January 1, 1974, made
by and between UNITED CITIES GAS COMPANY, a corporation organized under the
laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), party of the first part, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office in the City of Chicago, State of Illinois (hereinafter called
the "Trustee"), and RAY F. MYERS, residing in the Village of Flossmoor,
Illinois (the Trustee and Ray F. Myers being hereinafter collectively referred
to as the "Trustees"), parties of the second part.
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 15, 1959 hereinafter sometimes
referred to as the "Original Indenture"), providing for the issuance thereunder
from time to time of First Mortgage Bonds of the Company, issuable in one or
more series, and wherein and whereby the Company did grant, convey, mortgage
and warrant to the said Trustees, and each of them, and their respective
successors and assigns, certain property of the Company in said Indenture of
Mortgage more particularly described for the security of all First Mortgage
Bonds issuance and to be issued thereunder; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became corporate trustee under the
Indenture as provided therein; and
WHEREAS, on October 15, 1966, Ray F. Myers became individual trustee
under the Indenture as successor to R. Emmett Hanley, resigned; and
WHEREAS, the Company has heretofore executed and delivered its First,
Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Supplemental Indentures
respectively dated as of November 1, 1960, June 1, 1962, February 1, 1963, June
15, 1963, November 15, 1964, March 15, 1968, August 1, 1970, and September 1,
1972, for the purpose of subjecting to the lien of the Indenture certain
additional property acquired by the Company and complying with its covenant of
further assurances, and, with respect to the said Fourth, Fifth, Sixth, Seventh
and Eighth Supplemental Indentures, for the further purpose of creating
additional First Mortgage Bonds (said Indenture of Mortgage and all
Supplemental Indentures thereto being herein collectively referred to as the
"Indenture"); and
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, Due July
15, 1984, $2,135,000 aggregate principal amount of which remain outstanding;
$1,000,000 aggregate principal amount of First Mortgage Bonds, Series B, 4.95%,
Due June 15, 1988, $748,000 aggregate principal amount of which remain
outstanding; $1,000,000 aggregate principal amount of
<PAGE> 223
First Mortgage Bonds, Series C, 4-7/8%, Due November 15, 1989, $750,000
aggregate principal amount of which remain outstanding; $2,000,000 aggregate
principal amount of First Mortgage Bonds, Series D, 7-1/8%, Due March 15, 1993,
$1,750,000 aggregate principal amount of which remain outstanding; $3,300,000
aggregate principal amount of First Mortgage Bonds, Series E, 10-3/8%, Due
September 1, 1995, $3,052,500 aggregate principal amount of which remain
outstanding; and $2,000,000 aggregate principal amount of First Mortgage Bonds,
Series F, 8-1/2% Due September 1, 1995, $1,940,000 aggregate principal amount
of which remain outstanding; and
WHEREAS, the Company desires to create a new series of bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, Series G, 8.45%, Due September 1, 1995" (herein called "Series
G bonds"), to be limited to $3,500,000 in aggregate principal amount; and
WHEREAS, the Company also desires to subject to the lien of the
Indenture certain properties, including properties acquired or constructed by
the Company since the date of execution and delivery of the Eighth Supplemental
Indenture, which are not excluded or reserved from the lien of the Original
Indenture; and
WHEREAS, all things necessary to make the Series G bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Ninth Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed have been done and performed; and the issue of Series G bonds,
as herein provided, has been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal
of and interest (and premium, if any) on all of the bonds of the Company at any
time outstanding under the Indenture according to their tenor and effect and
the performance of and compliance with the covenants and conditions in the
Indenture contained, has granted, conveyed, mortgaged and warranted, and by
these presents does hereby grant, convey, mortgage and warrant to the Trustees
and each of them, and to their successors in said trust forever, all property
and rights acquired and constructed by the Company since the date of execution
and delivery of
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the Eighth Supplemental Indenture, except property of the character
specifically reserved and excepted from the lien of the Original Indenture and
property heretofore released from the lien thereof.
TOGETHER WITH all rights belonging or in any wise appertaining to any
and all the aforesaid property or any part thereof with the reversion and,
subject to the provisions of Section 7.01 of the Original Indenture, all income
and earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture.
ARTICLE 2
SERIES G BONDS
Section 2.01. There is hereby created for issuance under the
Indenture, a series of bonds, limited to the aggregate principal amount of
$3,500,000, to be designated as "First Mortgage Bonds, Series G, 8.45%, Due
September 1, 1995." The Series G Bonds shall, subject to the provisions of
Section 1.13 of the Original Indenture, be dated as of, and shall bear interest
from, the date of their authentication, shall mature September 1, 1995, and
shall bear interest at the rate of 8.45% payable semiannually on March 1 and
September 1 in each year until the principal thereof shall have become due and
payable and shall bear interest on any overdue principal and (to the extent
permitted by law) on any overdue installment of interest, at the rate of 9-1/2%
per annum.
Section 2.02. The Series G bonds initially to be issued shall be
fully registered bonds without coupons, in denominations of $500 and multiples
thereof, substantially in the form set forth in Section 2.03 hereof, with
appropriate insertions, omissions and changes, approved by the President of the
Company and the Trustee, as may be appropriate for different denominations
and/or in order to conform to usage or law. Upon receipt of a written request
from a holder or holders of not less than 25% in aggregate principal amount of
the Series G bonds at the time outstanding, stating its or their intention to
exchange all or a substantial part of their bonds for Series G bonds in coupon
form, the Company will promptly cause to be prepared Series G bonds in
customary coupon form in the denomination of $500 and/or $1,000, as requested,
registrable as to principal only, and substantially in the form of the fully
registered Series G bond set forth in Section 2.03 hereof, with appropriate
insertions, omissions, and changes approved by counsel satisfactory
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to the Trustee in opinion filed with the Trustee, and by the Trustee.
Thereafter fully registered bonds and coupon bonds of Series G shall be
interchangeable, subject to the provisions of Section 1.11 of the Original
Indenture.
Section 2.03. The registered Series G bonds without coupons shall
be in substantially the following form:
FORM OF FULLY REGISTERED SERIES G BONDS WITHOUT COUPONS
AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RG
FIRST MORTGAGE BOND, SERIES G, 8.45%, DUE SEPTEMBER 1, 1995
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to __________________________ or registered assigns, on September 1, 1995, or
earlier as hereinafter referred to, the sum of ________________________________
Dollars at the principal office in Chicago, Illinois, of CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO (hereinafter, with its successors in
the trusts under the indenture mentioned below, generally called the "Trustee"),
or at the principal office of its successor in said trusts, and to pay to said
payee, or registered assigns, interest thereon, from the date hereof, at the
rate of eight and forty five one-hundredths percent (8.45%) per annum, at said
office, semiannually on March 1 and September 1 in each year until the principal
sum hereof shall have become due and payable and shall bear interest on any
overdue principal and (to the extent permitted by law) on any overdue
installment of interest, at the rate of nine and one half percent (9-1/2%).
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series G, 8.45%, Due
September 1, 1995, all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "Indenture"), by and
between the Company and City National Bank and Trust Company of Chicago (which
has been succeeded by Continental Illinois National Bank and Trust Company of
Chicago as Corporate Trustee) and R. Emmett Hanley (who has been succeeded by
Ray F. Myers), as Trustees, to which Indenture, an executed counterpart of
which is on file with the Trustee, reference is hereby made for a description
of the property mortgaged, a statement of the nature and extent of the security
thereby afforded, the terms and conditions upon which release of property
covered by the Indenture may be made, the terms and conditions upon which bonds
of all series are or are to be issued and secured, the rights and remedies
under the Indenture of the holders of said bonds, the terms and conditions upon
which the Indenture may be
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modified or amended, and the rights and obligations under the Indenture of the
Company and of said Trustees; but neither the foregoing reference to the
Indenture, nor any provision of this bond or of the Indenture, shall affect or
permit the impairment of the absolute, unconditional and unalterable obligation
of the Company to pay, at the maturity date herein provided, the principal of
and interest on this bond as herein provided.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, or,
if the principal amount of this bond is a multiple of five hundred dollars
($500), any part of the principal amount hereof constituting said sum or any
multiple thereof, may be called for redemption and payment at any time prior to
maturity, on notice given or waived as provided in the Indenture, at the
applicable redemption price specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond and registered bonds of this series and
coupon bonds of this series are interchangeable, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
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IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated ______________________.
UNITED CITIES GAS COMPANY
By_______________________________
President
ATTEST:
__________________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, referred
to in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By________________________________
Authorized Officer
Section 2.04. All or any part of the Series G bonds outstanding at
any time, or any part of the principal amount of any fully registered Series G
bond constituting $500 or any multiple thereof, may be redeemed at any time
prior to maturity (subject to the further provisions hereof), whether or not
such time be an interest payment date, at the principal office of the Trustee,
upon not less than thirty (30) days' prior notice given or waived as
hereinafter or in the Indenture provided, at the following redemption prices in
each case together with the accrued and unpaid interest on the principal amount
of bonds called to the date fixed for redemption:
(a) if redeemed through operation of the sinking fund, at
their principal amount, and
(b) in all other cases, including, without limitation, a
redemption through the application of the proceeds of the sale or
transfer of all or part of the property of the Company to a
municipality or other public body or authority pursuant to
condemnation proceedings or an agreement in lieu of condemnation, at a
redemption
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price equal to 100% of the principal amount of the Series G bonds to
be redeemed, plus, in the event of redemption on or before September
1, 1994, a premium equal to 8.45% of the principal amount of Series G
bonds so to be redeemed, such premium to be reduced by .4225 of 1% for
each full year expired after September 1, 1973; provided, however,
that the Series G bonds shall not be redeemable at the option of the
Company on or before March 1, 1984 by the application, directly or
indirectly, of funds received from the proceeds of the sale of
securities, or from the creation of any other indebtedness or
borrowings, in each case having an interest rate or cost to the
Company (computed in accordance with accepted financial practice) of
less than 8.45% per annum.
Series G bonds shall be redeemed upon the notice, in the manner and
with the effect provided in Article 4 of the Original Indenture and the
provisions of Article 4 of the Original Indenture, except Section 4.01 thereof,
shall be applicable to the Series G bonds.
Section 2.05. So long as any Series G bonds shall remain
outstanding, the Company shall pay to the Trustee as and for a sinking fund for
the retirement of Series G bonds on September 1, 1974, and on September 1
thereafter to and including September 1, 1994, cash in the amount of $105,000.
In the event the Company shall redeem Series G bonds from the proceeds
of the sale of any of its property to a municipality or other public body or
agency, the amount of each such sinking fund deposit thereafter shall be
reduced by an amount equal to 3% of the amount of Series G bonds so redeemed.
On or before the thirtieth day prior to each sinking fund payment
date, the Trustee shall proceed to select for redemption in the manner provided
in Article 4 of the Original Indenture, Series G bonds in the aggregate
principal amount which are redeemable with the cash required to be paid on the
next following sinking fund payment date and in the name of the Company shall
give notice as may be required by said Article 4 of the redemption for the
sinking fund on such sinking fund payment date of the Series G bonds so
selected.
All cash received by the Trustee pursuant to this Section 2.05 shall
be held by the Trustee as part of the mortgaged property, and shall be applied
by the Trustee to the redemption of outstanding Series G bonds, without
premium, in the manner and with the effect specified in the preceding paragraph
hereof; and the Company shall, in each case prior to the date fixed for
redemption thereof, pay to the Trustee in cash all unpaid interest accrued on
the bonds to be redeemed through the operation of said sinking fund to the date
fixed for redemption.
So long as all outstanding Series G bonds remain registered in the
names of the initial holders in whose names bonds of such series were first
registered, the sinking fund payment shall be made entirely in cash. If none
or less than all of the outstanding bonds of Series G are registered in the
names of the initial holders in whose names bonds of such series were first
registered, the following provisions shall be applicable:
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(i) If none of the then outstanding bonds of Series G are
registered in the names of the initial holders in whose names bonds of
such series were first registered, the Company may, in lieu of
depositing cash as hereinabove provided, surrender bonds of such
series acquired by the Company and receive credit against the cash
sinking fund payment to the extent of the principal amount of bonds
surrendered; and
(ii) If one or more but less than all of the then
outstanding bonds of Series G are registered in the name of any of the
initial holders in whose names bonds of such series were first
registered, the aggregate principal amount of the bonds of such series
to be redeemed shall be apportioned in the manner provided in clause
(ii) of Section 4.02 of the Original Indenture and redemption shall be
made in accordance with the provisions of said clause (ii) except that
the Company may, in lieu of depositing cash for the redemption of
bonds not held by any such initial holder, surrender bonds of Series G
acquired by the Company and receive credit against the sinking fund
payment to the extent of the principal amount of bonds surrendered,
not exceeding, however, the amount of cash which would otherwise be
applied to the redemption of bonds of Series G not registered in the
name of any initial holder of bonds of said series, and the amount
which would otherwise be applied to the redemption of such bonds not
held by any initial holder of bonds shall be reduced to the extent of
the amount of such credit.
If the Company elects to surrender bonds as a credit against the
sinking fund payment pursuant to the foregoing provisions it shall deposit such
bonds, with all unmatured interest coupons pertaining thereto in the case of
coupon bonds, with the Trustee at least 35 days and not more than 45 days prior
to the date on which the next sinking fund payment becomes due.
All Series G bonds redeemed or delivered to the Trustee for
cancellation pursuant to this Section 2.05 (except fully registered Series G
bonds redeemed in part and upon which notations of partial payment are made as
provided in Article 4 of the Original Indenture) together with any and all
appertaining interest coupons shall forthwith be cancelled by the Trustee and
shall be delivered to or upon the written order of the Company and shall not be
made the basis for issuance of any additional bonds hereunder.
Section 2.06. Upon the execution and delivery of this Ninth
Supplemental Indenture and upon compliance with the provisions of the Original
Indenture the Company may execute and deliver to the Trustee, and the Trustee
shall certify and deliver to or upon the written order of the President or
Treasurer of the Company, Series G bonds in an aggregate principal amount not
exceeding $3,500,000.
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ARTICLE 3
ADDITIONAL COVENANTS AND MISCELLANEOUS
Section 3.01. So long as any Series G bonds remain outstanding, the
provisions of Section 1.15 of the Original Indenture which are expressed to be
applicable to bonds of Series A shall also be applicable to the Series G bonds
and the holders thereof.
Section 3.02. So long as any Series G bonds shall remain
outstanding, no new series of bonds shall be authorized having a maturity date
earlier than September 1, 1995 and no provision shall be made for the
retirement of any new series of bonds prior to September 1, 1995 through a
sinking fund or other retirement fund in an amount in any year greater than 3%
of the aggregate principal amount of such bonds theretofore issued.
Section 3.03. So long as any Series G bonds remain outstanding, the
Company will not declare or pay any dividends on shares of its Common Stock
(except dividends payable solely in shares of Common Stock), or directly or
indirectly purchase, redeem or otherwise acquire any shares of Common Stock
(except out of the proceeds derived from the issuance of other shares of Common
Stock), or make any other distribution on shares of Common Stock (such
non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions being hereinafter called "Restricted Payments"),
unless after giving effect thereto the aggregate of all such Restricted
Payments made during the period from December 31, 1972 to and including the
date of the making of the Restricted Payment in question does not exceed the
sum of $500,000 plus (or minus in case of a deficit) the amount of Consolidated
Net Income Available for Common Stock Dividends for such period (computed on a
cumulative basis for said entire period).
As used in this Section 3.03 the term "Consolidated Net Income
Available for Common Stock Dividends" shall mean the net income of the Company
and its subsidiaries for the applicable period available for dividends on stock
after deducting therefrom dividends paid and accrued on preferred stock,
determined on a consolidated basis in accordance with generally accepted
principles of accounting; provided, however, that no effect shall be given to
any gains or losses or other additions or deductions arising by reason of the
issue, purchase, sale, conversion or retirement by the Company or any
subsidiary of any of its or their securities, or arising by reason of any
purchases, sales, write-ups, write-downs, increase or decrease in book value,
or other transactions or changes in respect of capital assets, tangible or
intangible and the deduction for income taxes shall be adjusted by giving
effect to any change in the amount thereof resulting from the elimination of
any of the capital transactions or changes referred to above.
Section 3.04. This Ninth Supplemental Indenture shall be construed
in connection with and as part of the Original Indenture and all terms,
conditions and covenants contained in the Original Indenture, except as
restricted in the Original Indenture to bonds of another series, shall apply to
and be deemed to be for the equal benefit, security and protection of the
Series G Bonds and the holders thereof. All terms used in this Ninth
Supplemental Indenture which
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are defined in the Original Indenture shall, unless the context otherwise
requires, have the meanings set forth in the Original Indenture.
Section 3.05. Whenever in this Ninth Supplemental Indenture either
of the parties hereto is named or referred to, this shall be deemed to include
the successors or assigns of such party, and all the covenants and agreements
in this Ninth Supplemental Indenture contained shall bind and inure to the
benefit of the respective successors and assigns of such parties, whether so
expressed or not.
Section 3.06. This Ninth Supplemental Indenture may be
simultaneously executed in any number of counterparts and all said counterparts
executed and delivered, each as an original, shall constitute but one and the
same instrument.
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IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Second Vice Presidents and its corporate seal
to be hereto affixed and attested by a Trust Officer, and said Ray F. Myers, to
evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
[CORPORATE SEAL] By /s/ JOHN H. MAXHEIM
-------------------------------
President
ATTEST:
/s/ CLYDE A. JOHNSON
- --------------------------------
Secretary
Witnesses as to United Cities Gas Company:
/s/ ROBERT J. SEBASTIAN
- --------------------------------
/s/ A.E. BRADLEY
- --------------------------------
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
As Trustee
[CORPORATE SEAL] By /s/ M.J. KRUGER
-------------------------------
Second Vice President
ATTEST:
/s/ R.W. EMERSON
- --------------------------------
Trust Officer
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Witnesses as to Continental Illinois
National Bank and Trust Company
of Chicago and Ray F. Myers:
/s/ J.J. POWELL
- --------------------------------
/s/ D.J. POPE
- --------------------------------
/s/ RAY F. MYERS (SEAL)
------------------------
Ray F. Myers
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<PAGE> 234
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
I, Shirley M. Hawkins, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 13th day of December, 1973 personally
appeared before me John H. Maxheim and Clyde A. Johnson, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, did say
that they are President and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and
the Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said President and
Secretary acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said corporation for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
13th day of December, 1973.
/s/ Shirley M. Hawkins
-------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires 4/23/77.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, E.D. Butler, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 26th day of December, 1973,
personally appeared before me M.J. Kruger and R. Emerson, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who being by me duly sworn, did say
that they are Second Vice President and Trust Officer, respectively, of
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association organized and existing under the national banking laws of
the United States of America, that the seal affixed to the above and foregoing
instrument is the corporate seal of said association and that said instrument
was signed by them and sealed and delivered in behalf of said association by
authority of its Board of Directors duly given, and the said M.J. Kruger and R.
Emerson acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said association for the uses
and purposes therein set forth.
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<PAGE> 235
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
26th day of December, 73.
/s/ E.D. BUTLER
-------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires 11/16/77.
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<PAGE> 236
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, E.D. Butler, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 26th day of December, 1973,
personally appeared before me Ray F. Myers, personally known to me to be the
person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
26th day of December, 1973.
/s/ E.D. BUTLER
-------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires 11/16/77.
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<PAGE> 237
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
Personally appeared before me Robert J. Sebastian, who, being duly
sworn, says that he saw the corporate seal of UNITED CITIES GAS COMPANY affixed
to the foregoing instrument and that he also saw John H. Maxheim, President, and
Clyde A. Johnson, Secretary of said United Cities Gas Company, sign and attest
the same, and that he, with A.E. Bradley, witnessed the execution and delivery
thereof as the act and deed of said United Cities Gas Company.
/s/ ROBERT J. SEBASTIAN
-------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
Sworn to before me this 13th
day of December, 1973.
/s/ SHIRLEY M. HAWKINS
- ----------------------------
Notary Public in and for the County
and State aforesaid
My commission expires 4/23/77.
-16-
<PAGE> 238
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me J.J. Powell, who, being duly sworn, says
that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he also
saw M.J. Kruger, Second Vice President, and R. Emerson, Trust Officer of said
Continental Illinois National Bank and Trust Company of Chicago, sign and attest
the same, and that he, with D.J. Pope, witnessed the execution and delivery
thereof as the act and deed of the said Continental Illinois National Bank and
Trust Company of Chicago.
/s/ J.J. POWELL
-------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 26th day of December, 1973.
/s/ E.D. BUTLER
- ----------------------------
Notary Public in and for the County
and State aforesaid
My commission expires 11/16/77.
-17-
<PAGE> 239
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me D.J. Pope, who, being duly sworn, says
that he saw the within named Ray F. Myers sign, seal, and as his act and deed,
deliver the foregoing instrument and that he, with J.J. Powell, witnessed the
execution thereof.
/s/ D.J. POPE
-------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 26th day of December, 1973.
/s/ E.D. BUTLER
- ----------------------------
Notary Public in and for the County
and State aforesaid
My commission expires 11/16/77.
-18-
<PAGE> 240
[CONFORMED COPY]
==============================================================================
TENTH SUPPLEMENTAL INDENTURE
Dated as of July 1, 1976
---------------
UNITED CITIES GAS COMPANY
TO
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO
And
RAY F. MYERS
TRUSTEES
---------------
Supplementing and Amending Indenture of Mortgage
Dated as of July 15, 1959
===============================================================================
<PAGE> 241
THIS IS A TENTH SUPPLEMENTAL INDENTURE, dated as of July 1, 1976 by
and between UNITED CITIES GAS COMPANY, a corporation organized under the laws
of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), party of the first part, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office in the City of Chicago, State of Illinois (hereinafter
called the "Trustee"), and RAY F. MYERS, residing in the Village of
Flossmoor, Illinois (the Trustee and Ray F. Myers being hereinafter
collectively referred to as the "Trustees"), parties of the second part.
RECITALS
The background of this Tenth Supplemental Indenture is:
1. This Tenth Supplemental Indenture is intended to amend
certain provisions of the Company's Indenture of Mortgage dated as
of July 15, 1959 (the "Original Indenture"), as heretofore
supplemented by nine Supplemental Indentures (hereinafter
collectively called the "Indenture"). The Indenture provided for the
issuance of First Mortgage Bonds of the Company in series and there
have been issued and are outstanding under the Indenture seven
series of First Mortgage Bonds, respectively designated as Series
A through Series G.
2. The Company has agreed to increase the amount of the
required sinking fund payments set forth in the Indenture for each
outstanding series of Bonds and add an additional covenant as
hereinafter set forth in consideration of the holders of the
outstanding Bonds consenting to the amendment of the Indenture by
deletion of certain restrictions therein contained as hereinafter
provided. The holders of the requisite percentage in principal amount
of the outstanding Bonds have consented to the amendments
hereinafter set forth and the Company has filed such consents with
the Trustee.
NOW, THEREFORE, THIS TENTH SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE I
AMENDMENTS
Section 1.1. The second paragraph of Section 1.04 of the Original
Indenture and Section 3.02 of each of the Fourth, Fifth, Sixth, Seventh,
Eighth and Ninth Supplemental Indentures thereto are deleted and of no
further force and effect.
Section 1.2. The amount of the required sinking fund deposits to be
applied to the redemption of each series of Bonds is increased in each case,
effective July 1, 1976, to an amount equal to 125% of the amount presently
required for the respective series of Bonds until July 1, 1986 and thereafter
the amount of each sinking fund deposit shall be increased
<PAGE> 242
to an amount equal to 150% of the existing sinking fund requirements as set
forth in the following schedule for the respective series of Bonds:
<TABLE>
<CAPTION>
INCREASED ANNUAL SINKING FUND
7/1/76
PRESENT ANNUAL UNTIL AFTER
FIRST MORTGAGE BONDS SINKING FUND 7/1/86 7/1/86
<S> <C> <C> <C>
Series A, 5 3/8%,
due July 15, 1984 $105,000 $131,250
Series B, 4.95%,
due June 15, 1988 26,000 32,500 $39,000
Series C, 4 7/8%,
due November 15, 1989 25,000 31,250 37,500
Series D, 7 1/8%,
due March 15, 1993 50,000 62,500 75,000
Series E, 10 3/8%,
due September 1, 1995 82,500 103,125 123,750
Series F, 8 1/2%,
due September 1, 1995 60,000 75,000 90,000
Series G, 8.45%
due September 1, 1995 105,000 131,250 157,500
</TABLE>
ARTICLE II
ADDITIONAL COVENANT
Section 2.1. So long as any Bonds of Series A, B, C, D, E, F, or G
remain outstanding, the Company will not declare or pay any dividends on shares
of its common stock (except dividends payable solely in shares of common stock),
or directly or indirectly purchase, redeem or otherwise acquire any shares of
common stock (except out of the proceeds derived from the issuance of other
shares of common stock), or make any other distribution on shares of common
stock (such non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions being hereinafter called "Restricted Payments"),
unless after giving effect thereto the aggregate of all such Restricted Payments
made during the period from December 31, 1973 to and including the date of the
making of the Restricted Payment in question does not exceed the sum of $500,000
plus (or minus in case of a deficit) the amount of Consolidated Net Income
Available for Common Stock Dividends for such period (computed on a cumulative
basis for said entire period).
-2-
<PAGE> 243
As used in this Section 2.1 the term "Consolidated Net Income Available
for Common Stock Dividends" shall mean the net income of the Company and its
subsidiaries for the applicable period available for dividends on stock after
deducting therefrom dividends paid and accrued on preferred stock, determined on
a consolidated basis in accordance with generally accepted accounting
principles; provided, however, that no effect shall be given to any gains or
losses or other additions or deductions arising by reason of the issue,
purchase, sale, conversion or retirement by the Company or any subsidiary of any
of its or their securities, or arising by reason of any purchases, sales,
write-ups, write-downs, increase or decrease in book value, or other
transactions or changes in respect of capital assets, tangible or intangible,
and the deduction for income taxes shall be adjusted by giving effect to any
change in the amount thereof resulting from the elimination of any of the
capital transactions or changes referred to above.
This Tenth Supplemental Indenture may be simultaneously executed in any
number of counterparts and all said counterparts executed and delivered, each as
an original, shall constitute but one and the same instrument.
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
hereto affixed and attested by a Trust Officer, and said Ray F. Myers, to
evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
[CORPORATE SEAL] By /s/ John H. Maxheim
-----------------------------
President
Attest:
/s/ Clyde A. Johnson
- --------------------
Secretary
Witnesses as to United Cities Gas
Company:
/s/ L. E. Jirikover
- --------------------
/s/ Victor G. Pappas
- --------------------
-3-
<PAGE> 244
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, AS
TRUSTEE
[CORPORATE SEAL] By /s/ Donald E. Alfvin
-------------------------------
President
ATTEST:
/s/ J.C. Mull, Jr.
- --------------------
Trust Officer
Witnesses as to Continental
Illinois National Bank and
Trust Company of Chicago
and Ray F. Myers:
/s/ A. H. Lenters
- --------------------
/s/ T. L. McRoberts
- --------------------
By /s/ Ray F. Myers (Seal)
-------------------------
Ray F. Myers
-4-
<PAGE> 245
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
I, Shirley M. Hawkins, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 26th day of July, 1976 personally
appeared before me JOHN H. MAXHEIM and CLYDE A. JOHNSON, to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who, being by me duly sworn, did say that they are
President and Secretary, respectively, of UNITED CITIES GAS COMPANY, a
corporation organized under the laws of the State of Illinois and the
Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said President and
Secretary acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said corporation for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
26th day of July, 1976.
By: /s/ Shirley M. Hawkins
----------------------------
Notary Public in and for the
County and State aforesaid
[Notarial Seal]
My commission expires: April 23, 1977
<PAGE> 246
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, R. S. Donovan, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 30th day of July, 1976, personally
appeared before me Donald W. Alfvin and J. C. Mull, Jr., to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who being by me duly sworn, did say that they are Vice
President and Trust Officer, respectively, of Continental Illinois National Bank
and Trust Company of Chicago, a national banking association organized and
existing under the national banking laws of the United States of America, that
the seal affixed to the above and foregoing instrument is the corporate seal of
said association and that said instrument was signed by them and sealed and
delivered in behalf of said association by authority of its Board of Directors
duly given, and the said Donald W. Alfvin and J. C. Mull, Jr. acknowledged said
instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said association for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
30th day of July, 1976.
By: /s/ R. S. Donovan
----------------------------
Notary Public in and for the
County and State aforesaid
[Notarial Seal]
My commission expires: April 26, 1980
-2-
<PAGE> 247
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, R. S. Donovan, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 30th day of July, 1976, personally
appeared before me Ray F. Myers, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument as
his free and voluntary act and deed for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
30th day of July, 1976.
By: /s/ R. S. Donovan
----------------------------
Notary Public in and for the
County and State aforesaid
[Notarial Seal]
My commission expires: April 26, 1980
-3-
<PAGE> 248
[CONFORMED COPY]
================================================================================
ELEVENTH SUPPLEMENTAL INDENTURE
DATED AS OF DECEMBER 1, 1976
---------------
UNITED CITIES GAS COMPANY
TO
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
AND
RAY F. MYERS
TRUSTEES
---------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series H,
10%, Due November 1, 1988
================================================================================
<PAGE> 249
[CONFORMED COPY]
THIS ELEVENTH SUPPLEMENTAL INDENTURE, dated as of December 1, 1976,
made by and between UNITED CITIES GAS COMPANY, a corporation organized under
the laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), party of the first part, and CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a national banking association
having its office in the City of Chicago, State of Illinois (hereinafter called
the "Trustee"), and RAY F. MYERS, residing in the Village of Flossmoor,
Illinois (the Trustee and Ray F. Myers being hereinafter collectively referred
to as the "Trustees"), parties of the second part.
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to City National
Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees, its
Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes referred
to as the "Original Indenture"), providing for the issuance thereunder from time
to time of First Mortgage Bonds of the Company, issuable in one or more series,
and wherein and whereby the Company did grant, convey, mortgage and warrant to
the said Trustees, and each of them, and their respective successors and
assigns, certain property of the Company in said Indenture of Mortgage more
particularly described for the security of all First Mortgage Bonds issued and
to be issued thereunder; and
WHEREAS, on September 1, 1961, City National Bank and Trust Company of
Chicago was, under the laws of the United States of America, merged with
Continental Illinois National Bank and Trust Company of Chicago, a national
banking association, under the name of Continental Illinois National Bank and
Trust Company of Chicago, which thereupon became corporate trustee under the
Indenture as provided therein; and
WHEREAS, on October 15, 1966, Ray F. Myers became individual trustee
under the Indenture as successor to R. Emmett Hanley, resigned; and
WHEREAS, the Company has heretofore executed and delivered its First,
Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Supplemental
Indentures respectively dated as of November 1, 1960, June 1, 1962, February 1,
1963, June 15, 1963, November 15, 1964, March 15, 1968, August 1, 1970,
September 1, 1972 and January 1, 1974 for the purpose of subjecting to the lien
of the Indenture certain additional property acquired by the Company and
complying with its covenant of further assurances, and, with respect to the said
Fourth, Fifth, Sixth, Seventh, Eighth and Ninth Supplemental Indentures, for the
further purpose of creating additional First Mortgage Bonds, and has heretofore
executed and delivered its Tenth Supplemental Indenture dated as of July 1, 1976
(a true, correct and complete conformed copy of which is attached hereto as
Exhibit A) for the purpose of amending certain of the provisions of said
Indenture of Mortgage and certain of said Supplemental Indentures thereto (said
Indenture of Mortgage and all Supplemental Indentures thereto being herein
collectively referred to as the "Indenture"); and
<PAGE> 250
WHEREAS, there have been issued under the Indenture $3,500,000
aggregate principal amount of First Mortgage Bonds, Series A, 5-3/8%, Due July
15, 1984, $1,820,000 of which remain outstanding; $1,000,000 aggregate
principal amount of First Mortgage Bonds, Series B, 4.95%, Due June 15, 1988,
$674,000 of which remain outstanding; $1,000,000 aggregate principal amount of
First Mortgage Bonds, Series C, 4-7/8%, Due November 15, 1989, $694,000 of
which remain outstanding; $2,000,000 aggregate principal amount of First
Mortgage Bonds, Series D, 7-1/8 %, Due March 15, 1993, $1,600,000 of which
remain outstanding; $3,300,000 aggregate principal amount of First Mortgage
Bonds, Series E, 10-3/8%, Due September 1, 1995, $2,784,500 of which remain
outstanding; $2,000,000 aggregate principal amount of First Mortgage Bonds,
Series F, 8-1/2%, Due September 1, 1995, $1,745,000 of which remain
outstanding; and $3,500,000 aggregate principal amount of First Mortgage Bonds,
Series G, 8.45%, Due September 1, 1995, $3,159,000 of which remain outstanding;
and
WHEREAS, the Company desires to create a new series of bonds to be
issued under and secured by the Indenture and to be designated as "First
Mortgage Bonds, Series H, 10%, Due November 1, 1988" (herein called "Series H
bonds"), to be limited to $3,000,000 in aggregate principal amount; and
WHEREAS, the Company also desires to subject to the lien of the
Indenture certain properties, including properties acquired or constructed by
the Company since the date of execution and delivery of the Ninth Supplemental
Indenture, which are not excluded or reserved from the lien of the Original
Indenture; and
WHEREAS, all things necessary to make the Series H bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Eleventh Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed have been done and performed; and the issue of Series H bonds,
as herein provided, has been in all respects duly authorized;
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any, thereto
appertaining, without any preference, priority or distinction whatsoever, as
follows:
ARTICLE 1
MORTGAGE OR ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal of
and interest (and premium, if any) on all of the bonds of the Company at any
time outstanding under the
-2-
<PAGE> 251
Indenture according to their tenor and effect and the performance of and
compliance with the covenants and conditions in the Indenture contained, has
granted, conveyed, mortgaged and warranted, and by these presents does hereby
grant, convey, mortgage and warrant to the Trustees and each of them, and to
their successors in said trust forever, all property and rights acquired and
constructed by the Company since the date of execution and delivery of the Ninth
Supplemental Indenture, and the additional real estate described in Schedule A
hereof, except property of the character specifically reserved and excepted from
the lien of the Original Indenture and property heretofore released from the
lien thereof.
TOGETHER WITH all rights belonging or in any wise appertaining to any
and all the aforesaid property or any part thereof with the reversion and,
subject to the provisions of Section 7.01 of the Original Indenture, all income
and earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the lien
of the Indenture.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture.
ARTICLE 2
SERIES H BONDS
Section 2.01. Creation of Series H Bonds. There is hereby created
for issuance under the Indenture, a series of bonds, limited to the aggregate
principal amount of $3,000,000, to be designated as "First Mortgage Bonds,
Series H, 10%, Due November 1, 1988." The Series H Bonds shall, subject to
the provisions of Section 1.13 of the Original Indenture, be dated as of, and
shall bear interest from, the date of their authentication, shall mature
November 1, 1988, and shall bear interest at the rate of 10% payable
semiannually on May 1 and November 1 in each year until the principal thereof
shall have become due and payable and shall bear interest on any overdue
principal and (to the extent permitted by law) on any overdue installment of
interest, at the rate of 11% per annum.
Section 2.02. Denominations; Exchanges. The Series H bonds initially
to be issued shall be fully registered bonds without coupons, in denominations
of $500 and multiples thereof, substantially in the form set forth in Section
2.03 hereof, with appropriate insertions, omissions and changes, approved by the
President of the Company and the Trustee, as may be appropriate for different
denominations and/or in order to conform to usage or law. Upon receipt of a
written request from a holder or holders of not less than 25% in aggregate
principal amount of the Series H bonds at the time outstanding, stating its
-3-
<PAGE> 252
or their intention to exchange all or a substantial part of their bonds
for Series H bonds in coupon form, the Company will promptly cause to be
prepared Series H bonds in customary coupon form in the denomination of $500
and/or $1,000, as requested, registrable as to principal only, and substantially
in the form of the fully registered Series H bond set forth in Section 2.03
hereof, with appropriate insertions, omissions, and changes approved by counsel
satisfactory to the Trustee in an opinion filed with the Trustee, and by the
Trustee. Thereafter fully registered bonds and coupon bonds of Series H shall be
interchangeable, subject to the provisions of Section 1.11 of the Original
Indenture.
Section 2.03. Form of Series H Bonds. The registered Series H bonds
without coupons shall be in substantially the following form:
Form of Fully Registered Series H Bonds Without Coupons
and Trustee's Certificate
UNITED CITIES GAS COMPANY
No. RH
FIRST MORTGAGE BOND, SERIES H, 10%, Due November 1, 1988
For value received, UNITED CITIES GAS COMPANY, a corporation of
the State of Illinois and the Commonwealth of Virginia (hereinafter,
with its successors and assigns, generally called the "Company"),
hereby promises to pay to ______________ or registered assigns, on
November 1, 1988, or earlier as hereinafter referred to, the sum of
___________________________ Dollars at the principal office in Chicago,
Illinois, of CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO (hereinafter, with its successors in the trusts under the
indenture mentioned below, generally called the "Trustee"), or at the
principal office of its successor in said trusts, and to pay to said
payee, or registered assigns, interest thereon, from the date hereof,
at the rate of ten percent (10%) per annum, at said office,
semiannually on May 1 and November 1 in each year until the principal
sum hereof shall have become due and payable and shall bear interest on
any overdue principal and (to the extent permitted by law) on any
overdue installment of interest, at the rate of eleven percent (11%).
This bond is one of a duly authorized issue of First Mortgage
Bonds of the Company, of a series designated First Mortgage Bonds,
Series H, 10%, Due November 1, 1988, all such bonds of this series and
all other series being issued or to be issued under and subject to the
provisions of a certain Indenture of Mortgage, dated as of July 15,
1959 (hereinafter with all indentures supplemental thereto generally
called the "Indenture"), by and between the Company and City National
Bank and Trust Company of Chicago (which has been succeeded by
Continental Illinois National
-4-
<PAGE> 253
Bank and Trust Company of Chicago as Corporate Trustee) and R.
Emmett Hanley (who has been succeeded by Ray F. Myers), as Trustees, to
which Indenture, an executed counterpart of which is on file with the
Trustee, reference is hereby made for a description of the property
mortgaged, a statement of the nature and extent of the security thereby
afforded, the terms and conditions upon which release of property
covered by the Indenture may be made, the terms and conditions upon
which bonds of all series are or are to be issued and secured, the
rights and remedies under the Indenture of the holders of said bonds,
the terms and conditions upon which the Indenture may be modified or
amended, and the rights and obligations under the Indenture of the
Company and of said Trustees; but neither the foregoing reference to
the Indenture, nor any provision of this bond or of the Indenture,
shall affect or permit the impairment of the absolute, unconditional
and unalterable obligation of the Company to pay, at the maturity date
herein provided, the principal of and interest on this bond as herein
provided.
The Company, the Trustee and all other persons may for all
purposes treat the registered owner hereof for the time being, as the
absolute owner hereof, and neither the Company nor the Trustee shall be
affected by any notice or knowledge to the contrary, whether any
payment on this bond shall be overdue or not; and the Company, and
every successive registered owner and assignee of this bond, by
accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely
thereon.
In certain events, on the conditions, in the manner, at the
times, to the extent and with the effect set forth in the Indenture,
and all as more fully provided therein, (1) the principal of this bond
may be declared and become due and payable before the stated maturity
hereof, (2) this bond may be transferred or exchanged at the option of
the registered owner hereof, and (3) this bond, either singly or
together with all or less than all other bonds, or, if the principal
amount of this bond is a multiple of five hundred dollars ($500), any
part of the principal amount hereof constituting said sum or any
multiple thereof, may be called for redemption and payment at any time
prior to maturity, on notice given or waived as provided in the
Indenture, at the applicable redemption price specified in the
Indenture.
This bond is transferable by the registered owner either in
person or by attorney duly authorized in writing at the office of the
Trustee upon surrender and cancellation of this bond and registered
bonds of this series and coupon bonds of this series are
interchangeable, all in the manner and upon the conditions prescribed
in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee
by its certification hereof, waives and releases all right of recourse
to any personal, statutory or other liability of any past, present or
future promoter, incorporator, stockholder, director or officer of the
Company for the collection of any indebtedness evidenced by this bond,
or for the enforcement of any right or claim under or in connection
with this bond or the Indenture.
-5-
<PAGE> 254
This bond shall not be valid or become obligatory for any
purpose, or be entitled to any protection or benefit under the
Indenture, until the certificate hereon shall have been signed by the
Trustee.
IN WITNESS WHEREOF, United Cities Gas Company has caused this
bond to be executed and its corporate seal to be hereunto affixed by
its officers duly authorized thereunto, and this bond to be dated
__________________.
UNITED CITIES GAS COMPANY
By ______________________________
President
ATTEST:
_________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein,
referred to in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By________________________________
Authorized Officer
Section 2.04. Redemption of Series H Bonds;. All or any part of the
Series H bonds outstanding at any time, or any part of the principal amount of
any fully registered Series H bond constituting $500 or any multiple thereof,
may be redeemed at any time prior to maturity (subject to the further provisions
hereof), whether or not such time be an interest payment date, at the principal
office of the Trustee, upon not less than thirty (30) days prior notice given or
waived as hereinafter or in the Indenture provided, at the following redemption
prices in each case together with the accrued and unpaid interest on the
principal amount of bonds called to the date fixed for redemption:
(a) if redeemed through operation of the sinking fund, at their
principal amount, and
(b) in all other cases, including, without limitation, a
redemption through the application of the proceeds of the sale or
transfer of all or part of the property of the
-6-
<PAGE> 255
Company to a municipality or other public body or authority
pursuant to condemnation proceedings or an agreement in lieu of
condemnation, at a redemption price equal to 100% of the principal
amount of the Series H bonds to be redeemed, plus, in the event of
redemption on or before November 1, 1987, a premium equal to 10% of the
principal amount of Series H bonds so to be redeemed, such premium to
be reduced by .90 of 1% for each full year expired after November 1,
1976; provided, however, that the Series H bonds may not be redeemed at
the option of the Company prior to November 1, 1986 by the application,
directly or indirectly, of funds derived from the issuance of debt
securities or borrowings of the Company having an interest cost (as
determined by bound financial practice) to the Company of less than 10%
per annum.
Series H bonds shall be redeemed upon the notice, in the manner and
with the effect provided in Article 4 of the Original Indenture and the
provisions of Article 4 of the Original Indenture, except Section 4.01 thereof,
shall be applicable to the Series H bonds.
Section 2.05. Sinking Fund. So long as any Series H bonds shall
remain outstanding, the Company shall deposit with the Trustee as and for a
sinking fund for the retirement of Series H bonds cash in the amounts and on the
dates (herein called "sinking fund payment date") set forth below:
SINKING FUND PAYMENT DATE AMOUNT OF DEPOSIT
November 1, 1978 . . . . . . . . . . . . . . . . . . . . $180,000
November 1, 1979 . . . . . . . . . . . . . . . . . . . . 190,000
November 1, 1980 . . . . . . . . . . . . . . . . . . . . 200,000
November 1, 1981 . . . . . . . . . . . . . . . . . . . . 210,000
November 1, 1982 . . . . . . . . . . . . . . . . . . . . 220,000
November 1, 1983 . . . . . . . . . . . . . . . . . . . . 230,000
November 1, 1984 . . . . . . . . . . . . . . . . . . . . 240,000
November 1, 1985 . . . . . . . . . . . . . . . . . . . . 250,000
November 1, 1986 . . . . . . . . . . . . . . . . . . . . 260,000
November 1, 1987 . . . . . . . . . . . . . . . . . . . . 270,000
provided, however, that:
(a) In the event the Company shall redeem Series H bonds from
the proceeds of the sale of any of its property to a municipality or
other public body or agency in accordance with the applicable
provision of the Indenture, then in such event the amount of each such
sinking fund deposit thereafter made under this Section 2.05 shall be
reduced by an amount equal to 3% of the aggregate principal amount of
Series H bonds so redeemed.
(b) In the event that "Consolidated Earnings Available for
Fixed Charges" for the 12 consecutive calendar months ending on March
31 in any year, commencing
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<PAGE> 256
with the year ending March 31, 1978, is less than 175% of the
total interest paid or accrued (including the imputed interest factor
in rentals paid or accrued under all capitalized leases included in
Funded Debt) during such 12 months on all Consolidated Funded Debt and
Consolidated Current Debt outstanding during such 12 months, the amount
required to be deposited by the Company with the Trustee pursuant to
this Section 2.05 on the next succeeding November 1 shall be increased
by 100%. As used in this paragraph (b) the term "Consolidated Earnings
Available for Fixed Charges" shall mean, for any period, Consolidated
Net Income Available for Common Stock Dividends for such period plus,
to the extent deducted in computing such Consolidated Net Income
Available for Common Stock Dividends, interest on Consolidated Funded
Debt and Consolidated Current Debt (including the imputed interest
factor in capitalized lease rentals as aforesaid) and taxes on or
measured by income.
(c) The Company may at its option increase the amount deposited
in the Series H bond sinking fund on any sinking fund payment date by
an additional amount not exceeding the amount the Company is required
to deposit on such sinking fund payment date. The right of the Company
to increase a sinking fund deposit on any sinking fund payment date
shall be noncumulative. All deposits made by the Company under this
paragraph (c) shall be in units of $10,000 or an integral multiple of
$1,000 in excess thereof.
(d) The aggregate principal amount of Series H bonds redeemed
pursuant to the requirements of foregoing subparagraphs (b) and (c) of
this Section 2.05 shall be credited first against the principal amount
of Series H bonds due at the maturity thereof and then against the
amount which the Company is required to deposit in the Series H bonds
sinking fund on each sinking fund payment date under provisions of the
first grammatical paragraph of this Section 2.05, in the inverse
chronological order of such sinking fund dates.
On or before the thirtieth day prior to each sinking fund payment date,
the Trustee shall proceed to select for redemption in the manner provided in
Article 4 of the Original Indenture, Series H bonds in the aggregate principal
amount which are redeemable with the cash to be deposited with the Trustee under
this Section 2.05 on the next following sinking fund payment date, and in the
name of the Company shall give notice as may be required by said Article 4 of
the redemption for the sinking fund on such sinking fund payment date of the
Series H bonds so selected.
All cash received by the Trustee pursuant to this Section 2.05 shall be
held by the Trustee as part of the mortgaged property, and shall be applied by
the Trustee to the redemption of outstanding Series H bonds, without premium, in
the manner and with the effect specified in the preceding paragraph hereof; and
the Company shall, in each case prior to the date fixed for redemption thereof,
pay to the Trustee in cash all unpaid interest accrued on the Series H bonds to
be redeemed through the operation of said sinking fund to the date fixed for
redemption.
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<PAGE> 257
So long as all outstanding Series H bonds remain registered in the
names of the initial holders in whose names bonds of such series were first
registered or in the name of any subsequent institutional holder (as that term
is hereinafter defined), the sinking fund payment shall be made entirely in
cash. (The term "institutional holder" as used herein means any insurance
company, pension fund, bank, trust company or other similar financial
institution.) If none or less than all of the outstanding bonds of Series H
are registered in the names of the initial holders in whose names bonds of such
series were first registered, the following provisions shall be applicable:
(i) If none of the then outstanding bonds of Series H are
registered in the names of the initial holders in whose names bonds of
such series were first registered, the Company may, in lieu of
depositing cash as hereinabove provided, surrender bonds of such series
acquired by the Company (other then by operation of the sinking fund)
and receive credit against the cash sinking fund payment to the extent
of the principal amount of bonds surrendered; and
(ii) If one or more but less than all of the then outstanding
bonds of Series H are registered in the name of any of the initial
holders in whose names bonds of such series were first registered, the
aggregate principal amount of the bonds of such series to be redeemed
shall be apportioned in the manner provided in clause (ii) of Section
4.02 of the Original Indenture and redemption shall be made in
accordance with the provisions of said clause (ii) except that the
Company may, in lieu of depositing cash for the redemption of bonds not
held by any such initial holder, surrender bonds of Series H acquired
by the Company and receive credit against the sinking fund payment to
the extent of the principal amount of bonds surrendered, not exceeding,
however, the amount of cash which would otherwise be applied to the
redemption of bonds of Series H not registered in the name of any
initial holder of bonds of said series, and the amount which would
otherwise be applied to the redemption of such bonds not held by any
initial holder of bonds shall be reduced to the extent of the amount of
such credit.
If the Company elects to surrender bonds as a credit against the
sinking fund payment pursuant to the foregoing provisions it shall deposit such
bonds, with all unmatured interest coupons pertaining thereto in the case of
coupon bonds, with the Trustee at least 35 days and not more than 45 days prior
to the date on which the next sinking fund payment becomes due.
All Series H bonds redeemed or delivered to the Trustee for
cancellation pursuant to this Section 2.05 (except fully registered Series H
bonds redeemed in part and upon which notations of partial payment are made as
provided in Article 4 of the Original Indenture) together with any and all
appertaining interest coupons shall forthwith be cancelled by the Trustee and
shall be delivered to or upon the written order of the Company and shall not
be made the basis for issuance of any additional bonds hereunder.
Section 2.06. Issuance of Series H Bonds. Upon the execution and
delivery of this Eleventh Supplemental Indenture and upon compliance with the
provisions of the Original
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<PAGE> 258
Indenture the Company may execute and deliver to the Trustee, and the Trustee
shall certify and deliver to or upon the written order of the President or
Treasurer of the Company, Series H bonds in an aggregate principal amount not
exceeding $3,000,000.
ARTICLE 3
ADDITIONAL COVENANTS
Section 3.01. Application of Section 1.15 of Original Indenture. So
long as any Series H bonds remain outstanding, the provisions of Section 1.15 of
the Original Indenture which are expressed to be applicable to bonds of Series A
shall also be applicable to the Series H bonds and the holders thereof.
Section 3.02. Limitations on Debt. The Company covenants and agrees
that, so long as any Series H bonds shall remain outstanding:
(a) the Company will not and will not permit any Subsidiary to
issue, assume, guarantee or otherwise incur any Funded Debt or Current
Debt if, after giving effect thereto and to the application of the
proceeds thereof, the aggregate principal amount of all Consolidated
Funded Debt and Consolidated Current Debt then to be outstanding will
exceed 70% of the sum of (i) Consolidated Shareholders' Equity, plus
(ii) the aggregate principal amount of all Consolidated Funded Debt and
Consolidated Current Debt then to be outstanding;
(b) the Company will not permit the aggregate principal amount
of Consolidated Current Debt at any one time outstanding to exceed 75%
of Consolidated Shareholders' Equity; and, for a period of at least 120
consecutive days in each calendar year (commencing with calendar 1977),
will not permit the aggregate principal amount of Consolidated Current
Debt outstanding to exceed 70% of Consolidated Shareholders' Equity.
Section 3.03. Capital Leases. So long as any Series H bonds remain
outstanding, the Company will not, and will not permit any Subsidiary to, become
obligated as lessee under any lease of real or personal property (other than a
lease under which the Company or a Subsidiary is lessor) which will constitute a
"capital lease" under the provisions of Statement No. 13, entitled "Accounting
for Leases", of the Financial Accounting Standards Board, issued November, 1976,
if, after giving effect thereto, the sum of (i) the aggregate principal amount
of all Consolidated Funded Debt and Consolidated Current Debt then to be
outstanding, plus (ii) the aggregate amount which will then be required, under
the provisions of said FASB Statement No. 13, to be capitalized as liabilities
on a consolidated balance sheet of the Company and its Subsidiaries in respect
of all such capital leases then to be in effect, will exceed 70% of the sum of
(x) Consolidated Shareholders' Equity, plus (y) the aggregate principal amount
of all Consolidated Funded Debt and Consolidated Current Debt then to be
outstanding, plus (z) the amount set forth in foregoing clause (ii) hereof.
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<PAGE> 259
Section 3.04. Restricted Payments. So long as any Series H bonds
remain outstanding, the Company will not declare or pay any dividends on shares
of its Common Stock (except dividends payable solely in shares of Common Stock),
or directly or indirectly purchase, redeem or otherwise acquire any shares of
Common Stock (except out of the proceeds derived from the issuance of other
shares of Common Stock), or make any other distribution on shares of Common
Stock (such non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions, being hereinafter called "Restricted Payments"),
unless after giving effect thereto
(a) the aggregate amount of all such Restricted Payments made
during the period from December 31, 1975 to and including the date of
the making of the Restricted Payment in question does not exceed the
sum of $600,000 plus (or minus in case of a deficit) the amount of
Consolidated Net Income Available for Common Stock Dividends for such
period (computed on a cumulative basis for said entire period); and
(b) the aggregate principal amount of all Consolidated Funded
Debt and Consolidated Current Debt then to be outstanding will not
exceed 70% of the sum of (i) Consolidated Shareholders' Equity, plus
(ii) the aggregate principal amount of all Consolidated Funded Debt and
Consolidated Current Debt then to be outstanding.
Section 3.05. Certain Definitions;. As used in this Article 3, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends"
for any period shall mean the net income of the Company and its
Subsidiaries for such period available for dividends on capital stock,
after deducting therefrom dividends paid and accrued during such period
on preferred stock, determined on a consolidated basis in accordance
with generally accepted accounting principles; provided, however, that
no effect shall be given to any gains or losses or other additions or
deductions arising by reason of the issue, purchase, sale, conversion
or retirement by the Company or any Subsidiary of any of its or their
securities, or arising by reason of any purchases, sales, write-ups,
write-downs, increase or decrease in book value, or other transactions
or changes in respect of capital assets, tangible or intangible, and
deductions for income taxes shall be adjusted by giving effect to any
change in the amount hereof resulting from the elimination of any of
the capital transactions or changes referred to above.
"Consolidated Shareholders' Equity" shall mean, as at any date,
the sum of the capital stock accounts (net of treasury stock, at cost)
plus (or minus in the case of a deficit) the surplus and retained
earnings of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with generally accepted accounting
principles and after elimination of minority interests in Subsidiaries.
"Current Debt" shall mean indebtedness on or in respect of money
borrowed (including any guarantee of the payment of money borrowed by
another) which is
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<PAGE> 260
payable on demand or within one year from the date of the creation
thereof, except for any such indebtedness which is renewable or
extendible at the option of the obligor to a date more than one year
from the date of the creation thereof.
"Funded Debt" shall mean indebtedness on or in respect of money
borrowed (including any guarantee of the payment of money borrowed by
another) which is payable more than one year from the date of the
creation thereof or which is renewable or extendible at the option of
the obligor to a date more than one year from the date of creation
thereof. Funded Debt shall not include obligations in respect of any
lease, including without limitation, any "capital lease" described in
Section 3.03 hereof.
"Consolidated Current Debt" and "Consolidated Funded Debt" shall
mean all Current Debt or Funded Debt, as the case may be, of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles, after
elimination of inter-company items.
"Subsidiary" shall mean any corporation of which more than 50%
of the outstanding Voting Stock is owned by the Company. As used
herein the term "Voting Stock" shall mean stock or similar interests of
any class or classes (however designated) the holders of which are
generally and ordinarily, in the absence of contingencies, entitled to
vote for the election of the directors (or persons performing similar
functions) of such corporation.
ARTICLE 4
MISCELLANEOUS
Section 4.01. Incorporation of Original Indenture. This Eleventh
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in the
Original Indenture, except as restricted in the Original Indenture to bonds of
another series, shall apply to and be deemed to be for the equal benefit,
security and protection of the Series H bonds and the holders thereof. All
terms used in this Eleventh Supplemental Indenture which are defined in the
Original Indenture shall, unless the context otherwise requires, have the
meanings set forth in the Original Indenture.
Section 4.02. Successors and Assigns. Whenever in this Eleventh
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and all
the covenants and agreements in this Eleventh Supplemental Indenture contained
shall bind and inure to the benefit of the respective successors and assigns of
such parties, whether so expressed or not.
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<PAGE> 261
Section 4.03. Multiple Counterparts. This Eleventh Supplemental
Indenture may be simultaneously executed in any number of counterparts and all
said counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
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<PAGE> 262
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Second Vice Presidents and its corporate seal
to be hereto affixed and attested by a Trust Officer, and said Ray P. Myers, to
evidence his acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of the day and year
first above written.
UNITED CITIES GAS COMPANY
By /s/ Robert J. Sebastian
-------------------------------
Vice President
[CORPORATE SEAL]
ATTEST:
/s/ CLYDE A. JOHNSON
- ------------------------------
Secretary
Witnesses as to United Cities Gas Company:
/s/ JANIS SONTANY
- ------------------------------
/s/ CAREY M. HIGH
- ------------------------------
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<PAGE> 263
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
As Trustee
By /s/ DONALD W. ALFVIN
------------------------------
Vice President
[CORPORATE SEAL]
ATTEST:
/s/ J.C. MULL, JR.
- ------------------------------
Trust Officer
Witnesses as to Continental Illinois National
Bank and Trust Company of Chicago
and Ray F. Myers:
/s/ P. WADSWORTH
- ------------------------------
/s/ A.H. LENTERS
- ------------------------------
/s/ RAY F. MYERS [SEAL]
-------------------------
Ray F. Myers
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<PAGE> 264
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
I, Shirley M. Hawkins, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 1st day of February, 1977, personally
appeared before me Robert J. Sebastian and Clyde A. Johnson, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, did say
that they are Vice President and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and the
Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said Vice President and
Secretary acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said corporation for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
1st day of February, 1977.
/s/ SHIRLEY M. HAWKINS
------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires April 23, 1977.
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<PAGE> 265
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, R. S. Donovan, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 3rd day of February, 1977, personally
appeared before me Donald W. Alfvin and J. C. Mull, Jr., to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who being by me duly sworn, did say that they are Vice
President and Trust Officer, respectively, of Continental Illinois National Bank
and Trust Company of Chicago, a national banking association organized and
existing under the national banking laws of the United States of America, that
the seal affixed to the above and foregoing instrument is the corporate seal of
said association and that said instrument was signed by them and seals and
delivered in behalf of said association by authority of its Board of Directors
duly given, and the said Donald W. Alfvin and J. C. Mull, Jr. acknowledged said
instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said association for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
3rd day of February, 1977.
/s/ R.S. DONOVAN
------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires April 26, 1980.
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<PAGE> 266
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, R. S. Donovan, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 3rd day of February, 1977, personally
appeared before me Ray F. Myers, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument as
his free and voluntary act and deed for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
3rd day of February, 1977.
/s/ R.S. DONOVAN
------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires April 26, 1980.
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<PAGE> 267
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
Personally appeared before me Carey M. High, who, being duly sworn,
says that he saw the corporate seal of UNITED CITIES GAS COMPANY affixed to the
foregoing instrument and that he also saw Robert J. Sebastian, Vice President,
and Clyde A. Johnson, Secretary of said United Cities Gas Company, sign and
attest the same, and that he, with Janis Sontany, witnessed the execution and
delivery thereof as the act and deed of said United Cities Gas Company.
/s/ CAREY M. HIGH
------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 1st day of February, 1977.
/s/ SHIRLEY M. HAWKINS
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires April 23, 1977.
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<PAGE> 268
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me P. Wadsworth, who, being duly sworn, says
that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he also
saw Donald W. Alfvin, Vice President, and J. C. Mull, Jr., Trust Officer of said
Continental Illinois National Bank and Trust Company of Chicago, sign and attest
the same, and that he, with A. H. Lenters, witnessed the execution and delivery
thereof as the act and deed of the said Continental Illinois National Bank and
Trust Company of Chicago.
/s/ P. WADSWORTH
------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 3rd day of February, 1977.
/s/ R.S. DONOVAN
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires April 26, 1980.
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me A. H. Centers, who, being duly sworn,
says that he saw the within named Ray F. Myers sign, seal, and as his act and
deed, deliver the foregoing instrument and that be, with P. Wadsworth,
witnessed the execution thereof.
/s/ A.H. LENTERS
----------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 3rd day of February, 1977.
/s/ R.S. DONOVAN
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires April 26, 1980.
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<PAGE> 269
SCHEDULE A
DESCRIPTION OF MORTGAGED PROPERTY
The properties referred to in the granting clauses of this Supplemental
Indenture include the parcel of real estate more specifically described below.
Such description is not intended, however, to limit or impair the scope or
intention of the general descriptions in the granting clauses of the Indenture.
The following real estate situated in the Candler (G.M. 1385) District
of HALL COUNTY, GEORGIA, described as follows:
ALL THAT TRACT or parcel of land lying and being in the Candler (G.M.
1385) District of HALL COUNTY, GEORGIA, consisting of 0.0861 acre, more or less,
and containing approximately 3,750 square feet, being rectangular in shape
fronting 75 feet on the Northeastern most right-of-way of Georgia State Route
No. 60, and being 50 feet in depth. Said property is more particularly
described as follows:
As a point of reference only, begin at an iron pin set at a
point where the center line of Clark Road (Graded) intersects the
northeastern most right-of-way of Georgia State Route No. 60. From
said point of reference, run in a generally Southeasterly direction
along the Northeastern most right-of-way margin of State Route 60 the
following courses and distances: Run South 35 degrees 58 minutes East a
distance of 64-95 feet to a point; thence run South 37 degrees 10
minutes East a distance of 95.61 feet to a point; thence run South 39
degrees 50 minutes East a distance of 126.90 feet to a point; thence
run South 41 degrees 58 minutes East a distance of 192.27 feet to an
iron pin set on the Northeastern most right-of-way of State Route 60
which is the POINT OF BEGINNING. From said point of beginning, run
North 42 degrees 47 minutes East a distance of 50 feet to an iron pin;
thence run South 47 degrees 13 minutes East a distance of 75 feet to an
iron pin; thence run South 42 degrees 47 minutes West a distance of 50
feet to the Northeastern most right-of-way of State Route No. 60;
thence run North 47 degrees 13 minutes West a distance of 75 feet along
the Northeastern most right-of-way of State Route 60 to the point of
beginning.
Said property is more particularly described by a plat of survey
prepared by Jimmy D. Bullock, Registered Surveyor, dated October 1, 1975, styled
"Property of United Cities Gas Company" said plat being recorded in Plat Record
Book 60 at page 185, in the office of the Clerk of Superior Court of Hall
County, Georgia. Said plat is incorporated herein by reference thereto for more
complete and adequate description.
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<PAGE> 270
[Conformed Copy]
================================================================================
TWELFTH SUPPLEMENTAL INDENTURE
Dated as of April 1, 1981
--------------
UNITED CITIES GAS COMPANY
To
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO
AND
M. J. KRUGER
Trustees
--------------
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
And
Creating First Mortgage Bonds, Series I,
13%, Due March 15, 1996
================================================================================
<PAGE> 271
THIS TWELFTH SUPPLEMENTAL INDENTURE, dated as of
April 1, 1981, made by and between UNITED CITIES GAS COMPANY,
a corporation organized under the laws of the State of
Illinois and the Commonwealth of Virginia (hereinafter called
the "Company"), party of the first part, and CONTINENTAL
ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, a
national banking association having its office in the City of
Chicago, State of Illinois (hereinafter called the "Trustee"),
and M. J. Kruger, residing in the City of Chicago, Illinois
(the Trustee and M. J. Kruger being hereinafter collectively
referred to as the "Trustee"), parties of the second part.
WITNESSETH:
WHEREAS, the Company heretofore executed and delivered to
City National Bank and Trust Company of Chicago and R. Emmett
Hanley, as Trustees, its Indenture of Mortgage dated as of
July 15, 1959 (hereinafter sometimes referred to as the
"Original Indenture"), proving for the issuance thereunder
from time to time of First Mortgage Bonds of the Company
issuable in one or more series, and wherein and whereby the
Company did grant, convey, mortgage and warrant to the said
Trustees, and each of them, and their respective successors
and assigns, certain property of the Company in said Indenture
of Mortgage more particularly described for the security of
all First Mortgage Bonds issued and to be issued thereunder;
and
WHEREAS, on September 1, 1961, City National Bank and
Trust Company of Chicago was, under the laws of the United
States of America, merged with Continental Illinois National
Bank and Trust Company of Chicago, a national banking
association, under the name of Continental Illinois National
Bank and Trust Company of Chicago, which thereupon became
corporate trustee under the Indenture as provided therein; and
WHEREAS, on October 15, 1966, Ray F. Myers became
individual trustee under the Indenture as successor to R.
Emmett Hanley, resigned, and on March 15, 1981, M.J. Kruger
became individual trustee under the Indenture as successor to
Ray F. Myers, resigned; and
WHEREAS, the Company has heretofore executed and
delivered its First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth and Eleventh Supplemental Indentures
respectively dated as of November 1, 1960, June 1, 1962,
February 1, 1963, June 15, 1963, November 15, 1964, March 15,
1968, August 1, 1970, September 1, 1972, January 1, 1974 and
December 1, 1976 for the purpose of subjecting to the lien of
the Indenture certain additional property acquired by the
Company and complying with its covenant of further assurances,
and, with respect to the said Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth and Eleventh Supplemental Indentures, for the
further purpose of creating additional First Mortgage Bonds,
and has heretofore executed and delivered its Tenth
Supplemental Indenture dated as of July 1, 1976 for the
purpose of amending certain of the provisions of said
Indenture of Mortgage and certain of said Supplemental
Indentures thereto (said Indenture of Mortgage and all
Supplemental Indentures thereto being herein collectively
referred to as the "Indenture"); and
<PAGE> 272
WHEREAS, there have been issued under the Indenture
$3,500,000 aggregate principal amount of First Mortgage Bonds,
Series A, 5-3/8%, Due July 15, 1984, $1,163,750 of which
remain outstanding; $1,000,000 aggregate principal amount of
First Mortgage Bonds, Series B, 4.95%, Due June 15, 1988,
$544,000 of which remain outstanding; $1,000,000 aggregate
principal amount of First Mortgage Bonds, Series C, 4-7/8%,
Due November 15, 1989, $568,750 of which remain outstanding;
$2,000,000 aggregate principal amount of First Mortgage Bonds,
Series D, 7-1/8%, Due March 15, 1993, $1,287,500 of which
remain outstanding; $3,300,000 aggregate principal amount of
First Mortgage Bonds, Series E, 10-3/8%, Due September 1,
1995, $2,271,875 of which remain outstanding; $2,000,000
aggregate principal amount of First Mortgage Bonds, Series F,
8-1/2%, Due September 1, 1995, $1,445,000 of which remain
outstanding; $3,500,000 aggregate principal amount of First
Mortgage Bonds, Series G, 8.45%, Due September 1, 1995,
$2,633,750 of which remain outstanding; and $3,000,000
aggregate principal amount of First Mortgage Bonds, Series H,
10%, Due November 1, 1988, $2,430,000 of which remain
outstanding; and
WHEREAS, the Company desires to create a new series of
bonds to be issued under and secured by the Indenture and to
be designated as "First Mortgage Bonds, Series I, 13%, Due
March 15, 1996" (herein called "Series I bonds"), to be
limited to $5,000,000 in aggregate principal amount; and
WHEREAS, the Company also desires to subject to the lien
of the Indenture certain properties, including properties
acquired or constructed by the Company since the date of
execution and delivery of the Eleventh Supplemental Indenture,
which are not excluded or reserved from the lien of the
Original Indenture; and
WHEREAS, all things necessary to make the Series I bonds,
when duly executed by the Company and certified and delivered
by the Trustee and issued, valid, binding and legal
obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Twelfth
Supplemental Indenture a valid and binding instrument in
accordance with its terms and for the purposes herein
expressed have been done and performed; and the issue of
Series I bonds, as herein provided, has been in all respects
duly authorized;
NOW, THEREFORE, in consideration of the premises and of
the sum of One Dollar ($1.00) to the Company duly paid by the
Trustees at or before the ensealing and delivery hereof and
for other good and valuable considerations, the receipt
whereof is hereby acknowledged, the Company hereby covenants
to and with the Trustees and their successors in the trusts
under the Indenture, for the equal and pro rata benefit of all
present and future holders of all bonds issued and to be
issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or
distinction whatsoever, as follows:
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<PAGE> 273
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the
principal of and interest (and premium, if any) on all of the
bonds of the Company at any time outstanding under the
Indenture according to their tenor and effect and the
performance of and compliance with the covenants and
conditions in the Indenture contained, has granted, conveyed,
mortgaged and warranted, and by these presents does hereby
grant, convey, mortgage and warrant to the Trustees and each
of them, and to their successors in said trust forever, all
property and rights acquired and constructed by the Company
since the date of execution and delivery of the Eleventh
Supplemental Indenture, and the additional real estate
described in Schedule A hereof, except property of the
character specifically reserved and excepted from the lien of
the Original Indenture and property heretofore released from
the lien thereof.
TOGETHER WITH all rights belonging or in any wise
appertaining to any and all the aforesaid property or any part
thereof with the reversion and, subject to the provisions of
Section 7.01 of the Original Indenture, all income and
earnings arising out of the aforesaid property, including
rents, issues and profits during any period of redemption and
prior to the execution of an absolute deed pursuant to a
foreclosure or other proceedings to enforce the lien of the
Indenture.
TO HAVE AND TO HOLD all said properties, real, personal
and mixed, mortgaged and conveyed by the Company, as
aforesaid, or intended so to be, unto the Trustees and their
successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and
trusts set forth in the Original Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon
the same conditions as are set forth in the Original
Indenture.
ARTICLE 2
SERIES I BONDS
Section 2.01. Creation of Series I Bonds. There is
hereby created for issuance under the Indenture, a series of
bonds, limited to the aggregate principal amount of $5,000,000
to be designated as "First Mortgage Bonds, Series I, 13%, Due
March 15, 1996." The Series I bonds shall, subject to the
provisions of Section 1.13 of the Original Indenture, be dated
as of, and shall bear interest from, the date of their
certification by the Trustee, shall mature March 15, 1996, and
shall bear interest at the rate of 13% payable semiannually on
March 15 and September 15 in each year until the principal
thereof shall have become due and payable and shall bear
interest on any overdue principal and (to the extent permitted
by law) on any overdue installment of interest, at the rate of
14% per annum, the interest on each Series I bond to be
payable at the principal office of the Trustee in Chicago,
Illinois,
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<PAGE> 274
or, at the option of the person entitled thereto, in
accordance with the instructions of such person submitted in
writing to the Company and the Trustee.
Section 2.02. Denominations. The Series I bonds shall
be issued only as fully registered bonds without coupons, in
denominations of $1,000 and multiples thereof, substantially
in the form set forth in Section 2.03 hereof, with appropriate
insertions, omissions and changes, approved by the President
of the Company and the Trustee, as may be appropriate for
different denominations and/or in order to conform to usage or
law.
Section 2.03. Form of Series I Bonds. The Series I
bonds shall be in substantially the following form:
Form of Series I Bonds and Trustee's Certificate
UNITED CITIES GAS COMPANY
No. RI $________________
First Mortgage Bond, Series I, 13%, Due March 15, 1996
For value received, UNITED CITIES GAS COMPANY, a
corporation of the State of Illinois and the Commonwealth of
Virginia (hereinafter, with its successors and assigns,
generally called the "Company"), hereby promises to pay to
or registered assigns, on March 15, 1996, or earlier as
hereinafter referred to, the sum of at the principal office in
Chicago, Illinois, of CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO (hereinafter, with its successors in
the trusts under the indenture mentioned below, generally
called the "Trustee"), or at the principal office of its
successor in said trusts, and to pay to said payee, or
registered assigns, interest thereon, from the date hereof, at
the rate of thirteen percent (13%) per annum, at said office,
semiannually on March 15 and September 15 in each year until
the principal sum hereof shall have become due and payable and
to pay interest on any overdue principal and (to the extent
permitted by law) on any overdue installment of interest, at
the rate of fourteen percent (14%).
This bond is one of a duly authorized issue of First
Mortgage Bonds of the Company, of a series designated First
Mortgage Bonds, Series I, 13%, Due March 15, 1996, all such
bonds of this series and all other series being issued or to
be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter
with all indentures supplemental thereto generally called the
"Indenture"), by and between the Company and City National
Bank and Trust Company of Chicago (which has been succeeded by
Continental Illinois National Bank and Trust Company of
Chicago as Corporate Trustee) and R. Emmett Hanley (who has
been succeeded by M. J. Kruger), as Trustees, to which
Indenture, an executed counterpart of which is on file with
the Trustee, reference is hereby made for a description of the
property mortgaged, a statement of the nature and extent of
4
<PAGE> 275
the security thereby afforded, the terms and conditions upon
which release of property covered by the Indenture may be
made, the terms and conditions upon which bonds of all series
are or are to be issued and secured, the rights and remedies
under the Indenture of the holders of said bonds, the terms
and conditions upon which the Indenture may be modified or
amended, and the rights and obligations under the Indenture of
the Company and of said Trustees; but neither the foregoing
reference to the Indenture, nor any provision of this bond or
of the Indenture, shall affect or permit the impairment of the
absolute, unconditional and unalterable obligation of the
Company to pay, at the maturity date herein provided, the
principal of and interest on this bond as herein provided.
The Company, the Trustee and all other persons may for
all purposes treat the registered owner hereof for the time
being, as the absolute owner hereof, and neither the Company
nor the Trustee shall be affected by any notice or knowledge
to the contrary, whether any payment on this bond shall be
overdue or not; and the Company, and every successive
registered owner and assignee of this bond, by accepting or
holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to
rely thereon.
In certain events, on the conditions, in the manner, at
the times, to the extent and with the effect set forth in the
Indenture, and all as more fully provided therein, (1) the
principal of this bond may be declared and become due and
payable before the stated maturity hereof, (2) this bond may
be transferred or exchanged at the option of the registered
owner hereof, and (3) this bond, either singly or together
with all or less than all other bonds, or, if the principal
amount of this bond is a multiple of one thousand dollars
($1,000), any part of the principal amount hereof constituting
said sum or any multiple thereof, may be called for redemption
and payment at any time prior to maturity, on notice given or
waived as provided in the Indenture, at the applicable
redemption price specified in the Indenture.
This bond is transferable by the registered owner either
in person or by attorney duly authorized in writing at the
office of the Trustee upon surrender and cancellation of this
bond, all in the manner and upon the conditions prescribed in
the Indenture.
Each holder of this bond by acceptance hereof, and the
Trustee by its certification hereof, waives and releases all
right of recourse to any personal, statutory or other
liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company
for the collection of any indebtedness evidenced by this bond,
or for the enforcement of any right or claim under or in
connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any
purpose, or be entitled to any protection or benefit under the
Indenture, until the certificate hereon shall have been signed
by the Trustee.
5
<PAGE> 276
IN WITNESS WHEREOF, United Cities Gas Company has caused
this bond to be executed and its corporate seal to be hereunto
affixed by its officers duly authorized thereunto, and this
bond to be dated.
UNITED CITIES GAS COMPANY
By
------------------------
President
Attest:
-------------------------------------
Secretary
6
<PAGE> 277
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated
therein, referred to in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF Chicago, as
Trustee
By
---------------------------------
Authorized Officer
Section 2.04. Redemption of Series I Bonds. All
or any part of the Series I bonds outstanding at any time may
be redeemed at any time prior to maturity (subject to the
further provisions hereof), whether or not such time be an
interest payment date, at the principal office of the Trustee,
upon not less than thirty (30) days prior notice given or
waived as hereinafter or in the Indenture provided, at the
following redemption prices in each case together with the
accrued and unpaid interest on the principal amount of bonds
called to the date fixed for redemption:
(a) if redeemed through operation of the
sinking fund, at their principal amount, and
(b) in all other cases, including,
without limitation, a redemption through the
application of the proceeds of the sale or transfer
of all or part of the property of the Company to a
municipality or other public body or authority
pursuant to condemnation proceedings or an agreement
in lieu of condemnation, at the following redemption
prices (expressed as a percentage of the principal
amount to be redeemed):
<TABLE>
<CAPTION>
If Redeemed If Redeemed
During 12 During 12
Months Ending Redemption Months Ending Redemption
March 15 Price March 15 Price
<S> <C> <C> <C>
1982 113.00% 1990 105.57%
1983 112.07 1991 104.64
1984 111.14 1992 103.71
1985 110.21 1993 102.79
1986 109.29 1994 101.86
1987 108.36 1995 100.93
1988 107.43 1996 100.00
1989 106.50
</TABLE>
7
<PAGE> 278
provided, however, that the Series I bonds may not be
redeemed at the option of the Company prior to March
15, 1991 as a part of a refunding or anticipated
refunding operation by the application, directly or
indirectly, to such redemption of funds borrowed by
the Company or any Subsidiary having (1) an effective
interest cost of less than 13% per annum, or (2) as
of the date of proposed redemption, a Weighted
Average Life to Maturity less than the remaining
Weighted Average Life to Maturity of the Series I
bonds.
The term "Weighted Average Life to Maturity" as
applied to any indebtedness for borrowed money means
as at the time of the determination thereof, the
number of years obtained by dividing the then
Remaining Dollar-years of such indebtedness by the
then outstanding principal amount of such
indebtedness. The term "Remaining Dollar-years" of
any indebtedness for borrowed money means the amount
obtained by (1) multiplying the amount of each then
remaining sinking fund, series maturity or other
required repayment, including repayment at final
maturity, by the number of years (calculated at the
nearest one-twelfth) which will elapse between the
date of proposed prepayment and the date of that
required repayment, and (2) totaling all the products
obtained in clause (1).
Except as hereinafter provided, Series I bonds shall
be redeemed upon the notice, in the manner and with the effect
provided in Article 4 of the Original Indenture.
Notwithstanding any provisions of Article 1 and
Article 4 of the Original Indenture:
(a) if less than all outstanding Series I
bonds are to be redeemed, the aggregate principal
amount of bonds to be redeemed shall be apportioned
by the Trustee pro rata, as nearly as practicable, in
amounts of $1,000 or any integral multiple thereof,
among the holders of such bonds, in the proportion
that the aggregate principal amount of such bonds
held by each such holder bears to the aggregate
principal amount of bonds then outstanding with
adjustments, to the extent practicable, to equalize
for any prior redemptions not in such proportion, and
(b) in the event of the payment of a portion
of the principal amount of any Series I bond, payment
shall be made to or upon the order of the holder of
such bond without requiring presentation or surrender
of such bond if there shall be filed with the Trustee
a certificate of the Treasurer of the Company stating
that the holder of such bond (or the person for whom
such holder is a nominee) and the Company have
entered into a written agreement that payment of any
portion of such bond may be made to the registered
holder thereof without presentation or surrender
thereof, that such holder will not sell, transfer or
otherwise dispose of any such bond unless it shall
have caused notation to be made thereon of the
portion of the principal amount thereof which has
been paid and the last interest payment date to which
interest has been paid and prior to the delivery
thereof such bond shall have been presented to the
Trustee for inspection or surrendered in exchange for
a new bond or bonds of the same series in aggregate
principal amount equal to the unpaid portion of the
bond presented to the Trustee.
8
<PAGE> 279
Section 2.05. Sinking Fund. So long as any Series
I bonds shall remain outstanding, the Company shall deposit
with the Trustee as and for a sinking fund for the retirement
of Series I bonds cash in the amount of $500,000 on March 15
of each of the years 1987 through 1995, inclusive (each such
date being herein called a "sinking fund payment date");
provided, however, that:
(a) In the event the Company shall redeem
Series I bonds from the proceeds of the sale of any
of its property to a municipality or other public
body or agency pursuant to condemnation proceedings
or an agreement in lieu of condemnation in accordance
with the application provision of the Indenture, then
in such event the amount of each such sinking fund
deposit thereafter made under this Section 2.05 shall
be reduced by an amount equal to 10% of the aggregate
principal amount of Series I bonds so redeemed.
(b) The Company may at its option increase the
amount deposited in the Series I bond sinking fund on
any sinking fund payment date by an additional amount
not exceeding the amount the Company is required to
deposit on such sinking fund payment date; provided,
however, the aggregate principal amount of Series I
bonds redeemed pursuant to this paragraph (b) shall
not exceed $1,500,000. The right of the Company to
increase a sinking fund deposit on any sinking fund
payment date shall be noncumulative. All deposits
made by the Company under this paragraph (b) shall be
in units of $10,000 or an integral multiple of $1,000
in excess thereof.
(c) The aggregate principal amount of Series I
bonds redeemed pursuant to the foregoing subparagraph
(b) of this Section 2.05 shall be credited first
against the principal amount of Series I bonds due at
the maturity thereof and then against the amount
which the Company is required to deposit in the
Series I bonds sinking fund on each sinking fund
payment date in the inverse chronological order of
such sinking fund dates.
On or before the thirtieth day prior to each sinking
fund payment date, the Trustee shall proceed to select for
redemption in the manner provided herein, Series I bonds in
the aggregate principal amount which are redeemable with the
cash to be deposited with the Trustee under this Section 2.05
on the next following sinking fund payment date, and in the
name of the Company shall give notice as may be required by
Article 4 of the Indenture of the redemption for the sinking
fund on such sinking fund payment date of the Series I bonds
so selected.
All cash received by the Trustee pursuant to this
Section 2.05 shall be held by the Trustee as part of the
mortgaged property, and shall be applied by the Trustee to the
redemption of outstanding Series I bonds, without premium, in
the manner and with the effect specified in Section 2.04
hereof; and the Company shall, in each case prior to the date
fixed for redemption thereof, pay to the Trustee in cash all
unpaid interest accrued on the Series I bonds to be redeemed
through the operation of said sinking fund to the date fixed
for redemption.
9
<PAGE> 280
Section 2.06. Issuance of Series I Bonds. Upon
the execution and delivery of this Twelfth Supplemental
Indenture and upon compliance with the provisions of the
Indenture the Company may execute and deliver to the Trustee,
and the Trustee shall certify and delivery to or upon the
written order of the President or Treasurer of the Company,
Series I bonds in an aggregate principal amount not exceeding
$5,000,000.
ARTICLE 3
ADDITIONAL COVENANTS
Section 3.01. Application of Section 1.15 of
Original Indenture. So long as any Series I bonds remain
outstanding, the provision of Section 1.15 of the Original
Indenture which are expressed to be applicable to bonds of
Series A shall also be applicable to the Series I bonds and
the holders thereof.
Section 3.02. Limitations on Debt. The Company
covenants and agrees that, so long as any Series I bonds shall
remaining outstanding:
(a) the Company will not and will not permit
any Subsidiary to issue, assume, guarantee or
otherwise incur any Funded Debt or Current Debt if,
after giving effect thereto and to the application of
the proceeds thereof, the aggregate principal amount
of all Consolidated Funded Debt and Consolidated
Current Debt then to be outstanding will exceed 70%
of the sum of (i) Consolidated Shareholders' Equity,
plus (ii) the aggregate principal amount of all
Consolidated Funded Debt and Consolidated Current
Debt then to be outstanding;
(b) the Company will not permit the aggregate
principal amount of Consolidated Current Debt at any
one time outstanding to exceed 75% of Consolidated
Shareholders' Equity; and, for a period of at least
120 consecutive days in each calendar year
(commencing with calendar 1977), will not permit the
aggregate principal amount of Consolidated Current
Debt outstanding to exceed 70% of Consolidated
Shareholders' Equity.
Section 3.03. Capital Leases. So long as any
Series I bonds remain outstanding, the Company will not, and
will not permit any Subsidiary to, become obligated as lessee
under any lease of real or personal property (other than a
lease under which the Company or a Subsidiary is lessor) which
will constitute a "capital lease" under the provisions of
Statement No. 13, entitled "Accounting for Leases", of the
Financial Accounting Standards Board, issued November, 1976,
if, after giving effect thereto, the sum of (i) the aggregate
principal amount of all Consolidated Funded Debt and
Consolidated Current Debt then to be outstanding, plus (ii)
the aggregate amount which will then be required, under the
provisions of said FASB Statement No. 13, to be capitalized as
liabilities on a consolidated balance sheet of the Company and
its Subsidiaries in respect of all such capital leases then to
be in effect, will exceed 70% of the sum of (x) Consolidated
Shareholders' Equity, plus (y) the aggregate
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<PAGE> 281
principal amount of all Consolidated Funded Debt and
Consolidated Current Debt then to be outstanding, plus (z) the
amount set forth in foregoing clause (ii) hereof.
Section 3.04. Restricted Payments. So long as any
Series I bonds remain outstanding, the Company will not
declare or pay any dividends on shares of its Common Stock
(except dividends payable solely in shares of Common Stock),
or directly or indirectly purchase, redeem or otherwise
acquire any shares of Common Stock (except out of the net cash
proceeds derived from the issuance of other shares of Common
Stock), or make any other distribution on shares of Common
Stock (such non-excepted declarations, payments, purchases,
redemptions or other acquisitions and distributions, being
hereinafter called "Restricted Payments"), unless after giving
effect thereto:
(a) the aggregate amount of all such
Restricted Payments made during the period from
December 31, 1975 to and including the date of the
making of the Restricted Payment in question does not
exceed the sum of $600,000 plus (or minus in case of
a deficit) the amount of Consolidated Net Income
Available for Common Stock Dividends for such period
(computed on a cumulative basis for said entire
period); and
(b) the aggregate principal amount of all
Consolidated Funded Debt and Consolidated Current
Debt then to be outstanding will not exceed 70% of
the sum of (i) Consolidated Shareholders' Equity,
plus (ii) the aggregate principal amount of all
Consolidated Funded Debt and Consolidated Current
Debt then to be outstanding.
Section 3.05. Certain Definitions.; As used in this
Article 3, the following terms shall have the following
meanings:
"Consolidated Net Income Available for Common Stock
Dividends" for any period shall mean the net income of the
Company and its Subsidiaries for such period available for
dividends on capital stock, after deducting therefrom
dividends paid and accrued during such period on preferred
stock, determined on a consolidated basis in accordance with
generally accepted accounting principles; provided, however,
that no effect shall be given to any gains or losses or other
additions or deductions arising by reason of the issue,
purchase, sale, conversion or retirement by the Company or any
Subsidiary of any of its or their securities, or arising by
reason of any purchasers, sales, write-ups, write-downs,
increase or decrease in book value, or other transactions or
changes in respect of capital assets, tangible or intangible,
and deductions for income taxes shall be adjusted by giving
effect to any change in the amount thereof resulting from the
elimination of any of the capital transactions or changes
referred to above.
"Consolidated Shareholders' Equity" shall mean, as at
any date, the sum of the capital stock accounts (net of
treasury stock, at cost) plus (or minus in the case of a
deficit) the surplus and retained earnings of the Company and
its Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles and
after elimination of minority interests in Subsidiaries.
11
<PAGE> 282
"Current Debt" shall mean indebtedness on or in
respect of money borrowed (including any guarantee of the
payment of money borrowed by another) which is payable on
demand or within one year from the date of the creation
thereof, except for any such indebtedness which is renewable
or extendible at the option of the obligor to a date more than
one year from the date of the creation thereof.
"Funded Debt" shall mean indebtedness on or in
respect of money borrowed (including any guarantee of the
payment of money borrowed by another) which is payable more
than one year from the date of the creation thereof or which
is renewable or extendible at the option of the obligor to a
date more than one year from the date of creation thereof.
Funded Debt shall not include obligations in respect of any
lease, including without limitation, any "capital lease"
described in Section 3.03 hereof.
"Consolidated Current Debt" and "Consolidated Funded
Debt" shall mean all Current Debt or Funded Debt, as the case
may be, of the Company and its Subsidiaries, determined on a
consolidated basis in accordance with generally accepted
accounting principles, after elimination of inter-company
items.
"Subsidiary" shall mean any corporation of which more
than 50% of the outstanding Voting Stock is owned by the
Company. As used herein the term "Voting Stock" shall mean
stock or similar interests of any class or classes (however
designated) the holders of which are generally and ordinarily,
in the absence of contingencies, entitled to vote for the
election of the directors (or persons performing similar
functions) of such corporation.
ARTICLE 4
MISCELLANEOUS
Section 4.01. Incorporation of Original Indenture.
This Twelfth Supplemental Indenture shall be construed in
connection with and as a part of the Original Indenture and
all terms, conditions and covenants contained in the Original
Indenture, except as restricted in the Original Indenture to
bonds of another series or as herein otherwise provided, shall
apply to and be deemed to be for the equal benefit, security
and protection of the Series I, bonds and the holders thereof.
All terms used in this Twelfth Supplemental Indenture which
are defined in the Original Indenture shall, unless the
context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 4.02. Successors and Assigns. Whenever in
this Twelfth Supplemental Indenture either of the parties
hereto is named or referred to, this shall be deemed to
include the successors or assigns of such party, and all the
covenants and agreements in this Twelfth Supplemental
Indenture contained shall bind and inure to the benefit of the
respective successors and assigns of such parties, whether so
expressed or not.
12
<PAGE> 283
Section 4.03. Multiple Counterparts. This Twelfth
Supplemental Indenture may be simultaneously executed in any
number of counterparts and all said counterparts executed and
delivered, each as an original, shall constitute but one and
the same instrument.
13
<PAGE> 284
IN WITNESS WHEREOF, said United Cities Gas Company
has caused its corporate name to be hereunto subscribed by its
President or one of its Vice Presidents and its corporate seal
to be hereunto affixed and attested by its Secretary or by an
Assistant Secretary and the said Continental Illinois National
Bank and Trust Company of Chicago, to evidence its acceptance
of the trust hereby created and in it reposed, has caused its
corporate name to be hereunto subscribed by one of its Vice
Presidents and its corporate seal to be affixed and attested
by a Trust Officer, and said M. J. Kruger, to evidence his
acceptance of the trust hereby created and in him reposed, has
hereunto subscribed his name and affixed his seal, all as of
the day and year first above written.
UNITED CITIES GAS COMPANY
By /s/ GENE C. KOONCE
----------------------------
President
[CORPORATE SEAL]
ATTEST:
/s/ CLYDE A. JOHNSON
------------------------------------------
Secretary
Witnesses as to United Cities Gas Company:
/s/ ROBERT J. SEBASTIAN
------------------------------------------
/s/ L. E. JIRIKOVEC
------------------------------------------
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, AS
TRUSTEE
By /s/ T. H. RANSOM
-----------------------------------
Vice President
[CORPORATE SEAL]
ATTEST
/s/ A. H. LENTERS
------------------------------------------
Trust Officer
14
<PAGE> 285
Witnesses as to Continental Illinois National
Bank and Trust Company of Chicago and
M. J. Kruger:
/s/ MARIA DOMBKOWSKI
---------------------------------------------
/s/ J. C. MULL, JR.
---------------------------------------------
/s/ M. J. KRUGER (Seal)
---------------------------------
M. J. Kruger
15
<PAGE> 286
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
I, Linda R. Estex, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this 1st
day of April, 1981, personally appeared before me Gene C.
Koonce and Clyde A. Johnson to me personally known, and
personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly
sworn, did say that they are President and SVP & Secretary,
respectively, of United Cities Gas Company, a corporation
organized under the laws of the State of Illinois and the
Commonwealth of Virginia, that the seal affixed to the above
and foregoing instrument is the corporate seal of said
corporation and that said instrument was signed by them and
sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said
President and SVP & Secretary acknowledged said instrument to
be their free and voluntary act and deed and the free and
voluntary act and deed of said corporation for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this 1st day of April, 1981.
/s/ MRS. LINDA R. ESTEZ
---------------------------------------
Notary Public in and for the County and
State aforesaid
[NOTARIES SEAL]
My commission expires 7-21-84.
<PAGE> 287
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this 3rd
day of April, 1981, personally appeared before me T. H. Ransom
and A. H. Lenters, to me personally known, and personally
known to me to be the same persons whose names are subscribed
to the foregoing instrument, who being by me duly sworn, did
say that they are Vice President and Trust Officer,
respectively, of Continental Illinois National Bank and Trust
Company of Chicago, a national banking association organized
and existing under the national banking laws of the United
States of America, that the seal affixed to the above and
foregoing instrument is the corporate seal of said association
and that said instrument was signed by them and sealed and
delivered in behalf of said association by authority of its
Board of Directors duly given, and the said T. H. Ranson and
A. H. Lenters acknowledged said instrument to be their free
and voluntary act and deed and the free and voluntary act and
deed of said association for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this 3rd day of April, 1981.
/s/ V. WASHINGTON
---------------------------------------
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires 7-2-84.
<PAGE> 288
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this 3rd
day of April, 1981, personally appeared before me M. J.
Kruger, personally known to me to be the person described in
and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the
said instrument as his free and voluntary act and deed for the
uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this 3rd day of April, 1981.
/s/ V. WASHINGTON
----------------------------------------------
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires 7-2-84.
<PAGE> 289
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
Personally appeared before me Robert J. Sebastian,
who, being duly sworn, says that he saw the corporate seal of
UNITED CITIES GAS COMPANY affixed to the foregoing instrument
and that he also saw Gene C. Koonce, President, and Clyde A.
Johnson, SVP & Secretary of said United Cities Gas Company,
sign and attest the same, and that he, with L. E. Jirikovec
witnessed the execution and delivery thereof as the act and
deed of said United Cities Gas Company.
/s/ ROBERT J. SEBASTIAN
-----------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 1st day of April, 1981.
/s/ MRS. LINDA R. ESTEZ
-----------------------------------------------
Notary Public in and for the County and
State aforesaid
My commission expires 7-21-84.
<PAGE> 290
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
Personally appeared before me J. C. Mull, Jr., who,
being duly sworn, says that he saw the corporate seal of the
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO affixed to the foregoing instrument and that he also
saw T. H. Ransom, Vice President, and A. H. Lenters, Trust
Officer of said Continental Illinois National Bank and Trust
Company of Chicago, sign and attest the same, and that he,
with Maria Dombkowski, witnessed the execution and delivery
thereof as the act and deed of said Continental Illinois
National Bank and Trust Company of Chicago.
/s/ J. C. MULL, JR.
---------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 3rd day of April, 1981.
/s/ V. WASHINGTON
-------------------------------------------
Notary Public in and for the County and
State aforesaid
My commission expires 7-2-84.
<PAGE> 291
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me J. C. Mull, Jr., who,
being duly sworn, says that he saw the within named M. J.
Kruger sign, seal and as his act and deed, deliver the
foregoing instrument and that he, with Maria Dombkowski,
witnessed the execution thereof.
/s/ J. C. MULL, JR.
--------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 3rd day of April, 1981.
/s/ V. WASHINGTON
--------------------------------------------
Notary Public in and for the County and
State aforesaid
My commission expires 7-21-84.
<PAGE> 292
DESCRIPTION OF MORTGAGED PROPERTY
The properties referred to in the granting clauses of
this Supplemental Indenture include the parcels of real estate
or interest therein more specifically described below. Such
description is not intended, however, to limit or impair the
scope or intention of the general descriptions in the granting
clauses of the Indenture.
IN SULLIVAN COUNTY, TENNESSEE
SITUATE in the 5th Civil District of Sullivan County,
Tennessee, and being more particularly described as follows:
BEGINNING at a railroad spike set in the
northeasterly corner of the East Tennessee
Natural Gas Transmission Line Easement, which
spike is also located in the center line of the
old road, and corner to Long property; thence
with the center of the old road, South 38 deg.
32 min. East 59.63 feet to a railroad spike set
in the westerly right of way of State Route 37;
thence with the right of way of State Route 37
with a curve to the right having a central angle
of 2 deg. 51 min., a radius of 1402.40 feet, a
length of 69.76 feet to an iron pin; thence
South 70 deg. 41 min. West passing two highway
monuments 20 feet to an iron pin set in said
right of way; thence continuing with said right
of way with a curve to the right having a
central angle of 4 deg. 10 min., a radius of
1382.40 feet, and a length of 100.53 feet to an
iron pin, corner to other Caldwell property;
thence with a line radial to said curve, South
74 deg. 51 min. West 166 feet to an iron pin in
other Caldwell property; thence North 31 deg. 53
min. West 183.85 feet to an iron pin set in the
northwesterly side of said transmission line
easement; thence along the line of said easement
North 61 deg. 08 min. East 210.78 feet to the
point of beginning.
Said property is subject to a 50 foot transmission
line easement extending through said property in favor of East
Tennessee Natural Gas Company and to a one-tenth undivided
interest granted to East Tennessee Natural Gas Company.
AND BEING the same property acquired by grantor in
Civil Action No. 80-C9-1069A in the Law Court for Sullivan
County, Tennessee. See judgment recorded in Book 259C, page
755, in the Register's Office for Sullivan County, Tennessee.
<PAGE> 293
[CONFORMED COPY]
THIRTEENTH SUPPLEMENTAL INDENTURE
Dated as of May 1, 1982
___________________
UNITED CITIES GAS COMPANY
To
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY
OF CHICAGO
And
M. J. KRUGER
TRUSTEES
___________________
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
and
Creating Additional Series of First Mortgage Bonds
<PAGE> 294
This THIRTEENTH SUPPLEMENTAL INDENTURE, dated of May 1, 1982, made by
and between UNITED CITIES GAS COMPANY, a corporation organized under the laws
of the State of Illinois and the Commonwealth of Virginia (hereinafter called
the "Company"), party of the first part, and CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO, a national banking association having its office
in the City of Chicago, State of Illinois (hereinafter called the "Trustee"),
and M. J. KRUGER, residing in the City of Chicago, Illinois (the Trustee and M.
J. Kruger being hereinafter collectively referred to as the "Trustees"),
parties of the second part.
RECITALS:
The background of this Thirteenth Supplemental Indenture is:
A. The Company heretofore executed and delivered to City National
Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees, its
Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes referred
to as the "Original Indenture"), providing for the issuance thereunder from
time to time of First Mortgage Bonds of the Company, issuable in one or more
series, and wherein and whereby the Company did grant, convey, mortgage and
warrant to the said Trustees, and each of them, and their respective successors
and assigns, certain property of the Company in said Indenture of Mortgage more
particularly described for the security of all First Mortgage Bonds issued and
to be issued thereunder.
B. On September 1, 1961, City National Bank and Trust Company of
Chicago was merged with Continental Illinois National Bank and Trust Company of
Chicago, a national banking association, which thereupon became corporate
trustee under the Indenture as provided therein, and on October 15, 1966, Ray
F. Myers became individual trustee under the Indenture as successor to R.
Emmett Hanley, resigned, and on March 15, 1981, M. J. Kruger became individual
trustee under the Indenture as successor to Ray F. Myers, resigned.
C. The Company has heretofore executed and delivered twelve
supplemental indentures to the Original Indenture, designated as First through
Twelfth (the Original Indenture and all supplemental indentures being herein
called the "Indenture"), for the purpose of subjecting to the lien of the
Indenture certain additional property acquired by the Company, creating
additional series of First Mortgage Bonds, and amending and supplementing the
Indenture in certain respects.
D. There have been issued under the Indenture various series of First
Mortgage Bonds designated as Series A through I, inclusive, of which
$16,667,750 in aggregate principal amount are outstanding as of May 1, 1982.
E. The Company is the successor by merger to the properties and
liabilities of Gas Light Company of Columbus, a Georgia corporation, which
liabilities include certain first and general mortgage bonds. The holders of
the bonds of Gas Light Company of Columbus
<PAGE> 295
have agreed to surrender and exchange such bonds for First Mortgage
Bonds of the Company issued under and secured by the Indenture. In order to
make such exchange the Company proposes to create four new series of bonds to
be issued under the Indenture having the terms and provisions hereinafter
specified.
F. The Company also desires to subject to the lien of the Indenture
the properties acquired by the Company as a result of its merger with Gas Light
Company of Columbus, which are not of the type excluded or reserved from the
lien of the Original Indenture.
G. All things necessary to make the bonds hereinafter authorized,
when duly executed by the Company and certified and delivered by the Trustee
and issued, valid, binding and legal obligations of the Company entitled to the
benefit and security of the Indenture, and to make this Thirteenth Supplemental
Indenture a valid and binding instrument in accordance with its terms and for
the purposes herein expressed, have been done and performed; and the issue of
bonds, as herein provided, has been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01.. The Company in order better to secure the principal of
and interest (and premium, if any) on all of the bonds of the Company at any
time outstanding under the Indenture according to their tenor and effect and
the performance of and compliance with the covenants and conditions in the
Indenture contained, has granted, conveyed, mortgaged and warranted, and by
these presents does hereby grant, convey, mortgage and warrant to the Trustees
and each of them, and to their successors in said trust forever, all property
and rights acquired by the Company which was formerly owned by Gas Light
Company of Columbus, including the property described in Schedule A hereof,
except property of the character specifically reserved and excepted from the
lien of the Original Indenture.
TOGETHER with all rights belonging or in anywise appertaining to any
and all the aforesaid property or any part thereof with the reversion and,
subject to the provisions of Section 7.01 of the Original Indenture, all income
and earnings arising out of the aforesaid property, including rents, issues and
profits during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture.
-2-
<PAGE> 296
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture.
ARTICLE 2
SERIES J BONDS
Section 2.01. Creation of Series J Bonds. There is hereby created for
issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $225,131.95, to be designated as "First Mortgage Bonds,
Series J, 5-1/2%, Due November 1, 1989" (herein called "Series J bonds"). The
Series J bonds shall, subject to the provisions of Section 1.13 of the Original
Indenture, be dated as of, and shall bear interest from May 1, 1982, shall
mature November 1, 1989, and shall bear interest at the rate of 5-1/2% payable
semi-annually on May 1 and November 1 in each year until the principal thereof
shall have become due and payable and shall bear interest on any overdue
principal and (to the extent permitted by law) on any overdue installment of
interest, at the rate of 6% per annum, the interest on each Series J bond to be
payable at the principal office of the Trustee in Chicago, Illinois, or, at the
option of the person entitled thereto, in accordance with the instructions of
such person submitted in writing to the Company and the Trustee.
Section 2.02. Form of Series J Bonds. The Series J bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$1,000 and multiples thereof, to the extent practicable, substantially in the
form set forth in Exhibit A hereto, with appropriate insertions, omissions and
changes, approved by the President of the Company and the Trustee, as may be
appropriate to reflect the terms of the bonds.
Section 2.03. Redemption Provisions for Series J Bonds. The Series J
bonds shall be subject to redemption prior to maturity,
(a) as a whole upon payment of an amount equal to the aggregate
commuted value of the redemption date of the unpaid semi-annual sinking
fund payments provided for in Section 2.04 hereof, plus the aggregate
commuted value of the unpaid semi-annual interest payments due thereon, the
commutation of each payment to be calculated from its normal due date at
the rate of 5% per annum to the redemption date, either
(i) at the option of the Company, or
(ii) through the application of trust moneys as provided in
Article 7 of the Original Indenture; and
-3-
<PAGE> 297
(b) as a whole at any time or in part from time to time upon payment
of the principal amount thereof redeemed through the application of cash
deposited with the Trustee for the sinking fund for the Series J bonds
provided for in Section 2.04 hereof; together in any case with interest
accrued thereon to the date fixed for redemption.
Section 2.04. Sinking Fund for Series J Bonds. As a sinking fund for
the benefit of the Series J bonds, the Company will pay to the Trustee
semi-annually on or before May 1 and November 1 in each year, commencing on
November 1, 1982, to and including May 1, 1989, in cash, the amount set forth
in the following schedule:
<TABLE>
<CAPTION>
SINKING FUND DATE AMOUNT
<S> <C>
November 1, 1982 $12,332
May 1, 1983 12,671
November 1, 1983 13,019
May 1, 1984 13,377
November 1, 1984 13,745
May 1, 1985 14,123
November 1, 1985 14,511
May 1, 1986 14,911
November 1, 1986 15,321
May 1, 1987 15,742
November 1, 1987 16,175
May 1, 1988 16,620
November 1, 1988 17,077
May 1, 1989 17,546
</TABLE>
with a final payment of $17,961.95 payable at maturity.
Section 2.05. Issuance of Series J Bonds. Upon the execution and
delivery of this Thirteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the Trustee,
and the Trustee shall certify and deliver to or upon the written order of the
President or Treasurer of the Company, Series J bonds in an aggregate principal
amount not exceeding $225,131.95. The entire amount of each sinking fund
payment shall be applied to the reduction of the outstanding principal amount of
Series J bonds.
ARTICLE 3
SERIES K BONDS
Section 3.01. Creation of Series K Bonds. There is hereby created
for issuance under the Indenture, a series of bonds, limited to the aggregate
principal amount of $432,000, to be designated as "First Mortgage Bonds, Series
K, 8-3/4%, Due August 1, 1993" (herein called the "Series K bonds"). The Series
K bonds shall, subject to the
-4-
<PAGE> 298
provisions of Section 1.13 of the Original Indenture, be dated as of, and
shall bear interest from, February 1, 1982, shall mature August 1, 1993, and
shall bear interest at the rate of 8-3/4 payable semi-annually on February 1 and
August 1 in each year until the principal thereof shall have become due and
payable and shall bear interest on any overdue principal and (to the extent
permitted by law) on any overdue installment of interest, at the rate of 8-3/4%
per annum, the interest on each Series K bonds to be payable at the principal
office of the Trustee in Chicago, Illinois, or, at the option of the person
entitled thereto, in accordance with the instructions of such person submitted
in writing to the Company and the Trustee.
Section 3.02. Form of Series K Bonds. The Series K bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$1,000 and multiples thereof, to the extent practicable, substantially in the
form set forth in Exhibit A hereto, with appropriate insertions, omissions and
changes, approved by the President of the Company and the Trustee, as may be
appropriate to reflect the terms of such bonds.
Section 3.03. Redemption Provisions for Series K Bonds. The Series K
bonds shall be subject to redemption prior to maturity as a whole at any time or
in part from time to time,
(a) upon payment of the applicable percentage of the principal amount
thereof redeemed during the respective periods, all as set forth in the
following table, either
(i) at the option of the Company, or
(ii) through the application of trust moneys as provided in
Article 7 of the Original Indenture,
<TABLE>
<CAPTION>
TWELVE MONTHS' PERIOD REDEMPTION
BEGINNING AUGUST 1 PRICE
<S> <C>
1981 105.07%
1982 104.61
1983 104.14
1984 103.68
1985 103.22
1986 102.76
1987 102.30
1988 101.84
1989 101.38
1990 100.92
1991 100.46
1992 100.00
</TABLE>
(b) upon payment of the principal amount thereof redeemed through the
application of cash deposited with the Trustee for the sinking fund for the
Series K
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<PAGE> 299
bonds provided for in Section 3.04 hereof, together in any case with
interest accrued thereon to the date fixed for redemption.
Section 3.04. Sinking Fund for Series K Bonds. As a sinking fund for
the benefit of the Series K bonds, the Company will pay to the Trustee
semi-annually on or before August 1, 1982, and thereafter on or before February
1 and August 1 in each year, to and including February 1, 1993, in cash,
payments of $18,750 each. On August 1, 1993, the entire unpaid principal amount
of Series K bonds then outstanding shall be payable. The entire amount of each
sinking fund payment shall be applied to the reduction of the outstanding
principal amount of Series K bonds.
Section 3.05. Issuance of Series K Bonds. Upon the execution and
delivery of this Thirteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the Trustee,
and the Trustee shall certify and deliver to or upon the written order of the
President or Treasurer of the Company, Series K bonds in an aggregate principal
amount not exceeding $432,000.
ARTICLE 4
SERIES L BONDS
Section 4.01. Creation of Series L Bonds. There is hereby created
for issuance under the Indenture, a series of bonds, limited to the aggregate
principal amount of $2,969,000, to be designated as "First Mortgage Bonds,
Series L, 8-3/4%, Due November 1, 1994" (herein called the "Series L bonds").
The Series L bonds shall, subject to the provisions of Section 1.13 of the
Original Indenture, be dated as of, and shall bear interest from, May 1, 1982,
shall mature November 1, 1994, and shall bear interest at the rate of 8-3/4%
payable semi-annually on May 1 and November 1 in each year until the principal
thereof shall have become due and payable and shall bear interest on any overdue
principal and (to the extent permitted by law) on any overdue installment of
interest, at the rate of 8-3/4 per annum, the interest on each Series L bond to
be payable at the principal office of the Trustee in Chicago, Illinois, or, at
the option of the person entitled thereto, in accordance with the instructions
of such person submitted in writing to the Company and the Trustee.
Section 4.02. Denominations. The Series L bonds shall be issued only
as fully registered bonds without coupons, in denominations of $1,000 and
multiples thereof, to the extent practicable, substantially in the form set
forth in Exhibit A hereto, with appropriate insertions, omissions and changes,
approved by the President of the Company and the Trustee, as may be appropriate
to reflect the terms of such bonds.
Section 4.03. Redemption Provisions for Series L Bonds. The Series
L bonds shall be subject to redemption prior to maturity as a whole at any time
or in part from time to time,
(a) upon payment of the applicable percentage of the principal thereof
redeemed during the respective periods, all as set forth in the following
table, either
-6-
<PAGE> 300
(i) at the option of the Company, or
(ii) through the application of trust moneys as provided in
Article 7 of the Original Indenture,
<TABLE>
<CAPTION>
TWELVE MONTHS' PERIOD REDEMPTION
BEGINNING NOVEMBER 1 PRICE
<S> <C>
1981 105.53%
1982 105.07
1983 104.61
1984 104.14
1985 103.68
1986 103.22
1987 102.76
1988 102.30
1989 101.84
1990 101.38
1991 100.92
1992 100.46
1993 100.00
</TABLE>
(b) upon payment of the principal amount thereof redeemed through the
application of cash deposited with the Trustee for the sinking fund for the
Series L bonds provided for in Section 4.04 hereof, together in any case
with interest accrued thereon to the fixed date for redemption.
Section 4.04. Sinking Fund for Series L Bonds. As a sinking fund for
the benefit of the Series L bonds, the Company will pay to the Trustee
semi-annually on or before November 1, 1982, and thereafter on or before
November 1 and May 1 in each year, to and including November 1, 1993, in cash,
payments of $118,750 each. On May 1, 1994, the entire unpaid principal amount
of Series L bonds then outstanding shall be payable. The entire amount of each
sinking fund payment shall be applied to the reduction of the outstanding
principal amount of Series L bonds.
Section 4.05. Issuance of Series L Bonds. Upon the execution and
delivery of this Thirteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the Trustee,
and the Trustee shall certify and deliver to or upon the written order of the
President or Treasurer of the Company, Series L bonds in an aggregate principal
amount not exceeding $2,969,000.
-7-
<PAGE> 301
ARTICLE 5
SERIES M BONDS
Section 5.01. Creation of Series M Bonds. There is hereby created
for issuance under the Indenture, a series of bonds, limited to the aggregate
principal amount of $3,890,000, to be designated as "First Mortgage Bonds,
Series M, 13-1/2%, Due November 15, 1995" (herein called the "Series M bonds").
The Series M bonds shall, subject to the provisions of Section 1.13 of the
Original Indenture, be dated as of, and shall bear interest from, May 15, 1982,
shall mature November 15, 1995, and shall bear interest at the rate of 13-1/2%
payable semi-annually on May 15 and November 15 in each year until the principal
thereof shall have become due and payable and shall bear interest on any overdue
principal and (to the extent permitted by law) on any overdue installment of
interest, at the rate of 13-1/2 per annum, the interest on each Series M bond to
be payable at the principal office of the Trustee in Chicago, Illinois, or, at
the option of the person entitled thereto, in accordance with the instructions
of such person submitted in writing to the Company and the Trustee.
Section 5.02. Form of Series M Bonds. The Series M bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$1,000 and multiples thereof, substantially in the form set forth in Exhibit A
hereto, with appropriate insertions, omissions and changes, approved by the
President of the Company and the Trustee, as may be appropriate to reflect the
terms of such bonds.
Section 5.03. Optional Redemption of Series M Bonds. Subject to the
further provisions hereof, after November 15, 1985 the Series M bonds are
subject to redemption prior to maturity in whole or from time to time in part at
the option of the Company on any interest payment date, at the applicable
redemption price (expressed as a percentage of the principal amount of the
Series M bonds to be redeemed) set forth in the table below, plus accrued
interest thereon to the date of redemption:
<TABLE>
<CAPTION>
PERIOD DURING WHICH REDEMPTION
REDEEMED (DATES INCLUSIVE) PRICE
<S> <C>
November 16, 1985 113.500%
through
November 15, 1990
November 16, 1990 106.750%
through
November 15, 1991
November 16, 1991 105.0625%
through
November 15, 1992
November 16, 1992 103.375%
through
November 15, 1993
</TABLE>
-8-
<PAGE> 302
<TABLE>
<CAPTION>
PERIOD DURING WHICH REDEMPTION
REDEEMED (DATES INCLUSIVE) PRICE
<S> <C>
November 16, 1993 101.6875%
through
November 15, 1994
November 16, 1994 100.000%
through
November 15, 1995
</TABLE>
The foregoing redemption prices shall apply to redemption of Series M
bonds through the application of trust moneys as provided in Article 7 of the
Original Indenture.
Section 5.04. Mandatory Sinking Fund for Redemption of Series M
Bonds. As a sinking fund for the benefit of the Series M bonds, the Company
will make sinking fund payments to the Trustee on the respective dates set forth
in the table below and in the amounts respectively set forth with respect to
such dates:
<TABLE>
<CAPTION>
DATE OF MANDATORY AMOUNT OF SINKING
SINKING FUND REDEMPTION FUND PAYMENT
<S> <C>
November 15, 1982 $120,000
November 15, 1983 130,000
November 15, 1984 140,000
November 15, 1985 205,000
November 15, 1986 210,000
November 15, 1987 280,000
November 15, 1988 290,000
November 15, 1989 300,000
November 15, 1990 320,000
November 15, 1991 340,000
November 15, 1992 355,000
November 15, 1993 375,000
November 15, 1994 395,000
</TABLE>
No optional redemption of Series M bonds pursuant to Section 5.03 and no
optional sinking fund redemption of such bonds pursuant to Section 5.05 shall
reduce or relieve, in whole or in part, the obligation of the Company to make
any subsequent sinking fund payment on the sinking fund payment date herein
provided.
Section 5.05. Optional Sinking Fund Redemption of Series M Bonds.
Subject to the limitations set forth in Section 5.06, the Series M bonds are
subject to redemption at the option of the Company on each of the mandatory
sinking fund redemption dates specified in Section 5.04, in an aggregate
principal amount that is an integral multiple of $1,000 and that
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<PAGE> 303
does not exceed the amount set forth opposite such date in the table in the
preceding Section 5.04 at a redemption price equal to the principal amount so
determined plus accrued interest thereon to the date of redemption; provided,
however, that the aggregate principal amount of all optional sinking fund
redemptions pursuant to this Section shall never exceed $1,000,000.
To exercise its option to have Series M bonds redeemed pursuant to this
Section, the Company shall deliver to the Trustee at least 45 days prior to the
date on which such bonds are to be redeemed, a written notice stating (i) that
the Company intends to exercise such optional right and (ii) the amount of
Series M bonds to be redeemed pursuant to this Section.
Section 5.06. Limitation on Redemption from Borrowed Funds.
Notwithstanding the provisions of Sections 5.03 and 5.05, the Company may not
redeem any of the Series M bonds pursuant to either of said Sections at any time
before November 15, 1990, directly or indirectly, in whole or in part, from or
in anticipation of the proceeds (or any part of the proceeds) of any
indebtedness in respect of borrowed money if such indebtedness has an effective
interest cost (determined in accordance with generally accepted financial
practice) to the debtor of less than 13.50% per annum, or from the proceeds (or
any part of the proceeds) of any issue or sale by the Company of any class of
its capital stock.
Section 5.07. Issuance of Series M Bonds. Upon the execution and
delivery of this Thirteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the Trustee,
and the Trustee shall certify and deliver to or upon the written order of the
President or Treasurer of the Company, Series M bonds in an aggregate principal
amount not exceeding $3,890,000.
ARTICLE 6
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES J, K, L AND M BONDS
Section 6.01. The provisions of this Article 6 shall be applicable to
the Series J, K, L and M bonds. Except as hereinafter provided, Series J, K, L
and M bonds shall be redeemed upon the notice, in the manner and with the effect
provided in Article 4 of the Original Indenture.
Section 6.02. In the case of all sinking fund redemptions, on or
before the thirtieth day prior to each sinking fund payment date, the Trustee
shall proceed to select for redemption in the manner provided herein, bonds of
the series for which a sinking fund payment is to be made in the aggregate
principal amount which are redeemable with the cash to be deposited with the
Trustee on the next following sinking fund payment date, and in the name of the
Company shall give notice as may be required by Article 4 of the Indenture of
the redemption for the sinking fund on such sinking fund payment date of the
bonds so selected.
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<PAGE> 304
All sinking fund payments received by the Trustee shall be held by the
Trustee as security for bonds of the series for which such sinking fund payment
is made, and shall be applied by the Trustee on the respective sinking fund
payment dates to the redemption of outstanding bonds of such series, without
premium, in the manner and with the effect specified herein; and the Company
shall, in each case prior to the date fixed for redemption thereof, pay to the
Trustee, in cash, all unpaid interest accrued on the bonds to be redeemed
through the operation of said sinking fund to the date fixed for redemption.
Section 6.03. Notwithstanding any provisions of Article 1 and Article
4 of the Original Indenture:
(a) if less than all outstanding bonds of any series are to be
redeemed, the aggregate principal amount of bonds of such series to be
redeemed shall be apportioned by the Trustee pro rata, as nearly as
practicable, in amounts of $1,000 or any integral multiple thereof, among
the holders of such bonds, in the proportion that the aggregate principal
amount of such bonds held by each such holder bears to the aggregate
principal amount of bonds of such series then outstanding with adjustments
to the extent practicable, to equalize for any prior redemptions not in such
proportion, and
(b) in the event of the payment of a portion of the principal amount
of any Series J, K, L or M bond, payment shall be made to or upon the order
of the holder of such bond without requiring presentation or surrender of
such bond if there shall be filed with the Trustee a certificate of the
Treasurer of the Company stating that the holder of such bond (or the person
for whom such holder is a nominee) and the Company have entered into a
written agreement that payment of any portion of such bond may be made to
the registered holder thereof without presentation or surrender thereof,
that such holder will not sell, transfer or otherwise dispose of any such
bond unless it shall have caused notation to be made thereon of the portion
of the principal amount thereof which has been paid and the last interest
payment date to which interest has been paid and prior to the delivery
thereof such bond shall have been presented to the Trustee for inspection or
surrendered in exchange for a new bond or bonds of the same series in
aggregate principal amount equal to the unpaid portion of the bond presented
to the Trustee.
ARTICLE 7
ADDITIONAL COVENANTS
Section 7.01. Application of Section 1.15 of Original Indenture. So
long as any Series J, K, L and M bonds remain outstanding, the provision of
Section 1.15 of the Original Indenture (relating to mutilated, lost, stolen, or
destroyed bonds) which are expressed to be applicable to bonds of Series A shall
also be applicable to the Series J, K, L and M bonds and the holders thereof.
-11-
<PAGE> 305
Section 7.02. Limitations on Debt. The Company covenants and agrees
that, so long as any Series J, K, L or M bonds shall remain outstanding:
(a) the Company will not and will not permit any Subsidiary to
issue, assume, guarantee or otherwise incur any Funded Debt or Current Debt
if, after giving effect thereto and to the application of the proceeds
thereof, the aggregate principal amount of all Consolidated Funded Debt and
Consolidated Current Debt then to be outstanding will exceed 70% of the sum
of (i) Consolidated Shareholders' Equity, plus (ii) the aggregate principal
amount of all Consolidated Funded Debt and Consolidated Current Debt then to
be outstanding;
(b) the Company will not permit the aggregate principal amount of
Consolidated Current Debt at any one time outstanding to exceed 75% of
Consolidated Shareholders' Equity; and, for a period of at least 120
consecutive days in each calendar year (commencing with calendar 1982), will
not permit the aggregate principal amount of Consolidated Current Debt
outstanding to exceed 70% of Consolidated Shareholders' Equity.
Section 7.03. Capital Leases. So long as any Series J, K, L or M
bonds remain outstanding, the Company will not, and will not permit any
Subsidiary to, become obligated as lessee under any lease of real or personal
property (other than a lease under which the Company or a Subsidiary is lessor)
which will constitute a "capital lease" under the provisions of Statement No.
13, entitled "Accounting for Leases", of the Financial Accounting Standards
Board, issued November, 1976, if, after giving effect thereto, the sum of (i)
the aggregate principal amount of all Consolidated Funded Debt and Consolidated
Current Debt then to be outstanding, plus (ii) the aggregate amount which will
then be required, under the provisions of said FASB Statement No. 13, to be
capitalized as liabilities on a consolidated balance sheet of the Company and
its Subsidiaries in respect of all such capital leases then to be in effect,
will exceed 70% of the sum of (x) Consolidated Shareholders' Equity, plus (y)
the aggregate principal amount of all Consolidated Funded Debt and Consolidated
Current Debt then to be outstanding, plus (z) the amount set forth in foregoing
clause (ii) hereof.
Section 7.04. Restricted Payments. So long as any Series J, K, L or
M bonds remain outstanding, the Company will not declare or pay any dividends on
shares of its Common Stock (except dividends payable solely in shares of Common
Stock), or directly or indirectly purchase, redeem or otherwise acquire any
shares of Common Stock (except out of the net cash proceeds derived from the
issuance of other shares of Common Stock), or make any other distribution on
shares of Common Stock (such non-excepted declarations, payments, purchases,
redemptions or other acquisitions and distributions, being hereinafter called
"Restricted Payments"), unless after giving effect thereto
(a) the aggregate amount of all such Restricted Payments made during
the period from December 31, 1975 to and including the date of the making of
the Restricted Payment in question does not exceed the sum of $600,000 plus
(or minus in case of a deficit) the amount of Consolidated Net Income
Available for Common Stock
-12-
<PAGE> 306
Dividends for such period (computed on a cumulative basis for said entire
period); and
(b) the aggregate principal amount of all Consolidated Funded Debt
and Consolidated Current Debt then to be outstanding will not exceed 70% of
the sum of (i) Consolidated Shareholders' Equity, plus (ii) the aggregate
principal amount of all Consolidated Funded Debt and Consolidated Current
Debt then to be outstanding.
Section 7.05. Certain Definitions. As used in this Article 3, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends" for any
period shall mean the net income of the Company and its Subsidiaries for
such period available for dividends on capital stock, after deducting
therefrom dividends paid and accrued during such period on preferred stock,
determined on a consolidated basis in accordance with generally accepted
accounting principles; provided, however, that no effect shall be given to
any gains or losses or other additions or deductions arising by reason of
the issue, purchase, sale, conversion or retirement by the Company or any
Subsidiary of any of its or their securities, or arising by reason of any
purchases, sales, write-ups, write-downs, increase or decrease in book
value, or other transactions or changes in respect of capital assets,
tangible or intangible, and deductions for income taxes shall be adjusted by
giving effect to any change in the amount thereof resulting from the
elimination of any of the capital transactions or changes referred to above.
"Consolidated Shareholders' Equity" shall mean, as at any date, the sum
of the capital stock accounts (net of treasury stock, at cost) plus (or
minus in the case of a deficit) the surplus and retained earnings of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance with generally accepted accounting principles and after
elimination of minority interests in Subsidiaries.
"Current Debt" shall mean indebtedness on or in respect of money
borrowed (including any guarantee of the payment of money borrowed by
another) which is payable on demand or within one year from the date of the
creation thereof, except for any such indebtedness which is renewable or
extendible at the option of the obligor to a date more than one year from
the date of the creation thereof.
"Funded Debt" shall mean indebtedness on or in respect of money borrowed
(including any guarantee of the payment of money borrowed by another) which
is payable more than one year from the date of the creation thereof or which
is renewable or extendible at the option of the obligor to a date more than
one year from the date of creation thereof. Funded Debt shall not include
obligations in respect of any lease, including without limitation, any
"capital lease" described in Section 7.03 hereof.
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<PAGE> 307
"Consolidated Current Debt" and "Consolidated Funded Debt" shall mean
all Current Debt or Funded Debt, as the case may be, of the Company and its
Subsidiaries, determined on a consolidated basis in accordance with
generally accepted accounting principles, after elimination of inter-company
items.
"Subsidiary" shall mean any corporation of which more than 50% of the
outstanding Voting Stock is owned by the Company. As used herein the term
"Voting Stock" shall mean stock or similar interests of any class or classes
(however designated) the holders of which are generally and ordinarily, in
the absence of contingencies, entitled to vote for the election of the
directors (or persons performing similar functions) of such corporation.
ARTICLE 8
MISCELLANEOUS
Section 8.01. Incorporation of Original Indenture. This Thirteenth
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in the
Original Indenture, except as restricted in the Original Indenture to bonds of
another series or as herein otherwise provided, shall apply to and be deemed to
be for the equal benefit, security and protection of the Series J, K, L and M
bonds and the holders thereof. All terms used in this Thirteenth Supplemental
Indenture which are defined in the Original Indenture shall, unless the context
otherwise requires, have the meanings set forth in the Original Indenture.
Section 8.02. Successors and Assigns. Whenever in this Thirteenth
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and all
the covenants and agreements in this Thirteenth Supplemental Indenture contained
shall bind and inure to the benefit of the respective successors and assigns of
such parties, whether so expressed or not.
Section 8.03. Multiple Counterparts. This Thirteenth Supplemental
Indenture may be simultaneously executed in any number of counterparts and all
said counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
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<PAGE> 308
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
affixed and attested by a Trust Officer, and said M. J. Kruger, to evidence his
acceptance of the trust hereby created and in him reposed, has hereunto
subscribed his name and affixed his seal, all as of the day and year first above
written.
UNITED CITIES GAS COMPANY
By /s/ ROBERT J. SEBASTIAN
---------------------------------------
Senior Vice President and Treasurer
[CORPORATE SEAL]
ATTEST:
By /S/ CLYDE A. JOHNSON
- ----------------------------
Secretary
Witnesses as to United Cities Gas Company:
By /S/ ALBERT J. FISHER
- ----------------------------
By /S/ SALLY TAYLOR
- ----------------------------
CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO,
As Trustee
By /S/ DONALD W. ALFVIN
---------------------------------------
Vice President
[Corporate Seal]
-15-
<PAGE> 309
ATTEST:
By /S/ JOHN T. VERGEER
- ----------------------------
Trust Officer
Witnesses as to Continental Illinois
National Bank and Trust Company of
Chicago and M. J. Kruger
By /S/ ROBERT J. DONAHUE
- ----------------------------
By /S/ ROBERT G. BECKMAN
- ----------------------------
(SEAL)
By /S/ M. J. KRUGER
---------------------------------------
M. J. Kruger
-16-
<PAGE> 310
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
I, Linda R. Estey, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 11th day of June, 1982, personally
appeared before me ROBERT J. SEBASTIAN and CLYDE A. JOHNSON to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, did say
that they are Vice President and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and the
Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instruction
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said Vice President and
Secretary acknowledged said instrument to be their free and voluntary act and
deed and the free and voluntary act and deed of said corporation for the uses
and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
11th day of June, 1982.
By /S/ MRS. LINDA R. ESTEY
---------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires July 21, 1984.
-17-
<PAGE> 311
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 11th day of June, 1982, personally
appeared before me DONALD W. ALFVIN and JOHN T. VERGEER, to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who, being by me duly sworn, did say that they are
Vice President and Trust Officer, respectively, of Continental Illinois National
Bank and Trust Company of Chicago, a national banking association organized and
existing under the national banking laws of the United States of America, that
the seal affixed to the above and foregoing instrument is the corporate seal of
said association and that said instrument was signed by them and sealed and
delivered in behalf of said association by authority of its Board of Directors
duly given, and the said DONALD W. ALFVIN and JOHN T. VERGEER acknowledged said
instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said association for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
11th day of June, 1982.
By /S/ V. WASHINGTON
---------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires July 2, 1984.
-18-
<PAGE> 312
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 11th day of June, 1982, personally
appeared before me M. J. Kruger, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument as
his free and voluntary act and deed for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
11th day of June, 1982.
By /S/ V. WASHINGTON
---------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires July 2, 1984.
-19-
<PAGE> 313
STATE OF TENNESSEE )
) SS.
COUNTY OF DAVIDSON )
Personally appeared before me Albert Fisher, who, being duly sworn, says
that he saw the corporate seal of UNITED CITIES GAS COMPANY affixed to the
foregoing instrument and that he also saw Robert J. Sebastian, Vice President,
and Clyde A. Johnson, Secretary of said United Cities Gas Company, sign and
attest the same, and that he, with Sally Taylor, witnessed the execution and
delivery thereof as the act and deed of said United Cities Gas Company.
By /S/ ALBERT L. FISHER
---------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 11th day of June, 1982.
By /S/ MRS. LINDA R. ESTEY
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires July 21, 1984.
-20-
<PAGE> 314
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me ROBERT J. DONAHUE, who, being duly sworn,
says that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he
also saw DONALD W. ALFVIN, Vice President, and JOHN F. VERGEER, Trust Officer of
said Continental Illinois National and Trust Company of Chicago, sign and attest
the same, and that he, with ROBERT G. BECKMAN, witnessed the execution and
delivery thereof as the act and deed of the said Continental Illinois National
Bank and Trust Company of Chicago.
By /S/ ROBERT J. DONAHUE
---------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 11th day of June, 1982.
By /S/ V. WASHINGTON
- -----------------------------
Notary Public in and for
the County and State aforesaid
My commission expires July 2, 1984.
-21-
<PAGE> 315
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me ROBERT J. DONAHUE, who, being duly sworn,
says that he saw the within named M. J. Kruger sign, seal, and as his act and
deed, deliver the foregoing instrument and that he, with ROBERT G. BECKMAN,
witnessed the execution thereof.
By /S/ ROBERT J. DONAHUE
---------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 11th day of June, 1982.
By /S/ V. WASHINGTON
- ----------------------------
Notary Public in and for
the County and State aforesaid
My commission expires July 2, 1984.
-22-
<PAGE> 316
RECORDING DATA FOR THIRTEENTH SUPPLEMENTAL INDENTURE
OF
UNITED CITIES GAS COMPANY
<TABLE>
<CAPTION>
DATE AND TIME RECORDING DATA
STATE COUNTY RECORDED-1982 DOCUMENT BOOK PAGES
<S> <C> <C> <C> <C> <C>
Alabama Russell June 21; 2:55 P.M. 601 287-312
Georgia Barrow June 18; 10:30 A.M. 36 739-764
Georgia Chattahoochee June 21; 2:50 P.M. L-1 590-615
Georgia Hall June 21; 11:13 A.M. 770 20-45
Georgia Jackson June 18; 12:45 P.M. 8E 654-682
Georgia Muscogee June 21; 4:30 P.M. 2112 98-123
Georgia Oconee June 13; 11:20 A.M. 49 205-230
Illinois Fayette June 22; 1:20 P.M. 65642 662 258-283
Illinois Massac June 22; 3:45 P.M. 762-82 205 342-367
Illinois Saline June 21; 43567 42 638-662
North Carolina Henderson June 21; 2:35 P.M. 353 747-773
North Carolina Wake June 21; 2:42 P.M. 3026 298-322
South Carolina Cherokee June 18; 11:27 A.M. 285 665-690
Tennessee Bedford June 15; 2:40 P.M. 213 409
Tennessee Blount June 24; 9:25 P.M. 397 986-1011
Tennessee Hamblen June 23; 1:30 P.M. 339 226
Tennessee Maury June 18; 1:30 P.M. 834 389
Tennessee Moore June 16; 8:30 A.M. 41 425
Tennessee Obian June 16; 9:40 A.M. 41W 270-296
Tennessee Rutherford June 21; 10:35 A.M. A361 135-161
Tennessee Sullivan June 23; 8:30 A.M. 319C 46-71
Tennessee Weakley June 19; 8:30 A.M. 305 336
Tennessee Williamson June 16; 1:55 P.M. 416 658-684
Virginia City of Bristol June 22; 12:35 P.M. 228 122-147
Virginia Washington June 22; 9:18 A.M. 657 47-72
</TABLE>
<PAGE> 317
EXHIBIT A
FORM OF SERIES J, K, L AND M BONDS AND TRUSTEE'S CERTIFICATE
United Cities Gas Company
No. R $
FIRST MORTGAGE BOND, SERIES , %, DUE
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to
or registered assigns, on , or earlier as hereinafter referred
to, the sum of
at the principal office in Chicago, Illinois, of CONTINENTAL ILLINOIS NATIONAL
BANK AND TRUST COMPANY OF CHICAGO (hereinafter, with its successors in the
trusts under the indenture mentioned below, generally called the "Trustee"), or
at the principal office of its successor in said trusts, and to pay to said
payee, or registered assigns, interest thereon, from the date hereof, at the
rate of percent ( %) per annum, at said office, semiannually on
and in each year until the principal sum hereof
shall have become due and payable and to pay interest on any overdue principal
and (to the extent permitted by law) on any overdue installment of interest,
at the rate of percent ( %).
This bond is one of a duly authorized issue of Fist Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series , %,
Due , all such bonds of this series and all other series being issued or to
be issued under and subject to the provisions of a certain Indenture of
Mortgage, dated as of July 15, 1959 (hereinafter with all indentures
supplemental thereto generally called the "Indenture"), by and between the
Company and City National Bank and Trust Company of Chicago (which has been
succeeded by Continental Illinois National Bank and Trust Company of Chicago as
Corporate Trustee) and R. Emmett Hanley (who has been succeeded by M. J.
Kruger), as Trustees, to which Indenture, an executed counterpart of which is
on file with the Trustee, reference is hereby made for a description of the
property mortgaged, a statement of the nature and extent of the security
thereby afforded, the terms and conditions upon which release of property
covered by the Indenture may be made, the terms and conditions upon which bonds
of all series are or are to be issued and secured, the rights and remedies
under the Indenture of the holders of said bonds, the terms and conditions upon
which the Indenture may be modified or amended, and the rights and obligations
under the Indenture of the Company and of said Trustees; but neither the
foregoing reference to the Indenture, nor any provision of this bond or of the
Indenture, shall affect or permit the impairment of the absolute, unconditional
and unalterable obligation of the Company to pay, at the maturity date herein
provided, the principal of and interest on this bond as herein provided.
<PAGE> 318
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
the bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, may
be called for redemption and payment at any time prior to maturity, on notice
given or waived as provided in the Indenture, at the applicable redemption
price specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
-2-
<PAGE> 319
IN WITNESS WHEREOF, UNITED CITIES GAS COMPANY has caused this bond to be
executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated
UNITED CITIES GAS COMPANY
By____________________________
President
ATTEST:
____________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the Bonds, of the series designated therein, referred to
in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL
BANK AND TRUST COMPANY OF CHICAGO,
as Trustee
By____________________________
Authorized Officer
-3-
<PAGE> 320
SCHEDULE A
Description of Mortgaged Property
The properties referred to in the granting clauses of this Supplemental
Indenture include the parcels of real estate or interest therein more
specifically described below. Such description is not intended, however, to
limit or impair the scope or intention of the general description in the
granting clauses of the Indenture.
IN MUSCOGEE COUNTY, GEORGIA
1. The Columbus System of gas properties, as constructed and equipped
at and near Columbus in Muscogee County, together with the water-gas
manufacturing plant, compressor stations, gas holders, warehouse and other
buildings and structures located on such properties, described as follows:
(a) All that tract or parcel of land situate, lying and being in the
City of Columbus, Muscogee County, Georgia, more particularly described as
follows: Beginning on the west side of Short Street (or Bay Street) at a
point sixty-two and six-tenths (62.6) feet north of the north curb line of
Dillingham Street, said point being marked by an iron pin; thence South 87
degrees 00 minutes West three hundred (300) feet, more or less, to the east
bank of the Chattahoochee River; thence northerly along said east bank of
the Chattahoochee River to a point which is on a line dividing the north
half and the south half of Water Lot No. 34 of said City of Columbus; thence
east along said line dividing the north half and the south half of said
Water Lot No. 34 two hundred twelve (212) feet, more or less, to the west
side of Short Street (or Bay Street); thence south along the west side of
Short Street (or Bay Street) six hundred sixty-nine and four-tenths (669.4)
feet, more or less, to an iron pin on the west side of said Short Street (or
Bay Street), the point of beginning.
(b) All that tract or parcel of land situate, lying and being in the
city of Columbus, Muscogee County, Georgia, designated as part of the
northern half of Lot Number 40 in the Coweta Reserve, more particularly
described as follows: Beginning on the northern side of Patten Avenue at a
point one hundred fifty-four (154) feet east of the intersection of Patten
Avenue and 11th Avenue; thence North 2 degrees West, parallel with 11th
Avenue one hundred fifty-five and one-tenth (155.1) feet, more or less,
thence North 89 degrees 29 minutes East two hundred forty-seven and
five-tenths (247.5) feet; thence South 2 degrees 30 minutes East one hundred
forth-eight and seven-tenths (148.7) feet to the north line of Patten
Avenue; thence South 88 degrees West along the north line of Patten Avenue
two hundred forty-eight and five-tenths (248.5) feet to an iron pin and the
point of beginning. Said tract or parcel of land being part of those
certain lands conveyed to Georgia Power Company by Gas Light Company of
Columbus by deed dated November 25, 1935.
(c) All that tract or parcel of land situate, lying and being in
Muscogee County, Georgia, being a part of Lot Number 16 of Block C of the
Andrews Survey,
<PAGE> 321
as shown by a certain map recorded in the Office of the Clerk of the
Superior Court of Muscogee County, Georgia, in Deed Book 51, Folio 82 and
more particularly described as follows: Beginning on the northwest side of
Twenty-third Avenue at a point which is the dividing line between Lots
Number 16 and 17 of said Block C; thence northwesterly along the dividing
line between Lots 16 and 17 sixty (60) feet; thence southwesterly parallel
with Twenty-third Avenue, twenty (20) feet; thence southeasterly parallel
with the dividing line between Lots Number 16 and 17, sixty (60) feet to the
northwest side of Twenty-third Avenue; thence northeasterly along the
northwest side of Twenty-third Avenue twenty (20) feet to the dividing line
between Lots Number 16 and 17, and the point of beginning. Said tract or
parcel of land being the same lands conveyed to Georgia Power Company by
Mrs. Geneva E. Jones by deed dated November 11, 1946, recorded in the Office
of the Clerk of the Superior Court of Muscogee County, Georgia, in Deed Book
247, Folio 116.
(d) Also the following franchises under which such system is or may be
operated: Franchise granted to Gas Light Company of Columbus by the Council
of Columbus, Georgia, on December 15, 1981.
2. All those lots, tracts or parcels of land situate, lying and being
in Muscogee County, Georgia, and being in land Lot Fifty-Six (56) of the Eighth
District of said County, known as parts of Lot One (1) and Lot Two (2), Block C
of Ogletree Woods subdivision, as said lots appear upon a map or plat of said
subdivision recorded in Deed Book 74, Page 149, in the Office of the Clerk of
the Superior Court of said County, said parts of Lots One (1) and Two (2) being
more particularly described as follows: Beginning at an iron pin in the
northwest corner of the intersection of Gentian Road and Hamilton Road; thence
northwest along the northerly side of Gentian Road a distance of one hundred
(100) feet to an iron pin; thence North 40 degrees 59 minutes East a distance of
one hundred and two tenths (100.2) feet to an iron pin; thence South 65 degrees
14 minutes East a distance of ninety-eight and seventeen one hundredths (98.17)
feet to an iron pin on the westerly side of Hamilton Road; thence South 40
degrees 03 minutes West along the westerly side of Hamilton Road a distance of
one hundred (100) feet to the point of beginning. A map or plat of the
above-described property is recorded in Plat Book 7, Page 135, in the Office of
the Clerk of the Superior Court of Muscogee County, Georgia.
Also the regulator station and all appurtenances installed or located on
the above-described property.
3. All that lot, tract or parcel of land situate, lying and being in
the State of Georgia and County of Muscogee, and in land Lot 29 of the Eighth
District of Muscogee County, Georgia, and being known and distinguished as a
part of Lot One (1) of the Survey for C. M. Mote, as said Lot One (1) appears on
a map or plat of said survey recorded in Deed Book 87, Page 290, in the Office
of the Clerk of the Superior Court of Muscogee County, Georgia, said part of Lot
One (1) being more particularly described as follows: Beginning at an iron pin
at the northeast corner of the intersection of Oak Circle and Cody Road; thence
extending northerly along the easterly line of Cody Road a distance of sixty
(60) feet to an iron pin; thence easterly along a line parallel with the
northerly line of Oak
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<PAGE> 322
Circle, a distance of one hundred (100) feet to an iron pin; thence
southerly along a line parallel with the easterly line of Cody Road, a distance
of sixty (60) feet to the northerly line of Oak Circle; thence westerly along
the northerly line of Oak Circle, a distance of one hundred (100) feet to the
point of beginning.
Also, all of the Company's right, title and interest in and to the
five-foot strip of land adjacent to and lying immediately westerly of said part
of Lot One (1) of the survey for C.M. Mote, as said Lot One (1) appears on a map
or plat of said survey recorded in Deed Book 87, Page 290, in the Office of the
Clerk of the Superior Court of Muscogee County, Georgia.
Also the regulator station and all appurtenances installed or located on
the above-described property.
4. All that lot, tract or parcel of land situate, lying and being in
the State of Georgia, County of Muscogee, and being in land Lot One Hundred
Fifty-Three (153) of the Coweta Reserve, and being a Part of Lot Two (2) of the
Survey of the property of Mrs. Ethel Knight Baker, as shown on a map or plat of
said Survey made by J. K. Jones, August 20, 1929 and recorded in the Office of
the Clerk of the Superior Court of Muscogee County, Georgia, in Deed Book 102 at
Page 258.
Also all improvements and all appurtenances installed or located on the
above-described property.
5. All that lot, tract or parcel of land situate, lying and being in
land Lots Fifty-Six (56) and Sixty-Five (65) in the Eighth District of Muscogee
County, Georgia, shown and designated as "4.385 Ac. Tract 'A'" on a map or plat
entitled "Survey for Gas Light Company of Columbus, Part of Land Lots 56 & 65,
8th District, Muscogee County, Georgia" made by Aldridge, Moon & King, Civil
Engineers, 14 June, 1957, said lot, tract or parcel of land being particularly
described as follows: BEGINNING at a concrete monument placed on the western
side of Whitesville Road 128.84 feet, measured along said side of said road,
southeasterly from an iron stake located at the intersection of the north line
of said land Lot No. Fifty-six (56) with the western side of said Whitesville
Road, and from said beginning point running thence south 27 degrees 52 minutes
east, along the western side of Whitesville Road, 343.8 feet to a concrete
monument located on the northwestern side of Central of Georgia Railroad
right-of-way south 28 degrees 29 minutes west, along the northwestern side of
said railroad right-of-way 419.82 feet to an iron stake; thence running north 27
degrees 52 minutes west 749.26 feet to an iron stake; thence running north 88
degrees 27 minutes east 389.91 feet to the concrete monument which marks the
point of beginning - containing 4.385 acres, more or less.
Also all improvements and all appurtenances installed or located on the
above-described property.
6. All that lot, tract or parcel of land situate, lying and being in
land Lots two hundred thirty-three (233), two hundred thirty-four (234), two
hundred sixty-five (265) and
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<PAGE> 323
two hundred sixty-six (266) in the Nineteenth District of Muscogee
County, Georgia, shown and designated as "Tract 'A' 26.00 Ac." and "Tract 'B'
26.00 Ac." on a survey entitled "Survey for Gas Light Company of Columbus, Part
of Land Lots 233, 234, 265 & 266, 19th District, Muscogee County, Georgia" made
by Moon, Meeks & Patrick, Inc., Civil Engineers, 19 February 1973, said lot,
tract or parcel of land being particularly described as follows:
Beginning at an iron stake on the west side of Hamilton Road which is
2299.48 feet south of the southwest corner of the intersection of Hamilton
Road and Wooldridge road measured along the west side of Hamilton Road, from
said beginning point running thence south 10 degrees 29 minutes east along
the west side of Hamilton Road a distance of 60.44 feet to an iron stake;
running thence south 86 degrees 28 minutes west a distance of 888.42 feet to
an iron stake; running thence south 06 degrees 54-1/2 minutes west a
distance of 952.47 feet to an iron stake; running thence south 87 degrees
44-1/2 minutes west a distance of 503.29 feet to an iron stake; running
thence south 87 degrees 42 minutes west a distance of 348.70 feet to an iron
stake; running thence south 87 degrees 57-1/2 minutes west a distance of
111.62 feet to an iron stake; running thence south 87 degrees 55 minutes
west a distance of 1125.86 feet to an iron stake; running thence north 23
degrees 09 minutes west a distance of 573.78 feet to an iron stake; running
thence south 86 degrees 51 minutes west a distance of 60.71 feet to an iron
stake; running thence north 02 degrees, 48-1/2 minutes west a distance of
396.44 feet to an iron stake; running thence north 86 degrees 15 minutes
east a distance of 2502.72 feet to an iron stake; running thence north 86
degrees 28 minutes east a distance of 888.19 feet to the iron stake at the
point of beginning.
Also all improvements and all appurtenances installed or located on the
above-described property.
7. All that tract or parcel of land situate, lying and being in the City
of Columbus, County of Muscogee and State of Georgia and known and designated in
the plan of said City as the North Half of City Lot 371 as shown upon a map or
plat of said property entitled "Part of City Lots 369, 370, 371 and 372,
Columbus, Muscogee County, Georgia," prepared by J. Dayton Willis, C. E., dated
March 5, 1964, and recorded in Plat Book 32, folio 90, in the office of the
Clerk of the Superior Court of Muscogee County, Georgia, and being more
particularly described as follows:
Beginning at an iron pin located on the easterly margin of Third Avenue
at the southwesterly corner of the North Half of City Lot 371 and a distance
of 223.72 feet in a northerly direction along said easterly margin of Third
Avenue from a drill hole located at the point where said easterly margin of
Third Avenue intersects the northerly margin of Fourteenth Street and from
said point of beginning running thence north 88 degrees 26 minutes east a
distance of one hundred forty-eight and seventy-four hundredths (148.74)
feet to an iron pin located on the line dividing said City Lot 371 and City
Lot 372; thence north 01 degree 30 minutes west a distance of seventy-four
and ninety-six hundredths (74.96) feet to an iron pin located at the
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<PAGE> 324
northeasterly corner of said City Lot 371; thence south 88 degrees 21
minutes west along the line dividing said City Lot 371 and City Lot 370
a distance of one hundred forty-eight and eighty-seven hundredths (148.87)
feet to an iron pin located on the easterly margin of Third Avenue at the
northwesterly corner of said City Lot 371; thence south 01 degree 34 minutes
east along said easterly margin of Third Avenue a distance of seventy-four
and eighty-nine hundredths (74.89) feet to the point of beginning.
8. All that tract or parcel of land lying and being in the City of
Columbus, County of Muscogee, State of Georgia, and being Parts of City Lots
Three Hundred Sixty-eight (368) and Three Hundred Sixty-nine (369), and more
particularly described as follows:
Beginning at a drill hole in the sidewalk on the west line of Fourth
Avenue located 144.68 feet south, as measured along the west line of Fourth
Avenue from the iron stake at the intersection of the west line of Fourth
Avenue and the South line of Fifteenth Street; running thence south 02
degrees 30 minutes east and along the west line of Fourth Avenue a distance
of 71.64 feet to a drill hole in sidewalk; running thence south 87 degrees
25 minutes west a distance of 149.41 feet to an iron stake on the west line
of City Lot number Three Hundred Sixty-nine (369); running thence north 02
degrees 30 minutes west and along the west line of City Lot number Three
Hundred Sixty-nine (369) and Three Hundred Sixty-eight (368) a distance of
71.64 feet to an iron stake; thence north 87 degrees 25 minutes east a
distance of 149.41 feet to the drill hole in sidewalk at the point of
beginning. The foregoing property is shown on a map or plat dated January
26, 1960 entitled "Part of City Lots Three Hundred Sixty-eight (368) and
Three Hundred Sixty-nine (369)", prepared by Aldridge, Moon & King, Civil
Engineers, and recorded in Plat Book 23, folio 66, in the office of the
Clerk of the Superior Court, Muscogee County, Georgia.
9. All that tract or parcel of land situate, lying and being in the
City of Columbus, Muscogee County, Georgia, and being parts of City Lots
numbered 367 and 370, and being more particularly described as follows:
Commencing at a point on the east side of Third Avenue, which said point
is 104.68 feet south of the southeasternmost corner of an intersection
formed by Third Avenue and Fifteenth Street, and which said point marks the
Beginning point of on the East side of Third Avenue running thence north 88
degrees 39 minutes east 148.65 feet to an iron stake; thence running south
01 degree 30 minutes east 63.97 feet to a second iron stake; thence running
south 88 degrees 21 minutes west 148.65 feet to a drill hole in a stone
marker on the east side of Third Avenue; thence running north long the east
side of Third Avenue 01 degree 30 minutes west 64.75 feet to the point of
beginning. The foregoing property is shown on a map or plat prepared by
Abram Siegel on August 26, 1957, and recorded in Plat Book 21, folio 88, in
the office of the Clerk of the Superior Court of Muscogee County, Georgia.
-5-
<PAGE> 325
10. All that tract or parcel of land, lying and being in Columbus,
Muscogee County, Georgia, and being the part of City-lots Nos. 369 and 370 on
which the residence, No. 1424 - Third Avenue, stands, and more particularly
described as follows:
Beginning at the southwest corner of City-lot No. Three Hundred
Seventy (370), running thence, north, along the east side of Third
Avenue, Eighty (80) feet; thence east, across City-lot No. Three
Hundred Seventy (370), and across City-lot No. Three Hundred Sixty-nine
(369), to Fourth Avenue; thence south, along the west side of Fourth
Avenue, to the south line of City-lot No. Three Hundred Sixty-nine
(369); thence west to the point of beginning.
11. All that tract or parcel of land situate, lying and being in the
City of Columbus, Muscogee County, Georgia, and being known and designated as
part of City Lot 372 of the original survey of the City of Columbus, and
contained within the following metes and bounds, to-wit:
Commencing at a drill hole in the sidewalk on the westerly side of
Fourth Avenue two hundred fifty six and sixty one one-hundredths
(256.61) (as measured along the westerly side of Fourth Avenue)
northerly of the point of intersection of the westerly side of Fourth
Avenue with the northerly side of 14th Street, and from said beginning
point running thence south 88 degrees 25 minutes west a distance of one
hundred forty nine and fifty hundredths (149.50) feet to an iron stake
located on the dividing line between City Lots 371 and 372; running
thence north 01 degree 26 minutes west along the dividing line between
said City Lots 371 and 372 a distance of forty three and seventeen
hundredths (43.17) feet to an iron stake located at the northwesterly
corner of said City Lot 372; thence north 88 degrees 25 minutes east
along the dividing line between City Lots 372 and 369 a distance of one
hundred forty nine and forty five hundredths (149.45) feet to a drill
hole in the sidewalk on the westerly side of Fourth Avenue; thence
south 01 degree 30 minutes east along the westerly side of Fourth
Avenue a distance of forty three and seventeen hundredths (43.17) feet
to the point of beginning, and being shown on a map or plat made by
Aldridge, Moon & King, Civil Engineers, dated January 19, 1959 and
recorded in the office of the Clerk of the Superior Court of Muscogee
County, Georgia in Plat Book 21, folio 18.
12. All that lot, tract or parcel of land situate, lying and being in
the City of Columbus, Muscogee County, Georgia, and known in the plan of said
City as the South half of City Lot 371, and being more particularly described as
follows:
Commencing at an iron on the East side of Third Avenue one
hundred fifty and twenty five one-hundredths (150.25) feet North of an
"X" cut in the sidewalk in the Northeast corner of the intersection of
Fourteenth Street and Third Avenue, thence running North 02 degrees 30
minutes West a distance of seventy three and nine tenths (73.9) feet to
an
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<PAGE> 326
iron; thence North 87 degrees 31 minutes West a distance of one hundred
forty eight and five tenths (148.5) feet to the point of beginning.
Situate on said property is house numbered 1412 Third Avenue according to
the present system of numbering houses in the City of Columbus, Georgia.
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<PAGE> 327
IN RUSSELL COUNTY, ALABAMA
1. That certain six inch steel natural gas pipe line and that certain
ten inch steel natural gas pipe line parallel to each other and situate, lying
and being in Russell County, Alabama, each said line running from the metering
station of Southern Natural Gas Company known as the Fort Benning, Georgia
metering station and located in said Russell County, Alabama, on the East side
of Brickyard Road near Phenix City, Alabama, and near Southern Natural Gas
Company's Dixie Brick Company metering station, and extending from said Southern
Natural Gas Company's Fort Benning, Georgia metering station in a general
Southeasterly direction a distance of 14,170 feet, more or less, to the West
side of the Alabama-Georgia State Line, at which point said lines connect with
the natural gas pipe line of the United States of America which latter line runs
across the Alabama-Georgia State Line, crosses the Chattahoochee River and runs
into and across the Fort Benning, Georgia military reservation; together with a
river crossing header including two valves with extended stem, valve pit and
valve operating tower, and all line loops; also, together with all easements,
licenses and privileges granted by the owners of property over, through or under
which said lines and appurtenances extend, including, without limitation, the
following rights of way originally conveyed by the Trustees of Southern Natural
Gas Company to Georgia Power Company:
Deed from Dixie Brick Company, a corporation, dated September 27, 1933, and
recorded in the office of the Probate Judge of Russell County, Alabama, in
Volume 6 of Deeds, at page 319.
Deed from Bessie Neill Bickerstaff, dated September 28, 1933, and recorded
in the office of the Probate Judge of Russell County, Alabama, in Volume 6
of Deeds, at page 317.
Deed from Wm. J. Bickerstaff, dated September 28, 1933, and recorded in the
office of the Probate Judge of Russell County, Alabama, in Volume 6 of
Deeds, at page 317.
Deed from C. M. Brennan and wife, Mary S. Brennan, dated September 28, 1933
and recorded in the office of the Probate Judge of Russell County, Alabama,
in Volume 6 of Deeds, at page 318.
Deed from Minnie L. Flournoy, individually and as executrix of the T. M.
Flournoy Estate, dated September 28, 1933, and recorded in the office of the
Probate Judge of Russell County, Alabama, in Volume 6 of Deeds, at page 320.
-8-
<PAGE> 328
[CONFORMED COPY]
FOURTEENTH SUPPLEMENTAL INDENTURE
Dated as of March 1, 1987
_______________
UNITED CITIES GAS COMPANY
to
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
and
M. J. KRUGER
TRUSTEES
_______________
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series N,
8.69%, Due March 1, 2002
and
First Mortgage Bonds, Series O,
8.75%, Due November 1, 1991
<PAGE> 329
THIS FOURTEENTH SUPPLEMENTAL INDENTURE, dated as of March 1, 1987, made
by and between UNITED CITIES GAS COMPANY, a corporation organized under the
laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), whose address is 5300 Maryland Way, Brentwood,
Tennessee 37027, party of the first part, and CONTINENTAL ILLINOIS NATIONAL
BANK AND TRUST COMPANY OF CHICAGO, a national banking association having its
office at 30 North LaSalle Street, Chicago, Illinois 60693 (hereinafter called
the "Trustee"), and M. J. KRUGER, residing in the City of Chicago, Illinois
(the Trustee and M. J. Kruger being hereinafter collectively referred to as
the "Trustees"), parties of the second part.
RECITALS:
The background of this Fourteenth Supplemental Indenture is:
A. The Company heretofore executed and delivered to City National Bank
and Trust Company of Chicago and R. Emmett Hanley, as Trustees, its
Indenture of Mortgage dated as of July 15, 1959 (hereinafter
sometimes referred to as the "Original Indenture"), providing for the
issuance thereunder from time to time of First Mortgage Bonds of the
Company, issuable in one or more series, and wherein and whereby the
Company did grant, convey, mortgage, warrant to, the said Trustees, and
each of them, and their respective successors and assigns, and create a
security interest in, certain property of the Company in said Original
Indenture more particularly described for the security of all First
Mortgage Bonds issued and to be issued thereunder.
B. On September 1, 1961, City National Bank and Trust Company of
Chicago was merged with Continental Illinois National Bank and Trust
Company of Chicago, a national banking association, which thereupon
became corporate trustee under the Indenture as provided therein, and on
October 15, 1966, Ray F. Myers became individual trustee under the
Indenture as successor to R. Emmett Hanley, resigned, and on March 15,
1981, M. J. Kruger became individual trustee under the Indenture as
successor to Ray F. Myers, resigned.
C. The Company has heretofore executed and delivered thirteen
supplemental indentures to the Original Indenture, designated as First
through Thirteenth (the Original Indenture and all supplemental
indentures, including this Fourteenth Supplemental Indenture, being
herein called the "Indenture"), for the purpose of subjecting to the lien
of the Indenture certain additional property heretofore and hereafter
acquired by the Company, creating additional series of First Mortgage
Bonds, and amending and supplementing the Indenture in certain respects.
D. There have been issued under the Indenture various series of
First Mortgage Bonds designated as Series A through M, inclusive, of
which $17,581,371.95 in aggregate principal amount are outstanding as of
March 2, 1987.
<PAGE> 330
E. The Company desires to create two new series of bonds to be issued
under and secured by the Indenture to be designated as "First Mortgage
Bonds, Series N, 8.69%, due March 1, 2002", to be limited to
$20,000,000 in aggregate principal amount and First Mortgage Bonds,
Series O, 8.75%, due November 1, 1991, to be limited to $1,635,987 in
aggregate principal amount.
F. The Company also desires to subject to the lien of the
Indenture certain additional property, including properties acquired by
the Company as a result of its merger with Tennessee-Virginia Energy
Company and Town Gas Company of Illinois, which are not of the type
reserved and excepted from the lien of the Original Indenture.
G. All things necessary to make the Series N bonds and the Series
O bonds, when duly executed by the Company and certified and delivered by
the Trustee and issued, valid, binding and legal obligations of the
Company entitled to the benefit and security of the Indenture, and to
make this Fourteenth Supplemental Indenture a valid and binding
instrument in accordance with its terms and for the purposes herein
expressed, have been done and performed; and the issue of Series N
bonds and the Series O bonds, as herein provided, has been in all
respects duly authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of
One Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable
considerations, the receipt whereof is hereby acknowledged, the Company
hereby covenants to and with the Trustees and their successors in the trusts
under the Indenture, for the equal and pro rata benefit of all present and
future holders of all bonds issued and to be issued under the Indenture,
and of the coupons, if any, thereto appertaining, without any preference,
priority or distinction whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal of
and interest (and premium, if any) on all of the bonds of the Company at
any time outstanding under the Indenture according to their tenor and
effect and the performance of and compliance with the covenants and
conditions in the Indenture contained, has heretofore irrevocably granted,
conveyed, mortgaged, warranted, and granted a security interest to, the
Trustees, and by these presents does hereby irrevocably grant, convey,
mortgage, warrant to, the Trustees and each of them, and to their successors
in said trust forever, and grant a security interest in, the property described
as follows:
I. All lands and rights and interests therein (including fixtures),
both fee and leasehold, now owned or hereafter acquired by the Company,
including, without limitation, those more specifically described in
Schedule A hereto;
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<PAGE> 331
II. All improvements, pipelines, plants, buildings, machinery and
equipment and gas distribution systems now owned or hereafter acquired
by the Company, including without limitation, those more specifically
described in Schedule A hereto;
III. All rights appertaining to any and all the foregoing
property, and all gas purchase contracts and other contracts, rights
and franchises, including without limitation, those more specifically
described in Schedule A hereto, and all leases, indeterminate
permits, certificates of convenience and necessity, rights of way,
easements, privileges, tenements, appurtenances, licenses and permits
used by or useful to the Company in the operation of its business,
whether now owned or hereafter acquired, and, subject to the provisions
of Section 7.01 of the Original Indenture, all income and earnings
arising out of the mortgaged property, including rents, issues and profit
arising during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce
the lien of the Indenture; and
IV. All property, real, personal and mixed, whether or not
hereinabove or in Schedule A specifically described, which the Company
now owns and all such property which it may hereafter acquire.
SUBJECT to such liens and encumbrances as are of the character
specified in Section 3.09 of the Original Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not specifically
pledged under the Indenture;
B. All stocks, bonds and securities not specifically pledged under the
Indenture;
C. All merchandise held for resale and consumable materials and
supplies;
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be,
unto the Trustees and their successors forever; subject, however, to the
exclusions, encumbrances, reservations, covenants, conditions, uses and trusts
set forth in the Original Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture, without preference
or priority of any series of bonds
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<PAGE> 332
or of any bonds within a series over any of the other bonds by reason of
priority of time of maturity or of the negotiation thereof or otherwise.
ARTICLE 2
SERIES N BONDS
Section 2.01. Creation of Series N Bonds. There is hereby created for
issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $20,000,000, to be designated as "First Mortgage Bonds,
Series N, 8.69%, Due March 1, 2002" (herein called "Series N bonds"). The
Series N bonds shall, subject to the provisions of Section 1.13 of the
Original Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature March 1, 2002, and shall bear
interest at the rate of 8.69% payable semi-annually on March 1 and September 1
in each year until the principal thereof shall have become due and payable and
shall bear interest on any overdue principal and (to the extent permitted by
law) on any overdue installment of interest, at the rate of 9.69% per annum,
the interest on each Series N bond to be payable at the principal office of
the Trustee in Chicago, Illinois, or, at the option of the person entitled
thereto, in accordance with the instructions of such person submitted in
writing to the Company and the Trustee.
Section 2.02. Form of Series N Bonds. The Series N bonds shall be issued
only as fully registered bonds without coupons, in denominations of
$100,000 and multiples thereof, to the extent practicable, substantially
in the form set forth in Exhibit A hereto, with appropriate insertions,
omissions and changes, approved by the President of the Company and the
Trustee, as may be appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series N Bonds. The Series N bonds shall
be subject to redemption as hereinafter provided:
(a) The Series N bonds are required to be redeemed on each Series N
sinking fund payment date through application of cash deposited with the
Trustee for the sinking fund for the Series N bonds provided for in
Section 2.04 hereof, together with interest accrued thereon to the date
fixed for redemption.
(b) At the option of the Company at any time on or after March 1,
1997, the Series N bonds may be redeemed at the following redemption
prices (expressed as a percentage of the principal amount to be redeemed)
together with interest accrued thereon to the date of redemption:
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<PAGE> 333
<TABLE>
<CAPTION>
IF REDEEMED DURING THE REDEMPTION
12 MONTHS ENDING MARCH 1 PRICE
<S> <C>
1998 102.483%
1999 101.862
2000 101.241
2001 100.621
2002 100.000
</TABLE>
(c) The Series N bonds may be redeemed by application of cash
deposited with the Trustee in accordance with the provisions of Section
3.14 or 7.05 of the Original Indenture at the following redemption
prices (expressed as a percentage of the principal amount to be redeemed)
together with interest accrued thereon to the date of redemption:
<TABLE>
<CAPTION>
IF REDEEMED DURING THE REDEMPTION
12 MONTHS ENDING MARCH 1 PRICE
<S> <C>
1988 108.690%
1989 108.069
1990 107.448
1991 106.827
1992 106.207
1993 105.586
1994 104.965
1995 104.345
1996 103.724
1997 103.103
1998 102.482
1999 101.862
2000 101.241
2001 100.620
2002 100.000
</TABLE>
Section 2.04. Series N Bond Sinking Fund. (a) So long as any Series
N bonds shall remain outstanding, the Company shall deposit with the Trustee
as and for a sinking fund for the retirement of Series N bonds cash in the
amount of $2,000,000 on March 1 of each of the years 1993 through 2002,
inclusive (each such date being herein called a "Series N sinking fund payment
date").
(b) The Company may at its option increase the amount deposited in
the Series N bond sinking fund on any Series N sinking fund payment date by an
additional amount not exceeding the amount the Company is required to deposit
on such Series N sinking fund payment date; provided, however, the aggregate
principal amount of Series N bonds redeemed pursuant to this paragraph (b)
shall not over the life of the Series N bonds exceed $5,000,000. The right
of the Company to increase a sinking fund deposit on any Series N
sinking fund payment date shall be noncumulative. All deposits made by
the Company under this paragraph (b) shall be in units of $100,000 or an
integral multiple in excess thereof.
-5-
<PAGE> 334
(c) The aggregate principal amount of Series N bonds redeemed
pursuant to the foregoing paragraph (b) of this Section 2.04 shall be
credited against the amount which the Company is required to deposit in the
Series N bonds sinking fund on each Series N sinking fund payment date in the
inverse chronological order of such sinking fund dates.
Section 2.05. Issuance of Series N Bonds. Upon the execution
and delivery of this Fourteenth Supplemental Indenture and upon compliance
with the provisions of the Indenture, the Company may execute and deliver to
the Trustee, and the Trustee shall certify and deliver to, or upon the
written order of, the President or Treasurer of the Company, Series N bonds
in an aggregate principal amount not exceeding $20,000,000.
ARTICLE 3
SERIES O BONDS
Section 3.01. Creation of Series O Bonds. There is hereby created
for issuance under the Indenture, a series of bonds, limited to the aggregate
principal amount of $1,635,987, to be designated as "First Mortgage Bonds,
Series O, 8.75%, Due November 1, 1991" (herein called "Series O bonds").
The Series O bonds shall, subject to the provisions of Section 1.13 of the
Original Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature November 1, 1991, and shall bear
interest at the rate of 8.75% payable semi-annually on May 1 and November 1 in
each year until the principal thereof shall have become due and payable and
shall bear interest on any overdue principal and (to the extent permitted by
law) on any overdue installment of interest, at the rate of 9.75% per annum,
the interest on each Series O bond to be payable at the principal office of the
Trustee in Chicago, Illinois, or, at the option of the person entitled
thereto, in accordance with the instructions of such person submitted in
writing to the Company and the Trustee.
Section 3.02. Form of Series O Bonds. The Series O bonds shall
be issued only as fully registered bonds without coupons, in denominations
of $100,000 and multiples thereof, to the extent practicable, substantially
in the form set forth in Exhibit A hereto, with appropriate insertions,
omissions and changes, approved by the President of the Company and the
Trustee, as may be appropriate to reflect the terms of such bonds.
Section 3.03. Redemption of Series O Bonds. The Series O bonds shall
be subject to redemption as hereinafter provided:
(a) The Series O bonds are required to be redeemed on each Series O
sinking fund payment date through application of cash deposited with the
Trustee for the sinking fund for the Series O bonds provided for in
Section 3.04 hereof, together with interest accrued thereon to the date
fixed for redemption.
(b) At the option of the Company at any time the Series O bonds may
be redeemed at a price equal to 100% of the principal amount thereof
together with interest accrued thereon to the date of redemption.
-6-
<PAGE> 335
Section 3.04. Series O Bond Sinking Fund. So long as any Series O
bonds shall remain outstanding, the Company shall deposit with the Trustee as
and for a sinking fund for the retirement of Series O bonds cash in an
amount set forth opposite the applicable Series O sinking fund payment date
(each such date being herein called a "Series O sinking fund payment date"):
<TABLE>
<CAPTION>
SERIES O SINKING AMOUNT OF SINKING
FUND PAYMENT DATE FUND PAYMENT
<S> <C>
November 1, 1987 $223,370
November 1, 1988 249,018
November 1, 1989 274,665
November 1, 1990 299,731
</TABLE>
Section 3.05. Issuance of Series O Bonds. Upon the execution and
delivery of this Fourteenth Supplemental Indenture and upon compliance with
the provisions of the Indenture, the Company may execute and deliver to the
Trustee, and the Trustee shall certify and deliver to or upon the written
order of the President or Treasurer of the Company, Series O bonds in an
aggregate principal amount not exceeding $1,635,987.
ARTICLE 4
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES N AND O BONDS
Section 4.01. The provisions of this Article 4 shall be applicable to
the Series N and O bonds. Except as hereinafter provided, Series N and O bonds
shall be redeemed upon the notice, in the manner and with the effect provided in
Article 4 of the Original Indenture.
Section 4.02. In the case of all sinking fund redemptions, on or before
the thirtieth day prior to each sinking fund payment date, the Trustee shall
proceed to select for redemption in the manner provided herein, bonds of the
series for which a sinking fund payment is to be made in the aggregate
principal amount which are redeemable with the cash to be deposited with the
Trustee on the next following sinking fund payment date, and in the name of
the Company shall give notice as may be required by Article 4 of the
Indenture of the redemption for the sinking fund on such sinking fund payment
date of the bonds so selected.
All sinking fund payments received by the Trustee shall be held by
the Trustee as security for bonds of the series for which such sinking fund
payment is made, and shall be applied by the Trustee on the respective sinking
fund payment dates to the redemption of outstanding bonds of such series in the
manner and with the effect specified herein; and the Company shall, in each
case prior to the date fixed for redemption thereof, pay to the Trustee, in
cash, all unpaid interest accrued on the bonds to be redeemed through the
operation of said sinking fund to the date fixed for redemption.
-7-
<PAGE> 336
Section 4.03. Notwithstanding any provisions of Article 1 and Article
4 of the Original Indenture:
(a) if less than all outstanding Series N bonds or Series O bonds
are to be redeemed, the aggregate principal amount of Series N bonds or
Series O bonds to be redeemed shall be apportioned by the Trustee pro
rata among the holders of the bonds of the series to be redeemed, in the
proportion that the aggregate principal amount of such bonds so to be
redeemed held by each such holder bears to the aggregate principal
amount of bonds of such series to be redeemed then outstanding with
adjustments to the extent practicable, to equalize for any prior
redemptions not in such proportion, and
(b) in the event of the payment of a portion of the principal amount
of any Series N bond or Series O bond, payment shall be made to or upon
the order of the holder of such bond without requiring presentation or
surrender of such bond if there shall be filed with the Trustee a
certificate of the Treasurer of the Company stating that the holder of
such bond (or the person for whom such holder is a nominee) and the
Company have entered into a written agreement that payment of any
portion of such bond may be made to the registered holder thereof
without presentation or surrender thereof, that such holder will not
sell, transfer or otherwise dispose of any such bond unless it shall
have caused notation to be made thereon of the portion of the principal
amount thereof which has been paid and the last interest payment date to
which interest has been paid and prior to the delivery thereof such
bond shall have been presented to the Trustee for inspection or
surrendered in exchange for a new bond or bonds of the same series in
aggregate principal amount equal to the unpaid portion of the bond
presented to the Trustee.
ARTICLE 5
ADDITIONAL COVENANTS
Section 5.01. Application of Section 1.15 of Original Indenture. So
long as any Series N bonds or Series O bonds remain outstanding, the provision
of Section 1.15 of the Original Indenture (relating to mutilated, lost,
stolen, or destroyed bonds) which are expressed to be applicable to bonds of
Series A shall also be applicable to the Series N bonds and Series O bonds and
the holders thereof.
Section 5.02. So long as any Series N bonds shall be outstanding
under the Indenture, the Company covenants and agrees that moneys deposited
with the Trustee pursuant to Sections 3.14, 7.02 or 7.03 of the Indenture
will be withdrawn by the Company within, in the case of moneys deposited
pursuant to Sections 7.02 and 7.03, two years or, in the case of moneys
deposited pursuant Section 3.14, twelve months, from the date of deposit of
such moneys if the Company shall have a Gross Amount of Property Additions
available for such purpose.
-8-
<PAGE> 337
Section 5.03. Restricted Payments. So long as any Series N bonds or
Series O bonds remain outstanding, the Company will not declare or pay any
dividends on shares of its common stock (except dividends payable solely
in shares of common stock), or directly or indirectly purchase, redeem or
otherwise acquire any shares of common stock (except out of the net cash
proceeds derived from the issuance of other shares of common stock), or make
any other distribution on shares of common stock (such non-excepted
declarations, payments, purchases, redemptions or other acquisitions and
distributions, being hereinafter called "Restricted Payments"), unless after
giving effect thereto the aggregate amount of all such Restricted Payments made
during the period from December 31, 1985 to and including the date of the
making of the Restricted Payment in question does not exceed the sum of
$9,000,000 plus (or minus in case of a deficit) the amount of Consolidated
Net Income Available for Common Stock Dividends for such period.
Section 5.04. Certain Definitions. As used in this Article 5, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends" for any
period shall mean the net income of the Company and its Subsidiaries for
such period available for dividends on capital stock, after deducting
therefrom dividends paid and accrued during such period on preferred
stock, determined on a consolidated basis in accordance with generally
accepted accounting principles; provided, however, that no effect shall
be given to any gains or losses or other additions or deductions
arising by reason of the issue, purchase, sale, conversion or retirement
by the Company or any Subsidiary of any of its or their securities, or
arising by reason of any purchases, sales, write-ups, write-downs,
increase or decrease in book value, or other transactions or changes
in respect of capital assets, tangible or intangible, and deductions for
income taxes shall be adjusted by giving effect to any change in the
amount thereof resulting from the elimination of any of the capital
transactions or changes referred to above.
"Subsidiary" shall mean any corporation of which more than 50% of the
outstanding Voting Stock is owned by the Company. As used herein the
term "Voting Stock" shall mean stock or similar interests of any class or
classes (however designated) the holders of which are generally and
ordinarily, in the absence of contingencies, entitled to vote for the
election of the directors (or persons performing similar functions) of
such corporation.
ARTICLE 6
AMENDMENTS TO ORIGINAL INDENTURE
Section 6.01. Section 6.02 of the Original Indenture is hereby amended
by deleting the phrase "rate of 6% per annum" from the fifth line of said
Section and substituting in its stead the phrase "rate of the greater of 6%
per annum or the rate or rates, if any, of interest payable on overdue
installments of principal or interest specified in respect of each series of
bonds in the form of bond for such series."
-9-
<PAGE> 338
Section 6.02. Paragraph (c) of Section 6.05 of the Original Indenture
is hereby amended by deleting the phrase "rate of 6% per annum" from the third
line of said paragraph and substituting in its stead the phrase "rate of the
greater of 6% per annum or the rate or rates, if any, of interest payable on
overdue installments of principal or interest specified in respect of each
series of bonds in the form of bond for such series."
Section 6.03. Section 6.07 of the Original Indenture is hereby
amended by deleting the phrase "said rate of 6% per annum" from the sixth
line of said Section and substituting in its stead the phrase "the rate of the
greater of 6% per annum or the rate or rates, if any, of interest payable on
overdue installments of principal or interest specified in respect of each
series of bonds in the form of bond for such series."
ARTICLE 7
MISCELLANEOUS
Section 7.01. Incorporation of Original Indenture. This Fourteenth
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in
the Original Indenture, except as restricted in the Original Indenture to
bonds of another series or as herein otherwise provided, shall apply to and
be deemed to be for the equal benefit, security and protection of the
Series N bonds and the Series O bonds and the holders thereof. All terms
used in this Fourteenth Supplemental Indenture which are defined in the
Original Indenture shall, unless the context otherwise requires, have the
meanings set forth in the Original Indenture.
Section 7.02. Successors and Assigns. Whenever in this Fourteenth
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this Fourteenth Supplemental Indenture
contained shall bind and inure to the benefit of the respective successors
and assigns of such parties, whether so expressed or not.
Section 7.03. Multiple Counterparts. This Fourteenth Supplemental
Indenture may be simultaneously executed in any number of counterparts and
all said counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
-10-
<PAGE> 339
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
affixed and attested by a Trust Officer, and said M. J. Kruger, to evidence his
acceptance of the trust hereby created and in him reposed, has hereunto
subscribed his name and affixed his seal, all as of the day and year first above
written.
UNITED CITIES GAS COMPANY
By /s/ JAMES B. FORD
-----------------------------------
Senior Vice President and Treasurer
[CORPORATE SEAL]
ATTEST:
/s/ GLENN R. KING
- --------------------------------
Secretary
Witnesses as to United Cities Gas
Company:
/s/ ANITA L. HUGHES
- --------------------------------
/s/ BARBARA K. GIANOTTI
- --------------------------------
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By /s/ J. MULL
----------------------------
Vice President
[CORPORATE SEAL]
ATTEST:
/s/ GEORGE N. REAVES
----------------------
Trust Officer
Witnesses as to Continental Illinois
National Bank and Trust Company
of Chicago and M. J. Kruger:
/s/ ROBERT K. THOMPSON
---------------------------
/s/ ALICE K. GREENHOUSE /s/ M. J. KRUGER (SEAL)
--------------------------- --------------------------
M. J. Kruger
-11-
<PAGE> 340
STATE OF TENNESSEE)
) SS.
COUNTY OF DAVIDSON)
I, TERESA CHURCH, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 10th day of March, 1987, personally
appeared before me James B. Ford and Glenn R. King, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who, being by me duly sworn, did say that they are
Senior Vice President and Treasurer and Secretary, respectively, of United
Cities Gas Company, a corporation organized under the laws of the State of
Illinois and the Commonwealth of Virginia, that the seal affixed to the above
and foregoing instrument is the corporate seal of said corporation and that
said instrument was signed by them and sealed and delivered in behalf of said
corporation by authority of its Board of Directors duly given, and the said
Senior Vice President and Treasurer and Secretary acknowledged said instrument
to be their free and voluntary act and deed and the free and voluntary act and
deed of said corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
10th day of March, 1987.
/s/ TERESA CHURCH
----------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires 4/17/88
STATE OF ILLINOIS)
) SS.
COUNTY OF COOK )
I, Mary Recchia, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 9th day of March, 1987, personally
appeared before me J. C. Mull and George N. Reaves, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who being by me duly sworn, did say that they are Vice
President and Trust Officer, respectively, of Continental Illinois National Bank
and Trust Company of Chicago, a national banking association organized and
existing under the national banking laws of the United States of America, that
the seal affixed to the above and foregoing instrument is the corporate seal of
said association and that said instrument was signed by them and sealed and
delivered in behalf of said association by authority of its Board of Directors
duly given, and the said J. C. Mull and George N. Reaves acknowledged said
instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said association for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
9th day of March, 1987.
/s/ MARY RECCHIA
----------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires March 13, 1990
-12-
<PAGE> 341
STATE OF ILLINOIS)
) SS.
COUNTY OF COOK )
I, Mary Recchia, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 9th day of March, 1987, personally
appeared before me M. J. Kruger, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument as
his free and voluntary act and deed for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
9th day of March, 1987.
/s/ MARY RECCHIA
--------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires March 13, 1990
STATE OF TENNESSEE)
) SS.
COUNTY OF DAVIDSON)
Personally appeared before me ANITA L. HUGHES, who, being duly sworn,
says that she saw the corporate seal of UNITED CITIES GAS COMPANY affixed to the
foregoing instrument and that she also saw James B. Ford, Senior Vice President
and Treasurer, and Glenn R. King, Secretary of said United Cities Gas Company,
sign and attest the same, and that she, with BARBARA K. GIANNOTTI, witnessed the
execution and delivery thereof as the act and deed of said United Cities Gas
Company.
/s/ ANITA L. HUGHES
-------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 10th day of
March, 1987.
/s/ TERESA CHURCH
---------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires 4/17/88
-13-
<PAGE> 342
STATE OF ILLINOIS)
) SS.
COUNTY OF COOK )
Personally appeared before me Robert K. Thompson, who, being duly sworn,
says that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he
also saw J. C. Mull, Vice President, and George N. Reaves, Trust Officer of said
Continental Illinois National Bank and Trust Company of Chicago, sign and attest
the same, and that he, with Alice K. Greenhouse, witnessed the execution and
delivery thereof as the act and deed of said Continental Illinois National Bank
and Trust Company of Chicago.
/s/ ROBERT K. THOMPSON
-----------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 9th day of
March, 1987.
/s/ MARY RECCHIA
- --------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires March 13, 1990
STATE OF ILLINOIS)
) SS.
COUNTY OF COOK )
Personally appeared before me Robert K. Thompson, who, being duly sworn,
says that he saw the within named M. J. Kruger sign, seal, and as his act and
deed, deliver the foregoing instrument and that he, with Alice K. Greenhouse,
witnessed the execution thereof.
/s/ ROBERT K. THOMPSON
--------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 9th day of
March, 1987.
/s/ MARY RECCHIA
- ------------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires March 13, 1990
-14-
<PAGE> 343
EXHIBIT A
Form of Series N and O Bonds and Trustee's Certificate
UNITED CITIES GAS COMPANY
FIRST MORTGAGE BOND, SERIES ____, ____ %, DUE _______________ ___, ____
No. R $________
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to
pay to ______________________________________________________________________
____________________________________________________________________________
________________________________________________________ or registered assigns,
on _____________________, or earlier as hereinafter referred to, the sum of ___
________________________________________ at the principal office in Chicago,
Illinois, of CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO (hereinafter, with its successors in the trusts under the indenture
mentioned below, generally called the "Trustee"), or at the principal office
of its successor in said trusts, and to pay to said payee, or registered
assigns, interest thereon, from the date hereof, at the rate of _____ percent
(_____%) per annum, at said office, semi-annually on ___________ and
___________ in each year until the principal sum hereof shall have become
due and payable and to pay interest on any overdue principal and (to the
extent permitted by law) on any overdue installment of interest, at the rate
of _____ percent (_____%) per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds
of the Company, of a series designated First Mortgage Bonds, Series __, ____%,
Due __________________, all such bonds of this series and all other series
being issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "Indenture"), by and
between the Company and City National Bank and Trust Company of Chicago
(which has been succeeded by Continental Illinois National Bank and Trust
Company of Chicago as Corporate Trustee) and R. Emmett Hanley (who has been
succeeded by M. J. Kruger), as Trustees, to which Indenture, an executed
counterpart of which is on file with the Trustee, reference is hereby made
for a description of the property mortgaged, a statement of the nature and
extent of the security thereby afforded, the terms and conditions upon
which release of property covered by the Indenture may be made, the terms and
conditions upon which bonds of all series are or are to be issued and secured,
the rights and remedies under the Indenture of the holders of said bonds,
the terms and conditions upon which the Indenture may be modified or
amended, and the rights and obligations under the Indenture of the Company
and of said Trustees; but neither the foregoing reference to the Indenture,
nor any provision of this bond or of the Indenture, shall affect or
permit the impairment of the absolute, unconditional and unalterable
obligation of the Company to pay, at the maturity date herein provided, the
principal of and interest on this bond as herein provided.
<PAGE> 344
The Company is obligated to redeem a portion of the principal
amount of this bond pursuant to a sinking fund established for the benefit
of the holders of the Bonds of Series __ and certain optional redemptions of
the Series __ Bonds may be made by the Company upon the terms and conditions
more fully set forth in the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any
notice or knowledge to the contrary, whether any payment on this bond shall
be overdue or not; and the Company, and every successive registered owner and
assignee of this bond, by accepting or holding the same, consent and agree to
the foregoing provisions and each invites the others, and all persons, to rely
thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with that effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may
be transferred or exchanged at the option of the registered owner hereof,
and (3) this bond, either singly or together with all or less than all
other bonds, may be called for redemption and payment prior to maturity, on
notice given or waived as provided in the Indenture, at the applicable
redemption price specified in the Indenture.
This bond is transferable by the registered owner either in person
or by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by
its certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future
promoter, incorporator, stockholder, director or officer of the Company for
the collection of any indebtedness evidenced by this bond, or for the
enforcement of any right or claim under or in connection with this bond or the
Indenture.
This bond shall not be valid or become obligatory for any purpose,
or be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
A-2
<PAGE> 345
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated
UNITED CITIES GAS COMPANY
By ____________________________
President
ATTEST:
______________________________
Secretary
(FORM OF TRUSTEE'S CERTIFICATE)
This is one of the bonds, of the series designated therein, referred to
in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By ___________________________________
Authorized Officer
A-3
<PAGE> 346
SCHEDULE A
DESCRIPTION OF MORTGAGED PROPERTY
The properties referred to in the granting clauses of this
Supplemental Indenture include the parcels of real estate or interest
therein more specifically described below. Such description is not intended,
however, to limit or impair the scope or intention of the general description in
the granting clauses of the Original Indenture.
PART I--REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in
real estate situate, lying and being in the respective counties and states
set forth below and described as follows:
STATE OF ILLINOIS
In Macoupin County, Illinois:
(1) Beginning at the Southwest Corner of the Northeast Quarter (NE-1/4)
of the Southeast Quarter (SE 1/4) of Section Twenty-nine (29), Township Twelve
(12) North, Range Six (6) West, of the Third Principal Meridian; thence
North 0 degrees 2' East a distance of Twenty-three (23) feet; thence
East a distance of one hundred eighty-eight (188) feet, said point being the
place of beginning for the land sold in this deed. From said beginning point
North Twenty-five (25) feet; thence East sixty-four (64) feet two (2) inches;
thence South twenty-five (25) feet, thence West sixty-four (64) feet two (2)
inches to the place of beginning, in Girard Township, Macoupin County,
Illinois.
(2) Beginning at a point on the North line of Section Number Sixteen
(16) in Township Number Twelve (12) North, Range Number Six (6) West of the
Third Principal Meridian, which is 32.9 feet East of the Northwest corner of
the Northeast Quarter of Section Number Sixteen (16) Township Number Twelve
(12) North, Range Number Six (6), which said point is located at the
intersection of the East right-of-way of the Illinois Traction Right-of-Way
and the intersection of the North line of said Section Sixteen (16), and
running thence Southwesterly along the East right-of-way line of said Illinois
Traction Railroad a distance of two thousand ninety-four (2094) feet, thence
Easterly a distance of one hundred sixty-eight (168) feet to the West
right-of-way line of the Old Chicago, Burlington and Quincy Railroad, the angle
thus being formed by the Southwesterly description and the Easterly description
being 81 degrees 40'; thence Northeasterly along the West right-of-way line
of the Old Chicago, Burlington and Quincy Railroad a distance of two
thousand ninety-four (2094) feet to the point where said West
right-of-way line intersects the North line of Section Number Sixteen (16);
thence West along the North line of said Section Number Sixteen (16) a
distance of eighty-four (84) feet; thence Southerly and parallel with the
West right-of-way line of the Old Chicago, Burlington and Quincy Railroad a
distance of Ninety (90) feet; thence West and parallel with the North line of
said Section 16 a distance of 90 feet; thence North and parallel with the East
right-of-way line of the Illinois Traction
<PAGE> 347
Railroad a distance of Ninety (90) feet to the North line of said Section
Number Sixteen (16); thence West along the North line of said Section Number
Sixteen (16) a distance of Twenty-five (25) feet to the place of beginning,
situated in the County of Macoupin and State of Illinois, except coal.
In Massac County, Illinois:
(1) Part of Lot 646 in Block 52 of the City of Metropolis, as per
recorded plat thereof, more particularly described as follows: Beginning at
the Southwest corner of said lot, thence East along the South line of said lot
a distance of 120 feet to the Southeast corner of said lot, thence North along
the East line of said lot a distance of 55 feet to a point, thence West on a
line parallel with the South line of said lot a distance of 40 feet to a
point, thence South at right angles a distance of 6 feet 4 inches to a
point, thence West on a line parallel with the South line of said lot a
distance of 80 feet to the West line of said lot, thence South along the west
line of said lot a distance of 48 feet 8 inches to the point of beginning.
Subject to the provisions of a certain "Supplemental Agreement" between L. F.
Parrish and Dorothy V. Parrish, and Bertie Marberry, dated October 31, 1945,
with reference to the North wall of building described therein as "present
Parrish Building" as the same appears of record in Volume 65 of Deeds at page 82
in the Office of the Recorder of Massac County, Illinois.
(2) Lot 648 in Block 52 of the City of Metropolis as per recorded plat
thereof.
(3) Part of the Northeast Quarter of the Northeast Quarter of
Section 14, Township 15 South, Range 3 East of the 3rd P.M. more
particularly described as follows: Commencing at a point of beginning in the
Eastern monumented right of way line of Federal Aid Secondary Route No. 937
Section 24G that lies approximately 330 feet south of the North line of said
Section 14, said point of beginning monumented by an iron pin located at the
intersection of an existing fence line and the Eastern right of way line of
Federal Aid Secondary Route No. 937 Section 24G, thence run North 87 degrees
20' 30" East along said fence line 50.05 feet to an iron pin, thence run North
on a line parallel to the Eastern right of way line of said Federal Aid
Secondary Route 50 feet to an iron pin, thence run South 87 degrees 20' 30"
West a distance of 50.05 feet to an iron pin in the Eastern right of way line
of said Federal Aid Secondary Route No. 937 Section 24G, thence South 50 feet
along the Eastern right of way line of said Federal Aid Secondary Route No. 937
Section 24G to the point of beginning.
In Montgomery County, Illinois:
(1) A part of the Southwest Quarter (SW 1/4) of Section Thirty-three
(33), Township Twelve (12) North, Range Five (5) West of the Third Principal
Meridian and described as Commencing at a Point, Forty (40) feet South and Ten
(10) feet Easterly of the West Quarter Corner of Section Thirty-three (33),
Township Twelve (12) North, Range Five (5) West of the Third Principal
Meridian, said point being along the South Right of Way line of State Aid
Route 17, running thence Easterly, Fifteen (15) feet; thence South Thirty
(30) feet; thence Westerly, Fifteen (15) feet; thence North Thirty (30) feet, to
the
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Point of beginning, containing 450 square feet, more or less, situated in the
Village of Farmersville, in the County of Montgomery, in the State of
Illinois.
(2) A part of Lot Three (3) in Block One (1) of John M. Waggoner's
Addition to the Village of Waggoner and specifically described as follows:
Commencing at the Northwest corner of said Lot Three (3), running thence East
Twenty (20) feet along the North line of said lot to a point, thence South
parallel to the West line of said lot Twenty-five (25) feet to a point, thence
West parallel to the North line of said lot Twenty (20) feet to the West line
of said lot, thence North along the West line of said lot to the point of
beginning, situated in the County of Montgomery, in the State of Illinois.
In Logan County, Illinois:
(1) A tract or parcel of land of approximately one fifty fourth
(1/54th) of an acre, described as beginning Ninety nine (99) feet East of the
Southwest (SW) Corner of the southwest one fourth (SW 1/4) of the North east
one fourth (NE 1/4) of Section Eighteen (18), thence East Twenty (20) feet,
thence North Thirty (30) feet, thence Northwest at a Forty-five (45) degree
angle Twenty-eight (28) feet Three (3) inches more or less, to a junction
with the East side of the Railroad Right of way, thence South Fifty (50)
feet to the point of beginning, in Township Nineteen (19) North, Range Four
(4) West of the Third Principal Meridian, in Corwin Township situated in the
County of Logan, in the State of Illinois.
STATE OF TENNESSEE
In the City of Franklin, Williamson County, Tennessee:
(1) A certain tract or parcel of land in Williamson County, State of
Tennessee, described as follows, to-wit:
Said lot lies wholly within the City of Franklin, Ninth Civil
District, Williamson County, Tennessee, and bound in general by Harpeth
River on the north, Freeman on the east, First Avenue North on the south
and Truett-Tohrner lot on the west.
Beginning at a railroad spike in the northern margin of First Avenue
North at Freeman's southwest corner as described in Book 265, page 769
ROWC, thence with said north margin, North 40 degrees 25 minutes West
234.0 feet to a point, thence North 49 degrees 35 minutes East with the
east margin of the Truett-Tohrner lot passing through an iron pin at 14
feet and continuing a total length of 118.0 feet to the center of the
Harpeth River, thence with the approximate center line of said river, North
76 deg. 30 min. east 151.8 feet to a point, the Northwest corner of
Freeman, thence with his west line, south 16 deg. 28 min. West 302.5
feet to the point of beginning and containing 0.77 acre, more or less.
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This is the same realty conveyed to United Cities Gas Company by the
City of Franklin, Tennessee by deed dated November 29, 1983 and recorded
in Deed Book 463, page 454, Register's Office for Williamson County,
Tennessee.
In Washington County, Tennessee:
(1) The following described property situate, lying and being in
the 9th Civil District of Washington County, Tennessee, and being more
particularly described as follows, to-wit:
BEGINNING at a point in the Northerly line of what is known as Vines
Alley, said point being approximately 177 feet East from the intersection
of the Northerly line of said Vines Alley with the Easterly curb of
Montgomery Street; thence running North 31 degrees East along the
Northerly line of Vines Alley a distance of fifty (50) feet to a point;
thence running in a Northwesterly direction a distance of 43 feet to the
Southerly line of an alley; thence along the Southerly line of said
alley in a Southwesterly direction a distance of fifty (50) feet to a
point; thence running in a Southeasterly direction a distance of
thirty-five (35) feet to a point on the Northerly line of Vines Alley,
the point of BEGINNING, and being a lot fronting fifty (50) feet on Vines
Alley and designated as 206 Vines Alley.
BEGINNING at an iron pin in the Northwesterly line of Vines Alley, said
iron pin being 101 feet distant Northeasterly from the Northeasterly curb
line of Montgomery Street; thence along the Northwesterly line of Vines
Alley, North 51 degrees East a distance of Seventy-six (76) feet to an
iron pin; thence approximately North 45 degrees 21 minutes West a
distance of thirty-five (35) feet to an iron pin; thence South 34
degrees 39 minutes West a distance of seventy-six (76) feet to an iron
pin; thence South 45 degrees 21 minutes East a distance of twenty (20)
feet to the point of BEGINNING, the same being improved by residence being
House No. 208 Vines Alley.
BEING the same property conveyed to Dr. Kenneth Roark and wife, May
Brown Mount Roark, by deed dated December 10, 1968, from J. B. Mount and
wife, Mary Muse Mount, of record in the Register's Office for Washington
County, Tennessee, in Deed Book 421, page 77, to which reference is here
made; BEING the same property conveyed by Dr. Kenneth Roark and wife, May
Brown Mount Roark, to Volunteer Natural Gas Company by deed dated June
10, 1980, of record in said Register's Office in Deed Book ___, page ___,
to which reference is here made.
(2) The following described property, situate, lying and being in the
Ninth Civil District of Washington County, Tennessee, and being more
particularly described as follows, to-wit:
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TRACT NO. 1:
BEGINNING at the intersection of the southwesterly side of
Tennessee Street with southeasterly right-of-way line of the Southern
Railway, and running thence in a southeasterly direction along the said side
of Tennessee Street approximately twenty-seven (27) feet the northerly comer
of the Volunteer Natural Gas Company property (formerly Washington County
Gas Company); thence in a southwesterly direction along the northwesterly
boundary line of the property of Volunteer Natural Gas Company (formerly
Washington County Gas Company) approximately four hundred thirty (430) feet,
more or less to Harris Corporation property (formerly Miller Brothers
property); thence in a northwesterly direction along Harris Corporation
property line (formerly Miller Brothers) approximately 30 feet, more or less
to Southern Railroad right of way line; thence in a northeasterly direction
along the said Southern Railroad right of way line approximately 432 feet,
more or less, to the point of BEGINNING, and containing three hundred
sixteen one-thousandths (.316) acres, more or less.
TRACT NO. II:
BEGINNING at a point in the southeasterly right-of-way line of
Southern Railway property, and being corner to property conveyed by first
parties to the State of Tennessee; thence with the line of the State of
Tennessee property South 27 degrees 52 minutes East 215.21 feet to a point;
thence North 62 degrees 07 minutes East 25 feet to a point in the line of
property of party of the second part; thence with the line of property of
party of the second part North 27 degrees 52 minutes West 215.21 feet, more
or less, to a point in the southeasterly right of way line of Southern
Railroad; thence with the southeasterly right of way line of Southern
Railroad, South 67 degrees 57 minutes West 25 feet to the point of BEGINNING.
Harris Corporation reserved unto itself the right to use the
right-of-way which exists across the hereinabove described property leading
from Tennessee Street and across property of the Volunteer Natural Gas
Company on the East side to the Harris Corporation property, said
right-of-way easement across the hereinabove described property is twenty feet
in width.
BEING the same property conveyed to Volunteer Natural Gas Company
by Harris Corporation, by deed dated the 8th day of September, 1972, of
record in Deed Book 460, page 238, of the Register's Office for Washington
County, Tennessee.
In the City of Johnson City, Washington County, Tennessee:
(1) The following described tract or parcel of land situate, lying
and being in the 10th Civil District of Washington County (now within the
corporate limits of the City of Johnson City), State of Tennessee, the
same being more particularly bounded and described as follows, to-wit:
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BEGINNING at a fence post, being the northeasterly corner of the
parcel of ground heretofore occupied by East Tennessee Natural Gas
Company under agreement from said Morton Brothers, the point of beginning
being located a distance of 84.25 feet North 67 degrees 30 minutes East
from an original corner of the tract of land from which this parcel of
land is carved; thence South 67 degrees 30 minutes West a distance of 40
feet to an iron pin; thence South 22 degrees 30 minutes East a distance
of 40 feet to an iron pin; thence North 67 degrees 30 minutes East a
distance of 40 feet to an iron pin; thence North 22 degrees 30 minutes
West a distance of 40 feet to the point of BEGINNING, this being a square
parcel of ground and being 40 feet on each side and abutting or lying
near the southeasterly side of the road leading from what is now known as
the Morton Brothers Packing Plant, and embracing the parcel of ground
heretofore occupied by East Tennessee Natural Gas Company.
Together with an appurtenant easement and right of way extending
from the above described tract of land to Oakland Road, together with
the right of ingress and egress to install, repair, and maintain gas pipe
lines on said easement and right of way.
This is a part of the property described in deed of Sophia Morton Stout
et al. to W. Warren Morton and M. B. Morton dated May 13, 1965 of record
in deed Book 388, page 459, Register's Office for Washington County,
Tennessee. Also see deed dated June 3, 1940 of record in Deed Book 208,
page 79 to which deeds reference is here made. This is the same property
conveyed by W. Warren Morton and M. B. Morton to Volunteer Natural Gas
Company by deed dated August 18, 1968, of record in Deed Book ___, page
___, Register's Office for Washington County, Tennessee, to which deed
reference is here made.
(2) The following described land situate, lying and being in the
City of Johnson City, 9th Civil District, County of Washington, and State of
Tennessee, and being more particularly described as follows, to-wit:
BEGINNING at an iron pin in the southeasterly line of the alley
southeast of East Millard Street, the point of beginning being a distance
of 160 feet southeasterly from Millard Street and being the point where
the center line of Mercury Street (formerly King Street) intersects with
the southeasterly line of said alley (Mercury Street terminating at the
southeasterly line of said alley); thence along the southeasterly line of
said alley, being along a fence, North 42 degrees East a distance of 130
feet to an iron pin; thence South 48 degrees East a distance of 127.25
feet to an iron pin in the northwesterly right of way line of the CC&O
Railroad, spur track; thence along the northwesterly line of said right of
way South 26 degrees 11 minutes West a distance of 239.06 feet to a point
in Brush Creek; thence, in part along a fence, North 48 degrees West a
distance of 192.41 feet to an iron pin in the southeasterly line of said
alley; thence along the southeasterly line of said alley, being along a
fence, a distance of 100 feet to the point of BEGINNING, the foregoing
description being taken from plat of survey by W. O. Collins, Land
Surveyor, dated October 4, 1966.
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This is Tracts Nos. 2 and 3 in deed of Raymond L. Boyer and wife to
Marion Sell and Orville S. Martin dated May 3, 1966 of record in Deed
Book 393, page 217, Register's Office for Washington County, Tennessee
to which reference is here made. This is the same property conveyed to
Volunteer Natural Gas Company by Orville S. Martin and wife, Mary Louise
Martin, and Marion S. Sell and wife, Pauline Sell, by deed dated November
18, 1966, of record in Deed Book 398, page 585 in said Register's Office
to which reference is here made.
(3) The following described real estate, situate, lying and being in
the Ninth Civil District of Washington County, Tennessee, within the corporate
limits of Johnson City, Tennessee, and more particularly described as follows,
to-wit:
BEGINNING at an iron pin in the northwesterly line of West Tenth
Avenue, said point of beginning being distant southwesterly 170 feet as
measured along the northwesterly line of West Tenth Avenue from the point
of intersection of the northwesterly line of West Tenth Avenue with the
southwesterly line of Roan Street, said point of beginning also being
the point of intersection of the northwesterly line of West Tenth
Avenue with the southwesterly line of an alley 20 feet in width;
thence at right angles to the northwesterly line of West Tenth Avenue
and along the southwesterly line of said alley in a northwesterly
direction, a distance of 150 feet to an iron pin in the southeasterly
line of an alley 18 feet in width; thence at right angles to last
course and along the southeasterly line of said alley in a southwesterly
direction a distance of 134.5 feet to an iron pin, being the common
corner of Lot Nos. 4 and 5 in Block C of the J. B. Worley Addition to
Johnson City, Tennessee; thence at right angles to the southeasterly line
of said alley and along the divisional line of Lot Nos. 4 and 5 in a
southeasterly direction a distance of 150 feet to an iron pin in the
northwesterly line of West Tenth Avenue; thence at right angles to last
course and along the northwesterly line of West Tenth Avenue in a
northeasterly direction a distance of 134.5 feet to the point of
BEGINNING; the same being Lot No. 5 in Block C of the J. B. Worley
Addition to Johnson City, Tennessee, as shown by survey and plat of the
premises made by J. D. Snook, Engineer, bearing date July 3, 1964, and of
record in Plat Book 5, at page 107, of the Register's Office for
Washington County, Tennessee, to which reference is here made.
And being the same property conveyed by Stanley Keebler to Volunteer
Natural Gas Company, by warranty deed dated July 12, 1969, of record in
the Register's Office for Washington County of Jonesboro, Tennessee, in
Deed Book No. 426, page 23, to which reference is here made.
In Sullivan County, Tennessee:
(1) A certain lot or parcel of land located in the 18th Civil District
of Sullivan County, Tennessee, to-wit:
TO FIND THE POINT OF BEGINNING, commence at an iron pin located in
the sideline of Centenary Road, and being a corner to certain property
conveyed by deed
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of even date herewith from the Sullivan County Board of Education to
Sullivan County, Tennessee, and also corner to the property of Taylor,
and go thence S. 20 degrees 57' W. 15.0 feet to the POINT OF BEGINNING;
thence S. 71 degrees 30' 20 " E. 126.88 feet along the line of
the said parcel conveyed by deed of even date herewith from the Sullivan
County Board of Education to Sullivan County, Tennessee, to a point in
the line of the Sullivan County Board of Education property; thence S. 50
deegrees 45 feet W. along the line of the Sullivan County Board of
Education 70.94 feet to a point; thence S. 71 degrees 30' 20" E.
91.59 feet to a point, in the line of Taylor; thence N. 20 degrees 57'
E. 60.05 feet to the point of BEGINNING, and containing .15 acres, more
or less, and being a portion of the same property conveyed to the
Sullivan County Board of Education by E. B. Sanders, widower, by Deed
dated December 31, 1975, and of record in the Register's Office for
Sullivan County, Tennessee, at Blountville, in Deed Book 740, at page
51, as corrected by Deed of Correction dated October 18, 1976, and of
record in said Register's Office in Deed Book 1070, at page 868, all as
shown on a certain survey plat dated May 16, 1984, by James S. Montgomery,
County Surveyor, to all of which reference is hereby expressly made.
This is the same property conveyed to Tennessee-Virginia Energy
Corporation by the Sullivan County Board of Education by deed dated June
10, 1985, of record in Deed Book ___, page ___, Register's Office for
Sullivan County, Tennessee, to which reference is here made.
STATE OF VIRGINIA
In Washington County, Virginia:
(1) The following described real estate situated in the Wilson
Magisterial District of Washington County, described as follows, to-wit:
BEGINNING at an iron pin on the westerly side of State Route 657,
corner to property of Stoots and which iron pin is set in a fence; thence
with the fence and the Stoots property line N 46 degrees 21' W 269.26
feet to an iron pin in a fence and in the line of Stoots; thence with the
fence and in the line of Stoots N 42 degrees 09' E 440.81 feet to an
iron pin; thence continuing with said fence and in the Stoots property
line N 12 degrees 38' E 351.46 feet to an iron pipe in a fence and
also common corner to Wise; thence with the fence and the Wise property
line S 77 degrees 00' E 183.84 feet to an iron pin in the sideline of
State Route 657; thence with the sideline of State Route 657 the
following: thence S 23 degrees 39' W 94.96 feet to an iron pin;
thence S 20 degrees 21' W 78.30 feet to an iron pin; thence S 14 degrees
35 W 96.99 feet to an iron pin; thence S 09 degrees 03' W 206.74 feet to
an iron pin; thence S 14 degrees 56' W 78.99 feet to an iron pin;
thence S 25 degrees 00 feet W 52.32 feet to an iron pin; thence S 33 32
W 53.45 feet to an iron pin; thence S 39 degrees 07' W 51.08 feet to an
iron pin; thence S 41 degrees 24' W 197.27 feet to an iron pin, the point
of beginning, and containing 4.04 acres, according to survey of Charles D.
Clark & Associates, dated March 4, 1986, and being the property described
in the deed dated March 31, 1986 from Albert D. Vance, widower, to
United Cities Gas Company, which deed is recorded in the Circuit
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Court Clerk's Office for Washington County at Abingdon, Virginia in Deed
Book 716, Page 326.
In Pulaski County, Virginia:
(1) That certain tract or parcel of land, lying and being on Snider
Lane, in Pulaski County, Virginia, and being more particularly bounded and
described as follows, to-wit:
BEGINNING at an iron pipe stake in the west line of Snider Lane, at
the northeasterly corner of L. A. Woods remaining lands; thence with 5
lines of the same, N. 88 degrees 39 feet W. 452.5 feet to an iron pipe
stake; 4 lines N. 15 degrees 57 feet W. 31.4 feet; N. 49 degrees 32
feet W. 145.1 feet; N. 30 degrees 43 feet W. 105.7 feet; N. 24 degrees 15
feet W. 117.5 feet; thence with another line of Woods and continuing with
G. A. Gardner line N. 79 degrees 12 feet E. 541.1 feet to an iron pipe
stake at the northwesterly corner of Jerry Hughes property; thence with 2
lines of the same, S. 4 degrees 19 feet W. 60 feet to an iron pipe
stake; thence N. 79 degrees 49 feet E. 151.6 feet to an iron pipe stake
in the west line of said Snider Lane; thence with 2 lines along the west
side of the same, S. 1 degrees 51 feet W. 200 feet to an iron pipe
stake; thence S. 1 degrees 1' E. 200 feet to the BEGINNING, and
containing 5.10 acres, as shown on a plat of survey for Colonial
Natural Gas Company, prepared by R. Lloyd Mathews, Reg. Surveyor, dated
December 3, 1973.
And being the same property conveyed to Colonial Natural Gas Company by
Luther Albert Woods, divorced, by deed dated December 31, 1973, from
Frances Virginia Snider Woods, and of record in the Clerk's Office of the
Circuit Court of Pulaski County, Virginia, in Deed Book 294, page 711, to
which reference is here made.
In Montgomery County, Virginia:
(1) That certain tract or parcel of land, situated in the Riner
Magisterial District of Montgomery County, Virginia, bounded and described as
follows, to-wit:
BEGINNING at an iron rod on the western right of way of U.S. 460,
approximately 0.75 miles north of the intersection of U.S. 460 and State
Route 114 in Montgomery County, Virginia, and 1.17 feet east of the
southeast corner of a chain link fence surrounding the Tennessee-Virginia
Energy Corporation's Blacksburg Propane-Air Plant, said iron rod being a
corner with Corning Glass Works; thence with the boundary of Corning Glass
Works N72 degrees 51 minutes 55 seconds West a distance of 131.27 feet to
a point; thence with said boundary North 30 degrees 3 minutes 5 seconds
West a distance of 112.37 feet to a point; thence with said boundary North
13 degrees 59 minutes 10 seconds East for a distance of 270.75 feet to an
iron rod and formerly a corner of W.H. Spradlin; thence with said boundary
South 75 degrees 53 minutes 00 seconds East a distance of 210.00 feet to a
rod in concrete on the western right of way of U.S. 460 and formerly a
corner of W. H. Spradlin; thence with said right of way South 14 degrees 07
minutes 00 seconds West
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a distance of 358.27 feet to the point of BEGINNING; containing
1.6287 acres and being as shown (within heavy lines) on Plan No.
S-396.4 by Draper-Aden Associates, Inc. of Blacksburg, Virginia dated
December 12, 1984 and revised August 12, 1985 and expressly excluding
the property shown on such plan (outside heavy lines) which excluded
property is bounded and described as follows:
Beginning at a point on the southern boundary of the property herein
conveyed North 72 degrees 51 minutes 55 seconds West a distance of
131.27 feet from the southeast corner of said conveyed property; thence
North 72 degrees 51 minutes 55 seconds West a distance of 78.23 feet;
thence North 13 degrees 59 minutes 10 seconds East a distance of 76.49
feet; thence South 30 degrees 03 minutes 05 seconds East a distance of
112.37 feet to the point of BEGINNING; and being as shown on aforesaid
plan by Draper-Aden (outside heavy lines).
SUBJECT, HOWEVER, to an overhead easement in favor of Corning Glass
Works over the above described property herein for the purpose of
maintaining existing aerial telephone lines to serve the facilities of
Corning Glass Works.
This is the same property conveyed to Tennessee-Virginia Energy
Corporation by Corning Glass Works by deed dated September 30, 1985, of
record in Deed Book 519, page 239, Clerk's Office for Montgomery County,
Virginia.
In the City of Radford, Virginia:
(1) Which said tract or parcel of land is situate, lying and
being in the East Ward of the City of Radford, Virginia, more
particularly designated and described as follows, to-wit:
BEGINNING at an iron rod in a line of Norfolk &
Western Railway property, said iron rod being located in the
southwesterly line of property recently conveyed to the party of the
second part by the parties of the first part; thence along the
Norfolk & Western Railway Company line, N 52 degrees 45' W 292.33
feet to an iron rod; thence a new line, N 48 degrees 13' 09
inches E 691.25 feet to a point in the New River; thence along New
River, S 44 degrees 48.43 feet to a point; thence S 41 degrees 10'
E 186.63 feet to a point in the river; thence along the
division line of the property hereby conveyed and that recently
conveyed to Colonial Natural Gas Company by the parties of the first
part hereto, S 38 degrees 06' 24" W 639.54 feet to an iron
rod, the point of BEGINNING; and containing four (4) acres of land;
and being the same property shown on a plat thereof entitled "East
Ward--City of Radford, Va., Four Acre Survey of W. R. Wharton Land to
be Acquired by Colonial Natural Gas Company" dated May 20, 1972,
made by Cecil C. Lawson, C.L.S., which said plat is hereto annexed
and expressly made a part hereof, and which is to be recorded
contemporaneously herewith, and to which reference is expressly made
for a further and better description of the property.
For the chain of title to said real estate, reference is
hereby expressly made to a certain deed of partition between Henry
Heth, et ux, and W. R. Wharton, Jr., et al., dated November 8, 1971,
which said deed is of record in the Clerk's Office of the
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<PAGE> 356
Circuit Court of the City of Radford, Virginia, in Deed Book 84 at
page 640, et seq., and to a certain plat attached to and made a part
of said partition deed recorded in said Clerk's Office in Plat Book
2 at page 31. This is the same property conveyed to Colonial
Natural Gas Company by W. R. Wharton, Jr., et al., by deed dated June
7, 1972, of record in the Clerk's Office of the Circuit Court of the
City of Radford, Virginia, in Deed Book 85, page 683.
In Smyth County, Virginia:
(1) That certain tract or parcel of land situated in the Marion
District of Smyth County, Virginia, bounded and described as follows, to-wit:
BEGINNING at the intersection of the East line of Route 617
and the Southern line of East Tennessee Natural Gas Company's
right-of-way and running thence with the Southern line of East
Tennessee Natural Gas Company's right-of-way 20 feet to a point;
thence running in a Southern direction in a line parallel with Route
617, 20 feet to a point; thence in a western direction in a line
parallel with East Tennessee Natural Gas Company's right-of-way 20
feet to a point; and thence with the East right-of-way line of Route
617 in a Northern direction 20 feet to the point of beginning.
This is a portion of the property conveyed to Margaret Gay,
S. Lambert and Elsie S. Arnold by deed from W. D. Stone and Cannie M.
Stone, dated November 12, 1965, and of record in the Clerk's Office of
Smyth County in Deed Book 220 at page 80. The said Cannie M. Stone
joins in this conveyance for the purpose of conveying her life
estate and releasing as to this conveyance a vendor's lien
reserved by her in the deed aforesaid. A reference is hereby made
to the foregoing deed for a further description of the premises
hereby conveyed.
STATE OF GEORGIA
In the City of Columbus, Muscogee County, Georgia:
(1) All that tract and parcel of land situate, lying and being in
Columbus, Muscogee County, Georgia, being PART OF CITY LOT 370 of the
Original Plan of said City and being located within the following metes and
bounds:
Beginning at a drill hole in concrete located south 01
degrees 30 minutes east a distance of 169.43 feet from the
southeasterly corner of the intersection of Third Avenue and 15th
Street, said point of beginning being shown upon a plat recorded in
Plat Book 21, Folio 88 in the Office of the Clerk of the Superior
Court of Muscogee County, Georgia, and being the point where the
common line dividing the lands formerly owned by Pease from the lands
hereby conveyed intersects the easterly line of Third Avenue, and
from said point of beginning running thence north 88 degrees 21
minutes east a distance of 148.65 feet to an iron pin located on the
westerly line of City Lot 369, running thence southerly, along the
line dividing said City Lots 370
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<PAGE> 357
and 369, a distance of 48 feet to a point; running thence south 88
degrees 21 minutes west a distance of 148.65 feet to a point located
on the easterly line of Third Avenue; and running thence north 01
degree 30 minutes west, along the easterly line of Third Avenue, a
distance of 48 feet to the point of beginning.
This is the identical property that L. H. Chappell
conveyed to Cynthia Kent Hart Chappell by warranty deed of gift
dated November 11, 1893 and recorded in Deed Book HH, Folio 82 in
the Office of the aforementioned Clerk. Located thereon is
building numbered 1430 Third Avenue, according to the present
numbering of structures in Columbus, Georgia.
In Muscogee County, Georgia:
(1) All that lot, tract or parcel of land situate, lying and being
in Land Lot 74 of the 8th District, Columbus, Muscogee County, Georgia, and
being more particularly described as follows:
Starting at an iron pin on the Northerly line of 45th Street
which iron is located 325.07 feet Westerly as measured along said line
of 45th Street from itsintersection with the Westerly line of Kolb
Avenue; and running thence North 05 degrees 56 feet West 468.24 feet to
an iron; thence South 81 degrees 50' West a distance of 17.94 feet
to an iron; thence North 08 degrees 09' 54" East a distance
of 244.78 feet to an iron which marks the POINT OF BEGINNING, of the
parcel of land hereby conveyed. Thence from said Beginning Point
running South 88 degrees 46' West a distance of 312.38 feet to an
iron; thence North 62 degrees 38' East a distance of 22.7 feet to
an iron; thence North 88 degrees 46' East a distance of 293.38
feet to an iron; thence South 08 degrees 09' 54" West a
distance of 10.14 feet to the Point of Beginning.
Subject to all valid easements of record.
This is the same property conveyed to United Cities Gas
Company by the Muscogee County School District by warranty deed dated
May 26, 1983 and recorded in Deed Book 2199, Page 333 of the Clerk of
the Superior Court of Muscogee County.
PART II--DISTRIBUTION SYSTEMS AND
PIPELINES DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connection, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances,
apparatus, facilities, machinery and other property used or provided for
use in the construction, maintenance, repair or operation thereof and
together also with all of the rights, privileges, rights-of-way,
franchises, licenses, easements, grants and permits with respect to the
construction, maintenance, repair and operation of such gas distribution
systems, including, but not limited to, the plants and systems owned and
operated by the Company for the distribution and sale of gas located in the
following names
-12-
<PAGE> 358
cities, towns, or villages and environs thereof in the State of
Illinois, Tennessee, Virginia and Georgia:
<TABLE>
<CAPTION>
IN THE STATE OF GEORGIA
City County
--------- ---------
<S> <C>
Columbus Muscogee
Bibb City Muscogee
<CAPTION>
IN THE STATE OF ILLINOIS
City County
--------- ---------
<S> <C>
Virden Maucoupin
Girard Maucoupin
Thayer Sangamon
Farmersville Montgomery
Waggoner Montgomery
Middletown Logan
New Holland Logan
CILCO Pipeline Sangamon
<CAPTION>
IN THE STATE OF TENNESSEE
City County
--------- ---------
<S> <C>
Franklin Williamson
Johnson City Washington
Kingsport Sullivan
Greensville Greene
Elizabethton Carter
<CAPTION>
IN THE STATE OF VIRGINIA
City County
--------- ---------
<S> <C>
Abingdon Washington
Glade Spring Washington
Chilhowie Smyth
Marion Smyth
Wytheville Wythe
Pulaski Pulaski
Dublin Pulaski
Radford Montgomery
Christiansburg Montgomery
Blacksburg Montgomery
</TABLE>
-13-
<PAGE> 359
PART III--CONTRACTS
A. GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions,
supplements or amendments thereof, between the Company (or a predecessor
corporation) and the respective suppliers named below providing for the supply
of natural gas to the Company for distribution and resale in the respective
cities and towns and areas adjacent thereto set forth under the caption "Service
Area:"
<TABLE>
<CAPTION>
SERVICE AREA SUPPLIER CONTRACT DATE TERM OR
EXPIRATION DATE
<S> <C> <C> <C>
Abingdon, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Blacksburg, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Bristol East Tennessee November 1, 1984 November 1, 2000
TN/VA Natural Gas Company
Columbia, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Elizabethton, East Tennessee November 1, 1984 November 1, 2000
Tennessee Natural Gas Company
Greeneville, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Johnson City, East Tennessee November 1, 1984 November 1, 2000
Tennessee Natural Gas Company
Kingsport, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Marion, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Maryville, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Morristown, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
</TABLE>
-14-
<PAGE> 360
<TABLE>
<CAPTION>
SERVICE AREA SUPPLIER CONTRACT DATE TERM OR
EXPIRATION DATE
<S> <C> <C> <C>
Pulaski, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Radford, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Shelbyville, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Wytheville, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Vandalia, Illinois Natural Gas Pipeline Co. of March 27, 1972 December 1, 1990
America (effective December 1, 1971)
Virden, Panhandle Eastern Pipe Line May 28, 1985 October 31, 1993
Illinois Company (effective October 1, 1985)
Columbus, Georgia Southern Natural Gas Company August 29, 1969 November 1, 1989
(effective November 1, 1969)
Franklin, Tennessee Texas Eastern March 13, 1986 November 1, 1990
Transmission Corp (effective January 1, 1986)
Harrisburg, Illinois Texas Eastern March 13, 1986 November 1, 1990
Transmission Corp (effective January 1, 1986)
Murfreesboro, Texas Eastern March 13, 1986 November 1, 1990
Tennessee Transmission Corp (effective January 1, 1986)
Union City, Tennessee Texas Gas September 1, 1970 November 1, 1989
Transmission Corp (effective November 1, 1970)
Gaffney, South Transcontinental Gas Pipe Line September 21, 1970 October 1, 1990
Carolina Corp (effective October 1, 1970)
Gainesville, Georgia Transcontinental Gas Pipe Line November 4, 1970 November 16, 1990
Corp (effective November 16, 1970)
Metropolis, Illinois Trunkline Gas Company October 10, 1984 October 31, 1993
(effective February 1, 1986)
</TABLE>
-15-
<PAGE> 361
B. TRANSPORTATION CONTRACTS
(1) Gas Transmission Contract dated as of March 28, 1980, between Town
Gas Company of Illinois and International Vermiculite, Inc. and Cole Energy
Development Company.
PART IV--FRANCHISES
The following franchises granted to the Company, or to its
predecessors and assigned to the Company or acquired by the Company by
merger of predecessors into the Company, authorizing the construction,
operation and maintenance of gas distribution systems in the following cities
or municipalities and all renewals, extensions or substitutions thereof or
therefor:
<TABLE>
<CAPTION>
TOWN EXPIRATION DATE
STATE OF ILLINOIS
<S> <C>
Virden May 28, 2004
Farmersville July 12, 2015
Girard June 1, 2004
New Holland August 1, 2005
Middletown April 2, 2013
Thayer June 12, 2004
Waggoner June 11, 2016
Vandalia January 23, 2017
Harrisburg August 18, 2016
Raleigh February 9, 1989
Eldorado October 15, 2016
Carrier Mills October 11, 1997
Muddy November 2, 1994
Galatia December 5, 1994
Metropolis September 6, 2016
Joppa September 20, 1993
Brookport March 13, 1997
</TABLE>
-16-
<PAGE> 362
<TABLE>
<CAPTION>
TOWN EXPIRATION DATE
STATE OF TENNESSEE
<S> <C>
Union City April 27, 2000
Obion County April 1, 1998
Woodland Mills April 13, 1998
Columbia October 18, 2004
Spring Hill December 16, 2010
Maury County July 21, 1999
Shelbyville March 26, 2011
Lynchburg June 1, 2006
Bedford County July 8, 1998
Franklin November 10, 2008
Williamson County None (Granted 9/16/85)
Murfreesboro May 24, 2000
Maryville August 28, 2004
Aloca May 27, 2004
Morristown December 18, 1999
Hamblen County April 8, 1998
Bristol March 1, 2008
Sullivan County January 15, 1998
Johnson City September 1, 1988
Elizabethton April 14, 1988
Kingsport November 30, 1999
Greeneville June 19, 2005
Sullivan County None (Granted 8/23/55)
Sullivan County None (Granted 2/14/84)
<CAPTION>
STATE OF SOUTH CAROLINA
<S> <C>
Gaffney December 13, 2013
</TABLE>
-17-
<PAGE> 363
<TABLE>
<CAPTION>
TOWN EXPIRATION DATE
STATE OF GEORGIA
<S> <C>
Gainesville April 3, 2009
Oakwood April 4, 1996
Hall County March 21, 1996
Columbus March 22, 2006
Bibb City September, 2020
<CAPTION>
STATE OF VIRGINIA
<S> <C>
Abingdon May 31, 2001
Glade Springs April 9, 2004
Chilhowie October 12, 2003
Marion May 17, 2001
Wytheville May 7, 1991
Pulaski October 19, 2001
Dublin September 4, 2003
Radford May 23, 2002
Christiansburg July 1, 2005
Blacksburg December 19, 2006
</TABLE>
-18-
<PAGE> 364
RECORDING DATA FOR FOURTEENTH SUPPLEMENTAL INDENTURE
OF
UNITED CITIES GAS COMPANY
<TABLE>
<CAPTION>
STATE COUNTY DATE AND TIME DOCUMENT # RECORDING DATA BOOK PAGES
RECORDED--1987
<S> <C> <C> <C> <C> <C>
Alabama Russell 3-17-87, 9:27 am 669 206-233
Georgia Barrow 3-12-87, 10:15 am 84 202-229
Georgia Chattahoochee 3-12-87, 8:00 am Deed P-1 677-704
Georgia Hall 3-12-87, 4:40 pm 1084 172-199
Georgia Jackson 3-12-87, 9:15 am 9-Q 303-330
Georgia Muscogee 3-11-87, 3:20 pm Deed 2764 74-100
Georgia Oconee 3-13-87, 9:00 am 85 681-708
Illinois Fayette 3-11-87, 11:30 am 8700795 750 290-317
Illinois Logan 3-18-87, 8:30 am 336280 50 1-28
Illinois Macoupin 3-18-87, 8:30 am 249112 72 7-34
Illinois Massac 3-16-87, 3:35 pm 8700516 253 117-146
Illinois Montgomery 3-18-87, 8:15 am 301517 Mortgage 228 630-657
Illinois Saline 3-12-87, 9:53 am 84809 724 169-196
Illinois Secretary of State 3-13-87, 1:28 pm 2254789
South
Carolina Cherokee 3-11-87, 1:49 pm Mortgage 323 130
Tennessee Bedford 3-12-87, 9:20 am Trust 244 187-214
Tennessee Blount 3-13-87, 9:31 am 459 550-577
Tennessee Carter 3-13-87, 9:50 am Trust 356 233-260
Tennessee Greene 3-13-87, 10:05 am Trust 399 232-260
Tennessee Hamblen 3-13-87, 11:30 am Trust 394 621
Tennessee Maury 3-12-87, 3:06 pm 956 410
Tennessee Moore 3-13-87, 9:30 am Trust 47 268
Tennessee Obion 3-13-87, 12:20 pm Trust 45-H 508-535
Tennessee Rutherford 3-12-87, 1:00 pm 006011 A523 572-599
Tennessee Sullivan 3-13-87, 8:30 am Deed 544-C 126-153
Tennessee Washington 3-13-87, 11:26 am Trust 775 513-540
Tennessee Weakley 4-24-87, 8:30 am 335 693-720
Tennessee Williamson 3-12-87, 1:59 pm 652 644-671
Tennessee Secretary of State 3-30-87, 2:37 pm 419970
Virginia City of Bristol 3-17-87, 3:00 pm Deed 260 236-263
Virginia Montgomery 3-16-87, 9:27 am LR872065 Deed 566 237-264
Virginia Pulaski 3-16-87, 11:15 am Deed 426 362-390
Virginia City of Radford 3-16-87, 10:36 am 358 Deed 125 834-861
Virginia Smyth 3-16-87, 11:55 am 702 Deed 370 184-211
Virginia Washington 3-16-87, 12:40 pm 1169 Deed 737 363-392
Virginia Wythe 3-13-87, 1:30 pm 442 Deed 333 790-817
Tennessee Carter 3-11-87, 9:55 am Trust 356 139-203
Tennessee Greene 3-12-87, 11:10 am Trust 399 137-201
Tennessee Washington 3-12-87, 8:30 am Trust 775 239-303
</TABLE>
<PAGE> 365
[CONFORMED COPY]
FIFTEENTH SUPPLEMENTAL INDENTURE
Dated as of October 1, 1987
_______________
UNITED CITIES GAS COMPANY
to
CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
and
M. J. KRUGER
TRUSTEES
_______________
Supplementing Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series P,
10.43%, Due November 1, 2017
<PAGE> 366
THIS FIFTEENTH SUPPLEMENTAL INDENTURE, dated as of October 1, 1987, made
by and between UNITED CITIES GAS COMPANY, a corporation organized under the
laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), whose address is 5300 Maryland Way, Brentwood, Tennessee
37027, party of the first part, and CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO, a national banking association having its office at 30 North
LaSalle Street, Chicago, Illinois 60697 (hereinafter called the "Trustee"), and
M. J. KRUGER, residing in the City of Chicago, Illinois (the Trustee and M. J.
Kruger being hereinafter collectively referred to as the "Trustees"), parties of
the second part.
RECITALS:
The background of this Fifteenth Supplemental Indenture is:
A. The Company heretofore executed and delivered to
City National Bank and Trust Company of Chicago and R. Emmett Hanley,
as Trustees, its Indenture of Mortgage dated as of July 15, 1959
(hereinafter sometimes referred to as the "Original Indenture"),
providing for the issuance thereunder from time to time of First
Mortgage Bonds of the Company, issuable in one or more series, and
wherein and whereby the Company did grant, convey, mortgage, warrant
to, the said Trustees, and each of them, and their respective
successors and assigns, and create a security interest in, certain
property of the Company in said Original Indenture more particularly
described for the security of all First Mortgage Bonds issued and to be
issued thereunder.
B. On September 1, 1961, City National Bank and Trust Company
of Chicago was merged with Continental Illinois National Bank and Trust
Company of Chicago, a national banking association, which thereupon
became corporate trustee under the Indenture as provided therein, and
on October 15, 1966, Ray F. Myers became individual trustee under the
Indenture as successor to R. Emmett Hanley, resigned, and on March 15,
1981, M. J. Kruger became individual trustee under the Indenture as
successor to Ray F. Myers, resigned.
C. The Company has heretofore executed and delivered fourteen
supplemental indentures to the Original Indenture, designated as First
through Fourteenth (the Original Indenture and all supplemental
indentures, including this Fifteenth Supplemental Indenture, being
herein called the "Indenture"), for the purpose of subjecting to the
lien of the Indenture certain additional property heretofore and
hereafter acquired by the Company, creating additional series of First
Mortgage Bonds, and amending and supplementing the Indenture in certain
respects.
D. There have been issued under the Indenture various series of
First Mortgage Bonds designated as Series A through O, inclusive, of
which $37,578,866 in aggregate principal amount are outstanding as of
September 30, 1987. The Series A bonds have been retired.
<PAGE> 367
E. The Company desires to create a new series of bonds to be
issued under and secured by the Indenture to be designated as "First
Mortgage Bonds, Series P, 10.43%, due November 1, 2017", to be limited
to $25,000,000 in aggregate principal amount.
F. The Company also desires to subject to the lien of the
Indenture certain additional property which is not of the type reserved
and excepted from the lien of the Original Indenture.
G. All things necessary to make the Series P bonds, when duly
executed by the Company and certified and delivered by the Trustee and
issued, valid, binding and legal obligations of the Company entitled to
the benefit and security of the Indenture, and to make this Fifteenth
Supplemental Indenture a valid and binding instrument in accordance
with its terms and for the purposes herein expressed, have been done
and performed; and the issue of Series P bonds, as herein provided, has
been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any, thereto
appertaining, without any preference, priority or distinction whatsoever, as
follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal of and
interest (and premium, if any) on all of the bonds of the Company at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions in the Indenture
contained, has heretofore irrevocably granted, conveyed, mortgaged, warranted,
and granted a security interest to, the Trustees, and by these presents does
hereby irrevocably grant, convey, mortgage, warrant to, the Trustees and each of
them, and to their successors in said trust forever, and grant a security
interest in, the property described as follows:
I. All lands and rights and interests therein (including
fixtures), both fee and leasehold, now owned or hereafter acquired by
the Company, including, without limitation, those more specifically
described in Schedule A hereto;
II. All gas distribution systems, pipelines, plants, buildings,
machinery and equipment now owned or hereafter acquired by the Company,
including without limitation, those more specifically described in
Schedule A hereto and all improvements now owned or hereafter acquired
by the Company;
-2-
<PAGE> 368
III. All rights appertaining to any and all the foregoing
property, and all gas purchase contracts and other contracts, rights
and franchises, including without limitation, those more specifically
described in Schedule A hereto, and all leases, indeterminate permits,
certificates of convenience and necessity, rights of way, easements,
privileges, tenements, appurtenances, licenses and permits used by or
useful to the Company in the operation of its business, whether now
owned or hereafter acquired, and, subject to the provisions of Section
7.01 of the Original Indenture, all income and earnings arising out of
the mortgaged property, including rents, issues and profit arising
during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce
the lien of the Indenture; and
IV. All property, real, personal and mixed, whether or not
hereinabove or in Schedule A specifically described, which the Company
now owns and all such property which it may hereafter acquire.
SUBJECT to such liens and encumbrances as are of the character
specified in Section 3.09 of the Original Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not
specifically pledged under the Indenture;
B. All stocks, bonds and securities not specifically pledged
under the Indenture;
C. All merchandise held for resale and consumable materials and
supplies;
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment.
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Original Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Original Indenture, without preference or
priority of any series of bonds or of any bonds within a series over any of the
other bonds by reason of priority of time of maturity or of the negotiation
thereof or otherwise.
-3-
<PAGE> 369
ARTICLE 2
SERIES P BONDS
Section 2.01. Creation of Series P Bonds. There is hereby created for
issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $25,000,000, to be designated as "First Mortgage Bonds,
Series P, 10.43%, Due November 1, 2017" (herein called "Series P bonds"). The
Series P bonds shall, subject to the provisions of Section 1.13 of the Original
Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature November 1, 2017, and shall bear
interest at the rate of 10.43% payable semi-annually on May 1 and November 1 in
each year until the principal thereof shall have become due and payable and
shall bear interest on any overdue principal and (to the extent permitted by
law) on any overdue installment of interest, at the rate of 11.43% per annum,
the interest on each Series P bond to be payable at the principal office of the
Trustee in Chicago, Illinois, or, at the option of the person entitled thereto,
in accordance with the instructions of such person submitted in writing to the
Company and the Trustee.
Section 2.02. Form of Series P Bonds. The Series P bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$100,000 and multiples thereof, to the extent practicable, substantially in the
form set forth in Exhibit A hereto, with appropriate insertions, omissions and
changes, approved by the President of the Company and the Trustee, as may be
appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series P Bonds. The Series P bonds shall
be subject to redemption only as hereinafter provided:
(a) The Series P bonds are required to be redeemed on each
Series P sinking fund payment date through application of cash
deposited with the Trustee for the sinking fund for the Series P bonds
provided for in Section 2.04 hereof, together with interest accrued
thereon to the date fixed for redemption.
(b) At the option of the Company at any time on or after
November 1, 2007, the Series P bonds may be redeemed at the following
redemption prices (expressed as a percentage of the principal amount to
be redeemed) together with interest accrued thereon to the date of
redemption:
<TABLE>
<CAPTION>
IF REDEEMED DURING THE REDEMPTION
12 MONTHS ENDING NOVEMBER 1 PRICE
---------------------------- -------------
<S> <C>
2008 103.24%
2009 102.88
2010 102.52
2011 102.16
2012 101.80
2013 101.44
2014 101.08
2015 100.72
2016 100.36
2017 100.00
</TABLE>
-4-
<PAGE> 370
(c) The Series P bonds may be redeemed by application of cash
deposited with the Trustee in accordance with the provisions of Section
3.14 or 7.05 of the Original Indenture at the following redemption
prices (expressed as a percentage of the principal amount to be
redeemed) together with interest accrued thereon to the date of
redemption:
<TABLE>
<CAPTION>
IF REDEEMED DURING THE REDEMPTION
12 MONTHS ENDING NOVEMBER 1 PRICE
--------------------------- ------------
<S> <C>
1988 110.43%
1989 110.07
1990 109.71
1991 109.35
1992 108.99
1993 108.63
1994 108.27
1995 107.91
1996 107.55
1997 107.19
1998 106.83
1999 106.47
2000 106.11
2001 105.75
2002 105.39
2003 105.04
2004 104.68
2005 104.32
2006 103.96
2007 103.60
2008 103.24
2009 102.88
2010 102.52
2011 102.16
2012 101.80
2013 101.44
2014 101.08
2015 100.72
2016 100.36
2017 100.00
</TABLE>
Section 2.04. Series P Bond Sinking Fund. (a) So long as any Series P
bonds shall remain outstanding, the Company shall deposit with the Trustee as
and for a sinking fund for the retirement of Series P bonds cash in the amount
of $1,250,000 on November 1 of each of the years 1998 through 2017, inclusive
(each such date being herein called a "Series P sinking fund payment date").
(b) The Company may at its option increase the amount deposited in the
Series P bond sinking fund on any Series P sinking fund payment date by an
additional amount not exceeding the amount the Company is required to deposit on
such Series P sinking fund
-5-
<PAGE> 371
payment date; provided, however, the aggregate principal amount of
Series P bonds redeemed pursuant to this paragraph (b) shall not over the life
of the Series P Bonds exceed $6,250,000. The right of the Company to increase a
sinking fund deposit on any Series P sinking fund payment date shall be
noncumulative. All deposits made by the Company under this paragraph (b) shall
be in units of $100,000 or an integral multiple in excess thereof.
(c) The aggregate principal amount of Series P bonds redeemed pursuant
to the foregoing paragraph (b) of this Section 2.04 shall be credited against
the amount which the Company is required to deposit in the Series P bond sinking
fund on each Series P sinking fund payment date in the inverse chronological
order of such sinking fund dates.
Section 2.05. Issuance of Series P Bonds. Upon the execution and
delivery of this Fifteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the Trustee,
and the Trustee shall certify and deliver to, or upon the written order of, the
President or Treasurer of the Company, Series P bonds in an aggregate principal
amount not exceeding $25,000,000.
ARTICLE 3
PROVISIONS APPLICABLE TO REDEMPTION OF SERIES P BONDS
Section 3.01. The provisions of this Article 3 shall be applicable to
the Series P bonds. Except as hereinafter provided, Series P bonds shall be
redeemed upon the notice, in the manner and with the effect provided in Article
4 of the Original Indenture.
Section 3.02. In the case of all sinking fund redemptions, on or before
the thirtieth day prior to each sinking fund payment date, the Trustee shall
proceed to select for redemption in the manner provided herein, bonds of the
series for which a sinking fund payment is to be made in the aggregate principal
amount which are redeemable with the cash to be deposited with the Trustee on
the next following sinking fund payment date, and in the name of the Company
shall give notice as may be required by Article 4 of the Indenture of the
redemption for the sinking fund on such sinking fund payment date of the bonds
so selected.
All sinking fund payments received by the Trustee shall be held by the
Trustee as security for bonds of the series for which such sinking fund payment
is made, and shall be applied by the Trustee on the respective sinking fund
payment dates to the redemption of outstanding bonds of such series in the
manner and with the effect specified herein; and the Company shall, in each case
prior to the date fixed for redemption thereof, pay to the Trustee, in cash, all
unpaid interest accrued on the bonds to be redeemed through the operation of
said sinking fund to the date fixed for redemption.
Section 3.03. Notwithstanding any provisions of Article 1 and Article 4
of the Original Indenture:
-6-
<PAGE> 372
(a) if less than all outstanding Series P bonds are to be
redeemed, the aggregate principal amount of Series P bonds to be
redeemed shall be apportioned by the Trustee pro rata among the holders
of the bonds of the series to be redeemed, in the proportion that the
aggregate principal amount of such bonds so to be redeemed held by each
such holder bears to the aggregate principal amount of bonds of such
series to be redeemed then outstanding with adjustments, to the extent
practicable, to equalize for any prior redemptions not in such
proportion, and
(b) in the event of the payment of a portion of the principal
amount of any Series P bond, payment shall be made to or upon the order
of the holder of such bond without requiring presentation or surrender
of such bond if there shall be filed with the Trustee a certificate of
the Treasurer of the Company stating that the holder of such bond (or
the person for whom such holder is a nominee) and the Company have
entered into a written agreement that payment of any portion of such
bond may be made to the registered holder thereof without presentation
or surrender thereof, that such holder will not sell, transfer or
otherwise dispose of any such bond unless it shall have caused notation
to be made thereon of the portion of the principal amount thereof which
has been paid and the last interest payment date to which interest has
been paid and prior to the delivery thereof such bond shall have been
presented to the Trustee for inspection or surrendered in exchange for
a new bond or bonds of the same series in aggregate principal amount
equal to the unpaid portion of the bond presented to the Trustee.
ARTICLE 4
ADDITIONAL COVENANTS
Section 4.01. Application of Section 1.15 of Original Indenture. So
long as any Series P bonds remain outstanding, the provision of Section 1.15 of
the Original Indenture (relating to mutilated, lost, stolen, or destroyed bonds)
which are expressed to be applicable to bonds of Series A shall also be
applicable to the Series P bonds and the holders thereof.
Section 4.02. So long as any Series P bonds shall be outstanding under
the Indenture, the Company covenants and agrees that moneys deposited with the
Trustee pursuant to Sections 3.14, 7.02 or 7.03 of the Indenture will be
withdrawn by the Company within, in the case of moneys deposited pursuant to
Sections 7.02 and 7.03, two years, or in the case of moneys deposited pursuant
to Section 3.14, twelve months, from the date of deposit of such moneys if the
Company shall have a Gross Amount of Property Additions available for such
purpose.
Section 4.03. Restricted Payments. So long as any Series P bonds
remain outstanding, the Company will not declare or pay any dividends on shares
of its common stock (except dividends payable solely in shares of common stock),
or directly or indirectly purchase, redeem or otherwise acquire any shares of
common stock (except out of the net cash proceeds derived from the issuance of
other shares of common stock), or make any other distribution on shares of
common stock (such nonexcepted declarations, payments,
-7-
<PAGE> 373
purchases, redemptions or other acquisitions and distributions, being
hereinafter called "Restricted Payments"), unless after giving effect thereto
the aggregate amount of all such Restricted Payments made during the period from
December 31, 1985 to and including the date of the making of the Restricted
Payment in question does not exceed the sum of $9,000,000 plus (or minus in case
of a deficit) the amount of Consolidated Net Income Available for Common Stock
Dividends for such period.
Section 4.04. Certain Definitions. As used in this Article 4, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends"
for any period shall mean the net income of the Company and its
Subsidiaries for such period available for dividends on capital stock,
after deducting therefrom dividends paid and accrued during such period
on preferred stock, determined on a consolidated basis in accordance
with generally accepted accounting principles; provided, however, that
no effect shall be given to any gains or losses or other additions or
deductions arising by reason of the issue, purchase, sale, conversion
or retirement by the Company or any Subsidiary of any of its or their
securities, or arising by reason of any purchases, sales, write-ups,
write-downs, increase or decrease in book value, or other transactions
or changes in respect of capital assets, tangible or intangible, and
deductions for income taxes shall be adjusted by giving effect to any
change in the amount thereof resulting from the elimination of any of
the capital transactions or changes referred to above.
"Subsidiary" shall mean any corporation of which more than 50%
of the outstanding Voting Stock is owned by the Company. As used
herein the term "Voting Stock" shall mean stock or similar interests of
any class or classes (however designated) the holders of which are
generally and ordinarily, in the absence of contingencies, entitled to
vote for the election of the directors (or persons performing similar
functions) of such corporation.
ARTICLE 5
MISCELLANEOUS
Section 5.01. Incorporation of Original Indenture. This Fifteenth
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in the
Original Indenture, except as restricted in the Original Indenture to bonds of
another series or as herein otherwise provided, shall apply to and be deemed to
be for the equal benefit, security and protection of the Series P bonds and the
holders thereof. All terms used in this Fifteenth Supplemental Indenture which
are defined in the Original Indenture shall, unless the context otherwise
requires, have the meanings set forth in the Original Indenture.
Section 5.02. Successors and Assigns. Whenever in this Fifteenth
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include
-8-
<PAGE> 374
the successors or assigns of such party, and all the covenants and
agreements in this Fifteenth Supplemental Indenture contained shall bind and
inure to the benefit of the respective successors and assigns of such parties,
whether so expressed or not.
Section 5.03. Multiple Counterparts. This Fifteenth Supplemental
Indenture may be simultaneously executed in any number of counterparts and all
said counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
-9-
<PAGE> 375
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its President or one of its Vice
Presidents and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary and the said Continental Illinois
National Bank and Trust Company of Chicago, to evidence its acceptance of the
trust hereby created and in it reposed, has caused its corporate name to be
hereunto subscribed by one of its Vice Presidents and its corporate seal to be
affixed and attested by a Trust Officer, and said M. J. Kruger, to evidence his
acceptance of the trust hereby created and in him reposed, has hereunto
subscribed his name and affixed his seal, all as of the day and year first above
written.
[CORPORATE SEAL] UNITED CITIES GAS COMPANY
ATTEST: By /s/ JAMES B. FORD
------------------------------
Senior Vice President and Treasurer
/s/ GLENN R. KING
- ------------------------------
Secretary
Witnesses as to United Cities Gas
Company:
/s/ PAMELA J. TODD
- ------------------------------
/s/ BARBARA K. GIANOTTI
- ------------------------------
[CORPORATE SEAL] CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
ATTEST: as Trustee
/s/ GEORGE N. REAVES By /s/ J. C. MULL, JR.
- ------------------------------ ------------------------------
Trust Officer Vice President
Witnesses as to Continental Illinois
National Bank and Trust Company
of Chicago and M. J. Kruger:
/s/ C. K. DUNCAN
- ------------------------------
/s/ DIANE T. B. SCHMIDT By /s/ M. J. KRUGER
- ------------------------------ ------------------------------
M. J. Kruger
-10-
<PAGE> 376
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
I, Teresa Church, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 9th day of November, 1987, personally
appeared before me James B. Ford and Glenn R. King, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who, being by me duly sworn, did say that they are Senior
Vice President and Treasurer and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and the
Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said Senior Vice
President and Treasurer and Secretary acknowledged said instrument to be their
free and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
9th day of November, 1987.
/s/ TERESA CHURCH
-------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires April 17, 1988
-11-
<PAGE> 377
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 10th day of November, 1987,
personally appeared before me J. C. Mull, Jr. and George N. Reaves, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who being by me duly sworn, did say
that they are Vice President and Trust Officer, respectively, of Continental
Illinois National Bank and Trust Company of Chicago, a national banking
association organized and existing under the national banking laws of the United
States of America, that the seal affixed to the above and foregoing instrument
is the corporate seal of said association and that said instrument was signed by
them and sealed and delivered in behalf of said association by authority of its
Board of Directors duly given, and the said J. C. Mull, Jr. and George N. Reaves
acknowledged said instrument to be their free and voluntary act and deed and the
free and voluntary act and deed of said association for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
10th day of November, 1987.
/s/ V. WASHINGTON
------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires July 31, 1988
-12-
<PAGE> 378
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 10th day of November, 1987, personally
appeared before me M. J. Kruger, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument as
his free and voluntary act and deed for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
10th day of November, 1987.
/s/ V. WASHINGTON
---------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires July 31, 1988
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
Personally appeared before me Pamela J. Todd, who, being duly sworn,
says that she saw the corporate seal of UNITED CITIES GAS COMPANY affixed to
the foregoing instrument and that she also saw James B. Ford, Senior Vice
President and Treasurer, and Glenn R. King, Secretary of said United Cities Gas
Company, sign and attest the same, and that she, with Barbara K. Giannotti,
witnessed the execution and delivery thereof as the act and deed of said United
Cities Gas Company.
/s/ PAMELA J. TODD
-----------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 9th day of
November, 1987.
/s/ TERESA CHURCH
----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires April 17, 1988
-13-
<PAGE> 379
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me C. K. Duncan, who, being duly sworn, says
that he saw the corporate seal of the CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO affixed to the foregoing instrument and that he also
saw J. C. Mull, Jr., Vice President, and George N. Reaves, Trust Officer of said
Continental Illinois National Bank and Trust Company of Chicago, sign and attest
the same, and that he, with Diane T. B. Schmidt, witnessed the execution and
delivery thereof as the act and deed of the said Continental Illinois National
Bank and Trust Company of Chicago.
/s/ C. K. DUNCAN
---------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 10th day of
November, 1987.
/s/ V. WASHINGTON
-------------------
Notary Public in and for the
County and State aforesaid
My commission expires July 31, 1988
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me C. K. Duncan, who, being duly sworn, says
that he saw the within named M. J. Kruger sign, seal, and as his act and deed,
deliver the foregoing instrument and that he, with Diane T. B. Schmidt,
witnessed the execution thereof.
/s/ C. K. DUNCAN
---------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 10th day of
November, 1987.
/s/ V. WASHINGTON
---------------------
Notary Public in and for the
County and State aforesaid
My commission expires July 31, 1988
-14-
<PAGE> 380
EXHIBIT A
FORM OF SERIES P BONDS AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RP- $
FIRST MORTGAGE BOND, SERIES P, 10.43%, DUE NOVEMBER 1, 2017
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to _____________________________________ or registered assigns, on
_____________________, or earlier as hereinafter referred to, the sum of
__________________________________________________ at the principal office in
Chicago, Illinois, of CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO (hereinafter, with its successors in the trusts under the indenture
mentioned below, generally called the "Trustee"), or at the principal office of
its successor in said trusts, and to pay to said payee, or registered assigns,
interest thereon, from the date hereof, at the rate of ten and forty-three
one-hundreths percent (10.43%) per annum, at said office, semi-annually on May 1
and November 1 in each year until the principal sum hereof shall have become due
and payable and to pay interest on any overdue principal and (to the extent
permitted by law) on any overdue installment of interest, at the rate of eleven
and forty-three one-hundreths percent (11.43%) per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series P, 10.43%, Due
November 1, 2017, all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "Indenture"), by and
between the Company and City National Bank and Trust Company of Chicago (which
has been succeeded by Continental Illinois National Bank and Trust Company of
Chicago as Corporate Trustee) and R. Emmett Hanley (who has been succeeded by M.
J. Kruger), as Trustees, to which Indenture, an executed counterpart of which is
on file with the Trustee, reference is hereby made for a description of the
property mortgaged, a statement of the nature and extent of the security thereby
afforded, the terms and conditions upon which release of property covered by the
Indenture may be made, the terms and conditions upon which bonds of all series
are or are to be issued and secured, the rights and remedies under the Indenture
of the holders of said bonds, the terms and conditions upon which the Indenture
may be modified or amended, and the rights and obligations under the Indenture
of the Company and of said Trustees; but neither the foregoing reference to the
Indenture, nor any provision of this bond or of the Indenture, shall affect or
permit the impairment of the absolute, unconditional and unalterable obligation
of the Company to pay, at the maturity date herein provided, the principal of
and interest on this bond as herein provided.
<PAGE> 381
The Company is obligated to redeem a portion of the principal amount of
this bond pursuant to a sinking fund established for the benefit of the holders
of the Bonds of Series P and certain optional redemptions of the Series P Bonds
may be made by the Company upon the terms and conditions more fully set forth in
the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with that effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, may
be called for redemption and payment prior to maturity, on notice given or
waived as provided in the Indenture, at the applicable redemption price
specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or be
entitled to any protection or benefit under the Indenture, until the certificate
hereon shall have been signed by the Trustee.
<PAGE> 382
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to be
executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated.
UNITED CITIES GAS COMPANY
By _____________________
President
ATTEST:
___________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds, of the series designated therein, referred to
in the within-mentioned Indenture.
CONTINENTAL ILLINOIS NATIONAL BANK
AND TRUST COMPANY OF CHICAGO,
as Trustee
By ________________________
Authorized Officer
<PAGE> 383
SCHEDULE A
DESCRIPTION OF MORTGAGED PROPERTY
The properties referred to in the granting clauses of this Supplemental
Indenture include the parcels of real estate or interest therein more
specifically described below. Such description is not intended, however, to
limit or impair the scope or intention of the general description in the
granting clauses of the Original Indenture.
PART I--REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
STATE OF ILLINOIS
In Saline County, Illinois:
(1) Lots One (1) and Two (2) of Block Four; Lots One (1) and Two (2) of
Block Five; Lot Four (4) in Block Three; Lots Three (3) and Four (4) in Block
Six; the West One Hundred Nineteen Feet and Four Inches of Lots One (1) and Two
(2) in Block Six, and Lot Three (3) and the North Five Feet of Lot Two (2) of
Block Three (3); together with a strip of land Ten (10) Feet in Width running
East and West between the East Line of Lot One (1) in Block Four (4) and the
East Line of Lot Four (4) in Block Three (3) and the West Line of Lot One (1) in
Block Five (5) and Lot Four (4) in Block Six (6) and bordered on the North by
Lot One (1) in Block Five (5) and by Lot One (1) in Block Four (4) and on the
South by Lot Four (4) in Block Six (6) and by Lot Four (4) in Block Three (3),
running from Jackson to Main Streets together with a strip of land Fifteen (15)
in Width running North and South from the North Line of Lot Two (2) in Block
Five (5) and the North line of Lot Two (2) in Block Four (4) and running South
to the South Line of Lot Three (3) in Block Six (6) and Lot Three (3) in Block
Three (3) being One Hundred Ninety (190) Feet more or less, all in Hardenia
Micks Addition to the City of Harrisburg, Saline County, Illinois, except the
coal, oil, gas, and all other minerals underlying same.
PART II--DISTRIBUTION SYSTEMS AND
PIPELINES DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connection, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances, apparatus,
facilities, machinery and other property used or provided for use in the
construction, maintenance, repair or operation thereof and together also with
all of the rights, privileges, rights-of-way, franchises, licenses, easements,
grants and permits with respect to the construction, maintenance, repair and
operation of such gas distribution systems, including, but not limited to, the
plants and systems owned and operated by the Company for the distribution and
sale of gas located in the following named
-1-
<PAGE> 384
cities, towns, or villages and environs thereof in the State of
Tennessee and Commonwealth of Virginia:
IN THE STATE OF TENNESSEE
City County
Jonesborough Washington
Bluff City Sullivan
-- Loudon
IN THE COMMONWEALTH OF VIRGINIA
City County
Rural Retreat Wythe
PART III--CONTRACTS
A. GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions,
supplements or amendments thereof, between the Company (or a predecessor
corporation) and the respective suppliers named below providing for the supply
of natural gas to the Company for distribution and resale in the respective
cities and towns and areas adjacent thereto set forth under the caption "Service
Area:"
<TABLE>
<CAPTION>
TERM OR
SERVICE AREA SUPPLIER CONTRACT DATE EXPIRATION DATE
<S> <C> <C> <C>
Abingdon, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Blacksburg,
Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Bristol East Tennessee November 1, 1984 November 1, 2000
TN/VA Natural Gas Company
Columbia, East Tennessee November 1, 1984 November 1, 2000
Tennessee Natural Gas Company
Elizabethton, East Tennessee November 1, 1984 November 1, 2000
Tennessee Natural Gas Company
Greeneville, East Tennessee November 1, 1984 November 1, 2000
Tennessee Natural Gas Company
Johnson City, East Tennessee November 1, 1984 November 1, 2000
Tennessee Natural Gas Company
</TABLE>
-2-
<PAGE> 385
<TABLE>
<CAPTION> TERM OR
SERVICE AREA SUPPLIER CONTRACT DATE EXPIRATION DATE
<S> <C> <C> <C>
Kingsport, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Marion, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Maryville, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Morristown, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Pulaski, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Radford, Virginia East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Shelbyville, East Tennessee November 1, 1984 November 1, 2000
Tennessee Natural Gas Company
Wytheville, Tennessee East Tennessee November 1, 1984 November 1, 2000
Natural Gas Company
Vandalia, Illinois Natural Gas Pipeline Co. of March 27, 1972 December 1, 1990
America (effective December 1, 1971)
Virden, Panhandle Eastern Pipe Line May 28, 1985 October 31, 1993
Illinois Company (effective October 1, 1985)
Columbus, Georgia Southern Natural Gas Company August 29, 1969 November 1, 1989
(effective November 1, 1969)
Franklin, Tennessee Texas Eastern March 13, 1986 November 1, 1990
Transmission Corp. (effective January 1, 1986)
Harrisburg, Illinois Texas Eastern March 13, 1986 November 1, 1990
Transmission Corp. (effective January 1, 1986)
Murfreesboro, Texas Eastern March 13, 1986 November 1, 1990
Tennessee Transmission Corp. (effective January 1, 1986)
</TABLE>
-3-
<PAGE> 386
<TABLE>
<CAPTION>
TERM OR
SERVICE AREA SUPPLIER CONTRACT DATE EXPIRATION DATE
<S> <C> <C> <C>
Union City, Tennessee Texas Gas September 1, 1970 November 1, 1989
Transmission Corp. (effective November 1, 1970)
Gaffney, South Transcontinental Gas Pipe Line September 21, 1970 October 1, 1990
Carolina Corp. (effective October 1, 1970)
Gainesville, Georgia Transcontinental Gas Pipe Line November 4, 1970 November 16, 1990
Corp. (effective November 16, 1970)
Metropolis, Illinois Trunkline Gas Company October 10, 1984 October 31, 1993
(effective February 1, 1986)
</TABLE>
PART IV--FRANCHISES
The following franchises granted to the Company, or to its predecessors
and assigned to the Company or acquired by the Company by merger of predecessors
into the Company, authorizing the construction, operation and maintenance of gas
distribution systems in the following cities or municipalities and all renewals,
extensions or substitutions thereof or therefor:
TOWN EXPIRATION DATE
STATE OF ILLINOIS
Virden May 28, 2004
Farmersville July 12, 2015
Girard June 1, 2004
New Holland August 1, 2005
Middletown April 2, 2013
Thayer June 12, 2004
Waggoner June 11, 2016
Vandalia January 23, 2017
Harrisburg August 18, 2016
Raleigh February 9, 1989
Eldorado October 15, 2016
Carrier Mills October 11, 1997
Muddy November 2, 1994
Galatia December 5, 1994
Metropolis September 6, 2016
Joppa September 20,1993
Brookport March 13, 1997
-4-
<PAGE> 387
TOWN EXPIRATION DATE
STATE OF TENNESSEE
Union City April 27, 2000
Obion County April 1, 1998
Woodland Mills April 13, 1998
Columbia October 18, 2004
Spring Hill December 16, 2010
Maury County July 21, 1999
Shelbyville March 26, 2011
Lynchburg June 1, 2006
Bedford County July 8, 1998
Franklin November 10, 2008
Williamson County None (Granted 9/16/85)
Murfreesboro May 24, 2000
Maryville August 28, 2004
Alcoa May 27, 2004
Loudon County None (Granted 6/8/87)
Morristown December 18, 1999
Hamblen County April 8, 1998
Bristol March 1, 2008
Sullivan County January 15, 1998
Bluff City September 3, 2017
Johnson City September 1, 1988
Elizabethton April 15, 2008
Washington County None (Granted 2/24/86)
Jonesborough May 18, 2007
Kingsport November 30, 1999
Greeneville June 19, 2005
Sullivan County None (Granted 8/23/55)
Sullivan County None (Granted 2/14/84)
STATE OF SOUTH CAROLINA
Gaffney December 13, 2013
STATE OF GEORGIA
Gainesville April 3, 2009
Oakwood April 4, 1996
Hall County March 21, 1996
Columbus March 22, 2006
Bibb City September, 2020
Harris County August 4, 2017
-5-
<PAGE> 388
TOWN EXPIRATION DATE
COMMONWEALTH OF VIRGINIA
Abingdon May 31, 2001
Glade Springs April 9, 2004
Chilhowie October 12, 2003
Marion May 17, 2001
Rural Retreat July 20, 2017
Wytheville May 7, 1991
Pulaski October 19, 2001
Dublin September 4, 2003
Radford May 23, 2002
Christiansburg July 1, 2005
Blacksburg December 19, 2006
-6-
<PAGE> 389
RECORDING DATA FOR FIFTEENTH SUPPLEMENTAL INDENTURE
OF
UNITED CITIES GAS COMPANY
<TABLE>
<CAPTION>
STATE COUNTY DATE AND TIME DOCUMENT # BOOK PAGES
RECORDED--1987
<S> <C> <C> <C> <C> <C>
Alabama Russell 11-11-87, 2:46 pm Mortgage 685 126-148
Georgia Barrow 11-12-87, 10:15 am Deed 94 220-239
Georgia Chattahoochee 11-12-87, 8:00 am Deed Q-1 273-291
Georgia Hall 11-12-87, 12:30 pm 1160 94-113
Georgia Jackson 11-12-87, 9:35 am 9-Y 321-340
Georgia Muscogee 11-11-87, 4:15 pm 2885 41
Georgia Oconee 11-12-87, 11:10 am 94 22-41
Illinois Fayette 11-12-87, 3:45 pm 8703316 766 153-172
Illinois Logan 11-13-87, 8:30 am 341462 Mortgages 68 235-254
Illinois Macoupin 11-13-87, 8:30 am 254743 Records 105 5
Illinois Massac 11-13-87, 3:30 pm 8702251 Records 261 205-224
Illinois Montgomery 11-13-87, 10:15 am 305384 Mortgages 232 557
Illinois Saline 11-17-87, 2:20 pm 89617 753 164-183
South
Carolina Cherokee 11-12-87, 9:50 am Mortgage 330 287
South
Carolina Cherokee (UCC) 11-18-87, 3:05 pm 25314
South
Carolina Secretary of State 11-19-87, 1:14 pm 87-061115
Tennessee Bedford 11-12-87, 11:27 am Trust 250 955
Tennessee Blount 11-16-87, 8:45 am Trust 473 223
Tennessee Carter 11-16-87, 11:20 am Trust 364 231
Tennessee City of Bristol 11-18-87, 4:45 pm Deed 269 412
Tennessee Greene 11-16-87, 12:10 pm Trust 409 214
Tennessee Hamblen 11-16-87, 4:55 pm Trust 406 347
Tennessee Maury 11-13-87, 11:28 am Trust 982 43
Tennessee Moore 11-13-87, 10:00 am Trust 48 436
Tennessee Obion 11-16-87, 11:00 am Trust 45-P 814-833
Tennessee Rutherford 11-12-87, 2:50 pm Trust A564 749
Tennessee Sullivan 11-17-87, 12:20 pm Trust 590-C 722
Tennessee Washington 11-18-87, 9:00 am Trust 800 506
Tennessee Weakley 11-17-87, 8:30 am Trust 340 569
Tennessee Williamson 11-12-87, 3:35 pm Trust 702 526
Tennessee Secretary of State 11-19-87, 3:05 pm 487180, 487181
Virginia City of Bristol 11-24-87, 9:00 am Deed 265 753
Virginia Montgomery 11-19-87, 10:31 am 9377 Deed 592 578
Virginia Pulaski 11-19-87, 12:13 pm 4694 440 97
Virginia City of Radford 11-19-87, 11:17 am 1566 129 885
Virginia Smyth 11-20-87, 3:16 pm 3394
Virginia Washington 11-23-87, 8:30 am 6142 753 177
Virginia Wythe 11-18-87, 2:15 pm 2563 Deed 342 83
</TABLE>
<PAGE> 390
[CONFORMED COPY]
SIXTEENTH SUPPLEMENTAL INDENTURE
Dated as of December 1, 1989
______________________
UNITED CITIES GAS COMPANY
TO
CONTINENTAL BANK, NATIONAL ASSOCIATION
AND
M. J. KRUGER
TRUSTEES
______________________
Supplementing and Amending Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series R,
11.32%, Due May 10, 2004
<PAGE> 391
THIS SIXTEENTH SUPPLEMENTAL INDENTURE, dated as of December 1, 1989,
made by and between UNITED CITIES GAS COMPANY, a corporation organized under
the laws of the State of Illinois and the Commonwealth of Virginia
(hereinafter called the "Company"), whose address is 5300 Maryland Way,
Brentwood, Tennessee 37027, party of the first part, and CONTINENTAL BANK,
NATIONAL ASSOCIATION, formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND
TRUST COMPANY OF CHICAGO, a national banking association having its office at
231 South LaSalle Street, Chicago, Illinois 60690 (hereinafter called the
"Trustees"), and M. J. Kruger, residing in the City of Chicago, Illinois (the
Trustee and M. J. Kruger being hereinafter collectively referred to as the
"Trustee"), parties of the second part.
RECITALS:
The background of this Sixteenth Supplemental Indenture is:
A. The Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees,
its Indenture of Mortgage dated as of July 5, 1959 (hereinafter sometimes
referred to as the "Original Indenture"), providing for the issuance
thereunder from time to time of First Mortgage Bonds of the Company, issuable
in one or more series, and wherein and whereby the Company did grant, convey,
mortgage, warrant to, the said Trustees, and each of them, and their
respective successors and assigns, and create a security interest in, certain
property of the Company in said Original Indenture more particularly described
for the security of all First Mortgage Bonds issued and to be issued
thereunder.
B. On September 1, 1961, City National Bank and Trust Company of
Chicago was merged with Continental Illinois National Bank and Trust Company
of Chicago, now known as Continental Bank, National Association, a national
banking association, which thereupon became corporate trustee under the
Indenture as provided therein, and on October 15, 1966, Ray F. Myers became
individual trustee under the Indenture as successor to R. Emmett Hanley,
resigned, and on March 15, 1981, M. J. Kruger became individual trustee under
the Indenture as successor to Ray F. Myers, resigned.
C. The Company has heretofore executed and delivered fifteen
supplemental indentures to the Original Indenture, designated as First through
Fifteenth (the Original Indenture and all supplemental indentures, including
this Sixteenth Supplemental Indenture, being herein called the "Indenture"),
for the purpose of subjecting to the lien of the Indenture certain additional
property heretofore and hereafter acquired by the Company, creating additional
series of First Mortgage Bonds, and amending and supplementing the Indenture
in certain respects.
D. There have been issued under the Indenture various series of
First Mortgage Bonds designated as Series A through P, inclusive, of which
$55,310,184 in aggregate principal amount are outstanding as of November 30,
1989. The bonds of Series A, B, C, H and J have been retired.
<PAGE> 392
E. The Company desires to create a new series of bonds to be
issued under and secured by the Indenture to be designated as "First Mortgage
Bonds, Series R, 11.32%, due May 10, 2004," to be limited to $15,000,000 in
aggregate principal amount.
F. The Company also desires to subject to the lien of the
Indenture certain additional property which is not of the type reserved and
excepted from the lien of the Original Indenture (involving certain of the
properties acquired by the Company since the date of the last supplemental
indenture and certain of the properties to be acquired by the Company upon
consummation of the merger into the Company of Union Gas System, Inc.
following the acquisition of the capital stock of Union Gas System, Inc. from
Union Holdings, Inc. pursuant to the Stock Purchase Agreement dated October
24, 1989 between the Company and Union Holdings, Inc.).
G. All things necessary to make the Series R bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit
and security of the Indenture, and to make this Sixteenth Supplemental
Indenture a valid and binding instrument in accordance with its terms and for
the purposes herein expressed, have been done and performed; and the issue of
Series R bonds, as herein provided, has been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to
and with the Trustees and their successors in the trusts under the Indenture,
for the equal and pro rata benefit of all present and future holders of all
bonds issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
Section 1.01. The Company in order better to secure the principal
of and interest (and premium, if any) on all of the bonds of the Company at
any time outstanding under the Indenture according to their tenor and effect
and the performance of and compliance with the covenants and conditions in the
Indenture contained, has heretofore irrevocably granted, conveyed, mortgaged,
warranted, and granted a security interest to, the Trustees, and by these
presents does hereby irrevocably grant, convey, mortgage, warrant to, the
Trustees and each of them, and to their successors in said trust forever, and
grant a security interest in, the property described as follows:
I. All lands and rights and interests therein (including
fixtures), both fee and leasehold, now owned or hereafter acquired by
the Company, including, without limitation, those more specifically
described in Schedule A hereto and all improvements thereto and
thereon;
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II. All gas distribution systems, pipelines, plants,
buildings, machinery and equipment now owned or hereafter acquired by
the Company, including without limitation, those more specifically
described in Schedule A hereto and all improvements now owned or
hereafter acquired by the Company;
III. All rights appertaining to any and all the foregoing
property, and all gas purchase contracts and other contracts, rights
and franchises, including without limitation, those more specifically
described in Schedule A hereto, and all leases, indeterminate permits,
certificates of convenience and necessity, rights of way, easements,
privileges, tenements, appurtenances, licenses and permits used by or
useful to the Company in the operation of its business, whether now
owned or hereafter acquired, and, subject to the provisions of Section
7.01 of the Indenture, all income and earnings arising out of the
mortgaged property, including rents, issues and profit arising during
any period of redemption and prior to the execution of an absolute
deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture; and
IV. All property, real, personal and mixed, whether or
not hereinabove or in Schedule A specifically described, which the
Company now owns and all such property which it may hereafter acquire.
SUBJECT to such liens and encumbrances as are of the character
specified in Section 3.09 of the Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not
specifically pledged under the Indenture;
B. All stocks, bonds and securities not specifically
pledged under the Indenture;
C. All merchandise held for resale and consumable
materials and supplies;
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment.
TO HAVE AND TO HOLD ALL said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be,
unto the Trustees and their successors forever; subject, however, to the
exclusions, encumbrances, reservations, covenants, conditions, uses and trusts
set forth in the Indenture.
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IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Indenture, without preference or priority
of any series of bonds or of any bonds within a series over any of the other
bonds by reason of priority of time of maturity or of the negotiation thereof
or otherwise.
ARTICLE 2
SERIES R BONDS
Section 2.01. Creation of Series R Bonds. There is hereby created
for issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $15,000,000 to be designated as "First Mortgage Bonds,
Series R, 11.32%, Due May 10, 2004" (herein called "Series R bonds"). The
Series R bonds shall, subject to the provisions of Section 1.13 of the
Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature May 10, 2004, and shall bear
interest at the rate of 11.32% payable semi-annually on May 10 and November 10
in each year until the principal thereof shall have become due and payable and
shall bear interest on any overdue principal and (to the extent permitted by
law) on any overdue installment of interest, at the rate of 13.32% per annum,
the interest on each Series R bond to be payable at the principal office of
the Trustee in Chicago, Illinois, or, at the option of the person entitled
thereto, in accordance with the instructions of such person submitted in
writing to the Company and the Trustee.
Section 2.02. Form of Series R Bonds. The Series R bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$100,000 and multiples thereof, to the extent practicable, substantially in
the form set forth in Exhibit A hereto, with appropriate insertions, omissions
and changes, approved by the President of the Company and the Trustee, as may
be appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series R Bonds. The Series R bonds
shall be subject to redemption only as hereinafter provided:
(a) Series R bonds are required to be redeemed on each
Series R sinking fund payment date through application of cash
deposited with the Trustee for the sinking fund for the Series R bonds
provided for in Section 2.04 hereof, together with interest accrued
thereon to the date fixed for redemption.
(b) The Series R bonds may be redeemed at any time or
from time to time, in whole or in part, at the option of the Company,
by payment of the principal amount of the Series R bonds, or portion
thereof, to be redeemed, together with interest accrued thereon to the
date of such prepayment, together with a premium equal to the
Make-Whole Amount. As used herein the term "Make-Whole Amount" shall
mean, in connection with any redemption of Series R bonds, the excess,
if any, of (i) the aggregate present value as of the date of such
redemption of each dollar of principal being redeemed and the amount
of interest (exclusive of interest accrued to the date of prepayment)
that would have been payable in respect of each such dollar if such
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redemption had not been made, determined by discounting such amounts
at the Reinvestment Rate from the respective dates on which they would
have been payable, over (ii) 100% of the principal amount of the
outstanding Series R bonds being redeemed. If the Reinvestment Rate
is equal to or higher than 11.32%, the Make-Whole Amount shall be
zero. "Reinvestment Rate" shall mean the arithmetic mean of the
yields under the respective headings "This Week" and "Last Week"
published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of the
principal of the Series R bonds being redeemed. If no maturity
exactly corresponds to such Weighted Average Life to Maturity, yields
for each of the two published maturities corresponding to such
Weighted Average Life to Maturity most closely to and next higher than
the Weighted Average Life to Maturity and most closely to and next
lower than the Weighted Average Life to Maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For
the purposes of calculating the Reinvestment Rate, (i) the most recent
Statistical Release published not more than seven and not less than
five days prior to the date of determination of the Make-Whole Amount
hereunder shall be used, and (ii) if for any particular maturity that
is set forth in such Statistical Release more than one (1) yield to
maturity is set forth therein for the applicable date, then the lowest
yield under the heading "This Week" and the highest yield under the
heading "Last Week" in such Statistical Release shall be used to
determine the arithmetic mean of such yields for purposes of
calculating the Reinvestment Rate. "Statistical Release" shall mean
the statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve System
and which establishes yields on actively traded U.S. Government
Securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination hereunder,
then such other reasonably comparable index which shall be designated
by the holders of 66-2/3% in aggregate principal amount of the
outstanding Series R bonds. "Weighted Average Life to Maturity" of
the principal amount of the Series R bonds being redeemed shall mean,
as of the time of any determination thereof, the number of years
obtained by dividing the then Remaining Dollar-Years of such principal
by the aggregate amount of such principal. The term "Remaining
Dollar-Years" of such principal shall mean the amount obtained by (i)
multiplying (1) the remainder of (A) the amount of principal of the
Series R bonds that would have become due under Section 2.04 hereof on
each scheduled sinking fund payment date for the Series R bonds if
such redemption had not been made, less (B) the amount of principal on
the Series R bonds scheduled to become due on each such sinking fund
date after giving effect to such redemption, by (2) the number of
years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and each such sinking fund payment
date, and (ii) totaling the products obtained in (i). Anything in the
Indenture to the contrary notwithstanding, the Company will give
written notice to each holder of outstanding Series R bonds and to the
Trustee by telecopy or other same day written communication, setting
forth the computation and amount of the Make-Whole Amount payable in
connection with
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any redemption of Series R bonds under the provisions of this Section
2.03(b), at least three days prior to the date fixed for such
redemption.
(c) The Series R bonds may be redeemed by application of
cash deposited with the Trustee in accordance with the provisions of
Section 3.14 or 7.05 of the Indenture at any time or from time to
time, in whole or in part, by payment of the principal amount of the
Series R bonds, or portion thereof, to be redeemed, together with
interest accrued thereon to the date of redemption and, in the case of
a redemption of the Series R bonds pursuant to the provisions of said
Section 7.05, together with the Make-Whole Amount.
Section 2.04. Series R Bond Sinking Fund. So long as any Series R
bonds shall remain outstanding, the Company shall deposit with the Trustee as
and for a sinking fund for the retirement of Series R bonds cash in the amount
of $2,140,000 on May 10 of each of the years 1998 through 2003, inclusive, and
the remaining unpaid principal amount of the Series R bonds on May 10, 2004
(each such date being herein called a "Series R sinking fund payment date").
Upon any prepayment of the Series R bonds, other than a scheduled deposit and
prepayment contemplated by this Section 2.04, the principal amount of each
scheduled deposit for the retirement of the Series R bonds under this Section
2.04 on or after the date of such prepayment shall be reduced in the same
proportion as the aggregate unpaid principal amount of the Series R bonds is
reduced as a result of all such prepayments theretofore made by the Company.
Section 2.05. Issuance of Series R Bonds. Upon the execution and
delivery of this Sixteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the
Trustee, and the Trustee shall certify and deliver to, or upon the written
order of, the President or Treasurer of the Company, Series R bonds in an
aggregate principal amount not exceeding $15,000,000.
ARTICLE 3
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES R BONDS
Section 3.01. Applicability to Series R Bonds. The provisions of
this Article 3 shall be applicable to the Series R bonds. Except as
hereinafter provided and subject to the provisions of Article 2 above, Series
R bonds shall be redeemed upon the notice, in the manner and with the effect
provided in Article 4 of the Indenture.
Section 3.02. Sinking Fund Redemptions. In the case of all
sinking fund redemptions, on or before the 30th day prior to each sinking fund
payment date, the Trustee shall proceed to select for redemption in the manner
provided herein, Series R bonds in the aggregate principal amount which are
redeemable with the cash to be deposited with the Trustee on the next
following sinking fund payment date, and in the name of the Company shall give
notice as may be required by Article 4 of the Indenture of the redemption for
the sinking fund on such sinking fund payment date of the Series R bonds so
selected.
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All sinking fund payments received by the Trustee pursuant to Section
2.04 hereof shall be held by the Trustee as security for the Series R bonds
for which such sinking fund payment is made, and shall be applied by the
Trustee on the respective sinking fund payment dates to the redemption of
outstanding Series R bonds in the manner and with the effect specified herein;
and the Company shall, in each case prior to the date fixed for redemption
thereof, pay to the Trustee, in cash, all unpaid interest accrued on the
Series R bonds to be redeemed through the operation of said sinking fun to the
date fixed for redemption.
Section 3.03. Pro Rata Application; Direct Payment.
Notwithstanding any provisions of Article 1 and Article 4 of the Indenture:
(a) if less than all outstanding Series R bonds are to be
redeemed, the aggregate principal amount of Series R bonds to be
redeemed shall be apportioned by the Trustee pro rata among the
holders of the Series R bonds, in the proportion that the aggregate
principal amount of such bonds so to be redeemed held by each such
holder bears to the aggregate principal amount of all Series R bonds
then outstanding with adjustments, to the extent practicable, to
equalize for any prior redemptions not in such proportion, and
(b) in the event of the payment of a portion of the
principal amount of any Series R bonds, payment shall be made to or
upon the order of the holder of such bond without requiring
presentation or surrender of such bond, if there shall then or
theretofore be filed with the Trustee a certificate of the Treasurer
of the Company stating that the holder of such bond (or the person for
whom such holder is a nominee) and the Company have entered into a
written agreement that payment of any portion of such bond may be made
to the registered holder thereof without presentation or surrender
thereof, that such holder will not sell, transfer or otherwise dispose
of any such bond unless it shall have caused notation to be made
thereon of the portion of the principal amount thereof which has been
paid and the last interest payment date to which interest has been
paid and prior to the delivery thereof such bond shall have been
presented to the Trustee for inspection or surrendered in exchange for
a new Series R bond or bonds in aggregate principal amount equal to
the unpaid portion of the bond presented to the Trustee.
ARTICLE 4
ADDITIONAL COVENANTS
Section 4.01. Application of Section 1.15 of Indenture. So long
as any Series R bonds remain outstanding, the provision of Section 1.15 of the
Indenture (relating to mutilated, lost, stolen, or destroyed bonds) which are
expressed to be applicable to bonds of Series A shall also be applicable to
the Series R bonds and the holders thereof.
Section 4.02. The Company covenants and agrees that so long as any
Series R bonds remain outstanding, moneys deposited with the Trustee pursuant
to Sections 3.14, 7.02, 7.03 or 7.04 of the Indenture will be withdrawn by the
Company within, in the case of moneys
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deposited pursuant to Sections 7.02, 7.03 and 7.04, two years, or in the case
of moneys deposited pursuant to Section 3.14, twelve months, from the date of
deposit of such moneys if the Company shall have a Gross Amount of Property
Additions available for such purpose.
Section 4.03. Restricted Payments. The Company covenants and
agrees that so long as any Series R bonds remain outstanding, the Company will
not declare or pay any dividends on shares of its common stock (except
dividends payable solely in shares of common stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares of common stock (except out
of the net cash proceeds derived from the issuance of other shares of common
stock), or make any other distribution on shares of common stock (such
non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions, being hereinafter called "Restricted
Payments"), unless after giving effect thereto the aggregate amount of all
such Restricted Payments made during the period from December 31, 1988 to and
including the date of the making of the Restricted Payment in question does
not exceed the sum of $15,038,000 plus (or minus in case of a deficit) the
amount of Consolidated Net Income Available for Common Stock Dividends for
such period.
Section 4.04. Insurance. The Company covenants and agrees, that
so long as any Series R bonds remain outstanding, any of the provisions of the
Indenture to the contrary notwithstanding, the Company will and will cause
each of its Subsidiaries to maintain with financially sound and reputable
insurers, insurance with respect to its properties and business against such
casualties and contingencies and of such types and in such amounts as is
customary in the case of entities engaged in the same or a similar business
and similarly situated.
Section 4.05. Merger and Consolidation. The Company covenants and
agrees that so long as any Series R bonds remain outstanding, any of the
provisions of Article 8 of the Indenture to the contrary notwithstanding,
Company will not consolidate or merger with or into, or convey or transfer all
or substantially all of the mortgaged property to, any other entity if at the
time thereof or after giving affect thereto any "event of default" (as defined
in Section 6.01 of the Indenture) shall or would exist.
Section 4.06. Certain Definitions. As used in this Article 4, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock
Dividends" for any period shall mean the net income of the Company and
its Subsidiaries for such period available for dividends on capital
stock, after deducting therefrom dividends paid and accrued during
such period on preferred stock, determined on a consolidated basis in
accordance with generally accepted accounting principles; provided,
however, that no effect shall be given to any gains or losses or other
additions or deductions arising by reason of the issue, purchase,
sale, conversion or retirement by the Company or any Subsidiary of any
of its or their securities, or arising by reason of any purchases,
sales, write-ups, write-downs, increase or decrease in book value, or
other
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transactions or changes in respect of capital assets, tangible or
intangible, and deductions for income taxes shall be adjusted by
giving effect to any change in the amount thereof resulting from the
elimination of any of the capital transactions or changes referred to
above.
"Subsidiary" shall mean any corporation of which more than
50% of the outstanding Voting Stock is owned by the Company. As used
herein the term "Voting Stock" shall mean stock or similar interests
of any class or classes (however designated) the holders of which are
generally and ordinarily, in the absence of contingencies, entitled to
vote for the election of the directors (or persons performing similar
functions) of such corporation.
ARTICLE 5
AMENDMENTS OF INDENTURE
Section 5.01. Amendments of Certain Definitions. Each holder of
Series R bonds and bonds of any Series created and issued after the date of
the original issuance of the Series R bonds agrees by its acceptance of such
bonds, that effective on the earlier of (i) the date on which the amendments
of the Indenture set forth in this Section 5.01 have been duly consented to in
writing by the holders of not less than 66-2/3% in aggregate principal amount
of each Series of bonds issued and outstanding other than Series R bonds and
bonds of any other series created and issued under the Indenture after
December 1, 1989 or (ii) the date on which no bonds of any series issued under
the Indenture and outstanding immediately prior to the date on which the
Series R bonds were originally issued and the holders of which have not
consented to such amendments as contemplated in foregoing clause (i) hereof
remain outstanding:
(a) The figure "200%" appearing in Section 2.02 and in
Section 2.03(b)(2) of the Indenture shall be amended to read "175%."
(b) The first sentence of the definition of "Net
Earnings" appearing in Section 12.05(o) of the Indenture shall be
amended to read as follows: "Net Earnings of the Company for any
period means the amount obtained by deducting from the gross earnings
derived from operation of the mortgaged property all operating
expenses of the Company, and by adding to the remainder all net
non-operating earnings other than any portion of such earnings which
represents the net gain arising from any sale or other disposition of
capital assets, or any other items, which would, in accordance with
generally accepted accounting principles, require separate treatment
or classification in the preparation of the Company's financial
statements as "extraordinary items."
(c) The definition of "Property Additions" appearing in
Section 12.05(f) of the Indenture shall be amended by changing the
period appearing at the end thereof to be a comma and by adding to the
end of said definition, the following: "and the term "Property
Additions" shall also include all Cushion Gas (as used herein the term
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"Cushion Gas" shall mean that minimum volume of natural gas necessary
to be retained in a gas storage reservoir owned by the Company in
order to maintain the integrity and viability of the geological strata
and the horizons of a gas reservoir for the storage of natural gas);".
(d) Clause C of that portion of the granting clauses of
the Indenture (and of each supplemental indenture thereto which
contains in any granting clauses therein the following clause C)
entitled "But Specifically Reserving And Excepting from the following
grant" is hereby amended to read as follows: "C. All merchandise held
for resale and consumable materials and supplies (other than Cushion
Gas as defined in clause (c) of Section 5.01 of the Sixteenth
Supplemental Indenture to the Original Indenture);".
ARTICLE 6
MISCELLANEOUS
Section 6.01. Incorporation of Original Indenture. This Sixteenth
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in
the Original Indenture, except as restricted in the Original Indenture to
bonds of another series or as herein otherwise provided, shall apply to and be
deemed to be for the equal benefit, security and protection of the Series R
bonds and the holders thereof. All terms used in this Sixteenth Supplemental
Indenture which are defined in the Original Indenture shall, unless the
context otherwise requires, have the meanings set forth in the Original
Indenture.
Section 6.02. Successors and Assigns. Whenever in this Sixteenth
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this Sixteenth Supplemental Indenture
contained shall bind and inure to the benefit of the respective successors and
assigns of such parties, whether so expressed or not.
Section 6.03. Multiple Counterparts. This Sixteenth Supplemental
Indenture may be simultaneously executed in any number of counterparts and all
said counterparts executed and delivered, each as an original, shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its Senior Vice President and
Treasurer and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary, and the said Continental Bank,
National Association, to evidence its acceptance of the trust hereby created
and in it reposed, has caused its corporate name to be hereunto subscribed by
one of its Vice Presidents and its corporate seal to be affixed and attested
by a Corporate Products Officer, and said M. J. Kruger, to evidence his
acceptance of the trust hereby created and in him reposed, has hereunto
subscribed his name and affixed his seal, all as of the day and year first
above written.
UNITED CITIES GAS COMPANY
By /s/ James B. Ford
-----------------------------------
Senior Vice President and Treasurer
[CORPORATE SEAL]
ATTEST:
/S/ GLENN R. KING
- -------------------------------
Secretary
Witnesses as to United Cities
Gas Company:
/s/ DEBRA S. JOHNSON
- -------------------------------
/s/ TERESA CHURCH
- -------------------------------
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CONTINENTAL BANK, NATIONAL
ASSOCIATION, as Trustee
By /s/ J. C. MULL, JR.
-----------------------------------
Vice President
[CORPORATE SEAL]
ATTEST:
/s/ GEORGE N. REAVES
------------------------
Corporate Products Officer
Witnesses as to Continental Bank,
National Association and
M. J. Kruger:
/s/ RUSSELL C. BERGMAN
-------------------------------
/s/ PATRICIA M. CHILD
-------------------------------
/s/ M. J. KRUGER
-----------------------------------
M. J. Kruger
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STATE OF TENNESSEE )
) SS
COUNTY OF WILLIAMSON )
I, Pamela Todd , a Notary Public in and for the County and
State aforesaid, do hereby certify that on this ____ day of December, 1989,
personally appeared before me James B. Ford and Glenn R. King, to me
personally known, and personally known to me to be the same persons whose
names are subscribed to the foregoing instrument, who, being by me duly sworn,
did say that they are Senior Vice President and Treasurer and Secretary,
respectively, of United Cities Gas Company, a corporation organized under the
laws of the State of Illinois and the Commonwealth of Virginia, that the seal
affixed to the above and foregoing instrument is the corporate seal of said
corporation and that said instrument was signed by them and sealed and
delivered in behalf of said corporation by authority of its Board of Directors
duly given, and the said Senior Vice President and Treasurer and Secretary
acknowledged said instrument to be their free and voluntary act and deed and
the free and voluntary act and deed of said corporation for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of December, 1989.
/s/ PAMELA TODD
-----------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: November 21, 1992
<PAGE> 404
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
I, Lucille Atkins , a Notary Public in and for the County and
State aforesaid, do hereby certify that on this 21st day of December, 1989,
personally appeared before me J. C. Mull, Jr. and George Reaves , to me
personally known, and personally known to me to be the same persons whose
names are subscribed to the foregoing instrument, who, being by me duly sworn,
did say that they are Vice President and Corporate Products Officer,
respectively, of Continental Bank, National Association, a national banking
association organized and existing under the national banking laws of the
United States of America, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said J. C. Mull, Jr.
and George Reaves acknowledged said instrument to be their free and
voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
21st day of December, 1989.
/s/ Lucille Atkins
-----------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: 1/29/90
-2-
<PAGE> 405
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
I, Lucille Atkins , a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 21st day of December, 1989,
personally appeared before me M. J. Kruger, personally known to me to be the
person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
21st day of December, 1989.
/s/ Lucille Atkins
-----------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: 1/29/90
STATE OF TENNESSEE )
) SS
COUNTY OF WILLIAMSON )
Personally appeared before me Debra S. Johnson who, being duly sworn,
says that she saw the corporate seal of UNITED CITIES GAS COMPANY affixed to
the foregoing instrument and that she also saw James B. Ford, Senior Vice
President and Treasurer, and Glenn R. King, Secretary of said United Cities
Gas Company, sign and attest the same, and that she, with Teresa Church ,
witnessed the execution and delivery thereof as the act and deed of said
United Cities Gas Company.
/s/ DEBRA S. JOHNSON
-----------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this ____ day of December, 1989.
/s/ PAMELA TODD
--------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: November 21, 1992
-3-
<PAGE> 406
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
Personally appeared before me Russell C. Bergman who, being duly
sworn, says that he saw the corporate seal of the Continental Bank,
National Association affixed to the foregoing instrument and that he also
saw _____________________, Vice President, and __________________, Corporate
Products Officer of said Continental Bank, National Association, sign and
attest and same, and that he, with Patricia M. Child, witnessed the
execution and delivery thereof as the act and deed of the said Continental
Bank, National Association.
/s/ RUSSELL C. BERGMAN
-----------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 21st day of December, 1989.
/s/ CAROL COHEN
-----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: 10-29-90
STATE OF ILLINOIS )
) SS
COUNTY OF COOK )
Personally appeared before me Russell C. Bergman, who, being duly
sworn, says that he saw the within named M. J. Kruger sign, seal, and as his
act and deed, deliver the foregoing instrument and that he, with Patricia
M. Child, witnessed the execution thereof.
/s/ RUSSELL C. BERGMAN
-----------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 21st day of December, 1989.
/s/ CAROL COHEN
-------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: 10-29-90
-4-
<PAGE> 407
EXHIBIT A
FORM OF SERIES R BONDS AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RP- $
FIRST MORTGAGE BOND, SERIES R 11.32%, DUE MAY 10, 2004
For value received, United Cities Gas Company, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to ___________________________________________________________________________
or registered assigns, on __________________________________________, or
earlier as hereinafter referred to, the sum of _________________________ at the
principal office in Chicago, Illinois of CONTINENTAL BANK, NATIONAL
ASSOCIATION, formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO (hereinafter, with its successors in the trusts under the
indenture mentioned below, generally called the "Trustee"), or at the principal
office of its successor in said trusts, and to pay to said payee, or registered
assigns, interest thereon, from the date hereof, at the rate of eleven and
thirty-two one-hundredths percent (11.32%) per annum, at said office,
semi-annually on May 10 and November 10 in each year until the principal sum
hereof shall have become due and payable and to pay interest on any overdue
principal and (to the extent permitted by law) on any overdue installment of
interest, at the rate of thirteen and thirty-two one-hundredths percent
(13.32%) per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series R, 11.32%,
Due May 10, 2004, all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "Indenture"), by and
between the Company and City National Bank and Trust Company of Chicago (which
has been succeeded by Continental Bank, National Association, formerly known
as Continental Illinois National Bank and Trust Company of Chicago as
Corporate Trustee) and R. Emmett Hanley (who has been succeeded by M. J.
Kruger), as Trustees, to which Indenture, an executed counterpart of which is
on file with the Trustee, reference is hereby made for a description of the
property mortgaged, a statement of the nature and extent of the security
thereby afforded, the terms and conditions upon which release of property
covered by the Indenture may be made, the terms and conditions upon which
bonds of all series are or are to be issued and secured, the rights and
remedies under the Indenture of the holders of said bonds, the terms and
conditions upon which the Indenture may be modified or amended, and the rights
and obligations under the Indenture of the Company and of said Trustees; but
neither the
<PAGE> 408
foregoing reference to the Indenture, nor any provision of this bond or of the
Indenture, shall affect or permit the impairment of the absolute,
unconditional and unalterable obligation of the Company to pay, at the
maturity date herein provided, the principal of and interest on this bond as
herein provided.
The Company is obligated to redeem a portion of the principal amount
of this bond pursuant to a sinking fund established for the benefit of the
holders of the Bonds of Series R and certain optional redemptions of the
Series R Bonds may be made by the Company upon the terms and conditions more
fully set forth in the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any
notice or knowledge to the contrary, whether any payment on this bond shall be
overdue or not; and the Company, and every successive registered owner and
assignee of this bond, by accepting or holding the same, consent and agree to
the foregoing provisions and each invites the others, and all persons, to rely
thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with that effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds,
may be called for redemption and payment prior to maturity, on notice given or
waived as provided in the Indenture, at the applicable redemption price
specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future
promoter, incorporator, stockholder, director or officer of the Company for
the collection of any indebtedness evidenced by this bond, or for the
enforcement of any right or claim under or in connection with this bond or the
Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
-2-
<PAGE> 409
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated ________________.
UNITED CITIES GAS COMPANY
By __________________________________
Senior Vice President and Treasurer
ATTEST:
_______________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds, of the series designated therein, referred
to in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL
ASSOCIATION, as Trustee
By __________________________________
Authorized Officer
-3-
<PAGE> 410
SCHEDULE A
DESCRIPTION OF MORTGAGED PROPERTY
The properties referred to in the granting clauses of this Supplemental
Indenture include the parcels of real estate or interest therein more
specifically described below. Such description is not intended, however, to
limit or impair the scope or intention of the general description in the
granting clauses of the Original Indenture.
PART I--REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set
forth below and described as follows:
SECTION A
STATE OF ILLINOIS
In Marion County, Illinois:
Lot 6 of the Subdivision of the East 1/2, Southwest 1/4 and the West side
of the Southeast 1/4 of Section 7, Township 2 North, Range 3 East of the Third
Principal Meridian, Marion County, Illinois, according to the Plat recorded in
Plat Book 2, Page 269 of the records of Marion County, Illinois, except for a
part of said Lot 6, described as follows:
Beginning at the Northeast corner of the Northeast Quarter of the
Southwest Quarter of Section 7, Township 2 North, Range 3 East of the Third
Principal Meridian, Marion County, Illinois; thence on an assumed bearing
South 00 degrees 46 minutes 27 seconds West along the East line of Lot 6 of
the Subdivision of the East Half of the Southwest Quarter and the West side of
the Southeast Quarter of Section 7, as recorded in Plat Book 2, Page 269 in
Marion County Recorder's Office, a distance of 54.82 feet; thence North 89
degrees 29 minutes 45 seconds West a distance of 165.73 feet to the West line
of said Lot 6; thence North 00 degrees 45 minutes 01 seconds East along said
West line a distance of 54.83 feet to the North line of said Northeast Quarter
of the Southwest Quarter; thence South 89 degrees 29 minutes 30 seconds East
along said North line a distance of 165.76 feet to the Point of Beginning, all
in accordance with the attached plat and containing 9,090 square feet, more or
less, of which 3,605 square feet, more or less, lie outside other existing
Southerly right of way line of Federal Aid Route 99 (U.S. Route 50), except
the existing mineral rights.
Said right of way consisting of 9,090 square feet, more or less, having
been conveyed to the State of Illinois, Department of Transportation.
A-1
<PAGE> 411
In Macoupin County, Illinois:
Lots Four (4) and Seven (7) and that part of Lot Five (5) bounded and
described as follows:
Beginning at the Northwest corner of Block Fourteen (14) in the Original
Plat of the Town, now City of Virden; Thence East 79.7 feet to the true point of
beginning; Thence South 113.5 feet, more or less, at an inside angle of 90
degrees 11" with the West end of the North line of said Block Fourteen (14) to a
point located as follows:
Beginning at the Northwest corner of said Block Fourteen (14), thence
East along the North line of said Block Fourteen (14) 129.7 feet, thence South
118.8 feet at an inside angle of 90 degrees 11" with the West end of the North
line of said Block Fourteen (14); thence West 41.87 feet at an inside angle of
89 degrees 49" with the previously described line running South, thence
Northwesterly 9.7 feet at an inside angle of 146 degrees 56" with the previously
described line running West to an iron pipe at such point;
Thence South from such point parallel with the West line of said Block
Fourteen (14) to the South boundary of said Block Fourteen (14); Thence East
along the South boundary of said Block Fourteen (14) to the Southeast corner of
Lot Five (5) in said Block Fourteen (14); Thence North along the East line of
Lot Five (5) in said Block Fourteen (14) to the Northeast corner of Lot Five (5)
in said Block Fourteen (14); Thence West along the North line of said Block
Fourteen (14) to the true point of beginning.
All situated in Block Fourteen (14) of the Original Plat of the Town,
now City of Virden, situated in the County of Macoupin and State of Illinois.
Except coal, mineral and mining rights heretofore conveyed or reserved of
record, and subject to easements, restrictions and rights of way of use and
record.
STATE OF MISSOURI
All of Lot Six (6) and all of Lot Seven (7), EXCEPT the South Nineteen
(19) feet of the West Ninety-five (95) feet thereof; and the East Fifty-five
(55) feet of the North Half of Lot Eight (8), all in Block Four (4), in the
Original Town of Canton, Lewis County, Missouri.
ALSO, AN EASEMENT OF INGRESS AND EGRESS 16 feet by 47 feet lying eight
(8) feet each side of a line described as follows: Beginning at a point
Sixty-three (63) feet West and Twenty-eight (28) feet South of the Northeast
corner of said Lot Eight (8), thence North parallel with the East line of said
Lot Forty-seven (47) feet to a point Sixty-Three (63) feet West and Nineteen
(19) feet North of the Southeast Corner of Lot Seven (7), all in Block Four (4)
of the Original town of Canton, Lewis County, Missouri.
A-2
<PAGE> 412
In Marion County, Missouri:
All that part of Out Lot fifty (50) of the Original Town, now City of
Hannibal, Missouri, described as follows: Beginning on the North line of said
Out lot at the intersection of the south line of Collier Street with the east
line of Eleventh Street, said point being 30 feet eastwardly from the
northwest corner of said Out Lot; thence eastwardly along the south line of
said Collier Street, one hundred ninety five (195) feet; thence southeasterly
at right angles to said south line of Collier Street, four hundred thirty
(4340) feet; thence westwardly parallel with the South line of Collier Street,
one hundred ninety five (195) feet to east line of Eleventh Street; thence
along the east line of Eleventh Street, four hundred thirty (430)
feet to the point of Beginning.
In Ralls County, Missouri:
A tract of land lying in the East one-half of the Northeast quarter of
Fractional Section 2, Township 56 North, Range 5 West, in the City of
Hannibal, Ralls County, Missouri, and being more fully described as follows,
to-wit:
From an iron pipe marking the Northeast corner of Section 2, and the
Center line of the Paris Gravel Road, run West along the North line of said
Fractional Section 2 and the Ralls County Line a distance of 110.01 feet to an
iron pipe; thence S-00 degrees 27' W. parallel with the East side of this
Section 864.99 feet to the true point of Beginning of this tract; thence
continuing S 00 degrees 27' W 40 feet West of and parallel to the center line
of Red Devil Road 43.88 feet to an iron pipe; thence N 89 degrees 33' W. 10
feet to a point 50 feet West of and at right angles to Road Stationing 1+95;
thence S 00 degrees 27' W along the West right-of-way line of Red Devil Road
305 feet to an iron pipe 50 feet West of and at right angles to Road Stationing
5+00; thence S 04 degrees 16' W along the West right-of-way line of Red Devil
Road Extended 230.67 feet to an iron pipe; thence N 67 degrees 49' W 511.92
feet to an iron pipe; thence N 87 degrees 50' W 400.7 feet to an iron pipe;
thence N 02 degrees 08' E 466.95 feet to an iron pipe; thence S 83 degrees 48'
E 892.15 feet to the point of Beginning, containing 9.85 acres, more or less,
as per survey of Harold R. Crane, Registered Land Surveyor #1111-Missouri, in
part of March, 1977.
SUBJECT TO Public Roads, Private Roads, Highways and Easements as now of
record.
STATE OF IOWA
In Lee County, Iowa:
1. All of that part of Block Twenty-two (22) in Reid's Addition to the
City of Keokuk, lying Easterly of the right-of-way of Chicago, Burlington and
Quincy Railroad Company in Lee County, Iowa.
2. Lots One (1), Two (2) and Three (3), in Block Nine (9) in
Kilbourne's Addition to the City of Keokuk, Lee County, Iowa.
A-3
<PAGE> 413
3. Lot 4, Sawyer Riverview Estates being land located in the
Fractional SE1/4 of Section 36, Township 66 North, Range 5 West of the Fifth
Principal Meridian, Montrose Township, Lee County, Iowa.
4. Lots 7, 8, 9, 10, 11 and 12, Block 154, of the Original City of
Keokuk, Since April 27, 1989.
5. Lots 1 and 6, Sawyer Riverview Estates being land located in the
Fractional SE1/4 of Section 36, Township 66 North, Range 5 West of the Fifth
Principal Meridian, Montrose Township, Lee County, Iowa.
6. A tract of land on the Easterly side of Plank Road, lying South and
adjacent to the Arrowhead Bowl and Indian Hills Addition, located in the
Southwest Quarter (SW1/4) of Section Fourteen (14), Township Sixty-five (65)
North, Range Five (5) West of the Fifth Principal Meridian, City of Keokuk,
Lee County, Iowa, and described by the following metes and bounds:
Beginning on the North right of way line of Messenger Road at a point
Thirty-three (33) feet North and Twenty (20) feet West of the Southeast corner
of said Southwest Quarter (SW1/4) of Section Fourteen (14); thence South
Eighty-nine (89) Degrees Fifty-four (54) Minutes West, Ten (10) feet with said
right of way; thence North, Four Hundred (400) feet with the East boundary of
Wilkens Pipe & Supply Co. tract; thence South Eighty-nine (89) Degrees
Fifty-four (54) Minutes West, One Hundred Eighty-two and Four-tenths (182.4)
feet; thence North Fifty-seven (57) Degrees Forty-eight (48) Minutes West,
Fifty-eight and Six-tenths (58.6) feet; thence North Seventy-two (72) Degrees
Twenty-six (26) Minutes West, Three Hundred Twenty-nine and Five-tenths
(329.5) feet; thence South Thirty-four (34) Degrees Two (02) Minutes West, One
Hundred Twenty (120) feet; thence North Fifty-seven (57) Degrees Forty-eight
(48) Minutes West, Fifty (50) feet with the rear line of Michigan-Wisconsin
Pipe Line Company meter station tract; thence South Thirty-four (34) Degrees
Two (02) Minutes West, One Hundred (100) feet to the Easterly right of way
line of Old Plank Road; thence with said right of way North Fifty-seven (57)
Degrees Forty-eight (48) Minutes West Ninety-four and Five-tenths (94.5) feet
and North Thirty-four (34) Degrees Nineteen (19) Minutes West, Three Hundred
Eight and Sixth-tenths (308.6) feet to the Southwesterly corner of Arrowhead
Bowl tract; thence North Fifty-five (55) Degrees Forty-one (41) Minutes East,
Six Hundred Thirty-nine and Seven-tenths (639.7) feet with the property line
extended; thence North Thirty-one (31) Degrees Sixteen (16) Minutes Fifteen
(15) Seconds West, One Hundred Thirty-nine and Seven-tenths (139.7) feet to a
Southerly line of Plat 1, Indian Hills Addition; thence North Fifty-nine (59)
Degrees Seventeen (17) Minutes Fourteen (14) Seconds East, Six Hundred Four
and Four-tenths (604.4) feet with said Southerly line extended to a point
Twenty (20) feet West of the Quarter (1/4) Section Line of said Section
Fourteen (14); thence South One Thousand Four Hundred Sixty-eight and
six-tenths (1468.6) feet parallel and Twenty (20) feet West of said Quarter
(1/4) Section Line to the Northerly right of way line of Messenger Road, and
point of beginning, containing Fourteen and One Hundredth (14.01) acres, and
subject to the following utility easements: Sanitary sewer to City of Keokuk;
Electric transmission line to Union Electric Company and Natural gas
transmission pipe lines to Michigan-Wisconsin Pipe Line
A-4
<PAGE> 414
Company; Grantor also grants whatever right he may have for use and access
through the Twenty (20) foot strip lying adjacent to the East boundary.
STATE OF KANSAS
In Johnson County, Kansas:
Olathe Office and Service Center, 730 N. Ridgeview, Olathe, Kansas.
Beginning at a point 342.00 feet North of the Southwest corner of the
Northwest quarter of Section 30, Township 13, Range 24 in the City of Olathe,
Johnson County, Kansas; thence North 89 degrees, 26 minutes, East a distance
of 326 feet; thence South a distance of 343.61 feet to a point on the south
line of said Northwest quarter; thence North 89 degrees, 43 minutes, East
along said South line a distance of 331.18 feet; thence North 0 degrees, 43
minutes, West a distance of 1002.51 feet (1001.40 feet measured) to the center
of Old 50 Highway; thence South 57 degrees, 49 minutes, West a distance of
761.65 feet (South 57 degrees, 53 minutes 58 seconds West a distance of 760.99
feet measured) along said center line to the West line of said Northwest
quarter; thence South along said West line a distance of 258 feet (258.18 feet
measured) to the point of beginning, containing 9.43 Acres, more or less.
In Wilson County, Kansas:
Buffalo Compressor Station. The Northwest quarter of Section seventeen,
Township twenty-seven South, Range sixteen East, Wilson County, Kansas.
Fredonia Compressor Station:
The leasehold estate of United Cities Gas Company, as successor by merger
to Union Gas System, Inc., a Kansas corporation, in and to:
The Northeast Quarter (NE1/4), the Southeast Quarter of the Northwest
Quarter (SE1/4 of NW1/4), the South Half of the Southeast Quarter (S1/2 of
SE1/4), the South Half of the Southwest Quarter (S1/2 of SW1/4), and the
Northwest Quarter of the Southwest Quarter (NW1/4 of SW1/4), all in Section 17,
Township 29 South, Range 15 East, Wilson County, Kansas, and
The Southwest Quarter (SW1/4) of Section 16, Township 29 South, Range 15
East, Wilson County, Kansas.
created by the Oil and Gas Lease and Storage Agreement dated November 9, 1949,
by and between G.A. Charlen, a single person, as Lessor, and Sagamore Oil and
Gas Company, a Delaware corporation, as Lessee, filed for record January 4,
1949, in the Office of the Register of Deeds in and for Wilson County, Kansas,
in Book 64, Page 327, and assigned by Sagamore Oil and Gas Company, a Delaware
corporation, to Union Gas System, Inc., a Kansas corporation, by the
Assignment, Deed and Bill of Sale dated January 31, 1949, filed for record
February 16, 1949, in the Office of the Register of Deeds in and for Wilson
County, Kansas, in Book 64 Misc., Page 418;
A-5
<PAGE> 415
together with:
(a) all buildings, structures and other improvements of any kind,
nature or description now or hereafter erected, constructed, placed or
located upon any or all of the leasehold estate described above,
including, without limitation, any and all additions to, substitutions
for or replacements of any such buildings, structures and other
improvements, and together with all appurtenances thereto.
(b) all easement rights, if any, of United Cities Gas Company, in
and to the fee title to the property which is subject to the
above-described leasehold estate.
In Woodson County, Kansas
Yates Center Warehouse. Lots 11, 12, 13 and 14, Block 27, Original
Townsite, a subdivision in the City of Yates Center, Woodson County, Kansas,
according to the recorded plat thereof.
In Wyandotte County, Kansas:
Wyandotte Office Building, 78th and Kansas Avenue, Kansas City, Kansas.
Lot 1, Way's Subdivision, a subdivision in the City of Kansas City, Wyandotte
County, Kansas, according to the recorded plat thereof.
In Montgomery County, Kansas:
Buckeye Station Warehouse, Coffeyville, Kansas. That Part of Lots 21, 22
and the North 10 feet of Lot 23 in the County Clerk's Subdivision of the
Northeast quarter of Section 34, Township 34 South, Range 16 East, a
subdivision in City of Coffeyville, Montgomery County, Kansas, according to
the recorded plat thereof, being more particularly described as follows:
COMMENCING at a railroad spike found at the Southeast corner of the Northeast
1/4 of said Section 34, Township 34 South, Range 16 East; THENCE North 00
degrees 25 minutes 32 seconds West (an assumed bearing) along the East line of
said Northeast 1/4 a distance of 825.00 feet to a 5/8" iron rod set for the
POINT OF BEGINNING; THENCE North 90 degrees 00 minutes, 00 seconds West, a
distance of 20.00 feet to a 5/8" iron rod set; THENCE South 0 degrees 25
minutes 32 seconds East, a distance of 10.00 feet to a 5/8" iron rod set;
THENCE North 90 degrees 00 minutes 00 seconds West, a distance of 704.00 feet
to a 5/8" iron rod set; THENCE North 00 degrees 25 minutes 32 seconds West, a
distance of 141.09 feet to a 5/8" iron rod set on a point of a tangent
circular curve deflecting to the right, said curve having a central angle of 4
degrees 50 minutes 34 seconds, a radius of 2689.07 feet, and a tangent of
113.71 feet, said circular curve also being the South right of way line of the
Missouri Pacific Railroad; THENCE along said circular curve an arc length of
227.29 feet to the point of curvature of said circular curve; THENCE North 89
degrees 55 minutes 29 seconds East along said South right of way a distance of
496.78 feet to a 5/8" iron rod set on the East line of the Northeast 1/4 of
said Section 34;
A-6
<PAGE> 416
THENCE South 00 degrees 25 minutes 32 seconds East along the East line of the
Northeast 1/4 a distance of 135.24 feet to the POINT OF BEGINNING.
Coffeyville Main Office Building, 314 West 10th Street, Coffeyville,
Kansas. Lots 9, 10 and 11, Block 64, Original City of Coffeyville, a
subdivision in the City of Coffeyville, Montgomery County, Kansas, according
to the recorded plat thereof.
Main Office Building, 114 through 122 West Myrtle Street, Independence,
Kansas. Lots One, Two, Three, Four and Five in owners Re-subdivision of
Gloeckler's Subdivision of Lots Fourteen and Fifteen in Block Thirty-one, a
subdivision in the City of Independence, Montgomery County, Kansas, according
to the recorded plat thereof, together with an easement to build, repair and
maintain the second story of the building located on said Lot 1, over the
alley to the North of said Lot 1, as established by the recorded plat thereof.
Warehouse and Shops, Independence, Kansas. Lots One, Two, Three, Seven,
Eight, Nine, Ten, Eleven, Twelve, Thirteen and Fourteen, Block 1, Improvement
Club's First Addition, formerly in the City of Independence, Montgomery
County, Kansas, according to the recorded plat thereof; and Lot Nineteen,
Block One, Lots One, Two, Three, Four, Five and Six and Seven, Block Six, Lots
One, Two, Three, Four, Five, Six, Seven and Eight, Block Seven, and all of
Block Ten, ALL in Improvement Club's First Addition to the City of
Independence, a subdivision in the City of Independence, Montgomery County,
Kansas, according to the recorded plat thereof.
North Liberty Compressor Station:
The leasehold estate of United Cities Gas Company, as successor by merger
to Union Gas System, Inc., a Kansas corporation, in and to:
The South half (S 1/2) of the Northeast quarter (NE 1/4) of Section 33,
Township 33 South, Range 17 East, Montgomery County, Kansas,
created by the Oil and Gas Lease and Gas Storage Agreement dated August 29,
1953, by and between Martha A. Startz and John W. Startz, husband and wife, as
Lessor, and Union Gas System, Inc., a Kansas corporation, as Lessee, filed for
record September 1, 1953, in the Office of the Register of Deeds in and for
Montgomery County, Kansas, in Book 53 of Oil, at Page 383, as modified by Oil
and Gas Lease and Gas Storage Agreement modification (the "Modification
Agreement") dated January 14, 1982, by and between Martha A. Startz, as
Lessor, and Union Gas System, Inc., as Lessee, filed for record April 20,
1984, in the Office of the Register of Deeds in and for Montgomery County,
Kansas, in Book 97 of Oil, at Page 352, as amended and modified by Addendum
No. 1, Addendum No. 2 and Addendum No. 3, set forth in the instrument dated
December 8, 1982, by and between Martha A. Startz and Union Gas System, Inc.,
filed for record April 20, 1984, in the Office of the Register of Deeds in and
for Montgomery County, Kansas, in Book 97 of Oil, at Page 348;
A-7
<PAGE> 417
together with:
(a) the rights of United Cities Gas Company, as successor by
merger to Union Gas System, Inc., to lay, maintain, alter, repair,
operate, remove and relay parallel pipe lines for the transportation of
oil or gas on, over and through the above-described property, as
established by the Right of Way Contract dated August 29, 1953, executed
by Martha A. Startz and John W. Startz, husband and wife, filed for
record September 1, 1953, in the Office of the Register of Deeds in and
for Montgomery County, Kansas, in Book 3 Misc., at Page 166;
(b) the rights of Union Gas System, Inc., to install, operate,
maintain and remove meters, regulators and other equipment necessary for
the measurement and regulation of gas, on, over, through and under the
above-described property, and to construct and use, maintain, alter and
repair a roadway on the above-described property, all as established by
the Right of Way Contract dated July 22, 1954, executed by Martha A.
Startz and John W. Startz, husband and wife, filed for record July 30,
1954, in the Office of the Register of Deeds in and for Montgomery
County, Kansas, in Book 3, Misc., at Page 341; and
(c) all buildings, structures and other improvements of any kind,
nature or description now or hereafter erected, constructed, placed or
located upon any or all of the said leasehold estate described above,
including, without limitation, any and all additions to, substitutions
for or replacements of any such buildings, structures and other
improvements, and together with all appurtenances thereto.
The South Liberty Compressor Station:
The leasehold estate of United Cities Gas Company, as successor by merger
to Union Gas System, Inc., a Kansas corporation, in and to:
The Southwest Quarter (SW 1/4) and the West half of the Northwest Quarter
(W 1/2 of NW 1/4) of Section 4, Township 34 South, Range 17 East, Montgomery
County, Kansas, except a one acre tract in the Southeast corner of the
Southwest Quarter (SW 1/4) for School District #15,
created by the Oil and Gas Lease and Gas Storage Agreement dated January 11,
1947, by and between Margaret Nell Perdue and J.F. Perdue, husband and wife,
as Lessor, and Sagamore Oil and Gas Company, a Delaware corporation, as
Lessee, filed for record April 5, 1947, in the Office of the Register of Deeds
in and for Montgomery County, Kansas, in Book 48 of Oil, at Page 373, and
assigned by Sagamore Oil and Gas Company, a Delaware corporation, to Union Gas
System, Inc., a Kansas corporation, by the Assignment, Deed and Bill of Sale
dated January 31, 1949, filed for record February 19, 1949, in the Office of
the Register of Deeds in and for Montgomery County, Kansas, in Book 49 of Oil,
at Page 291, and as modified by the Oil and Gas Lease and Gas Storage
Agreement Modification dated February 8, 1985, by and between William G. Eden
and Deloris Eden,
A-8
<PAGE> 418
husband and wife, as Lessor, and Union Gas System, Inc., as Lessee, filed for
record February 25, 1985, in the Office of the Register of Deeds in and for
Montgomery County, Kansas, in Book 64 of Misc., at Page 274;
together with:
(a) the rights of United Cities Gas Company, as successor by
merger to Union Gas System, Inc., to lay, maintain, alter, repair,
operate, remove and relay parallel pipe lines for the transportation of
oil or gas on, over and through the above-described property, as
established by the Right of Way Contract dated April 30, 1948, executed
by Margaret Nell Perdue and J.F. Perdue, husband and wife, filed for
record May 5, 1948, in the Office of the Register of Deeds in and for
Montgomery County, Kansas in Book 49 of Oil, at Page 47; and
(b) all buildings, structures, and other improvements of any kind,
nature or description now or hereafter erected, constructed, placed or
located upon any or all of said leasehold estate described above,
including, without limitation, any and all additions to, substitutions
for or replacements of any such buildings, structures and other
improvements, and together with all appurtenances thereto.
SECTION B
STATE OF KANSAS
In Chautauqua County, Kansas:
Sedan, Kansas Property. Commencing at a point 156 feet North of the
Southeast corner of Lot 1, Block 1, Gilman's Addition to the City of Sedan, a
subdivision in the City of Sedan, Kansas, according to the recorded plat
thereof, thence North 25 feet; thence West 15 feet; thence South 25 feet;
thence East 15 feet to place of beginning.
A strip of land 40 feet wide off the South side of Lot 14, Block 2,
Sheek's Addition to the City of Sedan, a subdivision in the City of Sedan,
Chautauqua County, Kansas, according to the recorded plat thereof.
Lot in Niotaze, Kansas. South 50 feet of the South half of Lot 12, Block
12, Original Town of Niota, a subdivision in the City of Niotaze, Chautauqua
County, Kansas, according to the record plat thereof.
The Sedan Bethlehem Baptist Church Meter and Regulator Site, Sedan,
Kansas. The North fifty feet of the east one hundred feet of Lot seven, Block
nine of addition by City Ordinance to the City of Sedan, a subdivision in the
City of Sedan, Chautauqua County, Kansas, according to the recorded plat
thereof.
A-9
<PAGE> 419
Mineral Rights, Chautauqua Springs, Kansas. One-half of the mineral
rights on Block 1, Harshbarger's Addition, a subdivision in the City of
Chautauqua Springs, Chautauqua County, Kansas, according to the recorded plat
thereof.
Stone Regulator House in Niotaze, Kansas. The North Twenty-Five Feet of
the South Half of Lot Twelve in Block Twelve of the Original Town of Niota, a
subdivision in the City of Niotaze, Chautauqua County, Kansas, according to
the recorded plat thereof.
In Johnson County, Kansas:
Olathe South Gate Meter and Regulator Setting, Olathe, Kansas.
Beginning at a point on the Southerly right-of-way line of the railroad spur
known as the Frisco crossover which point is 95 feet West measured at right
angles from the East line of Section Thirty-five, Township Thirteen, Range
Twenty-three, in the City of Olathe, Johnson County, Kansas; thence South
parallel to the aforesaid Section line, a distance of 80 feet; thence East 20
feet; thence North to a point on the aforesaid right-of-way line of the Frisco
crossover; thence Northwesterly along this right-of-way line to the place of
beginning.
In Elk County, Kansas:
Meter and Regulator Site, Kansas Avenue, Longton, Kansas. The West 70
feet, Lots 262 to 274, inclusive, Block 46, Kansas Avenue, in the City of
Longton, Elk County, Kansas.
In Montgomery County, Kansas:
Pipe Yard, West 5th Avenue, Caney, Kansas. East 75 feet of Lots 7 and 8,
Block 12, City of Caney, Montgomery County, Kansas.
Regulator Site, Caney, Kansas. All of Block 11, Braden's Addition to
Caney, a subdivision in the City of Caney, Montgomery County, Kansas,
according to the recorded plat thereof.
West City Gate Meter and Regulator Station, Caney, Kansas. Lot Six, in
Block Fifty-nine, of the First Addition to the City of Caney, a subdivision in
the City of Caney, Montgomery County, Kansas, according to the recorded plat
thereof.
Regulator Site, Graphic Street, Coffeyville, Kansas. Beginning at a
point One Hundred Feet North of the Southwest corner of Out Lot No. 1, West
End Place Addition to the City of Coffeyville, a subdivision in the City of
Coffeyville, Montgomery County, Kansas, according to the plat thereof, thence
North 20 feet, thence East 20 feet, thence South 20 feet and thence West 20
feet to point of beginning.
Meter and Regulator Site, Martin Street, Coffeyville, Kansas. Commencing
at a point 538 feet South of the Northwest corner of lot 4 in Section 31,
Township 34 South, Range 17 East, in the present West fence line of said lot
4, thence South 75 feet along said
A-10
<PAGE> 420
fence, thence East 20 feet, thence North 75 feet, thence West 20 feet to point
of beginning. South line of said tract is approximately twenty-one (21) feet
south of the property line on the south Side of Martin Street, of Coffeyville,
Kansas.
Laurel Street Regulator and Meter Site, Laurel and 24th Street,
Independence, Kansas. Lots Five and Six, Block Four, Laurel Heights Addition
to the City of Independence, a subdivision in the City of Independence,
Montgomery County, Kansas, according to the recorded plat thereof.
Mineral Rights, Montgomery County Kansas. All oil, gas and other
minerals and mineral rights and in and to said land described as follows: A
tract of land bounded by a line described as follows: Beginning at the
Southeast corner of the North one-half of the North one-half of the Southeast
one-fourth of Section 28, Township 33, Range 17, said point being 1982 feet
North of the Southeast corner of said Section 28, running thence West 166
feet, thence Northeasterly 292 feet, thence Easterly 132 Feet to the East line
of said Section 28, thence South 286 feet to the point of beginnings.
Abandoned Regulator Site, Fawn Creek Township. A plot ten feet by ten
feet in the Southwest corner of Lot 12, Block 42, in the Original Subdivision,
a subdivision in the City of Tyro, Montgomery County, Kansas, according to the
recorded plat thereof.
Regulator Site, Elk City, Kansas. Beginning at a point 16'4" South of
the Northeast corner of Lot 1, Block 9, Elk City, Kansas, thence North 22'7",
thence West 94', thence South 15'7", thence West 42', thence south 7', thence
East 136' to point of beginning, with buildings thereon, reserving land not
described in this instrument in the Northwest corner of the tract with
building thereon to Union Gas System, Inc.
Vacant Land in Coffeyville, Kansas. Lot 12, Block 6, Northfield
Subdivision to the City of Coffeyville, Montgomery County, Kansas, a
subdivision in the City of Coffeyville, Kansas, according to the recorded plat
thereof.
In Wilson County, Kansas:
Fredonia Pipeyard & Regulatory Site, 3rd & Jackson Street, Fredonia,
Kansas. All of Lots Fourteen, Fifteen and Sixteen, Block Three in Stivers
Addition to the City of Fredonia, a subdivision in the City of Fredonia,
Wilson County, Kansas, according to the recorded plat thereof.
Regulator Site, Fredonia, Kansas. Commencing at the Southeast corner of
Lot eleven in Block ten in Hamilton's Addition to the City of Fredonia, a
subdivision in the City of Fredonia, Wilson County, Kansas, according to the
recorded plat thereof, and running thence West 20 feet, thence North 20 feet
thence East 20 feet, then South 20 feet to point of beginning.
A-11
<PAGE> 421
In Woodson County, Kansas:
Regulator Site and Material Yard, Yates Center, Kansas. Lot Twelve and
the South 12 1/2 feet of Lot Thirteen, Block Ten, Yates Fourth Addition to the
City of Yates Center, a subdivision in the City of Yates Center, Woodson
County, Kansas, according to the recorded plats thereof.
A-12
<PAGE> 422
PART II - DISTRIBUTION SYSTEMS AND PIPELINES
DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together will all pipelines,
mains, connection, service pipes, fittings, meters, regulators, regulator
stations and buildings, tools, instruments, appliances, apparatus, facilities,
machinery and other property used or provided for use in the construction,
maintenance, repair or operation thereof and together also with all of the
rights, privileges, rights-of-way, franchises, licenses, easements, grants and
permits with respect to the construction, maintenance, repair and operation of
such gas distribution systems, including, but not limited to, the plants and
systems owned and operated by the Company for the distribution and sale of gas
located in the following named cities, towns, or villages and environs thereof
as follows:
IN THE STATE OF KANSAS
GAS TRANSMISSION LINES
<TABLE>
<CAPTION>
Miles
<S> <C> <C>
1. From La Fontaine in Wilson County to Fredonia Storage in Wilson County to
Wilson Natural Gas Connection
24.5
2. From Liberty Storage in Montgomery County to Coffeyville in Montgomery
County
26.8
3. From Altoona in Wilson County to Berlington in Coffey County
39.3
4. From Williams Storage in Chautauqua County to Wilson Natural Gas Connection
in Chautauqua County
32.0
</TABLE>
GAS DISTRIBUTION SYSTEMS
Municipality County
Altoona Wilson
Benedict Wilson
Bonner Springs Wyandotte
Buffalo Wilson
Burlington Coffey
Caney Montgomery
A-13
<PAGE> 423
STATE OF KANSAS, CONT.
Municipality County
Cedarvale Chautauqua
Chautauqua Chautauqua
Coffeyville Montgomery
Dearing Montgomery
Douglas Douglas
Easton Leavenworth
Elgin Chautauqua
Elk City Montgomery
Elk Falls Elk
Elsmore Allen
Fall River Greenwood
Fredonia Wilson
Galesburg Neosho
Gardner Lake Johnson
Havana Montgomery
Hewins Chautauqua
Hillsdale Miami
Independence Montgomery
Jarbalo Leavenworth
Lafontaine Wilson
Leroy Coffey
Lenexa Johnson
Liberty Montgomery
Linwood Leavenworth
Longton Elk
McCune Crawford
Moline Elk
Moorehead Neosho
Mound Valley Labette
Neodesha Wilson
Niotaze Chautauqua
Olathe Johnson
Overland Park Johnson
Peru Chautauqua
Savonburg Allen
Sedan Chautauqua
Spring Hill Johnson
Sycamore Montgomery
Tyro Montgomery
Unincorporated Wyandotte
Yates Center Woodson
A-14
<PAGE> 424
IN THE STATE OF MISSOURI
GAS DISTRIBUTION SYSTEMS
Municipality County
Alexandira Clark
Arbela Scotland
Canton Lewis
Edina Knox
Ewing Lewis
Granger Scotland
Hannibal Ralls/Marion
Kahoka Clark
Knox City Knox
LaBelle Lewis
La Grange Lewis
Lewiston Lewis
Luray Clark
Memphis Scotland
Monticello Lewis
Naylor Ripley
Neelyville Butler
Qulin Butler
Wayland Clark
GAS TRANSMISSION LINE
Miles
From the Taylor Tap in Marion County, 38.42
Missouri to the Gregory Landing Tap in
Clark County, Missouri (9.66 miles of 6
inch and 28.76 miles of 10 inch
mainline pipeline)
A-15
<PAGE> 425
IN THE STATE OF IOWA
GAS DISTRIBUTION SYSTEMS
Keokuk Lee
Montrose Lee
GAS TRANSMISSION LINE
Miles
From the South Fort Madison, Keokuk Tap 21.08
in Lee County, Iowa to Keokuk (10.54
miles of 6 inch and 10.54 miles of 4 inch
paralled pipeline)
IN THE STATE OF ILLINOIS
GAS DISTRIBUTION SYSTEMS
Alma Marion
Cowden Shelby
Huey Clinton
Iuka Marion
Kinmundy Marion
Raleigh Saline
Salem Marion
Xenia Clay
IN THE STATE OF GEORGIA
GAS DISTRIBUTION SYSTEMS
Unincorporated Area Jackson
A-16
<PAGE> 426
PART III - CONTRACTS
GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions,
supplements or amendments thereof, between the Company (or a predecessor
corporation) and the respective suppliers named below providing for the supply
of natural gas to the Company for distribution and resale in the respective
cities and towns and areas adjacent thereto set forth under the caption
"Service Area:"
<TABLE>
<CAPTION>
Service Contract Term or
Area Supplier Date Expiration Date
<S> <C> <C> <C>
Keokuk, Iowa ANR Pipeline Company May 9, 1989 October 31, 1992 and continue
year to year
Hannibal and Canton, Missouri Panhandle Eastern Pipeline October 19, 1989 November 1, 1993 and continue
Company year to year
Xenia, Illinois Trunkline Gas Company September 20, 1988 November 1, 1993 and continue
year to year
Salem, Iuka and Mississippi River November 1, 1987 October 31, 1997
Huey, Illinois Transportation
Corp.
Kinmundy, Alma and Cowden, Natural Gas Pipeline Company October 1, 1988 December 1, 1990 and continue
Illinois of America year to year
Qulin, Missouri Texas Eastern Transmission December 10, 1984 February 1, 1989 and continue
Company year to year
Naylor and Neelyville, Natural Gas Pipeline Co. of October 1, 1988 December 1, 1990
Missouri America
State of Kansas Williams Natural Gas Company September 2, 1988 December 31, 1992 and
continue year to year
</TABLE>
A-17
<PAGE> 427
PART IV--FRANCHISES
The following franchises granted to the Company, or to its predecessors
and assigned to the Company or acquired by the Company by merger of
predecessors into the Company, authorizing the construction, operation and
maintenance of gas distribution systems in the following cities or
municipalities and all renewals, extensions or substitutions thereof or
therefor:
STATE OF KANSAS
Expiration
Town Date
Fredonia June 7, 2002
Galesburg April 11, 2005
Independence May 23, 1996
Lenexa August 5, 1996
Linwood January 6, 1995
Longton May 2, 2009
Mound Valley April 3, 2004
Niotaze August 2, 1993
Olathe October 16, 1999
Overland Park September 26, 1997
Peru December 10, 2002
Sedan June 28, 2000
Spring Hill June 13, 1992
Caney February 2, 2007
Cedarvale June 18, 1997
Coffeyville May 20, 1990
Kansas City December 30, 2006
STATE OF ILLINOIS
Expiration
Town Date
Alma February 6, 2014
Cowden January 3, 2014
Huey June 5, 2014
Iuka April 24, 2014
Kimmundy April 4, 2013
Raleigh June 12, 2019
Salen None
Xenia November, 10, 2012
A-18
<PAGE> 428
STATE OF TENNESSEE
Expiration
Town Date
Johnson City August 2, 2013
STATE OF GEORGIA
Town Expiration
Date
Unincorporated Area of Jackson County September 17, 2017
STATE OF MISSOURI
Town Expiration
Date
Alexandria March 6, 2006
Arbela January 17, 2006
Canton January 13, 2006
Edina January 13, 2006
Ewing April 10, 2009
Granger January 14, 2006
Hannibal May 31, 1995
Kahoka December 9, 2005
Knox City February 5, 2006
LaBelle February 19, 2006
LaGrange February 10, 2006
Lewiston May 5, 2006
Luray February 6, 2006
Memphis March 20, 2006
Monticello March 27, 2006
Nayler February 1, 2008
Neelyville January 7, 1998
Qulin December 7, 2007
Wayland April 7, 2006
A-19
<PAGE> 429
STATE OF IOWA
Expiration
Town Date
Keokuk May 7, 1995
Montrose January 13, 2001
A-20
<PAGE> 430
RECORDING DATA FOR SIXTEEN SUPPLEMENTAL INDENTURE
OF
UNITED CITIES GAS COMPANY
RECORDING DATA
<TABLE>
<CAPTION>
DATE AND TIME
STATE COUNTY RECORDED DOCUMENT # BOOK PAGES(s)
<S> <C> <C> <C> <C> <C>
Tennessee Bedford December 28, 1989 Trust 273 I-85
2:26 PM
Tennessee Blount January 2, 1990 V.510 504
8:54 AM
Tennessee Carter January 2, 1990 Trust 385 236
9:35 AM
Tennessee Greene January 2, 1990 Trust 435 444
9:15 AM
Tennessee Hamblem January 2, 1990 Trust 441 446
11:45 AM
Tennessee Maury December 29, 1989 1066 322
12:10 PM
Tennessee Moore December 29, 1989 Trust 51 621
10:30 AM
Tennessee Obion January 2, 1990 Trust 47-J I-35
12:10 PM
Tennessee Rutherford December 29, 1989 Trust A665 366
2:20 PM
Tennessee Sullivan January 5, 1990 Deed 291 805
3:00 PM
Tennessee Sullivan January 2, 1990 Deed 704-C 771
(City of 8:30 AM
Bristol)
Tennessee Washingtton January 2, 1990 Trust 857 506
11:00 AM
Tennessee Weakley January 2, 1990 356 341
2:00 PM
Tennessee Williamson December 29, 1989 827 98
1:07 PM
Tennessee Secretary of January 2, 1990 726741
State (UCC) 3:15 AM
Alabama Russell December 27, 1989 Mortgage 85-119
2:37 PM 730
Illinois Clay December 29, 1989 92,893
9:15 AM
Illinois Clinton December 29, 1989 Land 504
11:05 AM Records
23
Illinois Fayette December 27, 1989 8903983 818 260
Illinois Effingham December 29, 1989 92,587 882 319-353
</TABLE>
<PAGE> 431
<TABLE>
<CAPTION>
DATE AND TIME
STATE COUNTY RECORDED DOCUMENT # BOOK PAGES(s)
<S> <C> <C> <C> <C> <C>
Illinois Logan December 27, 1989 351297 120 25-59
11:00 AM
Illinois Macoupin December 27, 1989 272165 212 57
Illinois Marion December 29, 1989 8128 420 287
12:45 PM Microfilm
Illinois Massac December 27, 1989 8902232 Records 286 318
10:30 AM
Illinois Montgomery December 28, 1989 316299 Mortgage 144
245
Illinois Saline December 26, 1989 102901 839 180-214
1:31 PM Micr. Doc.
Illinois Shelby December 29, 1989 M89-4819 Mortgage 34-68
744
Illinois Secretary of December 26, 1989 2659928
State (UCC) 10:44 AM
Illinois Secretary of December 26, 1989 2659929
State (UCC) 10:44 AM
Georgia Barrow December 28, 1989 Deed 136 390-424
11:25 AM
Georgia Chattahochee December 27, 1989 Deed S-1 197
Georgia Hall December 28, 1989 1423 Deed 104-138
Records
Georgia Jackson December 28, 1989 Deed 11-A 577-611
Georgia Muscogee December 27, 1989 Deed 3209 257
Georgia Oconee December 28, 1989 Deed 116 813847
South Cherokee December 27, 1989 350 63
Carolina 10:34 AM
South Cherokee December 27, 1989 26390
Carolina (UCC) 10:34 AM
South Secretary of December 27, 1989 89-065019
Carolina State (UCC)
Virginia City of January 8, 1990 279 94
Bristol 11:40 AM
Virginia Montgomery January 2, 1990 9000023 667 69
3:30 PM
Virginia Pulaski 0471 778
Virginia City of 000002 141 842
Radford
Virginia Smyth 399 346
Virginia Washington 790 465
Virginia Wythe January 2, 1990 367 1
11:20 AM
Iowa Lee December 27, 1989 4121 Microfiche A5
11:24 AM 89S-81
Iowa Lee (UCC) December 27, 1989 G-199 1 U-1
3:25 PM
Iowa Secretary of December 29, 1989 K074873
State (UCC) 10:04 A.M.
</TABLE>
Page 2
(Recording Data)
<PAGE> 432
<TABLE>
<CAPTION>
DATE AND TIME
STATE COUNTY RECORDED DOCUMENT # BOOK PAGES(s)
<S> <C> <C> <C> <C> <C>
Missouri Butler
Indenture December 28, 1989 709 490
1st Supplement December 28, 1989 709 523
2nd Supplement December 28, 1989 709 526
3rd Supplement December 28, 1989 709 530
4th Supplement December 28, 1989 709 536
5th Supplement December 28, 1989 709 546
6th Supplement December 28, 1989 709 557
7th Supplement December 28, 1989 709 567
8th Supplement December 28, 1989 709 575
9th Supplement December 28, 1989 709 584
10th Supplement December 28, 1989 709 591
11th Supplement December 28, 1989 709 595
12th Supplement December 28, 1989 709 603
13th Supplement December 28, 1989 709 611
14th Supplement December 28, 1989 709 625
15th Supplement December 28, 1989 709 641
16th Supplement December 28, 1989 709 652
Missouri Ripley
Indenture December 28, 1989 274 72
1st Supplement December 28, 1989 274 73
2nd Supplement December 28, 1989 274 74
3rd Supplement December 28, 1989 274 75
4th Supplement December 28, 1989 274 76
5th Supplement December 28, 1989 274 77
6th Supplement December 28, 1989 274 78
7th Supplement December 28, 1989 274 79
8th Supplement December 28, 1989 274 80
9th Supplement December 28, 1989 274 81
10th Supplement December 28, 1989 274 82
11th Supplement December 28, 1989 274 83
12th Supplement December 28, 1989 274 84
13th Supplement December 28, 1989 274 85
14th Supplement December 28, 1989 274 86
15th Supplement December 28, 1989 274 87
16th Supplement December 28, 1989 274 88
Missouri Marion
Indenture December 28, 1989 3564 549 3564
1st Supplement December 28, 1989 3565 549 3565
2nd Supplement December 28, 1989 3566 549 3566
3rd Supplement December 28, 1989 3567 549 3567
4th Supplement December 28, 1989 3568 549 3568
5th Supplement December 28, 1989 3569 549 3569
6th Supplement December 28, 1989 3570 549 3570
7th Supplement December 28, 1989 3571 549 3571
8th Supplement December 28, 1989 3572 549 3572
</TABLE>
Page 3
(Recording Data)
<PAGE> 433
<TABLE>
<CAPTION>
DATE AND TIME
STATE COUNTY RECORDED DOCUMENT # BOOK PAGES(s)
<S> <C> <C> <C> <C> <C>
9th Supplement December 28, 1989 3573 549 3573
10th Supplement December 28, 1989 3574 549 3574
11th Supplement December 28, 1989 3575 549 3575
12th Supplement December 28, 1989 3576 549 3576
13th Supplement December 28, 1989 3577 549 3577
14th Supplement December 28, 1989 3578 549 3578
15th Supplement December 28, 1989 3579 549 3579
16th Supplement December 28, 1989 3580 549 3580
Missouri Knox
Indenture December 28, 1989 906 199 261
1st Supplement December 28, 1989 909 199 264
2nd Supplement December 28, 1989 907 199 262
3rd Supplement December 28, 1989 908 199 263
4th Supplement December 28, 1989 910 199 265
5th Supplement December 28, 1989 911 199 266
6th Supplement December 28, 1989 912 199 267
7th Supplement December 28, 1989 913 199 268
8th Supplement December 28, 1989 914 199 269
9th Supplement December 28, 1989 915 199 270
10th Supplement December 28, 1989 916 199 271
11th Supplement December 28, 1989 917 199 272
12th Supplement December 28, 1989 918 199 273
13th Supplement December 28, 1989 919 199 274
14th Supplement December 28, 1989 920 199 275
15th Supplement December 28, 1989 921 199 276
16th Supplement December 28, 1989 922 199 277
Missouri Ralls
Indenture December 28, 1989 1353 303 208
1st Supplement December 28, 1989 1354 303 273
2nd Supplement December 28, 1989 1355 303 279
3rd Supplement December 28, 1989 1356 303 286
4th Supplement December 28, 1989 1357 303 298
5th Supplement December 28, 1989 1358 303 317
6th Supplement December 28, 1989 1359 303 338
7th Supplement December 28, 1989 1360 304 1
8th Supplement December 28, 1989 1361 304 17
9th Supplement December 28, 1989 1362 304 35
10th Supplement December 28, 1989 1363 304 48
11th Supplement December 28, 1989 1364 304 57
12th Supplement December 28, 1989 1365 304 73
13th Supplement December 28, 1989 1366 304 89
14th Supplement December 28, 1989 1367 304 117
15th Supplement December 28, 1989 1368 304 149
16th Supplement December 28, 1989 1369 305 171
Missouri Lewis
Indenture December 28, 1989 1289-199 287 690
</TABLE>
Page 4
(Recording Data)
<PAGE> 434
<TABLE>
<CAPTION>
DATE AND TIME
STATE COUNTY RECORDED DOCUMENT # BOOK PAGES(s)
<S> <C> <C> <C> <C> <C>
1st Supplement December 28, 1989 1289-200 287 691
2nd Supplement December 28, 1989 1289-201 287 692
3rd Supplement December 28, 1989 1289-202 287 693
4th Supplement December 28, 1989 1289-203 287 694
5th Supplement December 28, 1989 1289-204 287 695
6th Supplement December 28, 1989 1289-205 287 696
7th Supplement December 28, 1989 1289-206 287 697
8th Supplement December 28, 1989 1289-207 287 698
9th Supplement December 28, 1989 1289-208 287 699
10th Supplement December 28, 1989 1289-209 287 700
11th Supplement December 28, 1989 1289-210 287 701
12th Supplement December 28, 1989 1289-211 287 702
13th Supplement December 28, 1989 1289-212 287 703
14th Supplement December 28, 1989 1289-213 287 704
15th Supplement December 28, 1989 1289-214 287 705
16th Supplement December 28, 1989 1289-215 287 706
Missouri Clark
Indenture December 28, 1989 18M 2154
1st Supplement December 28, 1989 18M 2189
2nd Supplement December 28, 1989 18M 2193
3rd Supplement December 28, 1989 18M 2197
4th Supplement December 28, 1989 18M 2204
5th Supplement December 28, 1989 18M 2214
6th Supplement December 28, 1989 18M 2225
7th Supplement December 28, 1989 18M 2235
8th Supplement December 28, 1989 18M 2244
9th Supplement December 28, 1989 18M 2253
10th Supplement December 28, 1989 18M 2260
11th Supplement December 28, 1989 18M 2265
12th Supplement December 28, 1989 18M 2274
13th Supplement December 28, 1989 18M 2282
14th Supplement December 28, 1989 18M 2297
15th Supplement December 28, 1989 18M 2314
16th Supplement December 28, 1989 18M 2326
Missouri Scotland
Indenture December 28, 1989 97 256 97
1st Supplement December 28, 1989 98 256 98
2nd Supplement December 28, 1989 99 256 99
3rd Supplement December 28, 1989 100 256 100
4th Supplement December 28, 1989 101 256 101
5th Supplement December 28, 1989 102 256 102
6th Supplement December 28, 1989 103 256 103
7th Supplement December 28, 1989 104 256 104
8th Supplement December 28, 1989 105 256 105
9th Supplement December 28, 1989 106 256 106
10th Supplement December 28, 1989 107 256 107
11th Supplement December 28, 1989 108 256 108
</TABLE>
Page 5
(Recording Data)
<PAGE> 435
<TABLE>
<CAPTION>
DATE AND TIME
STATE COUNTY RECORDED DOCUMENT # BOOK PAGES(s)
<S> <C> <C> <C> <C> <C>
12th Supplement December 28, 1989 109 256 109
13th Supplement December 28, 1989 110 256 110
14th Supplement December 28, 1989 111 256 111
15th Supplement December 28, 1989 112 256 112
16th Supplement December 28, 1989 113 256 113
Missouri Secretary of
State (UCC)
Indenture December 28, 1989 1814216
1st Supplement December 28, 1989 1814217
2nd Supplement December 28, 1989 1814218
3rd Supplement December 28, 1989 1814219
4th Supplement December 28, 1989 1814220
5th Supplement December 28, 1989 1814221
6th Supplement December 28, 1989 1814222
7th Supplement December 28, 1989 1814223
8th Supplement December 28, 1989 1814224
9th Supplement December 28, 1989 1814225
10th Supplement December 28, 1989 1814226
11th Supplement December 28, 1989 1814227
12th Supplement December 28, 1989 1814228
13th Supplement December 28, 1989 1814229
14th Supplement December 28, 1989 1814230
15th Supplement December 28, 1989 1814231
16th Supplement December 28, 1989 1814232
Kansas Johnson December 27, 1989 1917211 3102 358
4:30 P.M.
Kansas Secretary of December 29, 1989 1517167
State 11:55 A.M.
</TABLE>
Page 6
(Recording Data)
<PAGE> 436
[CONFORMED COPY]
SEVENTEENTH SUPPLEMENTAL INDENTURE
Dated as of April 1, 1990
____________________________
UNITED CITIES GAS COMPANY
to
CONTINENTAL BANK, NATIONAL ASSOCIATION
and
M. J. KRUGER
TRUSTEES
____________________________
Supplementing and Amending Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series Q
9.75%, Due April 30, 2020
<PAGE> 437
THIS SEVENTEENTH SUPPLEMENTAL INDENTURE, dated as of April 1, 1990,
made by and between UNITED CITIES GAS COMPANY, a corporation organized under
the laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), whose address is 5300 Maryland Way, Brentwood, Tennessee
37027, party of the first part, and CONTINENTAL BANK, NATIONAL ASSOCIATION,
formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, a national banking association having its office at 231 South LaSalle
Street, Chicago, Illinois 60690 (hereinafter called the "Trustee"), and M. J.
KRUGER, residing in the City of Chicago, Illinois (the Trustee and M. J. Kruger
being hereinafter collectively referred to as the "Trustees"), parties of the
second part.
RECITALS:
The background of this Seventeenth Supplemental Indenture is:
1. The Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as
Trustees, its Indenture of Mortgage dated as of July 15, 1959
(hereinafter sometimes referred to as the "Original Indenture"),
providing for the issuance thereunder from time to time of First
Mortgage Bonds of the Company, issuable in one or more series, and
wherein and whereby the Company did grant, convey, mortgage, warrant
to, the said Trustees, and each of them, and their respective
successors and assigns, and create a security Interest in, certain
property of the Company in said Original Indenture as more
particularly described therein for the security of all First Mortgage
Bonds issued and to be issued thereunder.
2. On September l, 1961, City National Bank and Trust
Company of Chicago was merged with Continental Illinois National Bank
and Trust Company of Chicago, now known as Continental Bank, National
Association, a national banking association, which thereupon became
corporate trustee under the Indenture as provided therein, and on
October 15, 1966, Ray F. Myers became individual trustee under the
Indenture as successor to R. Emmett Hanley who resigned, and on March
15, 1981, M. J. Kruger became individual trustee under the Indenture
as successor to Ray F. Myers who resigned.
3. The Company has heretofore executed and delivered
sixteen supplemental indentures to the Original Indenture, designated
as First through Sixteenth (the Original Indenture and all
supplemental indentures, including this Seventeenth Supplemental
Indenture, being herein called the "Indenture"), for the purpose of
subjecting to the lien of the Indenture certain additional property
heretofore and hereafter acquired by the Company, creating additional
series of First Mortgage Bonds, and amending and supplementing the
Indenture in certain respects.
4. There have been issued under the Indenture various
series of First Mortgage Bonds designated as Series A through P,
inclusive, and Series R, of which
<PAGE> 438
$69,716,434 in aggregate principal amount are outstanding as of March
31, 1990. The bonds of Series A, B, C, H and J have been retired.
5. The Company desires to create a new series of bonds
to be issued under and secured by the Indenture to be designated as
"First Mortgage Bonds, Series Q, 9.75%, due April 30, 2020", to be
limited to $20,000,000 in aggregate principal amount.
6. All things necessary to make the Series Q bonds, when
duly executed by the Company and certified and delivered by the
Trustee and issued, valid, binding and legal obligations of the
Company entitled to the benefit and security of the Indenture, and to
make this Seventeenth Supplemental Indenture a valid and binding
instrument in accordance with its terms and for the purposes herein
expressed, have been done and performed; and the issue of Series Q
bonds, as herein provided, has been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
The Company, in order better to secure the principal of and interest
(and premium, if any) on all of the bonds of the Company at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions in the
Indenture contained, has heretofore irrevocably granted, conveyed, mortgaged,
warranted, and granted a security interest to, the Trustees, and by these
presents does hereby irrevocably grant, convey, mortgage, warrant to, the
Trustees and each of them, and to their successors in said trust forever, and
grant a security interest in, the property described as follows:
I. All lands and rights and interests therein (including
fixtures), both fee and leasehold, now owned or hereafter acquired by
the Company, including, without limitation, those real properties more
specifically described in Schedule A hereto, and all improvements
thereto and thereon;
II. All gas distribution systems, pipelines, plants,
buildings, machinery and equipment now owned or hereafter acquired by
the Company, and all improvements now owned or hereafter acquired by
the Company;
-2-
<PAGE> 439
III. All rights appertaining to any and all the foregoing
property, and all gas purchase contracts and other contracts, rights
and franchises, and all leases, indeterminate permits, certificates of
convenience and necessity, rights of way, easements, privileges,
tenements, appurtenances, licenses and permits used by or useful to
the Company in the operation of its business, whether now owned or
hereafter acquired, and, subject to the provisions of Section 7.01 of
the Indenture, all income and earnings arising out of the mortgaged
property, including rents, issues and profit arising during any period
of redemption and prior to the execution of an absolute deed pursuant
to a foreclosure or other proceedings to enforce the lien of the
Indenture; and
IV. All property, real, personal and mixed, whether or
not hereinabove or in Schedule A specifically described, which the
Company now owns and all such property which it may hereafter acquire.
Subject to such liens and encumbrances as are of the character
specified in Section 3.09 of the Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not
specifically pledged under the Indenture;
B. All stocks, bonds and securities not specifically
pledged under the Indenture;
C. All merchandise held for resale and consumable
materials and supplies;
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment
(excluding any such inventory constituting a part of the operating
system).
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Indenture, without preference or priority of
any series of bonds or of any bonds within a series over any of the other bonds
by reason of priority of time of maturity or of the negotiation thereof or
otherwise.
-3-
<PAGE> 440
ARTICLE 2
SERIES Q BONDS
Section 2.01. Creation of Series Q Bonds. There is hereby created
for issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $20,000,000, to be designated as "First Mortgage Bonds,
Series Q, 9.75%, Due April 30, 2020" (herein called "Series Q bonds"). The
Series Q bonds shall, subject to the provisions of Section 1.13 of the
Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature April 30, 2020, and shall bear
interest at the annual rate of 9.75% payable semiannually on April 30 and
November 30 in each year until the principal thereof shall have become due and
payable and shall bear interest on any overdue principal and (to the extent
permitted by law) on any overdue installment of interest, at the rate of 11.75%
per annum, the interest on each Series Q bond to be payable at the principal
office of the Trustee in Chicago, Illinois, or, at the option of the person
entitled thereto, in accordance with the instructions of such person submitted
in writing to the Company and the Trustee.
Section 2.02. Form of Series Q Bonds. The Series Q bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$100,000 and multiples thereof, to the extent practicable, substantially in the
form set forth in Exhibit A hereto, with appropriate insertions, omissions and
changes, approved by the President of the Company and the Trustee, as may be
appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series Q Bonds. The Series Q bonds
shall be subject to redemption only as hereinafter provided:
(a) Series Q bonds are required to be redeemed on each
Series Q sinking fund payment date through application of cash
deposited with the Trustee for the sinking fund for the Series Q bonds
provided for in Section 2.04 hereof, together with interest accrued
thereon to the date fixed for redemption.
(b) The Series Q bonds may be redeemed at any time or
from time to time prior to April 30, 2010, in whole or in part, at the
option of the Company, by payment of the principal amount of the
Series Q bonds, or portion thereof, to be redeemed, together with
interest accrued thereon to the date of such prepayment, together with
a premium equal to the Make-Whole Amount. As used herein the term
"Make-Whole Amount" shall mean, in connection with any redemption of
Series Q bonds, the excess, if any, of (i) the aggregate present value
as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to
the date of prepayment) that would have been payable in respect of
each such dollar if such redemption had not been made, determined by
discounting such amounts by an amount equal to the sum of (x) the
Reinvestment Rate plus (y) 50 basis points on a semi-annual basis from
the respective dates on which they would have been payable to the date
of redemption, over (ii) 100% of the principal amount of the
outstanding Series Q bonds being redeemed. If the Reinvestment Rate
plus 50 basis points is equal to or higher than 9.75%, the Make-Whole
Amount shall be zero. "Reinvestment Rate" shall mean the arithmetic
-4-
<PAGE> 441
mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption
"Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the Weighted Average Life to Maturity
of the principal of the Series Q bonds being redeemed. If no maturity
exactly corresponds to such Weighted Average Life to Maturity, yields
for each of the two published maturities corresponding to such
Weighted Average Life to Maturity most closely to and next higher than
Weighted Average Life to Maturity and most closely to and next lower
than the Weighted Average Life to Maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated from such yields on a straight line basis,
rounding in each of such relevant periods to the nearest month. For
the purpose of calculating the Reinvestment Rate, (i) the most recent
Statistical Release published not more than seven and not less than
five days prior to the date of determination of the Make-Whole Amount
hereunder shall be used, and (ii) if for any particular maturity that
is set forth in such Statistical Release more than one (1) yield to
maturity is set forth therein for the applicable date, then the
arithmetic mean of the lowest yield under the heading "This Week" and
the highest yield under the heading "Last Week" in such Statistical
Release shall be used for purposes of calculating the Reinvestment
Rate. "Statistical Release" shall mean the statistical release
designated "H.15(519)" or any successor publication which is published
weekly by the Federal Reserve System and which establishes yields on
actively traded U.S. Government Securities adjusted to constant
maturities or, if such statistical release is not published at the
time of any determination hereunder, then such other reasonably
comparable Index which shall be designated by the holders of 66-2/3%
in aggregate principal amount of the outstanding Series Q bonds.
"Weighted Average Life to Maturity" of the principal amount of the
Series Q bonds being redeemed shall mean, as of the time of any
determination thereof, the number of years obtained by dividing the
then Remaining Dollar-Years of such principal by the aggregate amount
of such principal. The term "Remaining Dollar-Years" of such
principal shall mean the amount obtained by (i) multiplying (1) the
remainder of (A) the amount of principal of the Series Q bonds that
would have become due under Section 2.04 hereof on each scheduled
sinking fund payment date for the Series Q bonds if such redemption
had not been made, less (B) the amount of principal on the Series Q
bonds scheduled to become due on each such sinking fund date after
giving effect to such redemption, by (2) the number of years
(calculated to the nearest one-twelfth) which will elapse between the
date of determination and each such sinking fund payment date, and
(ii) totaling the products obtained in (i). Anything in the Indenture
to the contrary notwithstanding, the Company will give written notice
to each holder of outstanding Series Q bonds and to the Trustee by
telecopy or other same day written communication, setting forth the
computation and amount of the Make-Whole Amount payable in connection
with any redemption of Series Q bonds under the provisions of this
Section 2.03(b), at least three days prior to the date fixed for such
redemption.
(c) The Series Q bonds may be redeemed at any time or
from time to time on or after April 30, 2010, in whole or in part, at
the option of the Company, by payment of the applicable percentage of
the principal amount of the Series Q bonds,
-5-
<PAGE> 442
or portion thereof, to be redeemed as set forth in the following table under
the heading "Redemption Price", together with interest accrued thereon to the
date of such prepayment:
<TABLE>
<CAPTION>
IF REDEEMED IN THE
TWELVE-MONTH PERIOD REDEMPTION
ENDING APRIL 30, PRICE
<S> <C>
2011 103.0259%
2012 102.6897%
2013 102.3535%
2014 102.0173%
2015 101.6811%
2016 101.3449%
2017 101.0087%
2018 100.6725%
2019 100.3362%
2020 100%
</TABLE>
(d) The Series Q bonds may be redeemed by application of
cash deposited with the Trustee in accordance with the provisions of
Section 3.14 or 7.05 of the Indenture at any time or from time to
time, in whole or in part, by payment of the principal amount of the
Series Q bonds, or portion thereof, to be redeemed, together with
interest accrued thereon to the date of redemption and, in the case of
a redemption of the Series Q bonds pursuant to the provisions of said
Section 7.05 (except as a result of cash deposited with the Trustee
pursuant to Section 7.04 of the Indenture), together with the
Make-Whole Amount.
Section 2.04. Series Q Bond Sinking Fund. So long as any Series Q
bonds shall remain outstanding, the Company shall deposit with the Trustee as
and for a sinking fund for the retirement of Series Q bonds cash in the amount
of $1,000,000 on April 30 of each of the years 2001 through 2019, inclusive,
and the remaining unpaid principal amount of the Series Q bonds on April 30,
2020 (each such date being herein called a "Series Q sinking fund payment
date"). Upon any prepayment of the Series Q bonds, other than a scheduled
deposit and prepayment contemplated by this Section 2.04, the principal amount
of each scheduled deposit for the retirement of the Series Q bonds under this
Section 2.04 on or after the date of such prepayment shall be reduced by
multiplying such scheduled deposit by a fraction, the numerator of which is the
amount of such unscheduled prepayment, and the denominator of which is the
aggregate unpaid principal amount of the Series Q bonds outstanding immediately
prior to such unscheduled deposit.
Section 2.05. Issuance of Series Q Bonds. Upon the execution and
delivery of this Seventeenth Supplemental Indenture and upon compliance with
the provisions of the
-6-
<PAGE> 443
Indenture, the Company may execute and deliver to the Trustee, and the Trustee
shall certify and deliver to, or upon the written order of, the President or
Treasurer of the Company, Series Q bonds in an aggregate principal amount not
exceeding $20,000,000.
ARTICLE 3
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES Q BONDS
Section 3.01. Applicability to Series Q Bonds. The provisions of
this Article 3 shall be applicable to the Series Q bonds. Except as
hereinafter provided and subject to the provisions of Article 2 above, Series Q
bonds shall be redeemed upon the notice, in the manner and with the effect
provided in Article 4 of the Indenture.
Section 3.02. Sinking Fund Redemptions. In the case of all sinking
fund redemptions on or before the 30th day prior to each sinking fund payment
date, the Trustee shall proceed to select for redemption in the manner provided
herein, Series Q bonds in the aggregate principal amount which are redeemable
with the cash to be deposited with the Trustee on the next following sinking
fund payment date, and in the name of the Company shall give notice as may be
required by Article 4 of the Indenture of the redemption for the sinking fund
on such sinking fund payment date of the Series Q bonds so selected.
All sinking fund payments received by the Trustee pursuant to Section
2.04 hereof shall be held by the Trustee as security for the Series Q bonds for
which such sinking fund payment is made, and shall be applied by the Trustee on
the respective sinking fund payment dates to the redemption of outstanding
Series Q bonds in the manner and with the effect specified herein; and the
Company shall, in each case prior to the date fixed for redemption thereof, pay
to the Trustee, in cash, all unpaid interest accrued on the Series Q bonds to
be redeemed through the operation of said sinking fund to the date fixed for
redemption.
Section 3.03. Pro Rata Application; Direct Payment.
Notwithstanding any provisions of Article 1 and Article 4 of the Indenture:
(a) If less than all outstanding Series Q bonds are to be
redeemed, the aggregate principal amount of Series Q bonds to be
redeemed shall be apportioned by the Trustee pro rata among the
holders of the Series Q bonds, in the proportion that the aggregate
principal amount of such bonds so to be redeemed held by each such
holder bears to the aggregate principal amount of all Series Q bonds
then outstanding with adjustments, to the extent practicable, to
equalize for any prior redemptions not in such proportion, and
(b) in the event of the payment of a portion of the
principal amount of any Series Q bond, payment shall be made to or
upon the order of the holder of such bond without requiring
presentation or surrender of such bond, if there shall then or
theretofore be filed with the Trustee a certificate of the Treasurer
of the Company stating that the holder of such bond (or the person for
whom such holder is a nominee) and the Company have entered into a
written agreement that payment of any
-7-
<PAGE> 444
portion of such bond may be made to the registered holder thereof
without presentation or surrender thereof, that such holder will not
sell, transfer or otherwise dispose of any such bond unless it shall
have caused notation to be made thereon of the portion of the
principal amount thereof which has been paid and the last interest
payment date to which interest has been paid and prior to the delivery
thereof such bond shall have been presented to the Trustee for
inspection or surrendered in exchange for a new Series Q bond or bonds
in aggregate principal amount equal to the unpaid portion of the bond
presented to the Trustee.
ARTICLE 4
ADDITIONAL COVENANTS
Section 4.01. Application of Section 1.15 of Indenture. So long as
any Series Q bonds remain outstanding, the provision of Section 1.15 of the
Indenture (relating to mutilated, lost, stolen, or destroyed bonds) which are
expressed to be applicable to bonds of Series A shall also be applicable to the
Series Q bonds and the holders thereof.
Section 4.02. Withdrawal of Deposited Moneys. The Company
covenants and agrees that so long as any Series Q bonds remain outstanding,
moneys deposited with the Trustee pursuant to Sections 3.14, 7.02, 7.03 or 7.04
of the Indenture will be withdrawn by the Company within, in the case of moneys
deposited pursuant to Sections 7.02, 7.03 and 7.04, two years, or in the case
of moneys deposited pursuant to Section 3.14, twelve months, from the date of
deposit of such moneys if the Company shall have a Gross Amount of Property
Additions available for such purpose.
Section 4.03. Restricted Payments. The Company covenants and
agrees that so long as any Series Q bonds remain outstanding, the Company will
not declare or pay any dividends on shares of its common stock (except
dividends payable solely in shares of common stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares of common stock (except out of
the net cash proceeds derived from the issuance of other shares of common
stock), or make any other distribution on shares of common stock (such
non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions, being hereinafter called "Restricted
Payments"), unless after giving effect thereto the aggregate amount of all such
Restricted Payments made during the period from December 31, 1988 to and
including the date of the making of the Restricted Payment in question does not
exceed the sum of $15,038,000 plus (or minus in case of a deficit) the amount
of Consolidated Net Income Available for Common Stock Dividends for such
period.
Section 4.04. Merger and Consolidation. The Company covenants and
agrees that so long as any Series Q bonds remain outstanding, any of the
provisions of Article 8 of the Indenture to the contrary notwithstanding,
Company will not consolidate or merge with or into, or convey or transfer all
or substantially all of the mortgaged property to, any other entity if at the
time thereof or after giving affect thereto any "event of default" (as defined
in Section 6.01 of the Indenture) shall or would exist.
-8-
<PAGE> 445
Section 4.05. Certain Definitions. As used in this Article 4, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends"
for any period shall mean the net income of the Company and its
Subsidiaries for such period available for dividends on capital stocks
after deducting therefrom dividends paid and accrued during such
period on preferred stock, determined on a consolidated basis in
accordance with generally accepted accounting principles; provided,
however, that no effect shall be given to any gains or losses or other
additions or deductions arising by reason of the issue, purchase,
sale, conversion or retirement by the Company or any Subsidiary of any
of its or their securities, or arising by reason of any purchases,
sales, write-ups, write-downs, increase or decrease in book value, or
other transactions or changes in respect of capital assets, tangible
or intangible, and deductions for income taxes shall be adjusted by
giving effect to any change in the amount thereof resulting from the
elimination of any of the capital transactions or changes referred to
above.
"Subsidiary" shall mean any corporation of which more than 50%
of the outstanding Voting Stock is owned by the Company. As used
herein the term "Voting Stock" shall mean stock or similar interests
of any class or classes (however designated) the holders of which are
generally and ordinarily, in the absence of contingencies, entitled to
vote for the election of the directors (or persons performing similar
functions) of such corporation.
ARTICLE 5
AMENDMENTS OF INDENTURE
Section 5.01. Amendments of Certain Definitions. Each holder of
Series Q bonds and bonds of any Series created and Issued after the date of the
original Issuance of the Series Q bonds agrees by its acceptance of such bonds,
that effective on the earlier of (i) the date on which the amendments of the
Indenture set forth in this Section 5.01 have been duly consented to in writing
by the holders of not less than 66-2/3% in aggregate principal amount of each
series of bonds issued and outstanding other than Series Q bonds, Series R
bonds and bonds of any other series created and issued-under the Indenture
after the date of original issuance of the Series Q bonds, or (ii) the date on
which no bonds of any series Issued under the Indenture and outstanding
immediately prior to the date on which the Series Q bonds were originally
issued and the holders of which have not consented to such amendments as
contemplated in foregoing clause (i) hereof remain outstanding:
(a) The figure "200%" appearing in Section 2.02 and in
Section 2.03(b)(2) of the Indenture shall be amended to read "175%".
(b) The first sentence of the definition of "Net
Earnings" appearing in Section 12.05(o) of the Indenture shall be
amended to read as follows: "Net Earnings of the Company for any
period means the amount obtained by deducting from the gross earnings
derived from operation of the mortgaged property all operating
-9-
<PAGE> 446
expenses of the Company, and by adding to the remainder all net
non-operating earnings other than any portion of such earnings which
represents the net gain arising from any sale or other disposition of
capital assets, or any other items, which would, in accordance with
generally accepted accounting principles, require separate treatment
or classification in the preparation of the Company's financial
statements as "extraordinary items".
(c) The definition of "Property Additions" appearing in
Section 12.05(f) of the Indenture shall be amended by changing the
period appearing at the end thereof to be a comma and by adding to the
end of said definition, the following: "and the term "Property
Additions" shall also include all Cushion Gas (as used herein the term
"Cushion Gas" shall mean that minimum volume of natural gas necessary
to be retained in a gas storage reservoir owned by the Company in
order to maintain the integrity and viability of the geological strata
and the horizons of a gas reservoir for the storage of natural gas)".
(d) Clause C of that portion of the granting clauses of
the Indenture (and of each supplemental indenture thereto which
contains in any granting clauses therein the following clause C)
entitled "But Specifically Reserving And Excepting from the following
grant" is hereby amended to read as follows: "C. All merchandise held
for resale and consumable materials and supplies (other than Cushion
Gas as defined in clause (c) of Section 5.01 of the Sixteenth
Supplemental Indenture to the Original Indenture);".
ARTICLE 6
MISCELLANEOUS
Section 6.01. Incorporation of Original Indenture. This
Seventeenth Supplemental Indenture shall be construed in connection with and as
a part of the Original Indenture and all terms, conditions and covenants
contained in the Original Indenture, except as restricted in the Original
Indenture to bonds of another series or as herein otherwise provided, shall
apply to and be deemed to be for the equal benefit, security and protection of
the Series Q bonds and the holders thereof. All terms used in this Seventeenth
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 6.02. Successors and Assigns. Whenever in this Seventeenth
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this Seventeenth Supplemental Indenture
contained shall bind and inure to the benefit of the respective successors and
assigns of such parties, whether so expressed or not.
Section 6.03. Multiple Counterparts. This Seventeenth Supplemental
Indenture may be simultaneously executed in any number of counterparts and all
said counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
-10-
<PAGE> 447
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its Senior Vice President and
Treasurer and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary, and the said Continental Bank, National
Association, to evidence its acceptance of the trust hereby created and in it
reposed, has caused its corporate name to be hereunto subscribed by one of its
Vice Presidents and its corporate seal to be affixed and attested by a Trust
Officer, and said M. J. Kruger, to evidence his acceptance of the trust hereby
created and in him reposed, has hereunto subscribed his name and affixed his
seal, all as of the day and year first above written.
[CORPORATE SEAL] UNITED CITIES GAS COMPANY
By /s/ JAMES B. FORD
------------------------------------
Senior Vice President and Treasurer
ATTEST:
/s/ GLENN R. KING
-------------------------------
Secretary
Witnesses as to United Cities
Gas Company:
/s/ TERESA CHURCH
-------------------------------
/s/ DEBRA S. JOHNSON
-------------------------------
[CORPORATE SEAL] CONTINENTAL BANK, NATIONAL
ASSOCIATION, AS TRUSTEE
By /s/ J.C. MULL, JR.
--------------------------
Vice President
ATTEST:
/s/ GEORGE N. REAVES
-------------------------------
Trust Officer
-11-
<PAGE> 448
Witnesses as to Continental Bank,
National Association and M. J. Kruger:
/s/ RUSSELL C. BERGMAN
-------------------------------
/s/ MARTHA L. SANDERS
-------------------------------
/s/ M. J. KRUGER
-------------------------------
M. J. Kruger
-12-
<PAGE> 449
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
I, Pamela Todd, Notary Public in and for the County and State
aforesaid, do hereby certify that on this 4th day of May, 1990, personally
appeared before me James B. Ford and Glenn R. King, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who, being by me duly sworn, did say that they are Senior
Vice President and Treasurer and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and
the Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said Senior Vice
President and Treasurer and Secretary acknowledged said instrument to be their
free and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
4th day of May, 1990.
/s/ PAMELA TODD
--------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: November 21, 1992
<PAGE> 450
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, Debra A. Cole, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 10th day of May, 1990, personally
appeared before me J.C. Mull, Jr. and George N. Reaves to me personally known,
and personally known to me to be the same persons whose names are subscribed to
the foregoing instrument, who being by me duly sworn, did say that they are
Vice President and Trust Officers respectively, of Continental Bank National
Association, a national banking association organized and existing under the
national banking laws of the United States of America, that the seal affixed to
the above and foregoing instrument is the corporate seal of said association
and that said instrument was signed by them and sealed and delivered in behalf
of said association by authority of its Board of Directors duly given, and the
said J.C. Mull, Jr. and George N. Reaves acknowledged said instrument to be
their free and voluntary act and deed and the free and voluntary act and deed
of said association for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
10th day of May, 1990.
/s/ DEBRA A. COLE
------------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: January 22, 1994
-2-
<PAGE> 451
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, Debra A. Cole, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 10th day of May, 1990, personally
appeared before me M. J. Kruger, personally known to me to be the person
described in and who executed and whose name is subscribed to the foregoing
instrument, and acknowledged that he signed and delivered the said instrument
as his free and voluntary act and deed for the uses and purposes therein set
forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
10th day of May, 1990.
/s/ DEBRA A. COLE
---------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: January 22, 1994
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
Personally appeared before me Teresa Church, who, being duly sworn,
says that she saw the corporate seal of UNITED CITIES GAS COMPANY affixed to
the foregoing instrument and that she also saw James B. Ford, Senior Vice
President and Treasurer, and Glenn R. King, Secretary of said United Cities Gas
Company, sign and attest the same, and that she with Debra S. Johnson,
witnessed the execution and delivery thereof as the act and deed of said United
Cities Gas Company.
/s/ TERESA CHURCH
---------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 4th day of May, 1990.
/s/ PAMELA TODD
Notary Public in and for the
County and State aforesaid
My commission expires: November 21, 1992
-3-
<PAGE> 452
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me Russell C. Bergman, who, being duly
sworn, says that he saw the corporate seal of CONTINENTAL BANK, NATIONAL
ASSOCIATION affixed to the foregoing instrument and that he also saw J.C. Mull,
Jr., Vice President, and George N. Reaves, Trust Officer of said Continental
Bank, National Association, sign and attest the same, and that he, with Martha
L. Sanders, witnessed the execution and delivery thereof as the act and deed of
said Continental Bank, National Association.
/s/ RUSSELL C. BERGMAN
------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 10th day of May, 1990.
/s/ DEBRA A. COLE
- --------------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: January 22, 1994
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me Russell C. Bergman, who, being duly
sworn, says that he saw the within named M. J. Kruger sign, seal, and as his
act and deed, deliver the foregoing instrument and that he, with Martha L.
Sanders, witnessed the execution thereof.
/s/ RUSSELL C. BERGMAN
----------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 10th day of May, 1990.
/s/ DEBRA A. COLE
- --------------------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: January 22, 1994
-4-
<PAGE> 453
EXHIBIT A
Form of Series Q Bonds and Trustee's Certificate
UNITED CITIES GAS COMPANY
No. RQ- $___________
FIRST MORTGAGE BOND, SERIES Q, 9.75%, DUE APRIL 30, 2020
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to
or registered assigns, on _________________ or earlier as hereinafter referred
to, the sum ____________ of at the principal office in Chicago, Illinois, of
CONTINENTAL BANK, NATIONAL ASSOCIATION, formerly known as CONTINENTAL ILLINOIS
NATIONAL BANK AND TRUST COMPANY OF CHICAGO (hereinafter, with its successors in
the trusts under the indenture mentioned below, generally called the
"Trustee"), or at the principal office of its successor in said trusts, and to
pay to said payee, or registered assigns, interest thereon, from the date
hereof, at the rate of 9.75% per annum, at said office, semi-annually on April
30 and November 30 in each year until the principal sum hereof shall have
become due and payable and to pay interest on any overdue principal and (to the
extent permitted by law) on any overdue installment of interest, at the rate of
11.75% per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series Q, 9.75%, Due
April 30, 2020, all such bonds of this series and all other series being issued
or to be issued under and subject to the provisions of a certain Indenture of
Mortgage, dated as of July 15, 1959 (hereinafter with all indentures
supplemental thereto generally called the "Indenture"), by and between the
Company and City National Bank and Trust Company of Chicago (which has been
succeeded by Continental Bank, National Association, formerly known as
Continental Illinois National Bank and Trust Company of Chicago as Corporate
Trustee) and R. Emmett Hanley (who has been succeeded by M. J. Kruger), as
Trustees, to which Indenture, an executed counterpart of which is on file with
the Trustee, reference is hereby made for a description of the property
mortgaged, a statement of the nature and extent of the security thereby
afforded, the terms and conditions upon which release of property covered by
the Indenture may be made, the terms and conditions upon which bonds of all
series are or are to be issued and secured, the rights and remedies under the
Indenture of the holders of said bonds, the terms and conditions upon which the
Indenture may be modified or amended, and the rights and obligations under the
Indenture of the Company and of said Trustees; but neither the foregoing
reference to the Indenture, nor any provision of this bond or of the Indenture,
shall affect or permit the impairment of the absolute, unconditional and
unalterable obligation of the Company to pay, at the maturity date herein
provided, the principal of and interest on this bond as herein provided.
A-1
<PAGE> 454
The Company is obligated to redeem a portion of the principal amount
of this bond pursuant to a sinking fund established for the benefit of the
holders of the bonds of Series Q and certain optional redemptions of the Series
Q bonds may be made by the Company upon the terms and conditions more fully set
forth in the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, In the manner, at the times, to
the extent and with that effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, may
be called for redemption and payment prior to maturity, on notice given or
waived as provided In the Indenture, at the applicable redemption price
specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
A-2
<PAGE> 455
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated ____________, 1990.
UNITED CITIES GAS COMPANY
By __________________________________
President
ATTEST:
_____________________________
Secretary
A-3
<PAGE> 456
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds, of the series designated therein,
referred to in the within-mentioned Indenture.
CONTINENTAL BANK NATIONAL
ASSOCIATION, AS TRUSTEE
By __________________________________
Authorized Officer
A-4
<PAGE> 457
SCHEDULE A
To Seventeenth Supplemental Indenture
Dated as of April 1, 1990
Descriptions of Additional Mortgage Property
The properties referred to in the granting clauses of this
Supplemental Indenture include the parcels of real estate or interests therein
more specifically described below. Said description is not intended, however,
to limit or impair the scope or intention of the general description in the
granting clauses of the Original Indenture.
REAL ESTATE AND INTEREST THEREIN
Those certain tracts, prices or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
State of Georgia
In Muscogee County, Georgia:
(1) All that lot, tract and parcel of land, situate lying and
being in Columbus, Muscogee County, Georgia and being a part of Land Lot 100 of
the Coweta Reserve of said County, more particularly described as follows:
BEGINNING at a concrete monument located at the
Southeastern-most terminus of the intersection of the Southwesterly
margin of Buena Vista Road and the Southeasterly margin of Andrews
Road and from said point of beginning running thence South 63 degrees
24 minutes East along said Southwesterly margin of Buena Vista Road
for a distance of 25.0 feet to an iron pin; running thence South 26
degrees 31 minutes West for a distance of 73.89 feet to an iron pin;
running thence North 58 degrees 21 minutes West for a distance of
80.71 feet to an iron pin located on the Southeasterly margin of
Andrews Road; running thence North 42 degrees 44 minutes 30 seconds
East along said Southeasterly margin of Andrews Road for a distance of
40.0 feet to an iron pin; running thence North 84 degrees 06 minutes
East along the Southeasterly margin of the intersection of Andrews
Road and Buena Vista Road for a distance of 52.65 feet to the concrete
monument which marks the point of beginning of the property hereby
conveyed.
The property hereby conveyed is shown upon a map or plat
entitled "Part of Land Lot 100, Coweta Reserve, Columbus, Muscogee
County, Georgia", prepared by A.B. Moon, Jr., registered land
surveyor, under date of September 30, 1987, a copy of which is of
record in Plat Book 104, Folio 51 in the offices of the Clerk of
Superior Court of Muscogee County, Georgia.
<PAGE> 458
The aforementioned property is subject to a 30 foot access
easement granted by J&S, Inc. to Doyle K. Pair by instrument dated
December 22, 1981, a copy of which is recorded in Deed Book 2075, Page
22 in the Offices of the aforementioned Clerk.
(2) All that lot, tract and parcel of land situate, lying and
being in Columbus, Muscogee County, Georgia and being part of Land Lot 62 of
the 9th District of said State and County and being more particularly described
as follows, to wit: Commence at the iron stake which marks the intersection of
the Southeasterly margin of Ramp "D" of the Columbus Manchester Expressway and
the Northeasterly margin of J.R. Allen Parkway and from said iron stake running
thence North 22 degrees 06 minutes 50 seconds East along said Southeasterly
mean of Ramp "D" Columbus Manchester Expressway a distance of 20.69 feet to an
iron stake; running thence South 53 degrees 04 minutes 03 seconds East a
distance of 35.29 feet to an iron stake; running thence South 36 degrees 55
minutes 57 seconds West a distance of 20.0 feet to an iron stake; running
thence North 53 degrees 04 minutes 03 seconds West along said Northeasterly
margin of J.R. Allen Parkway a distance of 30.0 feet to the iron stake which
marks the point of beginning of the property herein conveyed.
The above described property is designated as "Proposed Natural Gas
Regulator Station" as shown on a survey entitled "Survey for United Cities Gas
Company, Part of Land Lot 62, 9th District, Columbus, Muscogee County, Georgia"
prepared by Moon, Meeks & Patrick, Inc. under date of June 16, 1987.
The above described property is subject to all valid easements and
restrictive covenants, if any, of record.
Commonwealth of Virginia
In Smyth County, Virginia:
(1) That certain tract or parcel of land situated in the Marion
District of Smyth County, Virginia, and described as follows, to wit:
BEGINNING at the intersection of the East line of Route 617
and the Southern line of East Tennessee Natural Gas Company's right of
way and running thence with the Southern line of East Tennessee
Natural Gas Company's right of way 20 feet to a point; thence running
in a Southern direction in a line parallel with Route 617, 20 feet to
a point; thence in a Western direction in a line parallel with East
Tennessee Natural Gas Company's right of way 20 feet to a point; and
thence with the East right of way line of Route 617 in a Northern
direction 20 feet to the point of beginning.
Being the same property conveyed to Colonial Natural Gas
Company, a Virginia corporation, by deed from Cannie M. Stone, widow,
Margaret Gay S. Lambert and Roy S. Lambert, her husband, and Elsie S.
Arnold and Bernard L. Arnold, her husband, dated November 1, 1967,
recorded November 8, 1967, Clerk's Office, Circuit Court, Smyth
County, Virginia, in Deed Book 223, page 607.
-2-
<PAGE> 459
(2) That certain tract or parcel or land located in the Marion
District of Smyth County, Virginia, and described as follows, to wit:
Beginning at a point on the Eastern right-of-way line of
State Route 617 and the divisional property line between a 20 foot by
20 foot lot owned by United Cities Energy Company, as referenced in
Deed Book 223, Page 607, and Roy B. Lambert, said point being S 12
degrees 15' E a distance of 20.00 feet from an iron pin at the
intersection of the Southern right-of-way line of East Tennessee
Natural Gas Company and the Eastern right-of-way line of State Route
617, said point also being approximately 480 feet North of the
intersection of State Route 622; thence with the divisional line
between Lambert and United Cities Energy Company N 77 degrees 45' E a
distance of 20.00 feet to a point; thence N 12 degrees 15' W a
distance of 20.00 feet to a point on the Southern right-of-way line of
East Tennessee Natural Gas Company; thence with a new line crossing
Lambert and being with said right-of-way of East Tennessee Natural Gas
Company N 77 degrees 45' E a distance of 30.00 to an iron pin; thence
leaving said Southern right-of-way line of East Tennessee Natural Gas
Company and continuing across Lambert S 12 degrees 15' E a distance of
50.00 feet to an iron pin; thence S 77 degrees 45' W a distance of
50.00 feet to an iron pin on the Eastern right-of-way line of State
Route 617; thence with said right-of-way line of State Route 617 N 12
degrees 15' W a distance of 30.00 feet to the point of beginning,
containing 0.048 acres more or less, and as more particularly shown on
plat entitled "Plat made for: Roy B. Lambert showing Survey Property
to be conveyed to United Cities Gas Company" dated March 14, 1989,
prepared by Joe T. Gollehon, C.L.S., recorded herewith and attached to
the deed next hereinafter mentioned.
United Cities Gas Company agrees to allow Roy B. Lambert to use the
above described property for access to adjacent property of Roy B. Lambert and
for parking vehicles as long as same does not interfere with the operation,
maintenance, or access to the facilities of the said Company.
Being the same property conveyed to United Cities Gas Company by deed
from Roy B. Lambert dated August 16, 1989, recorded August 18, 1989, Clerk's
Office, Circuit Court, Smyth County, Virginia, in Deed Book 395, page 594.
The aforesaid parcels, for assessment purposes, have been combined.
The real estate is now designated as Map Parcel 48-(l)-1A.
-3-
<PAGE> 460
AGREEMENT
June 19, 1990
To the Institutional Investor Named
in Schedule I attached hereto.
Re:
$20,000,000 First Mortgage Bonds,
Series Q 9.75% Due April 30, 2020 of
United Cities Gas Company
Gentlemen:
Reference is made to the captioned First Mortgage Bonds (the "Series Q
Bonds") issued on the date hereof, under and secured by the Indenture of
Mortgage dated as of July 15, 1959 between the Company and City National Bank
and Trust Company of Chicago (which has been succeeded by Continental Bank,
National Association, and R. Emmett Hanley (who has been succeeded by M.J.
Kruger)), as Trustees, as amended and supplemented by seventeen supplemental
indentures thereto, including a seventeenth Supplemental Indenture dated as of
April 1, 1990 (the "Supplement"), said Indenture of Mortgage and all
supplemental indentures thereto being herein collectively referred to as (the
"Indenture").
Section 2.01 of the Supplement and the form of Series Q Bond attached
as Exhibit A to the Supplement incorrectly provide that semi-annual interest
payments on the Series Q Bonds will be made on April 30 and November 30. The
correct interest payment dates are April 30 and October 30 in each year. In
consideration for your separate purchases of the Series Q Bonds on the date
hereof and in order to cure the inconsistency set forth in the Supplement, the
Company agrees as follows:
1. Interest on the Series Q Bonds shall be payable
semi-annually on April 30 and October 30 in each year in accordance
with the executed Series Q Bond delivered to you on the date hereof.
2. In connection with the execution and delivery of the
next supplement to the Indenture, Section 2.01 of the Supplement and
the form of Series Q Bond attached thereto as Exhibit A shall be
amended by deleting the reference set forth therein to "November 30"
and substituting in lieu thereof a reference to "October 30."
<PAGE> 461
June 19, 1990
Page 2
Each of you may rely on this Agreement and this Agreement shall inure
to the benefit of your successors and assigns including any subsequent
transferee of the Series Q Bonds.
Very truly yours,
JRF/or
UNITED CITIES GAS COMPANY
By /s/ JAMES B. FORD
--------------------------------------
Its Senior Vice President & Treasurer
---------------------------------
A receipt of the foregoing Agreement is hereby acknowledged this 19th
day of June, 1990.
CONTINENTAL BANK, National Association,
as Trustee
By /s/ J. C. MULL, JR.
-------------------------------------
Its Vice President
------------------------------
<PAGE> 462
[CONFORMED COPY]
EIGHTEENTH SUPPLEMENTAL INDENTURE
Dated as of June 1, 1991
----------------------
UNITED CITIES GAS COMPANY
to
CONTINENTAL BANK, NATIONAL ASSOCIATION
and
M. J. KRUGER,
TRUSTEES
----------------------
Supplementing and Amending Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series S,
8.71%, Due June 1, 1997 and
First Mortgage Bonds, Series T,
9.32%, Due June 1, 2021
<PAGE> 463
THIS EIGHTEENTH SUPPLEMENTAL INDENTURE, dated as of June 1, 1991, made
by and between UNITED CITIES GAS COMPANY, a corporation organized under the
laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), whose address is 5300 Maryland Way, Brentwood, Tennessee
37027, party of the first part, and CONTINENTAL BANK, NATIONAL ASSOCIATION,
formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, a national banking association having its office at 231 South LaSalle
Street, Chicago, Illinois 60697 (hereinafter called the "Trustee"), and M. J.
KRUGER, residing in the City of Chicago, Illinois (the Trustee and M. J. Kruger
being hereinafter collectively referred to as the "Trustees"), parties of the
second part.
RECITALS:
The background of this Eighteenth Supplemental Indenture is:
1. The Company heretofore executed and delivered to City National
Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees, its
Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes referred
to as the "Original Indenture"), providing for the issuance thereunder from
time to time of First Mortgage Bonds of the Company, issueable in one or more
Series, and wherein and whereby the Company did grant, convey, mortgage,
warrant to, the said Trustees, and each of them, and their respective
successors and assigns, and create a security interest in, certain property of
the Company in said Original Indenture as more particularly described therein
for the security of all First Mortgage Bonds issued and to be issued
thereunder.
2. On September 1, 1961, City National Bank and Trust Company of
Chicago was merged with Continental Illinois National Bank and Trust Company of
Chicago, now known as Continental Bank, National Association, a national
banking association, which thereupon became corporate trustee under the
Indenture as provided therein, and on October 15, 1966, Ray F. Myers became
individual trustee under the Indenture as successor to R. Emmett Hanley who
resigned, and on March 15, 1981, M. J. Kruger became individual trustee under
the Indenture as successor to Ray F. Myers who resigned.
3. The Company has heretofore executed and delivered seventeen
supplemental indentures to the Original Indenture, designated as First through
Seventeenth (the Original Indenture and all supplemental indentures, including
this Eighteenth Supplemental Indenture, being herein called the "Indenture"),
for the purpose of subjecting to the lien of the Indenture certain additional
property heretofore and hereafter acquired by the Company, creating additional
Series of First Mortgage Bonds, and amending and supplementing the Indenture in
certain respects.
4. There have been issued under the Indenture various Series of
First Mortgage Bonds designated as Series A through R, inclusive, of which
$87,436,703.00 in
<PAGE> 464
aggregate principal amount are outstanding as of April 30, 1991. The bonds of
Series A, B, C, H and J have been retired.
5. The Company desires to create two new Series of bonds to be
issued under and secured by the Indenture to be designated as "First Mortgage
Bonds, Series S, 8.71%, Due June 1, 1997", to be limited to $7,000,000 in
aggregate principal amount, and as "First Mortgage Bonds, Series T, 9.32%, Due
June 1, 2021", to be limited to $18,000,000 in aggregate principal amount,
respectively.
6. All things necessary to make the Series S bonds and the Series
T bonds when duly executed by the Company and certified and delivered by the
Trustee and issued, valid, binding and legal obligations of the Company
entitled to the benefit and security of the Indenture, and to make this
Eighteenth Supplemental Indenture a valid and binding instrument in accordance
with its terms and for the purposes herein expressed, have been done and
performed; and the issue of Series S bonds and Series T bonds, as herein
provided, has been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
The Company in order better to secure the principal of and interest
(and premium, if any) on all of the bonds of the Company at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions in the
Indenture contained, has heretofore irrevocably granted, conveyed, mortgaged,
warranted, and granted a security interest to, the Trustees, and by these
presents does hereby irrevocably grant, convey, mortgage, warrant to, the
Trustees and each of them, and to their successors in said trust forever, and
grant a security interest in, the property described as follows:
I. All lands and rights and interests therein (including
fixtures), both fee and leasehold, now owned or hereafter acquired by the
Company, including, without limitation, those real properties more specifically
described in Schedule A hereto, and all improvements thereto and thereon;
II. All gas distribution systems, pipelines, plants, buildings,
machinery and equipment now owned or hereafter acquired by the Company, and all
improvements now owned or hereafter acquired by the Company;
-2-
<PAGE> 465
III. All rights appertaining to any and all of the foregoing
property, and all gas purchase contracts and other contracts, rights and
franchises, including, without limitation, those more specifically described in
Schedule A hereto, and all leases, indeterminate permits, certificates of
convenience and necessity, rights of way, easements, privileges, tenements,
appurtenances, licenses and permits used by or useful to the Company in the
operation of its business, whether now owned or hereafter acquired, and,
subject to the provisions of Section 7.01 of the Indenture, all income and
earnings arising out of the mortgaged property, including rents, issues and
profit arising during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture; and
IV. All property, real, personal and mixed, whether or not
hereinabove or in Schedule A specifically described, which the Company now owns
and all such property which it may hereafter acquire.
Subject to such liens and encumbrances as are of the character
specified in Section 3.09 of the Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not
specifically pledged under the Indenture;
B. All stocks, bonds and securities not specifically pledged
under the Indenture;
C. All merchandise held for resale and consumable materials and
supplies;
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment (excluding any
such inventory constituting a part of the operating system).
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Indenture, without preference or priority of
any series of bonds or of any bonds within a series over any of the other bonds
by reason of priority of time of maturity or of the negotiation thereof or
otherwise.
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ARTICLE 2
SERIES S BONDS
Section 2.01. Creation of Series S Bonds. There is hereby created for
issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $7,000,000, to be designated as "First Mortgage Bonds,
Series S, 8.71%, Due June 1, 1997" (herein called "Series S bonds"). The
Series S bonds shall, subject to the provisions of Section 1.13 of the Original
Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature June 1, 1997, and shall bear interest
at the annual rate of 8.71% payable semi-annually on June 1 and December 1 in
each year until the principal thereof shall have become due and payable and
shall bear interest on any overdue principal and (to the extent permitted by
law) on any overdue installment of interest, at the rate of 10.71% per annum,
the interest on each Series S bond to be payable at the principal office of the
Trustee in Chicago, Illinois, or, at the option of the person entitled thereto,
in accordance with the instructions of such person submitted in writing to the
Company and the Trustee.
Section 2.02. Form of Series S Bonds. The Series S bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$100,000 and multiples thereof, to the extent practicable, substantially in the
form set forth in Exhibit A hereto, with appropriate insertions, omissions and
changes, approved by the President of the Company and the Trustee, as may be
appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series S Bonds. The Series S bonds shall
be subject to redemption as hereinafter provided:
(a) Series S bonds are required to be redeemed on each
Series S sinking fund payment date through application of cash
deposited with the Trustee for the sinking fund for the Series S
bonds provided for in Section 2.04 hereof, together with interest
accrued thereon to the date fixed for redemption.
(b) The Series S bonds may be redeemed at any time or from
time to time prior to June 1, 1996, in whole or in part, at the option
of the Company, by payment of the principal amount of the Series S
bonds, or portion thereof, to be redeemed, together with interest
accrued thereon to the date of such prepayment, together with a
premium equal to the Make-Whole Amount. As used herein the term
"Make-Whole Amount" shall mean, in connection with any redemption of
Series S bonds, the excess, if any, of (i) the aggregate present value
as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to
the date of prepayment) that would have been payable in respect of
each such dollar if such redemption had not been made, determined by
discounting such amounts by an amount equal to the sum of (x) the
Reinvestment Rate plus (y) 50 basis points on a semi-annual basis from
the respective dates on which they would have been payable to the date
of redemption, over (ii) 100% of the principal amount of the
outstanding Series S bonds being redeemed. If the Reinvestment Rate
plus 50 basis points is equal to or higher than 8.71%, the Make-Whole
Amount shall be zero. "Reinvestment Rate" shall mean the arithmetic
mean of the yields under the respective
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headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of the
principal of the Series S bonds being redeemed. If no
maturity exactly corresponds to such Weighted Average Life to
Maturity, yields for each of the two published maturities
corresponding to such Weighted Average Life to Maturity most
closely to and next higher than the Weighted Average Life to
Maturity and most closely to and next lower than the Weighted
Average Life to Maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall
be interpolated from such yields on a straight line basis,
rounding in each of such relevant periods to the nearest
month. For the purpose of calculating the Reinvestment Rate,
(i) the most recent Statistical Release published not more
than seven and not less than five days prior to the date of
determination of the Make-Whole Amount hereunder shall be
used, and (ii) if for any particular maturity that is set
forth in such Statistical Release more than one (1) yield to
maturity is set forth therein for the applicable date, then
the arithmetic mean of the lowest yield under the heading
"This Week" and the highest yield under the heading "Last
Week" in such Statistical Release shall be used for purposes
of calculating the Reinvestment Rate. "Statistical Release"
shall mean the statistical release designated "H.15(519)" or
any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on
actively traded U.S. Government Securities adjusted to
constant maturities or, if such statistical release is not
published at the time of any determination hereunder, then
such other reasonably comparable index which shall be
designated by the holders of 66-2/3% in aggregate principal
amount of the outstanding Series S bonds. "Weighted Average
Life to Maturity" of the principal amount of the Series S
bonds being redeemed shall mean, as of the time of any
determination thereof, the number of years obtained by
dividing the then Remaining Dollar-Years of such principal by
the aggregate amount of such principal. The term "Remaining
Dollar-Years" of such principal shall mean the amount obtained
by (1) multiplying (1) the remainder of (A) the amount of
principal of the Series S bonds that would have become due
under Section 2.04 hereof on each scheduled Series S sinking
fund payment date for the Series S bonds if such redemption
had not been made, less (B) the amount of principal on the
Series S bonds scheduled to become due on each such Series S
sinking fund payment date after giving effect to such
redemption, by (2) the number of years (calculated to the
nearest one-twelfth) which will elapse between the date of
determination and each such Series S sinking fund payment
date, and (ii) totaling the products obtained in (i).
Anything in the Indenture to the contrary notwithstanding, the
Company will give written notice to each holder of outstanding
Series S bonds and to the Trustee by telecopy or other same
day written communication, setting forth the computation and
amount of the Make-Whole Amount payable in connection with any
redemption of Series S bonds under the provisions of this
Section 2.03(b), at least three days prior to the date fixed
for such redemption.
(c) At the option of the Company, the Series S bonds may be
redeemed at any time and from time to time on or after June 1,
1996 at a price equal to 100% of the
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principal amount thereof together with interest accrued
thereon to the date of redemption.
(d) The Series S bonds may be redeemed by application of
cash deposited with the Trustee in accordance with the
provisions of Section 3.14 or 7.05 of the Indenture at any
time or from time to time, in whole or in part, by payment of
the principal amount of the Series S bonds, or portion
thereof, to be redeemed, together with interest accrued
thereon to the date of redemption, and, in the case of a
redemption of the Series S bonds pursuant to the provisions of
said Section 3.14 or 7.05 (except as a result of cash
deposited with the Trustee pursuant to Section 7.04 of the
Indenture), together with the Make-Whole Amount.
Section 2.04. Series S Bond Sinking Fund. So long as any Series S
bonds shall remain outstanding, the Company shall deposit with the Trustee as
and for a sinking fund for the retirement of Series S bonds cash in the amount
of $3,500,000 on June 1 of each of the years 1996 and 1997 (each such date
being herein called a "Series S sinking fund payment date"), or such lesser
amount equal to the principal balance then remaining on all outstanding Series
S bonds as of such Series S sinking fund payment date in the event that such
remaining principal balance is less than $3,500,000.
Section 2.05. Issuance of Series S Bonds. Upon the execution and
delivery of this Eighteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the
Trustee, and the Trustee shall certify and deliver to, or upon the written
order of, the President or Treasurer of the Company, Series S bonds in an
aggregate principal amount not exceeding $7,000,000.
ARTICLE 3
SERIES T BONDS
Section 3.01. Creation of Series T Bonds. There is hereby created for
issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $18,000,000, to be designated as "First Mortgage Bonds,
Series T, 9.32%, Due June 1, 2021" (herein called "Series T bonds"). The
Series T bonds shall, subject to the provisions of Section 1.13 of the Original
Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature June 1, 2021, and shall bear interest
at the rate of 9.32% payable semi-annually on June 1 and December 1 in each
year until the principal thereof shall have become due and payable and shall
bear interest on any overdue principal and (to the extent permitted by law) on
any overdue installment of interest, at the rate of 11.32% per annum, the
interest on each Series T bond to be payable at the principal office of the
Trustee in Chicago, Illinois, or, at the option of the person entitled thereto,
in accordance with the instructions of such person submitted in writing to the
Company and the Trustee.
Section 3.02. Form of Series T Bonds. The Series T bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$100,000 and multiples thereof, to the extent practicable, substantially in the
form set forth in Exhibit B hereto, with
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appropriate insertions, omissions and changes, approved by the President of the
Company and the Trustee, as may be appropriate to reflect the terms of such
bonds.
Section 3.03. Redemption of Series T Bonds. The Series T bonds shall
be subject to redemption as hereinafter provided:
(a) The Series T bonds are required to be redeemed on each
Series T sinking fund payment date through application of cash
deposited with the Trustee for the sinking fund for the Series
T bonds provided for in Section 3.04 hereof, together with
interest accrued thereon to the date fixed for redemption.
(b) The Series T bonds may be redeemed at any time or from
time to time prior to June 1, 2013, in whole or in part, at
the option of the Company, by payment of the principal amount
of the Series T bonds, or portion thereof, to be redeemed,
together with interest accrued thereon to the date of such
prepayment, together with a premium equal to the Make-Whole
Amount. As used herein the term "Make-Whole Amount" shall
mean, in connection with any redemption of Series T bonds, the
excess, if any, of (i) the aggregate present value as of the
date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest
accrued to the date of prepayment) that would have been
payable in respect of each such dollar if such redemption had
not been made, determined by discounting such amounts by an
amount equal to the sum of (x) the Reinvestment Rate plus (y)
50 basis points on a semi-annual basis from the respective
dates on which they would have been payable to the date of
redemption, over (ii) 100% of the principal amount of the
outstanding Series T bonds being redeemed. If the
Reinvestment Rate plus 50 basis points is equal to or higher
than 9.32%, the Make-Whole Amount shall be zero. "Reinvestment
Rate" shall mean the arithmetic mean of the yields under the
respective headings "This Week" and "Last Week" published in
the Statistical Release under the caption "Treasury Constant
Maturities" for the maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of the
principal of the Series T bonds being redeemed. If no
maturity exactly corresponds to such Weighted Average Life to
Maturity, yields for each of the two published maturities
corresponding to such Weighted Average Life to Maturity most
closely to and next higher than the Weighted Average Life to
Maturity and most closely to and next lower than the Weighted
Average Life to Maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall
be interpolated from such yields on a straight line basis,
rounding in each of such relevant periods to the nearest
month. For the purpose of calculating the Reinvestment Rate,
(i) the most recent Statistical Release published not more
than seven and not less than five days prior to the date of
determination of the Make-Whole Amount hereunder shall be
used, and (ii) if for any particular maturity that is set
forth in such Statistical Release more than one (1) yield to
maturity is set forth therein for the applicable date, then
the arithmetic mean of the lowest yield under the heading
"This Week" and the highest yield under the heading "Last
Week" in such Statistical Release shall be used for purposes
of calculating the Reinvestment Rate. "Statistical Release"
shall mean the statistical release designated "H.15(519)" or
any successor publication which is
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published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. Government
Securities adjusted to constant maturities or, if such
statistical release is not published at the time of any
determination hereunder, then such other reasonably comparable
index which shall be designated by the holders of 66-2/3% in
aggregate principal amount of the outstanding Series T bonds.
"Weighted Average Life to Maturity" of the principal amount of
the Series T bonds being redeemed shall mean, as of the time
of any determination thereof, the number of years obtained by
dividing the then Remaining Dollar-Years of such principal by
the aggregate amount of such principal. The term "Remaining
Dollar-Years" of such principal shall mean the amount obtained
by (i) multiplying (1) the remainder of (A) the amount of
principal of the Series T bonds that would have become due
under Section 3.04 hereof on each scheduled Series T sinking
fund payment date for the Series T bonds if such redemption
had not been made, less (B) the amount of principal on the
Series T bonds scheduled to become due on each such Series T
sinking fund payment date after giving effect to such
redemption, by (2) the number of years (calculated to the
nearest one-twelfth) which will elapse between the date of
determination and each such Series T sinking fund payment
date, and (ii) totaling the products obtained in (i).
Anything in the Indenture to the contrary notwithstanding, the
Company will give written notice to each holder of outstanding
Series T bonds and to the Trustee by telecopy or other same
day written communication, setting forth the computation and
amount of the Make-Whole Amount payable in connection with any
redemption of Series T bonds under the provisions of this
Section 3.03(b), at least three days prior to the date fixed
for such redemption.
(c) The Series T bonds may be redeemed at any time or from
time to time on or after June 1, 2013, in whole or in part, at
the option of the Company, by payment of the applicable
percentage of the principal amount of the Series T bonds, or
portion thereof, to be redeemed as set forth in the following
table under the heading "Redemption Price", together with
interest accrued thereon to the date of such prepayment:
<TABLE>
<CAPTION>
If Redeemed in the twelve- Redemption
month period ending May 31 Price
-------------------------- -----------
<S> <C>
2014 102.2497%
2015 101.9283%
2016 101.6069%
2017 101.2855%
2018 100.9641%
2019 100.6428%
2020 100.3214%
2021 100%
</TABLE>
(d) The Series T bonds may be redeemed by application of
cash deposited with the Trustee in accordance with the
provisions of Section 3.14 or 7.05 of the Indenture at any
time or from time to time, in whole or in part, by payment of
the
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principal amount of the Series T bonds, or portion thereof, to
be redeemed, together with interest accrued thereon to the
date of redemption, and, in the case of a redemption of Series
T bonds pursuant to the provisions of said Section 3.14 or
7.05 (except as a result of cash deposited with the Trustee
pursuant to Section 7.04 of the Indenture), together with the
Make-Whole Amount.
Section 3.04. Series T Bond Sinking Fund. (a) So long as any
Series T bonds shall remain outstanding, the Company shall deposit with the
Trustee as and for a sinking fund for the retirement of Series T bonds cash in
the amount of $1,125,000 on June 1 of each of the years 2006 through 2021,
inclusive (each such date being herein called a "Series T sinking fund payment
date"), or such lesser amount equal to the principal balance then remaining on
all outstanding Series T bonds as of such Series T sinking fund payment date in
the event that such remaining principal balance is less than $1,125,000.
(b) The Company may at its option increase the amount deposited in
the Series T bonds sinking fund on any Series T sinking fund payment date by an
additional amount not exceeding the amount the Company is required to deposit
on such Series T sinking fund payment date; provided, however, the aggregate
principal amount of Series T bonds redeemed pursuant to this paragraph (b)
shall not over the life of the Series T bonds exceed $4,500,000. The right of
the Company to increase a sinking fund deposit on any Series T sinking fund
payment date shall be noncumulative. All deposits made by the Company under
this paragraph (b) shall be in units of $100,000 or an integral multiple in
excess thereof.
(c) The aggregate principal amount of Series T bonds redeemed
pursuant to the foregoing paragraph (b) of this Section 3.04 shall be credited
against the amount which the Company is required to deposit in the Series T
bonds sinking fund on each Series T sinking fund payment date in the inverse
chronological order of such sinking fund dates.
Section 3.05. Issuance of Series T Bonds. Upon the execution and
delivery of this Eighteenth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the
Trustee, and the Trustee shall certify and deliver to, or upon the written
order of, the President or Treasurer of the Company, Series T bonds in an
aggregate principal amount not exceeding $18,000,000.
ARTICLE 4
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES S AND T BONDS
Section 4.01. Applicability to Series S and T bonds. The
provisions of this Article 4 shall be applicable to the Series S and T bonds.
Except as hereinafter provided and subject to the provisions of Articles 2 and
3, respectively, above, Series S and T bonds shall be redeemed upon the notice,
in the manner and with the effect provided in Article 4 of the Original
Indenture.
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Section 4.02. Sinking Fund Redemptions. In the case of all sinking
fund redemptions, on or before the 30th day prior to each sinking fund payment
date, the Trustee shall proceed to select for redemption in the manner provided
herein, bonds of the series for which a sinking fund payment is to be made in
the aggregate principal amount which are redeemable with the cash to be
deposited with the Trustee on the next following sinking fund payment date, and
in the name of the Company shall give notice as may be required by Article 4 of
the Original Indenture of the redemption for the sinking fund on such sinking
fund payment date of the bonds so selected.
All sinking fund payments received by the Trustee shall be held by the
Trustee as security for the bonds of the series for which such sinking fund
payment is made, and shall be applied by the Trustee on the respective sinking
fund payment dates to the redemption of outstanding bonds of such series in the
manner and with the effect specified herein; and the Company shall, in each
case prior to the date fixed for redemption thereof, pay to the Trustee, in
cash, all unpaid interest accrued on the bonds to be redeemed through the
operation of said sinking fund to the date fixed for redemption.
Section 4.03. Pro Rata Application; Direct Payment.
Notwithstanding any provisions of Article 1 and Article 4 of the Original
Indenture:
(a) if less than all outstanding Series S bonds or Series
T bonds are to be redeemed, the aggregate principal amount of
Series S bonds or Series T bonds to be redeemed shall be
apportioned by the Trustee pro rata among the holders of the
series to be redeemed, in the proportion that the aggregate
principal amount of such bonds of the series to be redeemed
held by each such holder bears to the aggregate principal
amount of bonds of such series to be redeemed then outstanding
with adjustments, to the extent practicable, to equalize for
any prior redemptions not in such proportion, and
(b) in the event of the payment of a portion of the
principal amount of any Series S bond or Series T bond,
payment shall be made to or upon the order of the holder of
such bond without requiring presentation or surrender of such
bond, if there shall then or theretofore be filed with the
Trustee a certificate of the Treasurer of the Company stating
that the holder of such bond (or the person for whom such
holder is a nominee) and the Company have entered into a
written agreement that payment of any portion of such bond may
be made to the registered holder thereof without presentation
or surrender thereof, that such holder will not sell, transfer
or otherwise dispose of any such bond unless it shall have
caused notation to be made thereon of the portion of the
principal amount thereof which has been paid and the last
interest payment date to which interest has been paid and
prior to the delivery thereof such bond shall have been
presented to the Trustee for inspection or surrendered in
exchange for a new bond or bonds of the same series in
aggregate principal amount equal to the unpaid portion of the
bond presented to the Trustee.
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ARTICLE 5
ADDITIONAL COVENANTS
Section 5.01. Application of Section 1.15 of Original Indenture.
The Company covenants and agrees that so long as any Series S bonds or Series T
bonds remain outstanding, the provision of Section 1.15 of the Original
Indenture (relating to mutilated, lost, stolen, or destroyed bonds) which are
expressed to be applicable to bonds of Series A shall also be applicable to the
Series S bonds and the Series T bonds and the holders thereof.
Section 5.02. Withdrawal of Deposited Moneys. The Company
covenants and agrees that so long as any Series S bonds or Series T bonds
remain outstanding, moneys deposited with the Trustee pursuant to Sections
3.14, 7.02, 7.03 or 7.04 of the Original Indenture will be withdrawn by the
Company within, in the case of moneys deposited pursuant to Sections 7.02, 7.03
and 7.04, two years or, in the case of moneys deposited pursuant to Section
3.14, twelve months, from the date of deposit of such moneys if the Company
shall have a Gross Amount of Property Additions available for such purpose.
Section 5.03. Restricted Payments. The Company covenants and
agrees that so long as any Series S bonds or Series T bonds remain outstanding,
the Company will not declare or pay any dividends on shares of its common stock
(except dividends payable solely in shares of common stock), or directly or
indirectly purchase, redeem or otherwise acquire any shares of common stock
(except out of the net cash proceeds derived from the issuance of other shares
of common stock), or make any other distribution on shares of common stock
(such nonexcepted declarations, payments, purchases, redemptions or other
acquisitions and distributions being hereinafter called "Restricted Payments"),
unless after giving effect thereto the aggregate amount of all such Restricted
Payments made during the period from December 31, 1988 to and including the
date of the making of the Restricted Payment in question does not exceed the
sum of $15,038,000 plus (or minus in case of a deficit) the amount of
Consolidated Net Income Available for Common Stock Dividends for such period.
Section 5.04. Merger and Consolidation. The Company covenants and
agrees that so long as any Series S bonds or Series T bonds remain outstanding,
any of the provisions of Article 8 of the Original Indenture to the contrary
notwithstanding, Company will not consolidate or merge with or into, or convey
or transfer all or substantially all of the mortgaged property to, any other
entity if at the time thereof or after giving effect thereto any "event of
default" (as defined in Section 6.01 of the Original Indenture) shall or would
exist.
Section 5.05. Certain Definitions. As used in this Article 5, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends"
for any period shall mean the net income of the Company and its
Subsidiaries for such period available for dividends on capital stock,
after deducting therefrom dividends paid and accrued during such
period on preferred stock, determined on a consolidated basis in
accordance with generally accepted accounting principles; provided,
however, that no
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<PAGE> 474
effect shall be given to any gains or losses or other additions or
deductions arising by reason of the issue, purchase, sale, conversion
or retirement by the Company or any Subsidiary of any of its or their
securities, or arising by reason of any purchases, sales, write-ups,
write-downs, increase or decrease in book value, or other transactions
or changes in respect of capital assets, tangible or intangible, and
deductions for income taxes shall be adjusted by giving effect to any
change in the amount thereof resulting from the elimination of any of
the capital transactions or changes referred to above.
"Subsidiary" shall mean any corporation of which more than 50%
of the outstanding Voting Stock is owned by the Company. As used
herein the term "Voting Stock" shall mean stock or similar interests
of any class or classes (however designated) the holders of which are
generally and ordinarily, in the absence of contingencies, entitled to
vote for the election of the directors (or persons performing similar
functions) of such corporation.
ARTICLE 6
AMENDMENTS OF INDENTURE
Section 6.01. Amendments to Seventeenth Supplemental Indenture.
Section 2.01 of the Seventeenth Supplemental Indenture dated as of April 1,
1990 (the "Seventeenth Supplement"), amending and supplementing the Original
Indenture and creating a series of bonds designated as "First Mortgage Bonds,
Series Q, 9.75%, Due April 30, 2020," and the form of Series Q bond attached to
the Seventeenth Supplement as Exhibit A thereto, are hereby amended by deleting
the reference set forth therein to "November 30" and substituting in lieu
thereof a reference to "October 30."
Section 6.02. Amendments of Certain Definitions. Each holder of
Series S bonds and Series T bonds and bonds of any series created and issued
after the date of the original issuance of the Series S bonds and the Series T
bonds agrees by its acceptance of such bonds, that effective on the earlier of
(i) the date on which the amendments of the Indenture set forth in this Section
6.02 have been duly consented to in writing by the holders of not less than
66-2/3% in aggregate principal amount of each series of bonds issued and
outstanding other than Series Q bonds, Series R bonds, Series S bonds and
Series T bonds and bonds of any other series created and issued under the
Indenture after the date of original issuance of the Series S bonds and Series
T bonds, or (ii) the date on which no bonds of any series issued under the
Indenture and outstanding immediately prior to the date on which the Series R
bonds were originally issued and the holders of which have not consented to
such amendments as contemplated in foregoing clause (i) hereof remain
outstanding:
(a) The figure "200%" appearing in Section 2.02 and in
Section 2.03(b)(2) of the Indenture shall be amended to read "175%."
(b) The first sentence of the definition of "Net
Earnings" appearing in Section 12.05(o) of the Indenture shall be
amended to read as follows: "Net Earnings of the Company for any
period means the amount obtained by deducting from the
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gross earnings derived from operation of the mortgaged property all
operating expenses of the Company, and by adding to the remainder all
net non-operating earnings other than any portion of such earnings
which represents the net gain arising from any sale or other
disposition of capital assets, or any other items, which would, in
accordance with generally accepted accounting principles, require
separate treatment or classification in the preparation of the
Company's financial statements as "extraordinary items".
(c) The definition of "Property Additions" appearing in
Section 12.05(f) of the Indenture shall be amended by changing the
period appearing at the end thereof to be a comma and by adding to the
end of said definition, the following: "and the term "Property
Additions" shall also include all Cushion Gas (as used herein the term
"Cushion Gas" shall mean that minimum volume of natural gas necessary
to be retained in a gas storage reservoir owned by the Company in
order to maintain the integrity and viability of the geological strata
and the horizons of a gas reservoir for the storage of natural gas)".
(d) Clause C of that portion of the granting clauses of
the Indenture (and of each supplemental indenture thereto which
contains in any granting clauses therein the following clause C)
entitled "But Specifically Reserving And Excepting from the following
grant" is hereby amended to read as follows: "C. All merchandise held
for resale and consumable materials and supplies (other than Cushion
Gas as defined in clause (c) of Section 5.01 of the Sixteenth
Supplemental Indenture to the Original Indenture);".
ARTICLE 7
MISCELLANEOUS
Section 7.01. Incorporation of Original Indenture. This Eighteenth
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in the
Original Indenture, except as restricted in the Original Indenture to bonds of
another Series or as herein otherwise provided, shall apply to and be deemed to
be for the equal benefit, security and protection of the Series S bonds and the
Series T bonds and the holders thereof. All terms used in this Eighteenth
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 7.02. Successors and Assigns. Whenever in this Eighteenth
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this Eighteenth Supplemental Indenture
contained shall bind and inure to the benefit of the respective successors and
assigns of such parties, whether so expressed or not.
Section 7.03. Multiple Counterparts. This Eighteenth Supplemental
Indenture may be simultaneously executed in any number of counterparts and all
said counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
-13-
<PAGE> 476
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its Senior Vice President and
Treasurer and its corporate seal to be hereunto affixed and attested by its
Secretary, and the said Continental Bank, National Association, to evidence its
acceptance of the trust hereby created and in it reposed, has caused its
corporate name to be hereunto subscribed by one of its Vice Presidents and its
corporate seal to be affixed and attested by a Trust Officer, and said M. J.
Kruger, to evidence his acceptance of the trust hereby created and in him
reposed, has hereunto subscribed his name and affixed his seal, all as of the
day and year first above written.
[CORPORATE SEAL] UNITED CITIES GAS COMPANY
By /s/ JAMES B. FORD
----------------------------------
Senior Vice President and Treasurer
ATTEST:
/s/ GLENN R. KING
- -------------------------------
Secretary
Witnesses as to United Cities Gas Company:
/s/ TERESA MORRIS
- -------------------------------
/s/ RUTH RODGERS
- -------------------------------
-14-
<PAGE> 477
[CORPORATE SEAL] CONTINENTAL BANK, NATIONAL ASSOCIATION,
as Trustee
By /s/ J. C. MULL, JR.
------------------------------------
Vice President
ATTEST:
/s/ RUSSELL C. BERGMAN
- ---------------------------------
Trust Officer
Witnesses as to Continental Bank,
National Association and M. J. Kruger:
/s/ S. KOSACHEWYCH
- ---------------------------------
/s/ MARTHA L. SANDERS /s/ M. J. KRUGER
- --------------------------------- ---------------------------------
M. J. Kruger
-15-
<PAGE> 478
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
I, Debra S. Johnson, a Notary Public in and for the County and
State aforesaid, do hereby certify that on this 24th day of May, 1991,
personally appeared before me James B. Ford and Glenn R. King, to me personally
known, and personally known to me to be the same persons whose names are
subscribed to the foregoing instrument, who, being by me duly sworn, did say
that they are Senior Vice President and Treasurer and Secretary, respectively,
of United Cities Gas Company, a corporation organized under the laws of the
State of Illinois and the Commonwealth of Virginia, that the seal affixed to
the above and foregoing instrument is the corporate seal of said corporation
and that said instrument was signed by them and sealed and delivered in behalf
of said corporation by authority of its Board of Directors duly given, and the
said Senior Vice President and Treasurer and Secretary acknowledged said
instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said corporation for the uses and purposes therein
set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal this 24th day of May, 1991.
/s/ DEBRA S. JOHNSON
-------------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: January 23, 1994
-16-
<PAGE> 479
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the County and
State aforesaid, do hereby certify that on this 29th day of May, 1991,
personally appeared before me J.C. Mull, Jr. and Russell C. Bergman, to me
personally known, and personally known to me to be the same persons whose names
are subscribed to the foregoing instrument, who being by me duly sworn, did say
that they are Vice President and Trust Officer, respectively, of Continental
Bank, National Association, a national banking association organized and
existing under the national banking laws of the United States of America, that
the seal affixed to the above and foregoing instrument is the corporate seal of
said association and that said instrument was signed by them and sealed and
delivered in behalf of said association by authority of its Board of Directors
duly given, and the said J.C. Mull, Jr. and Russell C. Bergman acknowledged
said instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said association for the uses and purposes therein
set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal this 29th day of May, 1991.
/s/ V. WASHINGTON
------------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: September 20, 1992
-17-
<PAGE> 480
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, V. Washington, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this 29th day of May,
1991, personally appeared before me M. J. Kruger, personally known to me to be
the person described in and who executed and whose name is subscribed to
the foregoing instrument, and acknowledged that he signed and delivered the
said instrument as his free and voluntary act and deed for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and
official seal this 29th day of May, 1991.
/s/ V. WASHINGTON
------------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: 9-20-92
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
Personally appeared before me Teresa Morris, who, being
duly sworn, says that she saw the corporate seal of UNITED CITIES GAS COMPANY
affixed to the foregoing instrument and that she also saw James B. Ford, Senior
Vice President and Treasurer, and Glenn R. King, Secretary of said United
Cities Gas Company, sign and attest the same, and that she, with Ruth Rodgers,
witnessed the execution and delivery thereof as the act and deed of said United
Cities Gas Company.
/s/ TERESA MORRIS
------------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 24th day of May, 1991.
/s/ DEBRA S. JOHNSON
- -----------------------------------
Notary Public in and for the County
and State aforesaid
My commission expires: January 23, 1994
-18-
<PAGE> 481
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me S. Kosachewych, who, being duly
sworn, says that she saw the corporate seal of the CONTINENTAL BANK, NATIONAL
ASSOCIATION affixed to the foregoing instrument and that she also saw J.C.
Mull, Jr., Vice President, and George N. Reaves, Trust Officer of said
Continental Bank, National Association, sign and attest the same, and that she,
with M.L. Sanders, witnessed the execution and delivery thereof as the act and
deed of the said Continental Bank, National Association.
/s/ S. KOSACHEWYCH
-----------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 29th day of May, 1991.
/s/ LUCILLE ATKINS
- -----------------------------------
Notary Public in and for the County
and State aforesaid
My commission expires: March 21, 1994
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me S. Kosachewych, who, being duly
sworn, says that she saw the within named M. J. Kruger sign, seal, and as his
act and deed, deliver the foregoing instrument and that she, with M.L.
Sanders, witnessed the execution thereof.
/s/ S. KOSACHEWYCH
-----------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 29th day of May, 1991.
/s/ LUCILLE ATKINS
- -----------------------------------
Notary Public in and for the County
and State aforesaid
My commission expires: March 21, 1994
-19-
<PAGE> 482
EXHIBIT A
FORM OF SERIES S BONDS AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RS- $
FIRST MORTGAGE BOND, SERIES S, 8.71%, DUE JUNE 1, 1997
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to
or registered assigns, on June 1, 1997, or earlier as hereinafter referred to,
the sum of
at the principal office in Chicago, Illinois, of CONTINENTAL BANK, NATIONAL
ASSOCIATION, formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO (hereinafter, with its successors in the trusts under the
indenture mentioned below, generally called the. "Trustee"), or at the
principal office of its successor in said trusts, and to pay to said payee, or
registered assigns, interest thereon, from the date hereof, at the rate of
8.71% per annum, at said office, semiannually on June 1 and December 1 in each
year until the principal sum hereof shall have become due and payable and to
pay interest on any overdue principal and (to the extent permitted by law) on
any overdue installment of interest, at the rate of 10.71% per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a Series designated First Mortgage Bonds, Series S, 8.71%, Due
June 1, 1997, all such bonds of this Series and all other Series being issued
or to be issued under and subject to the provisions of a certain Indenture of
Mortgage, dated as of July 15, 1959 (hereinafter with all indentures
supplemental thereto generally called the "Indenture"), by and between the
Company and City National Bank and Trust Company of Chicago (which has been
succeeded by Continental Bank, National Association, formerly known as
Continental Illinois National Bank and Trust Company of Chicago, as corporate
trustee (the "Trustee") and R. Emmett Hanley (who has been succeeded by M. J.
Kruger), as trustees (the Trustee and M.J. Kruger being hereinafter
collectively referred to as the "Trustees"), to which Indenture, an executed
counterpart of which is on file with the Trustee, reference is hereby made for
a description of the property mortgaged, a statement of the nature and extent
of the security thereby afforded, the terms and conditions upon which release
of property covered by the Indenture may be made, the terms and conditions upon
which bonds of all Series are or are to be issued and secured, the rights and
remedies under the Indenture of the holders of said bonds, the terms and
conditions upon which the Indenture may be modified or amended, and the rights
and obligations under the Indenture of the Company and of said Trustees; but
neither the foregoing reference to the Indenture, nor any provision of this
bond or of the Indenture, shall affect or permit the impairment of the
absolute,
<PAGE> 483
unconditional and unalterable obligation of the Company to pay, at the maturity
date herein provided, the principal of and interest on this bond as herein
provided.
The Company is obligated to redeem a portion of the principal amount of
this bond pursuant to a sinking fund established for the benefit of the holders
of the bonds of Series S and certain optional redemptions of the Series S bonds
may be made by the Company upon the terms and conditions more fully set forth
in the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, may
be called for redemption and payment prior to maturity, on notice given or
waived as provided in the Indenture, at the applicable redemption price
specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
A-2
<PAGE> 484
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated ____________________, 1991.
UNITED CITIES GAS COMPANY
By
_______________________________
President
ATTEST:
_______________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds, of the Series designated therein,
referred to in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL ASSOCIATION,
as Trustee
By
_________________________________________
Authorized Officer
A-3
<PAGE> 485
EXHIBIT B
FORM OF SERIES T BONDS AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. RT- $
FIRST MORTGAGE BOND, SERIES T, 9.32%, DUE JUNE 1, 2021
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to
or registered assigns, on June 1, 2021, or earlier as hereinafter referred to,
the sum of
at the principal office in Chicago, Illinois, of CONTINENTAL BANK, NATIONAL
ASSOCIATION, formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO (hereinafter, with its successors in the trusts under the
indenture mentioned below, generally called the "Trustee"), or at the principal
office of its successor in said trusts, and to pay to said payee, or
registered assigns, interest thereon, from the date hereof, at the rate of
9.32% per annum, at said office, semiannually on June 1 and December 1 in each
year until the principal sum hereof shall have become due and payable and to
pay interest on any overdue principal and (to the extent permitted by law) on
any overdue installment of interest, at the rate of 11.32% per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a Series designated First Mortgage Bonds, Series S, 9.32%, Due
June 1, 2021, all such bonds of this Series and all other Series being issued
or to be issued under and subject to the provisions of a certain Indenture of
Mortgage, dated as of July 15, 1959 (hereinafter with all indentures
supplemental thereto generally called the "Indenture"), by and between the
Company and City National Bank and Trust Company of Chicago (which has been
succeeded by Continental Bank, National Association, formerly known as
Continental Illinois National Bank and Trust Company of Chicago, as corporate
trustee (the "Trustee") and R. Emmett Hanley (who has been succeeded by M. J.
Kruger), as trustees (the Trustee and M.J. Kruger being hereinafter
collectively referred to as the "Trustees"), to which Indenture, an executed
counterpart of which is on file with the Trustee, reference is hereby made for
a description of the property mortgaged, a statement of the nature and extent
of the security thereby afforded, the terms and conditions upon which release
of property covered by the Indenture may be made, the terms and conditions upon
which bonds of all Series are or are to be issued and secured, the rights and
remedies under the Indenture of the holders of said bonds, the terms and
conditions upon which the Indenture may be modified or amended, and the rights
and obligations under the Indenture of the Company and of said Trustees; but
neither the foregoing reference to the Indenture, nor any provision of this
bond or of the Indenture, shall affect or permit the impairment of the
absolute,
<PAGE> 486
unconditional and unalterable obligation of the Company to pay, at the maturity
date herein provided, the principal of and interest on this bond as herein
provided.
The Company is obligated to redeem a portion of the principal amount of
this bond pursuant to a sinking fund established for the benefit of the holders
of the bonds of Series T and certain optional redemptions of the Series T bonds
may be made by the Company upon the terms and conditions more fully set forth
in the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with the effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, may
be called for redemption and payment prior to maturity, on notice given or
waived as provided in the Indenture, at the applicable redemption price
specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
B-2
<PAGE> 487
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated ___________________, 1991.
UNITED CITIES GAS COMPANY
By
____________________________________
President
ATTEST:
__________________________________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds, of the Series designated therein,
referred to in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL ASSOCIATION,
as Trustee
By
_________________________________________
Authorized Officer
B-3
<PAGE> 488
SCHEDULE A
TO EIGHTEENTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 1, 1991
Descriptions of Additional Mortgaged Property
The properties referred to in the granting clauses of this Supplemental
Indenture include the parcels of real estate or interests therein more
specifically described below. Said description is not intended, however, to
limit or impair the scope or intention of the general description in the
granting clauses of the Original Indenture.
PART I - REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
State of Missouri
In Pike County, Missouri:
(1) A tract of land lying in the Southwest one-fourth of the Southeast
Quarter of Section 23, Township 53 North, Range 3 West in Pike County,
Missouri, being in the Southwest corner of a 6.39 acre tract described
in Book 318 at page 6494 of the Deed Records of Pike County, Missouri;
said one (1) acre tract being more particularly described as
follows: Beginning at a point on the North-South quarter Section line
of said Section 23, which is 1023.3 feet South of the Northwest corner
of the aforementioned Southwest one-fourth of the Southeast Quarter;
thence North 68 Deg. 40 Min. East along and with the Northerly
right-of-way line of the Gulf, Mobile and Ohio Railroad, a distance of
246.11 feet to a point; thence North 00 Deg. 15 Min. West a distance
of 177 feet to a point; thence South 68 Deg. 40 Min. West a distance of
246.11 feet to the said North-South Quarter Section line; thence South
00 Deg. 15 Min. East a distance of 177 feet to the point of beginning.
(2) A part of Lot Number 241, in Block Number 31, in the City of Bowling
Green, in Pike County, Missouri, being a part of the Southeast corner
of said lot, fronting 40 feet on Court Street, and extending back 50
feet and lying immediately South of and adjoining that part of said lot
sold by P.P. Parker to the Phoenix Building Company. ALSO, the
following parcel of land lying South of and adjoining the tract above
described and being a part of the North halves of Lots Number 247 and
248, in Block Number 31, in the said City of Bowling Green, more
particularly described as follows, to wit: BEGINNING at the
Northeast corner of said Lot No. 248, and run thence West 120 feet;
thence South 17 1/2 feet; thence East 120 feet; thence North 17 1/2
feet to the place of beginning; EXCEPTING HOWEVER, from the foregoing
description a part of said Lot Number 241, Block 31, together with
building improvements, being the following described tract of ground,
to wit: BEGINNING at a point in the West line of Court Street 20 feet,
more or less, South of the North line of
<PAGE> 489
the Lot of 40 feet by 50 feet firstly herein described in the center
line of a wall dividing said tract of 40 feet by 50 feet; thence West
along said center line of said wall and a line prolonged Westwardly 50
feet to a point; thence North 20 feet, more or less, to the North line
of said tract 40 x 50 feet, firstly herein described; thence East 50
feet to the West line of Court Street; thence South along the West line
of Court Street 20 feet, more or less, to the place of beginning. The
wall hereinbefore described is established as a party wall, the title
of which said wall vests under the terms of previous deed for the
common benefit of the owners of the tract herein conveyed and the
owners of the tract located on the North side thereof, each to have
title in severalty to one-half with an easement for support in the
other half of said wall.
(3) All of the West Thirty-eight (38) feet of the South One-half (S 1/2) of
Lot Number Two Hundred Forty-seven (247) of Block No. Thirty-one (31)
of the original town of Bowling Green, Missouri, fronting Thirty-eight
(38) feet College Street and running back Sixty (60) feet.
PART II - DISTRIBUTION SYSTEMS AND PIPELINES
DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connection, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances, apparatus,
facilities, machinery and other property used or provided for use, in the
construction, maintenance, repair or operation thereof and together also with
all of the rights, privileges, rights-of-way, franchises, licenses, easements,
grants and permits with respect to the construction, maintenance, repair and
operation of such gas distribution systems, including, but not limited to, the
plants and systems owned and operated by the Company for the distribution and
sale of gas located in the following named cities, towns, or villages and
environs thereof as follows:
STATE OF KANSAS
GAS DISTRIBUTION SYSTEMS
MUNICIPALITY COUNTY
Bartlett Labette
Chetopa Labette
Edna Labette
STATE OF MISSOURI
GAS DISTRIBUTION SYSTEMS
MUNICIPALITY COUNTY
Bowling Green Pike
A-2
<PAGE> 490
PART III - GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions,
supplements or amendments thereof, between the Company (or a predecessor
corporation) and the respective suppliers named below providing for the supply
of natural gas to the Company for distribution and resale in the respective
cities and towns and areas adjacent thereto set forth under the caption
"Service Area:"
<TABLE>
<CAPTION>
SERVICE CONTRACT TERM OF
AREA SUPPLIER DATE EXPIRATION DATE
<S> <C> <C> <C>
Bartlett, Chetopa and Edna, Williams Natural Gas Company July 20, 1988 July 20, 1993
Kansas
Bowling Green, Missouri Pan Handle Eastern Pipeline April 1, 1989 April 1, 1999
Company
</TABLE>
PART IV - FRANCHISES
The following franchises granted to the Company, or to its predecessors
and assigned to the Company or acquired by the Company by merger of predecessors
into the Company, authorizing the construction, operation and maintenance of gas
distribution systems in the following cities or municipalities and all renewals,
extensions or substitutions thereof or therefor:
STATE OF KANSAS
TOWN EXPIRATION DATE
Bartlett December 8, 1995
Chetopa May 21, 1994
Edna December 4, 1995
STATE OF MISSOURI
TOWN EXPIRATION DATE
Bowling Green July 1, 2003
A-3
<PAGE> 491
[CONFORMED COPY]
NINETEENTH SUPPLEMENTAL INDENTURE
Dated as of May 1, 1992
UNITED CITIES GAS COMPANY
to
CONTINENTAL BANK, NATIONAL ASSOCIATION
and
M. J. KRUGER
TRUSTEES
Supplementing and Amending indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series U,
8.77% Due May 1, 2022
<PAGE> 492
THIS NINETEENTH SUPPLEMENTAL INDENTURE, dated as of May 1, 1992, made
by and between UNITED CITIES GAS COMPANY, a corporation organized under the
laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), whose address is 5300 Maryland Way, Brentwood, Tennessee
37027, party of the first part, and CONTINENTAL BANK, NATIONAL ASSOCIATION,
formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, a national banking association having its office at 231 South LaSalle
Street, Chicago, Illinois 60690 (hereinafter called the "Trustee"), and M. J.
KRUGER, residing in the City of Chicago, Illinois (the Trustee and M. J. Kruger
being hereinafter collectively referred to as the "Trustees"), parties of the
second part.
RECITALS:
The background of this Nineteenth Supplemental Indenture is:
1. The Company heretofore executed and delivered to City
National Bank and Trust Company of Chicago and R. Emmett Hanley, as
Trustees, its Indenture of Mortgage dated as of July 15, 1959
(hereinafter sometimes referred to as the "Original Indenture"),
providing for the issuance thereunder from time to time of First
Mortgage Bonds of the Company, issuable in one or more series, and
wherein and whereby the Company did grant, convey, mortgage, warrant
to, the said Trustees, and each of them, and their respective
successors and assigns, and create a security interest in, certain
property of the Company in said Original Indenture as more particularly
described therein for the security of all First Mortgage Bonds issued
and to be issued thereunder.
2. On September 1, 1961, City National Bank and Trust
Company of Chicago was merged with Continental Illinois National Bank
and Trust Company of Chicago, now known as Continental Bank, National
Association, a national banking association, which thereupon became
corporate trustee under the Indenture as provided therein, and on
October 15, 1966, Ray F. Myers became individual trustee under the
Indenture as successor to R. Emmett Hanley who resigned, and on March
15, 1981, M. J. Kruger became individual trustee under the Indenture as
successor to Ray F. Myers who resigned.
3. The Company has heretofore executed and delivered
eighteen supplemental indentures to the Original Indenture, designated
as First through Eighteenth (the Original Indenture and all
supplemental indentures, including this Nineteenth Supplemental
Indenture, being herein called the "Indenture"), for the purpose of
subjecting to the lien of the Indenture certain additional property
heretofore and hereafter acquired by the Company, creating additional
series of First Mortgage Bonds, and amending and supplementing the
Indenture in certain respects.
4. There have been issued under the Indenture various
series of First Mortgage Bonds designated as Series A through T,
inclusive, of which
<PAGE> 493
$110,658,750.00 in aggregate principal amount are outstanding as of
December 31, 1991. The bonds of Series A, B, C, H, J and O have
been retired as of December 31, 1991. The bonds of Series I have been
retired as of March 16, 1992 and the bonds of Series F and M have been
retired as of April 30, 1992.
5. The Company desires to create a new series of bonds to
be issued under and secured by the Indenture to be designated as "First
Mortgage Bonds, Series U, 8.77% due May 1, 2022", to be limited to
$20,000,000 in aggregate principal amount.
6. All things necessary to make the Series U bonds, when
duly executed by the Company and certified and delivered by the Trustee
and issued, valid, binding and legal obligations of the Company
entitled to the benefit and security of the Indenture, and to make this
Nineteenth Supplemental Indenture a valid and binding instrument in
accordance with its terms and for the purposes herein expressed, have
been done and performed; and the issue of Series U bonds, as herein
provided, has been in all respects duly authorized.
7. The holders of the requisite percentage in
principal amount of the outstanding First Mortgage Bonds have consented
to the amendments of the Indenture hereinafter set forth in Section
5.01 hereof and the Company has filed such consents with the Trustee.
Now, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
The Company in order better to secure the principal of and interest
(and premium, if any) on all of the bonds of the Company at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions in the
Indenture contained, has heretofore irrevocably granted, conveyed, mortgaged,
warranted, and granted a security interest to, the Trustees, and by these
presents does hereby irrevocably grant, convey, mortgage, warrant to, the
Trustees and each of them, and to their successors in said trust forever, and
grant a security interest in, the property described as follows:
I. All lands and rights and interests therein (including
fixtures), both fee and leasehold, now owned or hereafter acquired by
the Company, including, without
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<PAGE> 494
limitation, those real properties more specifically described in
Schedule A hereto, and all improvements thereto and thereon;
II. All gas distribution systems, pipelines, plants,
buildings, machinery and equipment now owned or hereafter acquired by
the Company, and all improvements now owned or hereafter acquired by
the Company;
III. All rights appertaining to any and all the foregoing
property, and all gas purchase contracts and other contracts, rights
and franchises, and all leases, indeterminate permits, certificates of
convenience and necessity, rights of way, easements, privileges,
tenements, appurtenances, licenses and permits used by or useful to the
Company in the operation of its business, whether now owned or
hereafter acquired, and, subject to the provisions of Section 7.01 of
the Indenture, all income and earnings arising out of the mortgaged
property, including rents, issues and profit arising during any period
of redemption and prior to the execution of an absolute deed pursuant
to a foreclosure or other proceedings to enforce the lien of the
Indenture; and
IV. All property, real, personal and mixed, whether or not
hereinabove or in Schedule A specifically described, which the Company
now owns and all such property which it may hereafter acquire.
Subject to such liens and encumbrances as are of the character
specified in Section 3.09 of the Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not
specifically pledged under the Indenture;
B. All stocks, bonds and securities not specifically
pledged under the Indenture;
C. All merchandise held for resale and consumable
materials and supplies (other than Cushion Gas as defined in clause (c)
of Section 5.01 of the Sixteenth Supplemental Indenture to the Original
Indenture);
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment (excluding
any such inventory constituting a part of the operating system).
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their
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<PAGE> 495
successors forever; subject, however, to the exclusions, encumbrances,
reservations, covenants, conditions, uses and trusts set forth in the
Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Indenture, without preference or priority of
any series of bonds or of any bonds within a series over any of the other bonds
by reason of priority of time of maturity or of the negotiation thereof or
otherwise.
ARTICLE 2
SERIES U BONDS
Section 2.01. Creation of Series U Bonds. There is hereby created
for issuance under the Indenture a series of bonds, limited to the aggregate
principal amount of $20,000,000, to be designated as "First Mortgage Bonds,
Series U, 8.77%, Due May 1, 2022" (herein called "Series U bonds"). The Series
U bonds shall, subject to the provisions of Section 1.13 of the Indenture, be
dated as of, and shall bear interest from the date of authentication and
delivery, shall mature May 1, 2022, and shall bear interest at the annual rate
of 8.77% payable semi-annually on May 1 and November 1 in each year until the
principal thereof shall have become due and payable and shall bear interest on
any overdue principal and (to the extent permitted by law) on any overdue
installment of interest, at the rate of 10.77% per annum, the interest on each
Series U bond to be payable at the principal office of the Trustee in Chicago,
Illinois, or, at the option of the person entitled thereto, in accordance with
the instructions of such person submitted in writing to the Company and the
Trustee.
Section 2.02. Form of Series U Bonds. The Series U bonds shall be
issued only as fully registered bonds without coupons, in denominations of
$100,000 and multiples thereof, to the extent practicable, substantially in the
form set forth in Exhibit A hereto, with appropriate insertions, omissions and
changes, approved by the President of the Company and the Trustee, as may be
appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series U Bonds. The Series U bonds
shall be subject to redemption only as hereinafter provided:
(a) Series U bonds are required to be redeemed on each
Series U sinking fund payment date through application of cash
deposited with the Trustee for the sinking fund for the Series U bonds
provided for in Section 2.04 hereof, together with interest accrued
thereon to the date fixed for redemption.
(b) The Series U bonds may be redeemed at any time or from
time to time prior to May 1, 2014, in whole or in part, at the option
of the Company, by payment of the principal amount of the Series U
bonds, or portion thereof, to be redeemed, together with interest
accrued thereon to the date of such prepayment, together with a premium
equal to the Make-Whole Amount. As used herein the term "Make-Whole
Amount" shall mean, in connection with any redemption of Series U
bonds, the excess,
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<PAGE> 496
if any, of (i) the aggregate present value as of the date of such
redemption of each dollar of principal being redeemed and the amount
of interest (exclusive of interest accrued to the date of prepayment)
that would have been payable in respect of each such dollar if such
redemption had not been made, determined by discounting such amounts by
an amount equal to the sum of (x) the Reinvestment Rate plus (y) 50
basis points on a semi-annual basis from the respective dates on which
they would have been payable to the date of redemption, over (ii) 100%
of the principal amount of the outstanding Series U bonds being
redeemed. If the Reinvestment Rate plus 50 basis points is equal to or
higher than 8.77%, the Make-Whole Amount shall be zero - .
"Reinvestment Rate" shall mean the arithmetic mean of the yields under
the respective headings "This Week" and "Last Week" published in the
Statistical Release under the caption "Treasury Constant Maturities"
for the maturity (rounded to the nearest month) corresponding to the
Weighted Average Life to Maturity of the principal of the Series U
bonds being redeemed. If no maturity exactly corresponds to such
Weighted Average Life to Maturity, yields for each of the two published
maturities corresponding to such Weighted Average Life to Maturity most
closely to and next higher than the Weighted Average Life to Maturity
and most closely to and next lower than the Weighted Average Life to
Maturity shall be calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be interpolated from such
yields on a straight line basis, rounding in each of such relevant
periods to the nearest month. For the purpose of calculating the
Reinvestment Rate (i) the most recent Statistical Release published not
more than seven and not less than five days prior to the date of
determination of the Make-Whole Amount hereunder shall be used, and
(ii) if for any particular maturity that is set forth in such
Statistical Release more than one (1) yield to maturity is set forth
therein for the applicable date, then the arithmetic mean of the lowest
yield under the heading "This Week" and the highest yield under the
heading "Last Week" in such Statistical Release shall be used for
purposes of calculating the Reinvestment Rate. "Statistical Release"
shall mean the statistical release designated "H.15(519)" or any
successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded U.S. Government
Securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination hereunder,
then such other reasonably comparable index which shall be designated
by the holders of 66-2/3% in aggregate principal amount of the
outstanding Series U bonds. "Weighted Average Life to Maturity" of the
principal amount of the Series U bonds being redeemed shall mean, as of
the time of any determination thereof, the number of years obtained by
dividing the then Remaining Dollar-Years of such principal by the
aggregate amount of such principal. The term "Remaining Dollar-Years"
of such principal shall mean the amount obtained by (i) multiplying (1)
the remainder of (A) the amount of principal of the Series U bonds that
would have become due under Section 2.04 hereof on each scheduled
Series U sinking fund payment date for the Series U bonds if such
redemption had not been made, less (B) the amount of principal on the
Series U bonds scheduled to become due on each such Series U sinking
fund payment date after giving effect to such redemption, by (2) the
number of years (calculated to the nearest one-twelfth) which will
elapse between the date of determination and each such Series U sinking
fund payment date, and (ii) totaling the
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<PAGE> 497
products obtained in (i). Anything in the Indenture to the contrary
notwithstanding, the Company will give written notice to each holder of
outstanding Series U bonds and to the Trustee by telecopy or other same
day written communication, setting forth the computation and amount of
the Make-Whole Amount payable in connection with any redemption of
Series U bonds under the provisions of this Section 2.03(b), at least
three days prior to the date fixed for such redemption.
(c) The Series U bonds may be redeemed at any time or from
time to time on or after May 1, 2014, in whole or in part, at the
option of the Company, by payment of the applicable percentage of the
principal amount of the Series U bonds, or portion thereof, to be
redeemed as set forth in the following table under the heading
"Redemption Price", together with interest accrued thereon to the date
of such prepayment:
<TABLE>
<CAPTION>
IF REDEEMED IN THE TWELVE- REDEMPTION
MONTH PERIOD ENDING APRIL 30 PRICE
<S> <C>
2015 102.1169%
2016 101.8145%
2017 101.5121%
2018 101.2097%
2019 100.9072%
2020 100.6048%
2021 100.3024%
2022 100.0000%
</TABLE>
(d) The Series U bonds may be redeemed by application of
cash deposited with the Trustee in accordance with the provisions of
Section 3.14 or 7.05 of the Indenture at any time or from time to time,
in whole or in part, by payment of the principal amount of the Series U
bonds, or portion thereof, to be redeemed, together with interest
accrued thereon to the date of redemption, and, in the case of a
redemption of Series U bonds pursuant to the provisions of said Section
3.14 or 7.05 (except as a result of cash deposited with the Trustee
pursuant to Section 7.04 of the Indenture), together with the
Make-Whole Amount.
Section 2.04. Series U Bond Sinking Fund. (a) So long as any
Series U bonds shall remain outstanding, the Company shall deposit with the
Trustee as and for a sinking fund for the retirement of Series U bonds cash in
the amount of $1,250,000 on May 1 of each of the years 2007 through 2022,
inclusive (each such date being herein called a "Series U sinking fund payment
date"), or such lesser amount equal to the principal balance then remaining on
all outstanding Series U bonds as of such Series U sinking fund payment date in
the event that such remaining principal balance is less than $1,250,000.
(b) The Company may at its option increase the amount deposited in
the Series U bonds sinking fund on any Series U sinking fund payment date by an
additional amount not exceeding the amount the Company is required to deposit
on such Series U sinking fund
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<PAGE> 498
payment date; provided, however, the aggregate principal amount of Series U
bonds redeemed pursuant to this paragraph (b) shall not over the life of the
Series U bonds exceed $5,000,000. The right of the Company to increase a
sinking fund deposit on any Series U sinking fund payment date shall be
noncumulative. All deposits made by the Company under this paragraph (b) shall
be in units of $100,000 or an integral multiple in excess thereof.
(c) The aggregate principal amount of Series U bonds redeemed
pursuant to the foregoing paragraph (b) of this Section 2.04 shall be credited
against the amount which the Company is required to deposit in the Series U
bonds sinking fund on each Series U sinking fund payment date in the inverse
chronological order of such sinking fund dates.
Section 2.05. Issuance of Series U Bonds. Upon the execution
and delivery of this Nineteenth Supplemental Indenture and upon compliance with
the provisions of the Indenture, the Company may execute and deliver to the
Trustee, and the Trustee shall certify and deliver to, or upon the written
order of, the President or Treasurer of the Company, Series U bonds in an
aggregate principal amount not exceeding $20,000,000.
ARTICLE 3
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES U BONDS
Section 3.01. Applicability to Series U Bonds. The provisions
of this Article 3 shall be applicable to the Series U bonds. Except as
hereinafter provided and subject to the provisions of Article 2 above, Series U
bonds shall be redeemed upon the notice, in the manner and with the effect
provided in Article 4 of the Original Indenture.
Section 3.02. Sinking Fund Redemptions. In the case of all
sinking fund redemptions, on or before the 30th day prior to each sinking fund
payment date, the Trustee shall proceed to select for redemption in the manner
provided herein, Series U bonds in the aggregate principal amount which are
redeemable with the cash to be deposited with the Trustee on the next following
sinking fund payment date, and in the name of the Company shall give notice as
may be required by Article 4 of the Original Indenture of the redemption for
the sinking fund on such sinking fund payment date of the Series U bonds so
selected.
All sinking fund payments received by the Trustee pursuant to Section
2.04 hereof shall be held by the Trustee as security for the Series U bonds for
which such sinking fund payment is made, and shall be applied by the Trustee on
the respective sinking fund payment dates to the redemption of outstanding
Series U bonds in the manner and with the effect specified herein; and the
Company shall, in each case prior to the date fixed for redemption thereof, pay
to the Trustee, in cash, all unpaid interest accrued on the Series U bonds to
be redeemed through the operation of said sinking fund to the date fixed for
redemption.
Section 3.03. Pro Rata Application; Direct Payment.
Notwithstanding any provisions of Article 1 and Article 4 of the Original
Indenture:
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<PAGE> 499
(a) if less than all outstanding Series U bonds are to be
redeemed, the aggregate principal amount of Series U bonds to be
redeemed shall be apportioned by the Trustee pro rata among the holders
of the Series U bonds, in the proportion that the aggregate principal
amount of such bonds so to be redeemed held by each such holder bears
to the aggregate principal amount of all Series U bonds then
outstanding with adjustments, to the extent practicable, to equalize
for any prior redemptions not in such proportion, and
(b) in the event of the payment of a portion of the
principal amount of any Series U bond, payment shall be made to or upon
the order of the holder of such bond without requiring presentation or
surrender of such bond, if there shall then or theretofore be filed
with the Trustee a certificate of the Treasurer of the Company stating
that the holder of such bond (or the person for whom such holder is a
nominee) and the Company have entered into a written agreement that
payment of any portion of such bond may be made to the registered
holder thereof without presentation or surrender thereof, that such
holder will not sell, transfer or otherwise dispose of any such bond
unless it shall have caused notation to be made thereon of the portion
of the principal amount thereof which has been paid and the last
interest payment date to which interest has been paid and prior to the
delivery thereof such bond shall have been presented to the Trustee for
inspection or surrendered in exchange for a new Series U bond or bonds
in aggregate principal amount equal to the unpaid portion of the bond
presented to the Trustee.
ARTICLE 4
ADDITIONAL COVENANTS
Section 4.01. Application of Section 1.15 of the Original
Indenture. So long as any Series U bonds remain outstanding, the provision of
Section 1.15 of the Original Indenture (relating to mutilated, lost, stolen, or
destroyed bonds) which are expressed to be applicable to bonds of Series A
shall also be applicable to the Series U bonds and the holders thereof.
Section 4.02. Withdrawal of Deposited Moneys. The Company
covenants and agrees that so long as any Series U bonds remain outstanding,
moneys deposited with the Trustee pursuant to Sections 3.14, 7.02, 7.03 or 7.04
of the Original Indenture will be withdrawn by the Company within, in the case
of moneys deposited pursuant to Sections 7.02, 7.03 and 7.04, two years, or in
the case of moneys deposited pursuant to Section 3.14, twelve months from the
date of deposit of such moneys if the Company shall have a Gross Amount of
Property Additions available for such purpose.
Section 4.03. Restricted Payments. The Company covenants and
agrees that so long as any Series U bonds remain outstanding, the Company will
not declare or pay any dividends on shares of its common stock (except
dividends payable solely in shares of common stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares of common stock (except out of
the net cash proceeds derived from the issuance of other shares of common
stock), or make any other distribution on shares of common stock (such
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<PAGE> 500
non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions, being hereinafter called "Restricted
Payments"), unless after giving effect thereto the aggregate amount of all such
Restricted Payments made during the period from December 31, 1988 to and
including the date of the making of the Restricted Payment in question does not
exceed the sum of $15,038,000 plus (or minus in case of a deficit) the amount
of Consolidated Net Income Available for Common Stock Dividends for such
period.
Section 4.04. Merger and Consolidation. The Company covenants
and agrees that so long as any Series U bonds remain outstanding, any of the
provisions of Article 8 of the Original Indenture to the contrary
notwithstanding, Company will not consolidate or merge with or into, or convey
or transfer all or substantially all of the mortgaged property to, any other
entity if at the time thereof or after giving affect thereto any "event of
default" (as defined in Section 6.01 of the Original Indenture) shall or would
exist.
Section 4.05. Certain Definitions. As used in this Article 4,
the following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends"
for any period shall mean the net income of the Company and its
Subsidiaries for such period available for dividends on capital stock,
after deducting therefrom dividends paid and accrued during such period
on preferred stock, determined on a consolidated basis in accordance
with generally accepted accounting principles; provided, however, that
no effect shall be given to any gains or losses or other additions or
deductions arising by reason of the issue, purchase, sale, conversion
or retirement by the Company or any Subsidiary of any of its or their
securities, or arising by reason of any purchases, sales, write-ups,
write-downs, increase or decrease in book value, or other transactions
or changes in respect of capital assets, tangible or intangible, and
deductions for income taxes shall be adjusted by giving effect to any
change in the amount thereof resulting from the elimination of any of
the capital transactions or changes referred to above.
"Subsidiary" shall mean any corporation of which more than 50%
of the outstanding Voting Stock is owned by the Company. As used
herein the term "Voting Stock" shall mean stock or similar interests
of any class or classes (however designated) the holders of which are
generally and ordinarily, in the absence of contingencies, entitled to
vote for the election of the directors (or persons performing similar
functions) of such corporation.
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<PAGE> 501
ARTICLE 5
AMENDMENTS OF INDENTURE
Section 5.01. Amendment of Indenture. The Indenture is
amended as follows:
(a) The figure "200%" appearing in Section 2.02 and in Section
2.03(b)(2) of the Indenture shall be amended to read "175%".
(b) The following provision shall be added to Article 3 of the
Indenture as Section 3.18 immediately following Section 3.17 of the Indenture:
"SECTION 3.18. The Company will (i) maintain its Net Earnings
for any period of 12 consecutive months within a 15 month period ending
March 31 and September 30 of each year, at least equal to 175% of the
interest requirements for a period of 12 months on all bonds (including
Prior Lien Bonds) outstanding as of such March 31 and September 30 of
each year, and (ii) furnish to the Trustee within 60 days after each
March 31 and September 30 of each year a certificate signed by an
authorized officer of the Company demonstrating that the Company is in
compliance with the provisions of (i) of this Section 3.18 and setting
forth in summary form the calculation of such Net Earnings; provided,
however, that the requirements of this Section 3.18 shall terminate the
date on which no bonds of any series issued under the Indenture and
outstanding immediately prior to January 26, 1990, the date on which
the bonds designated as Series R were originally issued, are
outstanding."
(c) The definition of "Property Additions" appearing in Section
12.05(f) of the Indenture shall be amended by changing the period appearing at
the end thereof to be a comma and by adding to the end of said definition, the
following: "and the term "Property Additions" shall also include all Cushion
Gas (as used herein the term "Cushion Gas" shall mean that minimum volume of
natural gas necessary to be retained in a gas storage reservoir owned by the
Company in order to maintain the integrity and viability of the geological
strata and the horizons of a gas reservoir for the storage of natural gas)
provided, however, that until the date on which no bonds of any series issued
under the Indenture and outstanding immediately prior to January 26, 1990, the
date on which the bonds designated as Series R were originally issued, are
outstanding, the amount of Cushion Gas which shall be included as Property
Additions shall at no time exceed 10% of Property Additions."
(d) Clause C of that portion of the granting clauses of the
Indenture (and of each supplemental indenture thereto which contains in any
granting clauses therein the following clause C) entitled "But Specifically
Reserving And Excepting from the following grant" is hereby amended to read as
follows: "C. All merchandise held for resale and consumable
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<PAGE> 502
materials and supplies (other than Cushion Gas as defined in clause (c) of
Section 5.01 of the Sixteenth Supplemental Indenture to the Original
Indenture);".
Section 5.02. Amendment of Certain Definitions. Each holder
of Series U bonds and bonds of any Series created and issued after the date of
the original issuance of the Series U bonds agrees by its acceptance of such
bonds, that effective on the earlier of (i) the date on which the amendment of
the Indenture set forth in this Section 5.02 has been duly consented to in
writing by the holders of not less than 66-2/3% in aggregate principal amount
of each series of bonds issued and outstanding other than Series Q bonds,
Series R bonds, Series S bonds, Series T bonds and bonds of any other series
created and issued under the Indenture after the date of original issuance of
the Series U bonds, or (ii) the date on which no bonds of any series issued
under the Indenture and outstanding immediately prior to the date on which the
Series R bonds were originally issued and the holders of which have not
consented to such amendment as contemplated in foregoing clause (i) hereof
remain outstanding, the first sentence of the definition of "Net Earnings"
appearing in Section 12.05(o) of the Indenture shall be amended to read as
follows: "Net Earnings of the Company for any period means the amount obtained
by deducting from the gross earnings derived from operation of the mortgaged
property all operating expenses of the Company, and by adding to the remainder
all net non-operating earnings other than any portion of such earnings which
represents the net gain arising from any sale or other disposition of capital
assets, or any other items, which would, in accordance with generally accepted
accounting principles, require separate treatment or classification in the
preparation of the Company's financial statements as "extraordinary items".
ARTICLE 6
MISCELLANEOUS
Section 6.01. Incorporation of Original Indenture. This
Nineteenth Supplemental Indenture shall be construed in connection with and as
a part of the Original Indenture and all terms, conditions and covenants
contained in the Original Indenture, except as restricted in the Original
Indenture to bonds of another series or as herein otherwise provided, shall
apply to and be deemed to be for the equal benefit, security and protection of
the Series U bonds and the holders thereof. All terms used in this Nineteenth
Supplemental Indenture which are defined in the Original Indenture shall,
unless the context otherwise requires, have the meanings set forth in the
Original Indenture.
Section 6.02. Successors and Assigns. Whenever in this
Nineteenth Supplemental Indenture either of the parties hereto is named or
referred to, this shall be deemed to include the successors or assigns of such
party, and all the covenants and agreements in this Nineteenth Supplemental
Indenture contained shall bind and inure to the benefit of the respective
successors and assigns of such parties, whether so expressed or not.
Section 6.03. Multiple Counterparts. This Nineteenth
Supplemental Indenture may be simultaneously executed in any number of
counterparts and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
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<PAGE> 503
In WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its Senior Vice President and
Treasurer and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary, and the said Continental Bank, National
Association, to evidence its acceptance of the trust hereby created and in it
reposed, has caused its corporate name to be hereunto subscribed by one of its
Vice Presidents and its corporate seal to be affixed and attested by a Trust
Officer, and said M. J. Kruger, to evidence his acceptance of the trust hereby
created and in him reposed, has hereunto subscribed his name and affixed his
seal, all as of the day and year first above written.
[CORPORATE SEAL] UNITED CITIES GAS COMPANY
By JAMES B. FORD
------------------------------------
Senior Vice President and Treasurer
ATTEST:
GLENN R. KING
- -------------------------
Secretary
Witnesses as to United Cities
Gas Company:
TERESA MORRIS
- -------------------------
PAMELA TODD CONTINENTAL BANK, NATIONAL
- ------------------------- ASSOCIATION, as Trustee
[CORPORATE SEAL]
By GREG JORDAN
------------------------------------
Vice President
ATTEST:
JOHN W. PORTER
- -------------------------
Trust Officer
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<PAGE> 504
Witnesses as to Continental Bank,
National Association and
M. J. Kruger:
Russell C. Bergman
- -------------------------
NANCIE J. ARVIN
- -------------------------
M. J. KRUGER
------------------------------------
M. J. Kruger
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<PAGE> 505
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
I, Debra S. Johnson, a Notary Public in and for the County and State
aforesaid, do hereby certify that on this 1st day of May, 1992, personally
appeared before me James B. Ford and Glenn R. King, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who, being by me duly sworn, did say that they are Senior
Vice President and Treasurer and Secretary, respectively, of United Cities Gas
Company, a corporation organized under the laws of the State of Illinois and
the Commonwealth of Virginia, that the seal affixed to the above and foregoing
instrument is the corporate seal of said corporation and that said instrument
was signed by them and sealed and delivered in behalf of said corporation by
authority of its Board of Directors duly given, and the said Senior Vice
President and Treasurer and Secretary acknowledged said instrument to be their
free and voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
1st day of May, 1992.
DEBRA S. JOHNSON
------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires:
1-23-94
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<PAGE> 506
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
I, Sophia M. Kosachewya, a notary Public in and for the County and
State aforesaid, do hereby certify that on this 1st day of May, 1992 personally
appeared before me Greg Jordan and John W. Porter, to me personally known, and
personally known to me to be the same persons whose names are subscribed to the
foregoing instrument, who being by me duly sworn, did say that they are Vice
President and Trust Officer, respectively, of Continental Bank, National
Association, a national banking association organized and existing under the
national banking laws of the United States of America, that the seal affixed to
the above and foregoing instrument is the corporate seal of said association
and that said instrument was signed by them and sealed and delivered in behalf
of said association by authority of its Board of Directors duly given, and the
said Greg Jordan and John W. Porter acknowledged said instrument to be their
free and voluntary act and deed and the free and voluntary act and deed of said
association for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
1st day of May, 1992.
SOPHIA M. KOSACHEWYA
------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: 11/6/95
-15-
<PAGE> 507
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, Sophia M. Kosachewya, a Notary Public in and for the County and
State aforesaid, do hereby certify that on this 1st day of May, 1992,
personally appeared before me M. J. Kruger, personally known to me to be the
person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
1st day of May, 1992.
SOPHIA M. KOSACHEWYA
------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires: 11/6/95
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
Personally appeared before me, Teresa Morris, who, being duly sworn,
says that she saw the corporate seal of UNITED CITIES GAS COMPANY affixed to
the foregoing instrument and that she also saw James B. Ford, Senior Vice
President and Treasurer, and Glenn R. King, Secretary of said United Cities Gas
Company, sign and attest the same, and that she, with Pamela Todd, witnessed
the execution and delivery thereof as the act and deed of said United Cities
Gas Company.
TERESA MORRIS
------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 1st day of May, 1992.
DEBRA S. JOHNSON
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: 1/23/94
-16-
<PAGE> 508
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, ______________________, a Notary Public in and for the County and
State aforesaid, do hereby certify that on this ___ day of _________________,
1992, personally appeared before me M. J. Kruger, personally known to me to be
the person described in and who executed and whose name is subscribed to the
foregoing instrument, and acknowledged that he signed and delivered the said
instrument as his free and voluntary act and deed for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of _____________________ 1992.
------------------------------------
Notary Public in and for the
County and State aforesaid
[NOTARIAL SEAL]
My commission expires:
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
Personally appeared before me Teresa Morris, who, being duly sworn,
says that she saw the corporate seal of UNITED CITIES GAS COMPANY affixed to
the foregoing instrument and that she also saw James B. Ford, Senior Vice
President and Treasurer, and Glenn R. King, Secretary of said United Cities Gas
Company, sign and attest the same, and that she, with Pamela Todd, witnessed
the execution and delivery thereof as the act and deed of said United Cities
Gas Company.
TERESA MORRIS
------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 1st day of May, 1992.
DEBRA S. JOHNSON
- ----------------------------
Notary Public in and for the
County and State aforesaid
My commission expires:
1-23-94
-17-
<PAGE> 509
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me Russell C. Bergman, who, being duly
sworn, says that he saw the corporate seal of CONTINENTAL BANK, NATIONAL
ASSOCIATION affixed to the foregoing instrument and that he also saw Greg
Jordan, Vice President, and John W. Porter, Trust Officer of said Continental
Bank, National Association, sign and attest the same, and that he, with Nancie
J. Arvin, witnessed the execution and delivery thereof as the act and deed of
said Continental Bank, National Association.
RUSSELL C. BERGMAN
------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 1st day of May, 1992.
SOPHIA M. KOSACHEWYA
- -------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: 11/6/95
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me Russell C. Bergman, who, being duly
sworn, says that he saw the within named M.J. Kruger sign, seal, and as his act
and deed, deliver the foregoing instrument and that he, with Nancie J. Arvin,
witnessed the execution thereof.
RUSSELL C. BERGMAN
------------------------------------
Witness
[NOTARIAL SEAL]
Sworn to before me this 1st day of May, 1992.
SOPHIA M. KOSACHEWYA
- -------------------------
Notary Public in and for the
County and State aforesaid
My commission expires: 11/6/95
-18-
<PAGE> 510
EXHIBIT A
FORM OF SERIES U BONDS AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. ___________ $___________
FIRST MORTGAGE BOND, SERIES U, 8.77%, DUE MAY 1, 2022
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to
or registered assigns, on May 1, 2022, or earlier as hereinafter referred to,
the sum of
at the principal office in Chicago, Illinois, of CONTINENTAL BANK, NATIONAL
ASSOCIATION, formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO (hereinafter, with its successors in the trusts under the
indenture mentioned below, generally called the "Trustee"), or at the principal
office of its successor in said trusts, and to pay to said payee, or registered
assigns, interest thereon from the date hereof, at the rate of 8.77% per annum,
at said office, semi-annually on May 1 and November 1 in each year until the
principal sum hereof shall have become due and payable and to pay interest on
any overdue principal and (to the extent permitted by law) on any overdue
installment of interest, at the rate of 10.77% per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series U, 8.77%, Due
May 1, 2022, all such bonds of this series and all other series being issued or
to be issued under and subject to the provisions of a certain Indenture of
Mortgage, dated as of July 15, 1959 (hereinafter with all indentures
supplemental thereto generally called the "Indenture"), by and between the
Company and City National Bank and Trust Company of Chicago (which has been
succeeded by Continental Bank, National Association, formerly known as
Continental Illinois National Bank and Trust Company of Chicago as Corporate
Trustee) and R. Emmett Hanley (who has been succeeded by M. J. Kruger), as
Trustees, to which Indenture, an executed counterpart of which is on file with
the Trustee, reference is hereby made for a description of the property
mortgaged, a statement of the nature and extent of the security thereby
afforded, the terms and conditions upon which release of property covered by
the Indenture may be made, the terms and conditions upon which bonds of all
series are or are to be issued and secured, the rights and remedies under the
Indenture of the holders of said bonds, the terms and conditions upon which the
Indenture may be modified or amended, and the rights and obligations under the
Indenture of the Company and of said Trustees; but neither the foregoing
reference to the Indenture, nor any provision of this bond or of the Indenture,
shall affect or permit the impairment of the absolute, unconditional and
unalterable
<PAGE> 511
obligation of the Company to pay, at the maturity date herein provided, the
principal of and interest on this bond as herein provided.
The Company is obligated to redeem a portion of the principal amount of
this bond pursuant to a sinking fund established for the benefit of the holders
of the bonds of Series U and certain optional redemptions of the Series U bonds
may be made by the Company upon the terms and conditions more fully set forth
in the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with that effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, may
be called for redemption and payment prior to maturity, on notice given or
waived as provided in the Indenture, at the applicable redemption price
specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
A-2
<PAGE> 512
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated _____________________, 1992.
UNITED CITIES GAS COMPANY
By___________________________________
Its________________________________
ATTEST:
______________________________
___________ Secretary
A-3
<PAGE> 513
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds, of the series designated therein, referred to
in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL ASSOCIATION,
as Trustee
By___________________________________
Authorized Officer
A-4
<PAGE> 514
SCHEDULE A
TO NINETEENTH SUPPLEMENTAL INDENTURE
DATED AS OF MAY 1, 1992
DESCRIPTIONS OF ADDITIONAL MORTGAGED PROPERTY
The properties referred to in the granting clauses of this Supplemental
Indenture include the parcels of real estate or interests therein more
specifically described below. Said description is not intended, however, to
limit or impair the scope or intention of the general description in the
granting clauses of the Original Indenture.
PART I - REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
State of Georgia
In Muscogee County, Georgia
All that lot, tract and parcel, lying situate and being part of
the Land Lots 64 and 67 of Coweta Reserve, Columbus, Muscogee County,
Georgia and consisting of 4.0 acres and being more precisely described
as follows: Beginning at a point at the intersection of the southerly
right-of-way of Victory Drive and the westerly right-of-way of Parkman
Drive; thence South 34 degrees 55' West (along the westerly
right-of-way of Parkman Drive) 529.05 feet to the point of beginning;
thence South 34 degrees 55' West 171.0 feet to a point; thence 136.94
feet on an arc whose radius is 50.0 feet to a point; thence South 34
degrees 55' West 197.6+ feet to the edge of water on the easterly bank
the Chattahoochee River; thence northerly, along the water's edge
540+ feet to a point; thence North 34 degrees 55' East 59+ feet to a
point on the top of bank on the easterly side of the Chattahoochee
River; thence North 34 degrees 55' East 195.84 feet to a point; thence
South 55 degrees 05' East 486.10 feet to the point of beginning.
State of Kansas
in Wilson, Montgomery and Labaette County
The leasehold estate of United Cities Gas Company created by the
Amended and Restated Storage Agreement and Gas Field Lease dated as
of December 17, 1991, between United Cities Gas Storage Company,
Lessor, and United Cities Gas Company, Lessee, filed for record (i)
December 26, 1991 in the Office of the Register of
<PAGE> 515
Deeds in and for Montgomery County, Kansas, in Book 83 of Misc. at Page
90; (ii) December 27, 1991 in the Office of the Register of Deeds
in and for Wilson County, Kansas in Book 144 at Page 254; and (iii)
December 30, 1991 in the Office of the Register of Deeds in and for
Labaette County, Kansas, in Book 25 of Leases at Page 1.
PART II - FRANCHISES
The following franchises granted to the Company, or to its predecessors
and assigned to the Company or acquired by the Company by merger of
predecessors into the Company, authorizing the construction, operation and
maintenance of gas distribution systems in the following cities or
municipalities and all renewals, extensions or substitutions thereof or
therefor:
STATE OF VIRGINIA
<TABLE>
<CAPTION>
Date Town Expiration
---- ------ ------------
<S> <C> <C>
2021 Wytheville October 14,
<CAPTION>
STATE OF KANSAS
Date Town Expiration
---- ------ ------------
<S> <C> <C>
2021 Yates Center September 30,
<CAPTION>
STATE OF TENNESSEE
Date Town Expiration
---- ------ ------------
<S> <C> <C>
2016 Thompson's Station October 8,
</TABLE>
-2-
<PAGE> 516
[CONFORMED COPY]
TWENTIETH SUPPLEMENTAL INDENTURE
Dated as of December 1, 1992
______________________________
UNITED CITIES GAS COMPANY
to
CONTINENTAL BANK, NATIONAL ASSOCIATION
and
M. J. Kruger
TRUSTEES
______________________________
Supplementing and Amending Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series V,
7.50% Due December 1, 2007
<PAGE> 517
THIS TWENTIETH SUPPLEMENTAL INDENTURE, dated as of December 1, 1992,
made by and between UNITED CITIES GAS COMPANY, a corporation organized under
the laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), whose address is 5300 Maryland Way, Brentwood, Tennessee
37027, party of the first part, and CONTINENTAL BANK, NATIONAL ASSOCIATION,
formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF
CHICAGO, a national banking association having its office at 231 South LaSalle
Street, Chicago, Illinois 60690 (hereinafter called the "Trustee"), and M. J.
KRUGER, residing in the City of Chicago, Illinois (the Trustee and M. J. Kruger
being hereinafter collectively referred to as the "Trustees"), parties of the
second part.
RECITALS:
The background of this Twentieth Supplemental Indenture is:
1. The Company heretofore executed and delivered to City National
Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees, its
Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes referred
to as the "Original Indenture"), providing for the issuance thereunder from
time to time of First Mortgage Bonds of the Company, issuable in one or more
series, and wherein and whereby the Company did grant, convey, mortgage,
warrant to, the said Trustees, and each of them, and their respective
successors and assigns, and create a security interest in, certain property of
the Company in said Original Indenture as more particularly described therein
for the security of all First Mortgage Bonds issued and to be issued
thereunder.
2. On September 1, 1961, City National Bank and Trust Company of
Chicago was merged with Continental Illinois National Bank and Trust Company of
Chicago, now known as Continental Bank, National Association, a national
banking association, which thereupon became corporate trustee under the
Indenture as provided therein, and on October 15, 1966, Ray F. Myers became
individual trustee under the Indenture as successor to R. Emmett Hanley who
resigned, and on March 15, 1981, M. J. Kruger became individual trustee under
the Indenture as successor to Ray F. Myers who resigned.
3. The Company has heretofore executed and delivered nineteen
supplemental indentures to the Original Indenture, designated as First through
Nineteenth (the Original Indenture and all supplemental indentures, including
this Twentieth Supplemental Indenture, being herein called the "Indenture"),
for the purpose of subjecting to the lien of the Indenture certain additional
property heretofore and hereafter acquired by the Company, creating additional
series of First Mortgage Bonds, and amending and supplementing the Indenture in
certain respects.
4. There have been issued under the Indenture various series of
First Mortgage Bonds designated as Series A through U, inclusive, of which
$127,207,500 in aggregate principal amount are outstanding as of June 30, 1992.
The bonds of Series A, B, C, E, H, I, J, F, M and O have been retired as of
June 30, 1992.
<PAGE> 518
5. The Company desires to create a new series of bonds to be
issued under and secured by the Indenture to be designated as "First Mortgage
Bonds, Series V, 7.50% due December 1, 2007", to be limited to $10,000,000 in
aggregate principal amount.
6. All things necessary to make the Series V bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this Twentieth Supplemental Indenture a
valid and binding instrument in accordance with its terms and for the purposes
herein expressed, have been done and performed; and the issue of Series V
bonds, as herein provided, has been in all respects duly authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
The Company in order better to secure the principal of and interest
(and premium, if any) on all of the bonds of the Company at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions in the
Indenture contained, has heretofore irrevocably granted, conveyed, mortgaged,
warranted, and granted a security interest to, the Trustees, and by these
presents does hereby irrevocably grant, convey, mortgage, warrant to, the
Trustees and each of them, and to their successors in said trust forever, and
grant a security interest in, the property described as follows:
I. All lands and rights and interests therein (including
fixtures), both fee and leasehold, now owned or hereafter acquired by the
Company, including, without limitation, those real properties more specifically
described in Schedule A hereto, and all improvements thereto and thereon;
II. All gas distribution systems, pipelines, plants, buildings,
machinery and equipment now owned or hereafter acquired by the Company, and all
improvements now owned or hereafter acquired by the Company;
III. All rights appertaining to any and all the foregoing property,
and all gas purchase contracts and other contracts, rights and franchises, and
all leases, indeterminate permits, certificates of convenience and necessity,
rights of way, easements, privileges, tenements, appurtenances, licenses and
permits used by or useful to the Company in the
-2-
<PAGE> 519
operation of its business, whether now owned or hereafter acquired, and,
subject to the provisions of Section 7.01 of the Indenture, all income and
earnings arising out of the mortgaged property, including rents, issues and
profit arising during any period of redemption and prior to the execution of an
absolute deed pursuant to a foreclosure or other proceedings to enforce the
lien of the Indenture; and
IV. All property, real, personal and mixed, whether or not
hereinabove or in Schedule A specifically described, which the Company now owns
and all such property which it may hereafter acquire.
Subject to such liens and encumbrances as are of the character
specified in Section 3.09 of the Indenture;
BUT SPECIFICALLY RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not
specifically pledged under the Indenture;
B. All stocks, bonds and securities not specifically pledged
under the Indenture;
C. All merchandise held for resale and consumable materials and
supplies (other than Cushion Gas as defined in clause (c) of Section 5.01 of
the Sixteenth Supplemental Indenture to the Original Indenture);
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment (excluding any
such inventory constituting a part of the operating system).
TO HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Indenture, without preference or priority of
any series of bonds or of any bonds within a series over any of the other bonds
by reason of priority of time of maturity or of the negotiation thereof or
otherwise.
-3-
<PAGE> 520
ARTICLE 2
SERIES V BONDS
Section 2.01. Creation of Series V Bonds. There is hereby
created for issuance under the Indenture a series of bonds, limited to the
aggregate principal amount of $10,000,000, to be designated as "First Mortgage
Bonds, Series V, 7.50%, Due December 1, 2007" (herein called "Series V
bonds"). The Series V bonds shall, subject to the provisions of Section 1.13
of the Indenture, be dated as of, and shall bear interest from the date of
authentication and delivery, shall mature December 1, 2007, and shall bear
interest at the annual rate of 7.50% payable semi-annually on December 1 and
June 1 in each year until the principal thereof shall have become due and
payable and shall bear interest on any overdue principal, and (to the extent
permitted by law) on any overdue installment of interest and premium, if any,
at the rate of 9.50% per annum, the interest on each Series V bond to be
payable at the principal office of the Trustee in Chicago, Illinois, or, at the
option of the person entitled thereto, in accordance with the instructions of
such person submitted in writing to the Company and the Trustee.
Section 2.02. Form of Series V Bonds. The Series V bonds
shall be issued only as fully registered bonds without coupons, in
denominations of $100,000 and multiples thereof, to the extent practicable,
substantially in the form set forth in Exhibit A hereto, with appropriate
insertions, omissions and changes, approved by the President of the Company and
the Trustee, as may be appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series V Bonds. The Series V
bonds shall be subject to redemption only as hereinafter provided:
(a) Series V bonds are required to be redeemed on each
Series V sinking fund payment date through application of cash
deposited with the Trustee for the sinking fund for the Series V bonds
provided for in Section 2.04 hereof, together with interest accrued
thereon to the date fixed for redemption.
(b) The Series V bonds may be redeemed at any time or
from time to time prior to December 1, 2004, in whole or in part, at
the option of the Company, by payment of the principal amount of the
Series V bonds, or portion thereof, to be redeemed, together with
interest accrued thereon to the date of such prepayment, together with
a premium equal to the Make-Whole Amount. As used herein the term
"Make-Whole Amount" shall mean, in connection with any redemption of
Series V bonds, the excess, if any, of (i) the aggregate present value
as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of interest accrued to
the date of prepayment) that would have been payable in respect of
each such dollar if such redemption had not been made, determined by
discounting such amounts by an amount equal to the sum of (x) the
Reinvestment Rate plus (y) 50 basis points on a semi-annual basis from
the respective dates on which they would have been payable to the date
of redemption, over (ii) 100% of the principal amount of the
outstanding Series V bonds being redeemed. If the Reinvestment Rate
-4-
<PAGE> 521
plus 50 basis points is equal to or higher than 7.50%, the Make-Whole
Amount shall be zero. "Reinvestment Rate" shall mean the arithmetic
mean of the yields under the respective headings "This Week" and "Last
Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the Weighted Average Life to Maturity of the
principal of the Series V bonds being redeemed. If no maturity
exactly corresponds to such Weighted Average Life to Maturity, yields
for each of the two published maturities corresponding to such
Weighted Average Life to Maturity most closely to and next higher than
the Weighted Average Life to Maturity and most closely to and next
lower than the Weighted Average Life to Maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall be interpolated from such yields on a straight line basis,
rounding in each of such relevant periods to the nearest month. For
the purpose of calculating the Reinvestment Rate, (i) the most recent
Statistical Release published not more than seven and not less than
five days prior to the date of determination of the Make-Whole Amount
hereunder shall be used, and (ii) if for any particular maturity that
is set forth in such Statistical Release more than one (1) yield to
maturity is set forth therein for the applicable date, then the
arithmetic mean of the lowest yield under the heading "This Week" and
the highest yield under the heading "Last Week" in such Statistical
Release shall be used for purposes of calculating the Reinvestment
Rate. "Statistical Release" shall mean the statistical release
designated "H.15(519)" or any successor publication which is published
weekly by the Federal Reserve System and which establishes yields on
actively traded U.S. Government Securities adjusted to constant
maturities or, if such statistical release is not published at the
time of any determination hereunder, then such other reasonably
comparable index which shall be designated by the holders of 66-2/3%
in aggregate principal amount of the outstanding Series V bonds.
"Weighted Average Life to Maturity" of the principal amount of the
Series V bonds being redeemed shall mean, as of the time of any
determination thereof, the number of years obtained by dividing the
then Remaining Dollar-Years of such principal by the aggregate amount
of such principal. The term "Remaining Dollar-Years" of such
principal shall mean the amount obtained by (i) multiplying (1) the
remainder of (A) the amount of principal of the Series V bonds that
would have become due under Section 2.04 hereof on each scheduled
Series V sinking fund payment date for the Series V bonds if such
redemption had not been made, less (B) the amount of principal on the
Series V bonds scheduled to become due on each such Series V sinking
fund payment date after giving effect to such redemption, by (2) the
number of years (calculated to the nearest one-twelfth) which will
elapse between the date of determination and each such Series V
sinking fund payment date, and (ii) totaling the products obtained in
(i). Anything in the Indenture to the contrary notwithstanding, the
Company will give written notice to each holder of outstanding Series
V bonds and to the Trustee by telecopy or other same day written
communication, setting forth the computation and amount of the
Make-Whole Amount payable in connection with any redemption of Series
V bonds under the provisions of this Section 2.03(b), at least three
days prior to the date fixed for such redemption.
-5-
<PAGE> 522
(c) The Series V bonds may be redeemed at any time or
from time to time on or after December 1, 2004, in whole or in part,
at the option of the Company, by payment of the applicable percentage
of the principal amount of the Series V bonds, or portion thereof, to
be redeemed as set forth in the following table under the heading
"Redemption Price", together with interest accrued thereon to the date
of such prepayment:
<TABLE>
<CAPTION>
IF REDEEMED IN THE TWELVE- REDEMPTION
MONTH PERIOD ENDING NOVEMBER 30 PRICE
<S> <C>
2005 101.0714%
2006 100.5357%
2007 100.0000%
</TABLE>
(d) The Series V bonds may be redeemed by application of
cash deposited with the Trustee in accordance with the provisions of
Section 3.14 or 7.05 of the Indenture at any time or from time to
time, in whole or in part, by payment of the principal amount of the
Series V bonds, or portion thereof, to be redeemed, together with
interest accrued thereon to the date of redemption, and, in the case
of a redemption of Series V bonds pursuant to the provisions of said
Section 3.14 or 7.05 (except as a result of cash deposited with the
Trustee pursuant to Section 7.04 of the Indenture), together with the
Make-Whole Amount.
Section 2.04. Series V Bond Sinking Fund. (a) So long as any
Series V bonds shall remain outstanding, the Company shall deposit with the
Trustee as and for a sinking fund for the retirement of Series V bonds cash in
the amount of $1,666,667 on December 1 of each of the years 2002 through 2007,
inclusive (each such date being herein called a "Series V sinking fund payment
date"), or such lesser amount equal to the principal balance then remaining on
all outstanding Series V bonds as of such Series V sinking fund payment date in
the event that such remaining principal balance is less than $1,666,667.
(b) The Company may at its option increase the amount deposited in
the Series V bonds sinking fund on any Series V sinking fund payment date by an
additional amount not exceeding the amount the Company is required to deposit
on such Series V sinking fund payment date; provided, however, the aggregate
principal amount of Series V bonds redeemed pursuant to this paragraph (b)
shall not over the life of the Series V bonds exceed $2,500,000. The right of
the Company to increase a sinking fund deposit on any Series V sinking fund
payment date shall be noncumulative. All deposits made by the Company under
this paragraph (b) shall be in units of $100,000 or an integral multiple in
excess thereof.
(c) The aggregate principal amount of Series V bonds redeemed
pursuant to the foregoing paragraph (b) of this Section 2.04 shall be credited
against the amount which the Company is required to deposit in the Series V
bonds sinking fund on each Series V sinking fund payment date in the inverse
chronological order of such sinking fund dates.
-6-
<PAGE> 523
Section 2.05. Issuance of Series V Bonds. Upon the execution and
delivery of this Twentieth Supplemental Indenture and upon compliance with the
provisions of the Indenture, the Company may execute and deliver to the
Trustee, and the Trustee shall certify and deliver to, or upon the written
order of, the President or Treasurer of the Company, Series V bonds in an
aggregate principal amount not exceeding $10,000,000.
ARTICLE 3
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES V BONDS
Section 3.01. Applicability to Series V Bonds. The provisions of
this Article 3 shall be applicable to the Series V bonds. Except as
hereinafter provided and subject to the provisions of Article 2 above, Series V
bonds shall be redeemed upon the notice, in the manner and with the effect
provided in Article 4 of the Original Indenture.
Section 3.02. Sinking Fund Redemptions. In the case of all sinking
fund redemptions, on or before the 30th day prior to each sinking fund payment
date, the Trustee shall proceed to select for redemption in the manner provided
herein, Series V bonds in the aggregate principal amount which are redeemable
with the cash to be deposited with the Trustee on the next following sinking
fund payment date, and in the name of the Company shall give notice as may be
required by Article 4 of the Original Indenture of the redemption for the
sinking fund on such sinking fund payment date of the Series V bonds so
selected.
All sinking fund payments received by the Trustee pursuant to Section
2.04 hereof shall be held by the Trustee as security for the Series V bonds for
which such sinking fund payment is made, and shall be applied by the Trustee on
the respective sinking fund payment dates to the redemption of outstanding
Series V bonds in the manner and with the effect specified herein; and the
Company shall, in each case prior to the date fixed for redemption thereof, pay
to the Trustee, in cash, all unpaid interest accrued on the Series V bonds to
be redeemed through the operation of said sinking fund to the date fixed for
redemption.
Section 3.03. Pro Rata Application; Direct Payment.
Notwithstanding any provisions of Article 1 and Article 4 of the Original
Indenture:
(a) if less than all outstanding Series V bonds are to be
redeemed, the aggregate principal amount of Series V bonds to be
redeemed shall be apportioned by the Trustee pro rata among the
holders of the Series V bonds, in the proportion that the aggregate
principal amount of such bonds so to be redeemed held by each such
holder bears to the aggregate principal amount of all Series V bonds
then outstanding with adjustments, to the extent practicable, to
equalize for any prior redemptions not in such proportion, and
(b) in the event of the payment of a portion of the
principal amount of any Series V bond, payment shall be made to or
upon the order of the holder of such
-7-
<PAGE> 524
bond without requiring presentation or surrender of such bond, if
there shall then or theretofore be filed with the Trustee a
certificate of the Treasurer of the Company stating that the holder of
such bond (or the person for whom such holder is a nominee) and the
Company have entered into a written agreement that payment of any
portion of such bond may be made to the registered holder thereof
without presentation or surrender thereof, that such holder will not
sell, transfer or otherwise dispose of any such bond unless it shall
have caused notation to be made thereon of the portion of the
principal amount thereof which has been paid and the last interest
payment date to which interest has been paid and prior to the delivery
thereof such bond shall have been presented to the Trustee for
inspection or surrendered in exchange for a new Series V bond or bonds
in aggregate principal amount equal to the unpaid portion of the bond
presented to the Trustee.
ARTICLE 4
ADDITIONAL COVENANTS
Section 4.01. Application of Section 1.15 of the Original
Indenture. So long as any Series V bonds remain outstanding, the provision of
Section 1.15 of the Original Indenture (relating to mutilated, lost, stolen, or
destroyed bonds) which are expressed to be applicable to bonds of Series A
shall also be applicable to the Series V bonds and the holders thereof.
Section 4.02. Withdrawal of Deposited Moneys. The Company
covenants and agrees that so long as any Series V bonds remain outstanding,
moneys deposited with the Trustee pursuant to Sections 3.14, 7.02, 7.03 or 7.04
of the Original Indenture will be withdrawn by the Company within, in the case
of moneys deposited pursuant to Sections 7.02, 7.03 and 7.04, two years, or in
the case of moneys deposited pursuant to Section 3.14, twelve months, from the
date of deposit of such moneys if the Company shall have a Gross Amount of
Property Additions available for such purpose.
Section 4.03. Restricted Payments. The Company covenants and
agrees that so long as any Series V bonds remain outstanding, the Company will
not declare or pay any dividends on shares of its common stock (except
dividends payable solely in shares of common stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares of common stock (except out of
the net cash proceeds derived from the issuance of other shares of common
stock), or make any other distribution on shares of common stock (such
non-excepted declarations, payments, purchases, redemptions or other
acquisitions and distributions, being hereinafter called "Restricted
Payments"), unless after giving effect thereto the aggregate amount of all such
Restricted Payments made during the period from December 31, 1988 to and
including the date of the making of the Restricted Payment in question does not
exceed the sum of $15,038,000 plus (or minus in case of a deficit) the amount
of Consolidated Net Income Available for Common Stock Dividends for such
period.
-8-
<PAGE> 525
Section 4.04. Merger and Consolidation. The Company covenants and
agrees that so long as any Series V bonds remain outstanding, any of the
provisions of Article 8 of the Original Indenture to the contrary
notwithstanding, Company will not consolidate or merge with or into, or convey
or transfer all or substantially all of the mortgaged property to, any other
entity if at the time thereof or after giving affect thereto any "event of
default" (as defined in Section 6.01 of the Original Indenture) shall or would
exist.
Section 4.05. Certain Definitions. As used in this Article 4, the
following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends"
for any period shall mean the net income of the Company and its
Subsidiaries for such period available for dividends on capital stock,
after deducting therefrom dividends paid and accrued during such
period on preferred stock, determined on a consolidated basis in
accordance with generally accepted accounting principles; provided,
however, that no effect shall be given to any gains or losses or other
additions or deductions arising by reason of the issue, purchase,
sale, conversion or retirement by the Company or any Subsidiary of any
of its or their securities, or arising by reason of any purchases,
sales, write-ups, write-downs, increase or decrease in book value, or
other transactions or changes in respect of capital assets, tangible
or intangible, and deductions for income taxes shall be adjusted by
giving effect to any change in the amount thereof resulting from the
elimination of any of the capital transactions or changes referred to
above.
"Subsidiary" shall mean any corporation of which more than 50%
of the outstanding Voting Stock is owned by the Company. As used
herein the term "Voting Stock" shall mean stock or similar interests
of any class or classes (however designated) the holders of which are
generally and ordinarily, in the absence of contingencies, entitled to
vote for the election of the directors (or persons performing similar
functions) of such corporation.
ARTICLE 5
AMENDMENTS OF INDENTURE
Section 5.01. Amendment of Certain Definitions. Each holder of
Series V bonds and bonds of any Series created and issued after the date of the
original issuance of the Series V bonds agrees by its acceptance of such bonds,
that effective on the earlier of (i) the date on which the amendment of the
Indenture set forth in this Section 5.01 has been duly consented to in writing
by the holders of not less than 66-2/3% in aggregate principal amount of each
series of bonds issued and outstanding other than Series Q bonds, Series R
bonds, Series S bonds, Series T bonds, Series U bonds and bonds of any other
series created and issued under the Indenture after the date of original
issuance of the Series V bonds, or (ii) the date on which no bonds of any
series issued under the Indenture and outstanding immediately prior to the date
on which the Series R bonds were originally issued and the holders of
-9-
<PAGE> 526
which have not consented to such amendment as contemplated in foregoing clause
(i) hereof remain outstanding, the first sentence of the definition of "Net
Earnings" appearing in Section 12.05(o) of the Indenture shall be amended to
read as follows: "Net Earnings of the Company for any period means the amount
obtained by deducting from the gross earnings derived from operation of the
mortgaged property all operating expenses of the Company, and by adding to the
remainder all net non-operating earnings other than any portion of such
earnings which represents the net gain arising from any sale or other
disposition of capital assets, or any other items, which would, in accordance
with generally accepted accounting principles, require separate treatment or
classification in the preparation of the Company's financial statements as
"extraordinary items".
ARTICLE 6
MISCELLANEOUS
Section 6.01. Incorporation of Original Indenture. This Twentieth
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in the
Original Indenture, except as restricted in the Original Indenture to bonds of
another series or as herein otherwise provided, shall apply to and be deemed to
be for the equal benefit, security and protection of the Series V bonds and the
holders thereof. All terms used in this Twentieth Supplemental Indenture which
are defined in the Original Indenture shall, unless the context otherwise
requires, have the meanings set forth in the Original Indenture.
Section 6.02. Successors and Assigns. Whenever in this Twentieth
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this Twentieth Supplemental Indenture
contained shall bind and inure to the benefit of the respective successors and
assigns of such parties, whether so expressed or not.
Section 6.03. Multiple Counterparts. This Twentieth Supplemental
Indenture may be simultaneously executed in any number of counterparts and all
said counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument.
-10-
<PAGE> 527
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its
corporate name to be hereunto subscribed by its Senior Vice President and
Treasurer and its corporate seal to be hereunto affixed and attested by its
Secretary or by an Assistant Secretary, and the said Continental Bank, National
Association, to evidence its acceptance of the trust hereby created and in it
reposed, has caused its corporate name to be hereunto subscribed by one of its
Vice Presidents and its corporate seal to be affixed and attested by a Trust
Officer, and said M. J. Kruger, to evidence his acceptance of the trust hereby
created and in him reposed, has hereunto subscribed his name and affixed his
seal, all as of the day and year first above written.
[CORPORATE SEAL] UNITED CITIES GAS COMPANY
By
_____________________________________
Senior Vice President and Treasurer
ATTEST:
_______________________________
Secretary
Witnesses as to United Cities
Gas Company:
_______________________________
_______________________________
CONTINENTAL BANK, NATIONAL
ASSOCIATION, as Trustee
[CORPORATE SEAL]
By
_____________________________________
Vice President
ATTEST:
_______________________________
Trust Officer
Witnesses as to Continental Bank,
National Association and M.J. Kruger:
________________________________
________________________________
______________________________________
M. J. Kruger
-11-
<PAGE> 528
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
I, , a Notary Public in and for the
County and State aforesaid, do hereby certify that on this day of
________________, 1992, personally appeared before me James B. Ford and Glenn
R. King, to me personally known, and personally known to me to be the same
persons whose names are subscribed to the foregoing instrument, who, being by
me duly sworn, did say that they are Senior Vice President and Treasurer and
Secretary, respectively, of United Cities Gas Company, a corporation organized
under the laws of the State of Illinois and the Commonwealth of Virginia, that
the seal affixed to the above and foregoing instrument is the corporate seal of
said corporation and that said instrument was signed by them and sealed and
delivered in behalf of said corporation by authority of its Board of Directors
duly given, and the said Senior Vice President and Treasurer and Secretary
acknowledged said instrument to be their free and voluntary act and deed and
the free and voluntary act and deed of said corporation for the uses and
purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of _____________________, 1992.
____________________________________________
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
<PAGE> 529
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, ______________________________, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this ____ day of
_____________, 1992, personally appeared before me ________________________ and
_____________________, to me personally known, and personally known to me to be
the same persons whose names are subscribed to the foregoing instrument, who
being by me duly sworn, did say that they are Vice President and Trust Officer,
respectively, of Continental Bank, National Association, a national banking
association organized and existing under the national banking laws of the
United States of America, that the seal affixed to the above and foregoing
instrument is the corporate seal of said association and that said instrument
was signed by them and sealed and delivered in behalf of said association by
authority of its Board of Directors duly given, and the said
_________________________ and _________________________ acknowledged said
instrument to be their free and voluntary act and deed and the free and
voluntary act and deed of said association for the uses and purposes therein
set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of _____________________, 1992.
_________________________________________
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
<PAGE> 530
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, ______________________________, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this ____ day of
_____________________, 1992, personally appeared before me M. J. Kruger,
personally known to me to be the person described in and who executed and whose
name is subscribed to the foregoing instrument, and acknowledged that he signed
and delivered the said instrument as his free and voluntary act and deed for
the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of _____________________, 1992.
_________________________________________
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
STATE OF TENNESSEE
) SS.
COUNTY OF WILLIAMSON )
Personally appeared before me ______________________________, who,
being duly sworn, says that she saw the corporate seal of UNITED CITIES GAS
COMPANY affixed to the foregoing instrument and that she also saw James B.
Ford, Senior Vice President and Treasurer, and Glenn R. King, Secretary of
said United Cities Gas Company, sign and attest the same, and that she, with
______________________, witnessed the execution and delivery thereof as the act
and deed of said United Cities Gas Company.
_________________________________________
Witness
[NOTARIAL SEAL]
Sworn to before me this ____ day of ____________________, 1992.
__________________________________________
Notary Public in and for the County and
State aforesaid
My commission expires:
<PAGE> 531
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me ______________________________, who,
being duly sworn, says that _____ saw the corporate seal of the CONTINENTAL
BANK, NATIONAL ASSOCIATION affixed to the foregoing instrument and that _____
also saw ______________, Vice President, and _____________________, Trust
Officer of said Continental Bank, National Association, sign and attest the
same, and that ____________________, with _________________________, witnessed
the execution and delivery thereof as the act and deed of the said Continental
Bank, National Association.
_________________________________________
Witness
[NOTARIAL SEAL]
Sworn to before me this ____ day of ____________________, 1992.
__________________________________________
Notary Public in and for the County and
State aforesaid
My commission expires:
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me ______________________, who, being duly
sworn, says that ____________________ saw the within named M. J. Kruger sign,
seal, and as his act and deed, deliver the foregoing instrument and that
____________________, with _______________________, witnessed the execution
thereof.
_________________________________________
Witness
[NOTARIAL SEAL]
Sworn to before me this ____ day of ____________________, 1992.
__________________________________________
Notary Public in and for the County and
State aforesaid
My commission expires:
<PAGE> 532
EXHIBIT A
FORM OF SERIES V BONDS AND TRUSTEE'S CERTIFICATE
UNITED CITIES GAS COMPANY
No. ______________ $_____________
First Mortgage Bond, Series V, 7.50%, Due December 1, 2007
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to
or registered assigns, on December 1, 2007, or earlier as hereinafter referred
to, the sum of
at the principal office in Chicago, Illinois, of CONTINENTAL BANK, NATIONAL
ASSOCIATION, formerly known as CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST
COMPANY OF CHICAGO (hereinafter, with its successors in the trusts under the
indenture mentioned below, generally called the "Trustee"), or at the principal
office of its successor in said trusts, and to pay to said payee, or registered
assigns, interest thereon, from the date hereof, at the rate of 7.50% per
annum, at said office, semi-annually on December 1 and June 1 in each year
until the principal sum hereof shall have become due and payable and to pay
interest on any overdue principal and (to the extent permitted by law) on any
overdue installment of interest and premium, if any, at the rate of 9.50% per
annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated First Mortgage Bonds, Series V, 7.50%, Due
December 1, 2007, all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "Indenture"), by and
between the Company and City National Bank and Trust Company of Chicago (which
has been succeeded by Continental Bank, National Association, formerly known as
Continental Illinois National Bank and Trust Company of Chicago as Corporate
Trustee) and R. Emmett Hanley (who has been succeeded by M. J. Kruger), as
Trustees, to which Indenture, an executed counterpart of which is on file with
the Trustee, reference is hereby made for a description of the property
mortgaged, a statement of the nature and extent of the security thereby
afforded, the terms and conditions upon which release of property covered by
the Indenture may be made, the terms and conditions upon which bonds of all
series are or are to be issued and secured, the rights and remedies under the
Indenture of the holders of said bonds, the terms and conditions upon which the
Indenture may be modified or amended, and the rights and obligations under the
Indenture of the Company and of said Trustees; but neither the foregoing
reference to the Indenture, nor any provision of this bond or of the Indenture,
shall affect or permit the impairment of the absolute, unconditional and
unalterable obligation of the Company to pay, at the maturity date herein
provided, the principal of and interest on this bond as herein provided.
A-1
<PAGE> 533
The Company is obligated to redeem a portion of the principal amount
of this bond pursuant to a sinking fund established for the benefit of the
holders of the bonds of Series V and certain optional redemptions of the Series
V bonds may be made by the Company upon the terms and conditions more fully set
forth in the Indenture.
The Company, the Trustee and all other persons may for all purposes
treat the registered owner hereof for the time being, as the absolute owner
hereof, and neither the Company nor the Trustee shall be affected by any notice
or knowledge to the contrary, whether any payment on this bond shall be overdue
or not; and the Company, and every successive registered owner and assignee of
this bond, by accepting or holding the same, consent and agree to the foregoing
provisions and each invites the others, and all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with that effect set forth in the Indenture, and all as more
fully provided therein, (1) the principal of this bond may be declared and
become due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds, may
be called for redemption and payment prior to maturity, on notice given or
waived as provided in the Indenture, at the applicable redemption price
specified in the Indenture.
This bond is transferable by the registered owner either in person or
by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by acceptance hereof, and the Trustee by its
certification hereof, waives and releases all right of recourse to any
personal, statutory or other liability of any past, present or future promoter,
incorporator, stockholder, director or officer of the Company for the
collection of any indebtedness evidenced by this bond, or for the enforcement
of any right or claim under or in connection with this bond or the Indenture.
This bond shall not be valid or become obligatory for any purpose, or
be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
A-2
<PAGE> 534
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated __________________, 1992.
UNITED CITIES GAS COMPANY
By _____________________________________
Its ____________________________________
ATTEST:
___________________________________
______________ Secretary
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds, of the series designated therein, referred
to in the within-mentioned Indenture.
CONTINENTAL BANK, NATIONAL
ASSOCIATION, as Trustee
By _________________________________________
Authorized Officer
A-3
<PAGE> 535
SCHEDULE A
To Twentieth Supplemental Indenture
Dated as of December 1, 1992
----------------------------
Descriptions of Additional Mortgaged Property
The properties referred to in the granting clauses of this
Supplemental Indenture include the parcels of real estate or interests therein
more specifically described below. Said description is not intended, however,
to limit or impair the scope or intention of the general description in the
granting clauses of the Original Indenture.
PART I - REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective counties and states set forth
below and described as follows:
State of Kentucky in Hopkins County
The leasehold estate of United Cities Gas Company created by that
certain Amended and Restated Storage Agreement and Gas Field Lease dated as of
September 30, 1992, between United Cities Gas Storage Company, Lessor, and
United Cities Gas Company, Lessee, filed for record on September 30, 1992 in
the Hopkins County Clerk's Office in Miscellaneous Book 154 at Page 608.
<PAGE> 536
PART II - FRANCHISES
The following franchises granted to the Company, or to its predecessors
and assigned to the Company or acquired by the Company by merger of
predecessors into the Company, authorizing the construction, operation and
maintenance of gas distribution systems in the following cities or
municipalities and all renewals, extensions or substitutions thereof or
therefor:
<TABLE>
<CAPTION>
TOWN STATE EXPIRATION DATE
<S> <C> <C>
Columbus Georgia December 22, 2006
Gainesville Georgia April 3, 2010
Oakwood Georgia April 4, 1996
Waverly Hall Georgia March 21, 1996
Alma Illinois July 6, 2015
Brookport Illinois March 13, 1997
Broughton Illinois April 15, 1998
Carrier Mills Illinois October 11, 1997
Cowden Illinois June 4, 2015
Eddyville Illinois August 6, 1999
Eldorado Illinois September 15, 2016
Equality Illinois May 16, 1998
Farmersville Illinois July 12, 2015
Galatia Illinois December 4, 1994
Girard Illinois June 1, 2004
Harrisburg Illinois August 19, 2016
Huey Illinois June 5, 2014
Iuka Illinois April 24, 2014
Joppa Illinois July 7, 2022
Junction Illinois December 9, 2018
Kinmundy Illinois April 4, 2013
Metropolis Illinois August 25, 2016
Middletown Illinois April 2, 2013
Muddy Illinois November 2, 1994
New Holland Illinois August 1, 2005
Old Shawneetown Illinois December 6, 1998
Raleigh Illinois June 12, 2019
Salem Illinois
Simpson Illinois September 15, 1999
Stonefort Illinois February 3, 1999
Thayer Illinois June 12, 2004
Vandalia Illinois January 5, 2017
Virden Illinois May 28, 2004
Waggoner Illinois July 11, 2016
Xenia Illinois June 12, 2015
</TABLE>
-2-
<PAGE> 537
<TABLE>
<S> <C> <C>
Keokuk Iowa May 7, 1995
Montrose Iowa January 13, 2001
Bartlett Kansas December 8, 1995
Caney Kansas February 2, 1997
Cedarvale Kansas August 18, 1997
Chetopa Kansas May 21, 1994
Coffeyville Kansas September 10, 2010
Edna Kansas December 4, 1995
Dearing Kansas December 4, 2009
Fredonia Kansas June 7, 2002
Galesburg Kansas April 11, 2005
Independence Kansas July 23, 1996
Kansas City Kansas October 30, 2006
Lawrence Kansas
Lenexa Kansas August 5, 1996
Linwood Kansas January 6, 1995
Longton Kansas July 16, 2009
Mound Valley Kansas April 3, 2004
Niotaze Kansas August 2, 1993
Olathe Kansas March 3, 2012
Overland Park Kansas June 21, 2002
Peru Kansas December 10, 2002
Sedan Kansas June 28, 2000
Spring Hill Kansas April 9, 2012
Stark Kansas November 4, 2011
Yates Center Kansas September 30, 2021
Alexandria Missouri March 6, 2006
Arbela Missouri January 17, 2006
Bowling Green Missouri July 1, 2003
Canton Missouri January 13, 2006
Edina Missouri January 13, 2006
Ewing Missouri April 10, 2009
Granger Missouri January 14, 2006
Hannibal Missouri July 7, 1994
Kahoka Missouri December 9, 2005
Knox City Missouri February 5, 2006
LaBelle Missouri February 19, 2006
LaGrange Missouri February 10, 2006
Lewistown Missouri May 5, 2006
Luray Missouri February 6, 2006
Memphis Missouri March 20, 2006
Monticello Missouri March 27, 2006
Naylor Missouri February 1, 2008
Neelyville Missouri January 7, 1998
</TABLE>
-3-
<PAGE> 538
<TABLE>
<S> <C> <C>
Qulin Missouri December 7, 2007
Wayland Missouri April 7, 2006
Alcoa Tennessee May 27, 2004
Bell Buckle Tennessee August 25, 1997
Bluff City Tennessee September 3, 2017
Bristol Tennessee March 1, 2008
Columbia Tennessee October 18, 2004
Elizabethton Tennessee April 14, 2008
Franklin Tennessee September 13, 2008
Greeneville Tennessee June 19, 2005
Johnson City Tennessee August 31, 2013
Jonesboro Tennessee May 18, 2007
Kingsport Tennessee November 31, 1999
Lynchburg Tennessee June 1, 2006
Maryville Tennessee August 28, 2004
Morristown Tennessee December 18, 1999
Murfreesboro Tennessee April 24, 2000
Shelbyville Tennessee March 26, 2011
Spring Hill Tennessee December 16, 2010
Thompson's Station Tennessee November 31, 2016
Union City Tennessee April 27, 2000
Wartrace Tennessee October 12, 1997
Woodland Mills Tennessee April 13, 1998
Gaffney South Carolina December 13, 2013
Abingdon Virginia May 31, 2001
Blacksburg Virginia December 1, 2006
Bristol Virginia October 12, 1996
Chilhowie Virginia October 12, 2003
Christianburg Virginia July 1, 2005
Dublin Virginia August 14, 2003
Glade Springs Virginia May 9, 2004
Marion Virginia May 18, 2001
Pulaski Virginia October 19, 2001
Radford Virginia May 23, 2002
Rural Retreat Virginia July 19, 2017
Wytheville Virginia October 14, 2021
</TABLE>
-4-
<PAGE> 1
EXHIBIT 4.04
Chapman and Cutler
Draft Dated 12/16/94
[ ] SUPPLEMENTAL INDENTURE
Dated as of [ ]
______________________________
UNITED CITIES GAS COMPANY
to
BANK OF AMERICA ILLINOIS
and
Robert J. Donahue
TRUSTEES
______________________________
Supplementing and Amending Indenture of Mortgage
Dated as of July 15, 1959
and
Creating First Mortgage Bonds, Series [ ],
[ ]% Due [ ]
<PAGE> 2
This [ ] SUPPLEMENTAL INDENTURE, dated as of [ ],
made by and between UNITED CITIES GAS COMPANY, a corporation organized under
the laws of the State of Illinois and the Commonwealth of Virginia (hereinafter
called the "Company"), whose address is 5300 Maryland Way, Brentwood, Tennessee
37027, party of the first part, and BANK OF AMERICA ILLINOIS, an Illinois
banking corporation having its office at 231 South LaSalle Street, Chicago,
Illinois 60697 (hereinafter called the "Trustee"), and Robert J. Donahue,
residing in the City of Chicago, Illinois (the Trustee and Robert J. Donahue
being hereinafter collectively referred to as the "Trustees"), parties of the
second part.
RECITALS:
The background of this [ ] Supplemental Indenture is:
1. The Company heretofore executed and delivered to City National
Bank and Trust Company of Chicago and R. Emmett Hanley, as Trustees, its
Indenture of Mortgage dated as of July 15, 1959 (hereinafter sometimes referred
to as the "Original Indenture"), providing for the issuance thereunder from
time to time of First Mortgage Bonds of the Company, issuable in one or more
series, and wherein and whereby the Company did grant, convey, mortgage,
warrant to, the said Trustees, and each of them, and their respective
successors and assigns, and create a security interest in, certain property of
the Company in said Original Indenture as more particularly described therein
for the security of all First Mortgage Bonds issued and to be issued
thereunder.
2. On September 1, 1961, City National Bank and Trust Company of
Chicago was merged with Continental Bank, National Association, formerly known
as Continental Illinois National Bank and Trust Company of Chicago, which was
subsequently merged with Bank of America Illinois, an Illinois banking
corporation, on September 1, 1994. Upon such merger, Bank of America Illinois
became corporate trustee under the Indenture (hereinafter defined) as provided
therein. On October 15, 1966, Ray F. Myers became individual trustee under the
Indenture as successor to R. Emmett Hanley who resigned, and on March 15,
1981, M. J. Kruger became individual trustee under the Indenture as successor
to Ray F. Myers who resigned. On December 19, 1994, Robert J. Donahue
succeeded M.J. Kruger as individual trustee under the Indenture.
3. The Company has heretofore executed and delivered [ ]
supplemental indentures to the Original Indenture, designated as First
through [ ] (the Original Indenture and all supplemental indentures,
including this [ ] Supplemental Indenture, being herein called the
"Indenture"), for the purpose of subjecting to the lien of the Indenture
certain additional property heretofore and hereafter acquired by the Company,
creating additional series of First Mortgage Bonds, and amending and
supplementing the Indenture in certain respects.
4. There have been issued under the Indenture various series of
First Mortgage Bonds designated as Series A through [ ], inclusive, of which
$[ ] in
<PAGE> 3
aggregate principal amount were outstanding as of [ ]. The bonds of
Series A through [M], inclusive, and Series O have been retired as of [ ].
5. The Company desires to create a new series of bonds to be
issued under and secured by the Indenture to be designated as "First Mortgage
Bonds, Series [ ], [ ]% due [ ]", to be limited to $[ ]
in aggregate principal amount.
6. All things necessary to make the Series [ ] bonds, when duly
executed by the Company and certified and delivered by the Trustee and issued,
valid, binding and legal obligations of the Company entitled to the benefit and
security of the Indenture, and to make this [ ] Supplemental
Indenture a valid and binding instrument in accordance with its terms and for
the purposes herein expressed, have been done and performed; and the issue of
Series [ ] bonds, as herein provided, has been in all respects duly
authorized.
NOW, THEREFORE, in consideration of the premises and of the sum of One
Dollar ($1.00) to the Company duly paid by the Trustees at or before the
ensealing and delivery hereof and for other good and valuable considerations,
the receipt whereof is hereby acknowledged, the Company hereby covenants to and
with the Trustees and their successors in the trusts under the Indenture, for
the equal and pro rata benefit of all present and future holders of all bonds
issued and to be issued under the Indenture, and of the coupons, if any,
thereto appertaining, without any preference, priority or distinction
whatsoever, as follows:
ARTICLE 1
MORTGAGE OF ADDITIONAL PROPERTY
The Company in order better to secure the principal of and interest
(and premium, if any) on all of the bonds of the Company at any time
outstanding under the Indenture according to their tenor and effect and the
performance of and compliance with the covenants and conditions in the
Indenture contained, has heretofore irrevocably granted, conveyed, mortgaged,
warranted, and granted a security interest to, the Trustees, and by these
presents does hereby irrevocably grant, convey, mortgage, warrant to, the
Trustees and each of them, and to their successors in said trust forever, and
grant a security interest in, the property described as follows:
I. All lands and rights and interests therein (including
fixtures), both fee and leasehold, now owned or hereafter acquired by the
Company, including, without limitation, those real properties more specifically
described in Schedule A hereto, and all improvements thereto and thereon;
II. All gas distribution systems, pipelines, plants, buildings,
machinery and equipment now owned or hereafter acquired by the Company, and all
improvements now owned or hereafter acquired by the Company;
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<PAGE> 4
III. All rights appertaining to any and all the foregoing property,
and all gas purchase contracts and other contracts, rights and franchises, and
all leases, indeterminate permits, certificates of convenience and necessity,
rights of way, easements, privileges, tenements, appurtenances, licenses and
permits used by or useful to the Company in the operation of its business,
whether now owned or hereafter acquired, and, subject to the provisions of
Section 7.01 of the Original Indenture, all income and earnings arising out of
the mortgaged property, including rents, issues and profit arising during any
period of redemption and prior to the execution of an absolute deed pursuant to
a foreclosure or other proceedings to enforce the lien of the Indenture; and
IV. All property, real, personal and mixed, whether or not
hereinabove or in Schedule A specifically described, which the Company now owns
and all such property which it may hereafter acquire.
Subject to such liens and encumbrances as are of the character
specified in Section 3.09 of the Original Indenture; BUT SPECIFICALLY
RESERVING AND EXCEPTING from the foregoing grant:
A. All cash, notes, bills and accounts receivable not
specifically pledged under the Indenture;
B. All stocks, bonds and securities not specifically pledged
under the Indenture;
C. All merchandise held for resale and consumable materials and
supplies (other than Cushion Gas as defined in clause (c) of
Section 5.01 of the Sixteenth Supplemental Indenture to the Original
Indenture);
D. The last day of the term of each leasehold estate;
E. All automotive equipment; and
F. All inventory of pipe, meters and equipment (excluding any
such inventory constituting a part of the operating system).
To HAVE AND TO HOLD all said properties, real, personal and mixed,
mortgaged and conveyed by the Company, as aforesaid, or intended so to be, unto
the Trustees and their successors forever; subject, however, to the exclusions,
encumbrances, reservations, covenants, conditions, uses and trusts set forth in
the Indenture.
IN TRUST, NEVERTHELESS, for the same purposes and upon the same
conditions as are set forth in the Indenture, without preference or priority of
any series of bonds or of any bonds within a series over any of the other bonds
by reason of priority of time of maturity or of the negotiation thereof or
otherwise.
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<PAGE> 5
ARTICLE 2
SERIES [ ] BONDS
Section 2.01. Creation of Series [ ] Bonds. There is hereby
created for issuance under the Indenture a series of bonds, limited to the
aggregate principal amount of $[ ], to be designated as "First
Mortgage Bonds, Series [ ], [ ]%, Due [ ]" (herein called
"Series [ ] bonds"). The Series [ ] bonds shall, subject to the provisions
of Section 1.13 of the Original Indenture, be dated as of, and shall bear
interest from the date of authentication and delivery, shall mature [ ],
and shall bear interest at the annual rate of [ ]% payable semi-annually
on [ ] and [ ] in each year until the principal thereof
shall have become due and payable and shall bear interest on any overdue
principal, and (to the extent permitted by law) on any overdue installment of
interest and premium, if any, at the rate of [ ]% per annum. The payment of
the principal of and premium, if any, on each Series [ ] bond and interest at
maturity shall be made upon presentation of such Series [ ] bond at the
principal office of the Trustee in Chicago, Illinois or at such other office or
agency as may be designated for such purpose by the Company from time to time.
The payment of interest on each Series [ ] bond (other than interest at
maturity) shall be made by check mailed to the address of the registered owner
of such Series [ ] bond as such address shall appear in the registry books.
Section 2.02. Form of Series [ ] Bonds. The Series [ ] bonds
shall be issued only as fully registered bonds without coupons, in
denominations of $1,000 and multiples thereof, to the extent practicable,
substantially in the form set forth in Exhibit A hereto, with appropriate
insertions, omissions and changes, approved by the [President] of the Company
and the Trustee, as may be appropriate to reflect the terms of such bonds.
Section 2.03. Redemption of Series [ ] Bonds. The Series [ ]
bonds shall be subject to redemption only as hereinafter provided:
(a) The Series [ ] bonds may be redeemed by application of cash
deposited with the Trustee in accordance with the provisions of Section 3.14,
7.02, 7.03 or 7.04 of the Original Indenture at any time or from time to time,
in whole or in part, by payment of 100% of the principal amount of the Series
[ ] bonds, or portion thereof, to be redeemed, together with interest accrued
thereon to the date of redemption.
[(b) Insert additional provisions, if any, relating to the optional
or mandatory redemption of the Series [ ] bonds.]
Section 2.04. [Insert mandatory or optional sinking fund
provisions, if any, relating to the Series [ ] bonds.]
Section 2.05. Issuance of Series [ ] Bonds. Upon the execution
and delivery of this [ ] Supplemental Indenture and upon compliance
with the provisions of the
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<PAGE> 6
Indenture, the Company may execute and deliver to the Trustee, and the Trustee
shall certify and deliver to, or upon the written order of, the President or
Treasurer of the Company, Series [ ] bonds in an aggregate principal amount
not exceeding $[ ].
ARTICLE 3
PROVISIONS APPLICABLE TO REDEMPTION
OF SERIES [ ] BONDS
Section 3.01. Applicability to Series [ ] Bonds. The provisions
of this Article 3 shall be applicable to the Series [ ] bonds. Except as
hereinafter provided and subject to the provisions of Article 2 above, Series
[ ] bonds shall be redeemed upon the notice, in the manner and with the effect
provided in Article 4 of the Original Indenture.
Section 3.02. Selection of Series [ ] Bonds to be Redeemed.
Notwithstanding any provisions of Article 1 and Article 4 of the Original
Indenture, if less than all outstanding Series [ ] bonds are to be redeemed,
the particular Series [ ] bonds to be redeemed shall be selected by the
Trustee from the outstanding Series [ ] bonds not previously called for
redemption by such method as the Trustee shall deem fair and appropriate.
Section 3.03. [Insert redemption provisions, if any, relating to
Series [ ] bonds that are subject to a mandatory or optional sinking fund.]
ARTICLE 4
ADDITIONAL COVENANTS
Section 4.01. Application of Section 1.15 of the Original
Indenture. So long as any Series [ ] bonds remain outstanding, the provision
of Section 1.15 of the Original Indenture (relating to mutilated, lost, stolen,
or destroyed bonds) which are expressed to be applicable to bonds of Series A
shall also be applicable to the Series [ ] bonds and the holders thereof.
Section 4.02. Withdrawal of Deposited Moneys. The Company
covenants and agrees that so long as any Series [ ] bonds remain outstanding,
moneys deposited with the Trustee pursuant to Section 3.14, 7.02, 7.03 or 7.04
of the Original Indenture will be withdrawn by the Company within, in the case
of moneys deposited pursuant to Section 7.02, 7.03 or 7.04, two years, or in
the case of moneys deposited pursuant to Section 3.14, twelve months, from the
date of deposit of such moneys if the Company shall have a Gross Amount of
Property Additions available for such purpose.
Section 4.03. Restricted Payments. The Company covenants and
agrees that so long as any Series [ ] bonds remain outstanding, the Company
will not declare or pay any dividends on shares of its common stock (except
dividends payable solely in shares of common stock), or directly or indirectly
purchase, redeem or otherwise acquire any shares
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<PAGE> 7
of common stock (except out of the net cash proceeds derived from the issuance
of other shares of common stock), or make any other distribution on shares of
common stock (such non-excepted declarations, payments, purchases, redemptions
or other acquisitions and distributions, being hereinafter called "Restricted
Payments"), unless after giving effect thereto the aggregate amount of all such
Restricted Payments made during the period from December 31, 1988 to and
including the date of the making of the Restricted Payment in question does not
exceed the sum of $15,038,000 plus (or minus in case of a deficit) the amount
of Consolidated Net Income Available for Common Stock Dividends (hereinafter
defined) for such period.
Section 4.04. Merger and Consolidation. The Company covenants
and agrees that so long as any Series [ ] bonds remain outstanding, any of the
provisions of Article 8 of the Original Indenture to the contrary
notwithstanding, Company will not consolidate or merge with or into, or convey
or transfer all or substantially all of the mortgaged property to, any other
entity if at the time thereof or after giving affect thereto any "event of
default" (as defined in Section 6.01 of the Original Indenture) shall or would
exist.
Section 4.05. Certain Definitions. As used in this Article 4,
the following terms shall have the following meanings:
"Consolidated Net Income Available for Common Stock Dividends" for any
period shall mean the net income of the Company and its Subsidiaries for such
period available for dividends on capital stock, after deducting therefrom
dividends paid and accrued during such period on preferred stock, determined on
a consolidated basis in accordance with generally accepted accounting
principles; provided, however, that no effect shall be given to any gains or
losses or other additions or deductions arising by reason of the issue,
purchase, sale, conversion or retirement by the Company or any Subsidiary of
any of its or their securities, or arising by reason of any purchases, sales,
write-ups, write-downs, increase or decrease in book value, or other
transactions or changes in respect of capital assets, tangible or intangible,
and deductions for income taxes shall be adjusted by giving effect to any
change in the amount thereof resulting from the elimination of any of the
capital transactions or changes referred to above.
"Subsidiary" shall mean any corporation of which more than 50% of the
outstanding Voting Stock is owned by the Company. As used herein the term
"Voting Stock" shall mean stock or similar interests of any class or classes
(however designated) the holders of which are generally and ordinarily, in the
absence of contingencies, entitled to vote for the election of the directors
(or persons performing similar functions) of such corporation.
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<PAGE> 8
ARTICLE 5
AMENDMENTS OF INDENTURE
Section 5.01. Amendment of Certain Definitions. Each holder of
Series [ ] bonds and bonds of any series created and issued after the date of
the original issuance of the Series [ ] bonds agrees by its acceptance of such
bonds, that effective on the earlier of (i) the date on which the amendment of
the Indenture set forth in this Section 5.01 has been duly consented to in
writing by the holders of not less than 66-2/3% in aggregate principal amount
of each series of bonds issued and outstanding other than the Series R bonds
and the bonds of each other series created and issued under the Indenture after
the date of original issuance of the Series R bonds, including the Series [ ]
bonds, or (ii) the date on which no bonds of any series issued under the
Indenture and outstanding immediately prior to the date on which the Series R
bonds were originally issued and the holders of which have not consented to
such amendment as contemplated in foregoing clause (i) hereof remain
outstanding, the first sentence of the definition of "Net Earnings" appearing
in Section 12.05(o) of the Original Indenture shall be amended to read as
follows: "'Net Earnings' of the Company for any period means the amount
obtained by deducting from the gross earnings derived from operation of the
mortgaged property all operating expenses of the Company, and by adding to the
remainder all net non-operating earnings other than any portion of such
earnings which represents the net gain arising from any sale or other
disposition of capital assets, or any other items, which would, in accordance
with generally accepted accounting principles, require separate treatment or
classification in the preparation of the Company's financial statements as
'extraordinary items'."
[Section 5.02. Amendments to Conform to the Trust Indenture Act.
The Indenture is hereby amended to include the provisions of Sections 310, 311,
312, 313, 314, 315, 316 and 317 of the Trust Indenture Act. To the extent that
the Indenture contains any provision which limits, qualifies or conflicts with
the aforementioned provisions of the Trust Indenture Act, the aforementioned
provisions of the Trust Indenture Act shall control. As used in this Section
5.02, "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended,
as in force at the date this [ ] Supplemental Indenture was
executed.]
ARTICLE 6
MISCELLANEOUS
Section 6.01. Incorporation of Original Indenture. This [ ]
Supplemental Indenture shall be construed in connection with and as a part of
the Original Indenture and all terms, conditions and covenants contained in the
Original Indenture, except as restricted in the Original Indenture to bonds of
another series or as herein otherwise provided, shall apply to and be deemed to
be for the equal benefit, security and protection of the Series [ ] bonds and
the holders thereof. All terms used in this [ ] Supplemental
Indenture which are defined in the Original Indenture shall, unless the context
otherwise requires, have the meanings set forth in the Original Indenture.
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<PAGE> 9
Section 6.02. Successors and Assigns. Whenever in this [ ]
Supplemental Indenture either of the parties hereto is named or referred to,
this shall be deemed to include the successors or assigns of such party, and
all the covenants and agreements in this [ ] Supplemental Indenture contained
shall bind and inure to the benefit of the respective successors and assigns of
such parties, whether so expressed or not.
Section 6.03. Multiple Counterparts. This [ ]
Supplemental Indenture may be simultaneously executed in any number of
counterparts and all said counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
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<PAGE> 10
IN WITNESS WHEREOF, said UNITED CITIES GAS COMPANY has caused its corporate
name to be hereunto subscribed by its [Senior Vice President and Treasurer] and
its corporate seal to be hereunto affixed and attested by its Secretary or by
an Assistant Secretary, and the said BANK OF AMERICA ILLINOIS, to evidence its
acceptance of the trust hereby created and in it reposed, has caused its
corporate name to be hereunto subscribed by one of its Vice Presidents and its
corporate seal to be affixed and attested by a Trust Officer, and said ROBERT
J. DONAHUE, to evidence his acceptance of the trust hereby created and in him
reposed, has hereunto subscribed his name and affixed his seal, all as of the
day and year first above written.
[CORPORATE SEAL] UNITED CITIES GAS COMPANY
By ______________________________________
[Senior Vice President and Treasurer]
ATTEST:
_______________________________
Secretary
Witnesses as to United Cities
Gas Company:
_______________________________
_______________________________
BANK OF AMERICA ILLINOIS, as Trustee
[CORPORATE SEAL]
By __________________________________
[Vice President]
ATTEST:
_______________________________
Trust Officer
Witnesses as to Bank of America Illinois,
and Robert J. Donahue:
________________________________
Robert J. Donahue
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<PAGE> 11
STATE OF TENNESSEE )
) SS.
COUNTY OF WILLIAMSON )
I, , a Notary Public in and for the
County and State aforesaid, do hereby certify that on this day of
________________, 199_, personally appeared before me [ ] and [ ],
to me personally known, and personally known to me to be the same persons
whose names are subscribed to the foregoing instrument, who, being by me duly
sworn, did say that they are [Senior Vice President and Treasurer] and
[Secretary], respectively, of United Cities Gas Company, a corporation
organized under the laws of the State of Illinois and the Commonwealth of
Virginia, that the seal affixed to the above and foregoing instrument is the
corporate seal of said corporation and that said instrument was signed by them
and sealed and delivered in behalf of said corporation by authority of its
Board of Directors duly given, and the said [Senior Vice President and
Treasurer] and [Secretary] acknowledged said instrument to be their free and
voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of _____________________, 199_.
__________________________________________________
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
<PAGE> 12
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, ______________________________, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this ____ day of
_____________, 199_, personally appeared before me ________________________ and
_____________________, to me personally known, and personally known to me to be
the same persons whose names are subscribed to the foregoing instrument, who
being by me duly sworn, did say that they are [Vice President] and [Trust
Officer], respectively, of Bank of America Illinois, an Illinois banking
corporation organized and existing under the banking laws of the State of
Illinois, that the seal affixed to the above and foregoing instrument is the
corporate seal of said corporation and that said instrument was signed by them
and sealed and delivered in behalf of said corporation by authority of its
Board of Directors duly given, and the said _____________________ and
______________________ acknowledged said instrument to be their free and
voluntary act and deed and the free and voluntary act and deed of said
corporation for the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of _____________________, 199_.
______________________________________________
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
<PAGE> 13
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
I, ______________________________, a Notary Public in and for the
County and State aforesaid, do hereby certify that on this ____ day of
_____________________, 199_, personally appeared before me Robert J. Donahue,
personally known to me to be the person described in and who executed and whose
name is subscribed to the foregoing instrument, and acknowledged that he signed
and delivered the said instrument as his free and voluntary act and deed for
the uses and purposes therein set forth.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal this
____ day of _____________________, 199_.
_______________________________________________
Notary Public in and for the County and
State aforesaid
[NOTARIAL SEAL]
My commission expires:
STATE OF TENNESSEE
) SS.
COUNTY OF WILLIAMSON )
Personally appeared before me ______________________________, who,
being duly sworn, says that she saw the corporate seal of UNITED CITIES GAS
COMPANY affixed to the foregoing instrument and that she also saw [ ],
[Senior Vice President and Treasurer], and [ ],
[Secretary] of said United Cities Gas Company, sign and attest the same,
and that she, with ______________________, witnessed the execution and delivery
thereof as the act and deed of said United Cities Gas Company.
_______________________________________________
Witness
[NOTARIAL SEAL]
Sworn to before me this ____ day of ____________________, 199_.
__________________________________________
Notary Public in and for the County and
State aforesaid
My commission expires:
<PAGE> 14
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me , who,
being duly sworn, says that _____ saw the corporate seal of the BANK OF AMERICA
ILLINOIS affixed to the foregoing instrument and that _____ also saw
______________, [Vice President], and _____________________, Trust Officer of
said Bank of America Illinois, sign and attest the same, and that
____________________, with ______________________, witnessed the execution and
delivery thereof as the act and deed of the said Bank of America Illinois.
__________________________
Witness
[NOTARIAL SEAL]
Sworn to before me this ____ day of ____________________, 199_.
__________________________________________
Notary Public in and for the County and
State aforesaid
My commission expires:
STATE OF ILLINOIS )
) SS.
COUNTY OF COOK )
Personally appeared before me ______________________, who, being duly
sworn, says that ____________________ saw the within named Robert J. Donahue
sign, seal, and as his act and deed, deliver the foregoing instrument and that
____________________, with _______________________, witnessed the execution
thereof.
__________________________
Witness
[NOTARIAL SEAL]
Sworn to before me this ____ day of ____________________, 199_.
__________________________________________
Notary Public in and for the County and
State aforesaid
My commission expires:
<PAGE> 15
EXHIBIT A
Form of Series [ ] bonds and Trustee's Certificate
UNITED CITIES GAS COMPANY
No. ______________ $_____________
FIRST MORTGAGE BOND, SERIES [ ], [ ]%, DUE [ ]
For value received, UNITED CITIES GAS COMPANY, a corporation of the
State of Illinois and the Commonwealth of Virginia (hereinafter, with its
successors and assigns, generally called the "Company"), hereby promises to pay
to
or registered assigns, on [ ], or earlier as hereinafter referred
to, the sum of and to pay to said payee, or registered assigns, interest
thereon, from the date hereof, at the rate of [ ]% per annum, semi-annually
on [ ] and [ ] in each year until the principal sum hereof
shall have become due and payable and to pay interest on any overdue principal
and (to the extent permitted by law) on any overdue installment of interest and
premium, if any, at the rate of [ ]% per annum.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, of a series designated "First Mortgage Bonds, Series [ ], [ ]%,
Due [ ]," all such bonds of this series and all other series being
issued or to be issued under and subject to the provisions of a certain
Indenture of Mortgage, dated as of July 15, 1959 (hereinafter with all
indentures supplemental thereto generally called the "Indenture"), by and
between the Company and Bank of America Illinois (hereinafter, with its
successors in the trusts under the Indenture, generally called the "Trustee"),
successor to Continental Bank, National Association, and Robert J. Donahue,
successor to M.J. Kruger, as Trustees, to which Indenture, an executed
counterpart of which is on file with the Trustee, reference is hereby made for
a description of the property mortgaged, a statement of the nature and extent
of the security thereby afforded, the terms and conditions upon which release
of property covered by the Indenture may be made, the terms and conditions upon
which bonds of all series are or are to be issued and secured, the rights and
remedies under the Indenture of the holders of said bonds, the terms and
conditions upon which the Indenture may be modified or amended, and the rights
and obligations under the Indenture of the Company and of said Trustees; but
neither the foregoing reference to the Indenture, nor any provision of this
bond or of the Indenture, shall affect or permit the impairment of the
absolute, unconditional and unalterable obligation of the Company to pay, at
the maturity date herein provided, the principal of and interest on this bond
as herein provided.
The payment of the principal of and premium, if any, on this bond and
interest at maturity shall be made upon presentation of this bond at the
principal office of the Trustee in Chicago, Illinois or at such other office
or agency as may be designated for such purpose by the Company from time to
time. The payment of interest on this bond (other than
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<PAGE> 16
interest at maturity) shall be made by check mailed to the address of the
registered owner hereof as such address shall appear in the registry books.
[Insert applicable provisions, if any, relating to the optional or
mandatory redemption of the bonds of this series and/or the applicable
provisions of any mandatory or optional sinking fund.]
The bonds of this series are [also] redeemable, in whole or in part,
at any time upon notice as required in the Indenture through the application
of cash deposited with the Trustee in accordance with the provisions of
Section 3.14, 7.02, 7.03 or 7.04 of the Indenture at 100% of the principal
amount thereof, together with interest accrued thereon, if any, to the date of
redemption.
The Company, the Trustee and all other persons may for all
purposes treat the registered owner hereof for the time being, as the
absolute owner hereof, and neither the Company nor the Trustee shall be
affected by any notice or knowledge to the contrary, whether any payment
on this bond shall be overdue or not; and the Company, and every successive
registered owner and assignee of this bond, by accepting or holding the same,
consent and agree to the foregoing provisions and each invites the others, and
all persons, to rely thereon.
In certain events, on the conditions, in the manner, at the times, to
the extent and with that effect set forth in the Indenture, all as more fully
provided therein, (1) the principal of this bond may be declared and become
due and payable before the stated maturity hereof, (2) this bond may be
transferred or exchanged at the option of the registered owner hereof, and (3)
this bond, either singly or together with all or less than all other bonds
of this series, may be called for redemption and payment prior to maturity,
on notice given or waived as provided in the Indenture, at the applicable
redemption price specified in the Indenture.
This bond is transferable by the registered owner either in person
or by attorney duly authorized in writing at the office of the Trustee upon
surrender and cancellation of this bond, all in the manner and upon the
conditions prescribed in the Indenture.
Each holder of this bond by its acceptance hereof agrees that
effective on the earlier of (i) the date on which the amendment of the
Indenture described below has been duly consented to in writing by the
holders of not less than 66-2/3% in aggregate principal amount of each series
of bonds issued and outstanding (other than the Series R bonds and the bonds of
each other series created and issued under the Indenture after the date of
original issuance of the Series R bonds, including the bonds of this series)
or (ii) the date on which no bonds of any series issued under the Indenture
and outstanding immediately prior to the date on which the Series R bonds were
originally issued and the holders of which have not consented to such
amendment as contemplated in the foregoing clause (i) remain outstanding, the
first sentence of the definition of "Net Earnings" appearing in Section
12.05(o) of the Indenture shall be amended to read as follows: "'Net
Earnings' of the Company for any period means the amount obtained by deducting
from the gross earnings derived from
A-2
<PAGE> 17
operation of the mortgaged property all operating expenses of the Company, and
by adding to the remainder all net non-operating earnings other than any
portion of such earnings which represents the net gain arising from any sale
or other disposition of capital assets, or any other items, which would, in
accordance with generally accepted accounting principles, require separate
treatment or classification in the preparation of the Company's financial
statements as 'extraordinary items'."
Each holder of this bond by its acceptance hereof, and the Trustee
by its certification hereof, waives and releases all right of recourse to
any personal, statutory or other liability of any past, present or future
promoter, incorporator, stockholder, director or officer of the Company for
the collection of any indebtedness evidenced by this bond, or for the
enforcement of any right or claim under or in connection with this bond or
the Indenture.
This bond shall not be valid or become obligatory for any purpose,
or be entitled to any protection or benefit under the Indenture, until the
certificate hereon shall have been signed by the Trustee.
A-3
<PAGE> 18
IN WITNESS WHEREOF, United Cities Gas Company has caused this bond to
be executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto, and this bond to be dated __________________, 199_.
UNITED CITIES GAS COMPANY
By ____________________
Its ___________________
ATTEST:
___________________________________
______________ Secretary
[Form of Trustee's Certificate]
This is one of the bonds, of the series designated therein, referred
to in the within-mentioned Indenture.
BANK OF AMERICA ILLINOIS,
as Trustee
By
____________________________
Authorized Officer
A-4
<PAGE> 19
SCHEDULE A
Descriptions of Additional Mortgaged Property
The properties referred to in the granting clauses of this
Supplemental Indenture include the parcels of real estate or interests therein
more specifically described below. Said description is not intended, however,
to limit or impair the scope or intention of the general description in the
granting clauses of the Original Indenture.
PART I - REAL ESTATE AND INTERESTS THEREIN
Those certain tracts, pieces or parcels of land and interests in real
estate situate, lying and being in the respective countries and states set
forth below and described as follows:
<PAGE> 20
PART II - DISTRIBUTION SYSTEMS AND PIPELINES
DISTRIBUTION SYSTEMS
All gas distribution systems of the Company, together with all
pipelines, mains, connection, service pipes, fittings, meters, regulators,
regulator stations and buildings, tools, instruments, appliances, apparatus,
facilities, machinery and other property used or provided for use, in the
construction, maintenance, repair or operation thereof and together also
with all of the rights, privileges, rights-of-way, franchises, licenses,
easements, grants and permits with respect to the construction, maintenance,
repair and operation of such gas distribution systems, including, but not
limited to, the plants and systems owned and operated by the Company for the
distribution and sale of gas located in the following named cities, towns, or
villages and environs thereof as follows:
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<PAGE> 21
PART III - GAS SUPPLY CONTRACTS
The following described contracts, and all renewals, extensions,
supplements or amendments thereof, between the Company (or a predecessor
corporation) and the respective suppliers named below providing for the
supply of natural gas to the Company for distribution and resale in the
respective cities and towns and areas adjacent thereto set forth under the
caption "Service Area:"
<TABLE>
<CAPTION>
SERVICE CONTRACT TERM OF
AREA SUPPLIER DATE EXPIRATION DATE
---- -------- ---- ---------------
<S> <C> <C> <C>
</TABLE>
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<PAGE> 22
PART IV - FRANCHISES
The following franchises granted to the Company, or to its
predecessors and assigned to the Company or acquired by the Company by
merger of predecessors into the Company, authorizing the construction,
operation and maintenance of gas distribution systems in the following cities
or municipalities and all renewals, extensions or substitutions thereof or
therefor:
<TABLE>
<S> <C> <C>
Town State Expiration Date
</TABLE>
-4-
<PAGE> 1
Exhibit 4.06
Chapman and Cutler
Draft 12/16/94
____________________________________
UNITED CITIES GAS COMPANY
to
Bank of America Illinois, Trustee
_________________
INDENTURE
Dated as of [___________], 1995
_________________
____________________________________
<PAGE> 2
TABLE OF CONTENTS
NOTE: This table of contents shall not, for any purpose,
be deemed to be part of the Indenture.
SECTION HEADING PAGE
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recital of the Company . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION . . . . . . . . . . . . . . . . . 1
Section 101. Definitions . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request or Company Order . . . . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . 3
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . 3
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Discount Security . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Eligible Obligations . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 3
First Mortgage Bonds . . . . . . . . . . . . . . . . . . . . . . 4
Government Obligations . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . 5
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Periodic Offering . . . . . . . . . . . . . . . . . . . . . . . 6
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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<PAGE> 3
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . 6
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 6
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . 6
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . 7
Required Currency . . . . . . . . . . . . . . . . . . . . . . . 7
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Security Register; Security Registrar . . . . . . . . . . . . . 7
Special Record Date . . . . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . 7
Tranche . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 7
United States . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 102. Compliance Certificates and Opinions . . . . . . . . . 8
Section 103. Form of Documents Delivered to Trustee . . . . . . . . 8
Section 104. Acts of Holders . . . . . . . . . . . . . . . . . . . 9
Section 105. Notices, Etc. to Trustee and Company . . . . . . . . 10
Section 106. Notice to Holders of Securities; Waiver . . . . . . 10
Section 107. Conflict with Trust Indenture Act . . . . . . . . . 11
Section 108. Effect of Headings and Table of Contents . . . . . . 11
Section 109. Successors and Assigns . . . . . . . . . . . . . . . 11
Section 110. Separability Clause . . . . . . . . . . . . . . . . 11
Section 111. Benefits of Indenture . . . . . . . . . . . . . . . 11
Section 112. Governing Law . . . . . . . . . . . . . . . . . . . 11
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO SECURITY FORMS . . . . . . . . . . . . . . . . . . . . 12
Section 201. Forms Generally . . . . . . . . . . . . . . . . . . 12
Section 202. Form of Trustee's Certificate of Authentication . . 12
Section 203. Securities in Global Form . . . . . . . . . . . . . 13
ARTICLE THREE THE SECURITIES . . . . . . . . . . . . . . . . . . . 13
Section 301. Amount Unlimited; Issuable in Series . . . . . . . . 13
Section 302. Denominations . . . . . . . . . . . . . . . . . . . 16
Section 303. Execution, Authentication, Delivery and Dating . . . 16
Section 304. Temporary Securities . . . . . . . . . . . . . . . . 19
Section 305. Registration; Registration of Transfer and Exchange 20
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . 22
Section 307. Payment of Interest . . . . . . . . . . . . . . . . 23
Section 308. Persons Deemed Owners . . . . . . . . . . . . . . . 24
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . 25
Section 310. Computation of Interest . . . . . . . . . . . . . . 25
Section 311. Payment to Be in Proper Currency . . . . . . . . . . 25
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<PAGE> 4
Section 312. CUSIP Numbers . . . . . . . . . . . . . . . . . . . 25
ARTICLE FOUR REDEMPTION OF SECURITIES . . . . . . . . . . . . . . 26
Section 401. Applicability of Article . . . . . . . . . . . . . . 26
Section 402. Election to Redeem; Notice to Trustee . . . . . . . 26
Section 403. Selection of Securities to Be Redeemed . . . . . . . 26
Section 404. Notice of Redemption . . . . . . . . . . . . . . . . 26
Section 405. Securities Payable on Redemption Date . . . . . . . 27
Section 406. Securities Redeemed in Part . . . . . . . . . . . . 28
ARTICLE FIVE SINKING FUNDS . . . . . . . . . . . . . . . . . . . 28
Section 501. Applicability of Article . . . . . . . . . . . . . . 28
Section 502. Satisfaction of Sinking Fund Payments with Securities 28
Section 503. Redemption of Securities for Sinking Fund . . . . . 29
ARTICLE SIX COVENANTS . . . . . . . . . . . . . . . . . . . . . 29
Section 601. Payment of Principal, Premium and Interest . . . . . 29
Section 602. Maintenance of Office or Agency . . . . . . . . . . 29
Section 603. Money for Securities Payments to Be Held in Trust . 30
Section 604. Corporate Existence . . . . . . . . . . . . . . . . 31
Section 605. Maintenance of Properties . . . . . . . . . . . . . 31
Section 606. Statement as to Compliance; Notice of Default . . . 32
Section 607. Waiver of Certain Covenants . . . . . . . . . . . . 32
ARTICLE SEVEN SATISFACTION AND DISCHARGE . . . . . . . . . . . . . 33
Section 701. Satisfaction and Discharge of Securities . . . . . . 33
Section 702. Satisfaction and Discharge of Indenture . . . . . . 34
Section 703. Application of Trust Money . . . . . . . . . . . . . 35
ARTICLE EIGHT EVENTS OF DEFAULT; REMEDIES . . . . . . . . . . . . 36
Section 801. Events of Default . . . . . . . . . . . . . . . . . 36
Section 802. Acceleration of Maturity; Rescission and Annulment . 37
Section 803. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . 38
Section 804. Trustee May File Proofs of Claim . . . . . . . . . . 39
Section 805. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . 40
Section 806. Application of Money Collected . . . . . . . . . . . 40
Section 807. Limitation on Suits . . . . . . . . . . . . . . . . 40
Section 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . 41
Section 809. Restoration of Rights and Remedies. . . . . . . . . 41
Section 810. Rights and Remedies Cumulative . . . . . . . . . . . 42
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<PAGE> 5
Section 811. Delay or Omission Not Waiver . . . . . . . . . . . . 42
Section 812. Control by Holders of Securities . . . . . . . . . . 42
Section 813. Waiver of Past Defaults . . . . . . . . . . . . . . 42
Section 814. Undertaking for Costs . . . . . . . . . . . . . . . 43
Section 815. Waiver of Stay or Extension Laws . . . . . . . . . . 43
ARTICLE NINE THE TRUSTEE . . . . . . . . . . . . . . . . . . . . 43
Section 901. Certain Duties and Responsibilities . . . . . . . . 43
Section 902. Notice of Defaults . . . . . . . . . . . . . . . . . 44
Section 903. Certain Rights of Trustee . . . . . . . . . . . . . 45
Section 904. Not Responsible for Recitals or Issuance of Securities 46
Section 905. May Hold Securities . . . . . . . . . . . . . . . . 46
Section 906. Money Held in Trust . . . . . . . . . . . . . . . . 46
Section 907. Compensation and Reimbursement . . . . . . . . . . . 46
Section 908. Disqualification; Conflicting Interests. . . . . . . 47
Section 909. Corporate Trustee Required; Eligibility . . . . . . 48
Section 910. Resignation and Removal; Appointment of Successor . 48
Section 911. Acceptance of Appointment by Successor . . . . . . . 50
Section 912. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . 51
Section 913. Preferential Collection of Claims Against Company . 51
Section 914. Appointment of Authenticating Agent . . . . . . . . 54
Section 915. Trustee's Application for Instructions from the
Company . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE TEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . 57
Section 1001. Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . . . . 57
Section 1002. Preservation of Information; Communications
to Holders . . . . . . . . . . . . . . . . . . . . . 57
Section 1003. Reports by Trustee . . . . . . . . . . . . . . . . . 58
Section 1004. Reports by Company. . . . . . . . . . . . . . . . . 60
ARTICLE ELEVEN CONSOLIDATION, MERGER, CONVEYANCE TRANSFER OR LEASE 60
Section 1101. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . 60
Section 1102. Successor Corporation Substituted . . . . . . . . . 61
ARTICLE TWELVE SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . 61
Section 1201. Supplemental Indentures Without Consent of Holders . 61
Section 1202. Supplemental Indentures with Consent of Holders . . 63
Section 1203. Execution of Supplemental Indentures . . . . . . . . 64
Section 1204. Effect of Supplemental Indentures . . . . . . . . . 65
Section 1205. Conformity with Trust Indenture Act . . . . . . . . 65
Section 1206. Reference in Securities to Supplemental Indentures . 65
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<PAGE> 6
Section 1207. Modification Without Supplemental Indenture . . . . 65
ARTICLE THIRTEEN MEETINGS OF HOLDERS . . . . . . . . . . . . . . . . 66
Section 1301. Purposes for Which Meetings May Be Called . . . . . 66
Section 1302. Call, Notice and Place of Meetings . . . . . . . . . 66
Section 1303. Persons Entitled to Vote at Meetings . . . . . . . . 66
Section 1304. Quorum, Action . . . . . . . . . . . . . . . . . . . 67
Section 1305. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment of Meetings . 67
Section 1306. Counting Votes and Recording Action of
Meeting . . . . . . . . . . . . . . . . . . . . . . 68
Section 1307. Action Without Meeting . . . . . . . . . . . . . . . 69
ARTICLE FOURTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS . . . . . . . . . . . . . . . 69
Section 1401. Liability Solely Corporate . . . . . . . . . . . . . 69
ARTICLE FIFTEEN CONVERSION OF SECURITIES . . . . . . . . . . . . . . 70
Section 1501. Applicability: Conversion Privilege and
Conversion Price . . . . . . . . . . . . . . . . . . 70
Section 1502. Exercise of Conversion Privilege . . . . . . . . . . 70
Section 1503. Fractions of Shares . . . . . . . . . . . . . . . . 71
Section 1504. Adjustment of Conversion Price . . . . . . . . . . . 71
Section 1505. Notice of Adjustment of Conversion Price . . . . . . 73
Section 1506. Notice of Certain Corporate Action . . . . . . . . . 74
Section 1507. Company to Reserve Common Stock . . . . . . . . . . 75
Section 1508. Taxes on Conversions . . . . . . . . . . . . . . . . 75
Section 1509. Covenant as to Common Stock . . . . . . . . . . . . 75
Section 1510. Cancellation of Converted Securities . . . . . . . . 75
Section 1511. Provisions in Case of Consolidation, Merger or
Sale of Assets . . . . . . . . . . . . . . . . . . . 75
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<PAGE> 7
INDENTURE, dated as of [______________], 1995, between UNITED CITIES GAS
COMPANY, a corporation duly organized and existing under the laws of the State
of Illinois and the Commonwealth of Virginia (herein called the "Company") ,
having its principal office at 5300 Maryland Way, Brentwood, Tennessee 37027,
and Bank of America Illinois, an Illinois banking corporation (hereinafter
called the "Trustee"), having its Corporate Trust Office at 231 South LaSalle
Street, Chicago, Illinois 60697.
RECITAL OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness (herein called the "Securities"), to
be issued in one or more series as in this Indenture provided; and all other
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101.Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United States
of America at the date of such computation; provided, however, that in
determining generally accepted accounting principles applicable to the
Company, the Company shall, to the extent required, conform to any order,
rule or regulation of any administrative agency, regulatory authority or
other governmental body having jurisdiction over the Company; and
<PAGE> 8
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Articles Nine and Fifteen, are defined
in such Articles.
"Act" when used with respect to any Holder of a Security, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person or Persons authorized by the
Trustee to act on behalf of the Trustee to authenticate one or more series of
Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to a Place of Payment of any other
particular location specified in the Securities of this Indenture, means any
day, other than a Saturday or Sunday, which is not a day on which banking
institutions or trust companies in such Place of Payment or other specified
location are generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as contemplated by
Section 301.
"Commission" means the Securities and Exchange Commission, as from to
time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person.
-2-
<PAGE> 9
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Controller, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered,
which office at the date of execution of this Indenture is located at 231 South
LaSalle Street, Chicago, Illinois 60697, Attention: Corporate Trust
Administration.
"Corporation" means a corporation, association, company, joint stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Default" means, with respect to the Securities of any series, any event
which is, or after notice or the lapse of time or both would become, an Event
of Default with respect to the Securities of such series.
"Depositary" means with respect to the Securities of any series, or any
Tranche thereof, issuable or issued in whole or in part in global form, the
Person designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is
more than one such Person,
"Depositary" as used with respect to the Securities of any such series, or
any Tranche thereof, shall mean the "Depositary" with respect to the Securities
of that series or Tranche.
"Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 802.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Eligible Obligations" means:
(a) with respect to Securities denominated in United State Dollars,
Government Obligations; or
(b) with respect to Securities denominated in a currency other than
United States Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Securities, as
contemplated by Section 301.
"Event of Default" has the meaning specified in Section 801.
-3-
<PAGE> 10
"First Mortgage Bonds" means one or more series of the Company's bonds
issued under the Indenture of Mortgage dated as of July 15, 1959 from the
Company to Bank of America Illinois (successor to Continental Bank, National
Association) and Robert J. Donahue (successor to M.J. Kruger), as Trustees, as
amended and supplemented from time to time.
"Government Obligations" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America entitled to the benefit of the full faith and credit thereof, and
(b) certificates, depositary receipts or other instruments which
evidence a direct ownership interest in obligations described in clause (a)
above or in any specific interest or principal payments due in respect
thereof; provided, however, that the custodian of such obligations or
specific interest or principal payments shall be a bank or trust company
subject to Federal or state supervision or examination with a combined
capital and surplus of at least $50,000,000; and provided, further, that
except as may be otherwise required by law, such custodian shall be
obligated to pay to the holders of such certificates, depositary receipts
or other instruments the full amount received by such custodian in respect
of such obligations or specific payments and shall not be permitted to make
any deduction therefrom.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date," when used with respect to any Security means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installation of principal become due
and payable as therein or herein provided, whether at the Stated Maturity, by
declaration of acceleration, upon call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
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"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities deemed to have been paid in accordance with Section
701; and
(c) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it and the Company that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
provided, however, that in determining whether or not the Holders of the
requisite principal amount of the Securities Outstanding under this Indenture,
or the Outstanding Securities of any series or Tranche, have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or
whether or not a quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor
(unless the Company, such Affiliate or such obligor owns all Securities
Outstanding under this Indenture, or all Outstanding Securities of
each such series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the
Trustee knows to be so owned shall be so disregarded; provided,
however, that Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such
other obligor;
(y) the principal amount of a Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 802; and
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(z) the principal amount of any Security which is denominated in a
currency other than U.S. Dollars or in a composite currency that shall
be deemed to be Outstanding for such purposes shall be the amount of
U.S. Dollars which could have been purchased by the principal amount
(or, in the case of a Discount Security, the U.S. Dollar equivalent on
the date determined as set forth below of the amount determined as
provided in (y) above) of such currency or composite currently
evidenced by such security, in each such case certified to the Trustee
in an Officers' Certificate based (i) on the average of the mean of the
buying and selling spot rates quoted by three banks which are members
of the New York Clearing House Association selected by the Company in
effect at 11:00 A.M. (New York time) in the City of New York on the
fifth Business Day preceding any such determination or (ii) if on such
fifth Business Day it shall not be possible or practicable to obtain
such quotations from such three banks, on such other quotations or
alternative methods of determination which shall be as consistent as
practicable with the method set forth in (i) above.
"Paying Agent" means any Person, including the Company, authorized by
the Company to pay the principal of, and premium, if any, or interest, if any,
on any Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including without
limitation the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint venture,
trust or unincorporated organization or any government or any political
subdivision, instrumentality or agency thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places, specified as contemplated by Section 301, at
which, subject to Section 602, the principal of and premium, if any, and
interest, if any, on the Securities of such series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date" when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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"Regular Record Date," for the interest payable on any Interest Payment
Date on the Securities of any series, means the date specified for that purpose
as contemplated by Section 301.
"Required Currency" has the meaning specified in Section 311.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer of the Trustee to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity," when used with respect to any Security of any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Tranche" means a group of Securities which (a) are of the same series
and (b) have identical terms except as to principal amount and/or date of
issuance.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean or include
such Person who is then a Trustee hereunder, and if any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this instrument was executed,
except as provided in Section 1205.
"United States" means the United States of America, its territories, its
possessions and other areas subject to its jurisdiction.
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Section 102. Compliance Certificates and Opinions. Except as otherwise
expressly provided in this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this
Indenture, the Company shall, if requested by the Trustee, furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been compiled with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been compiled with.
Section 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, election, waiver or other action provided by this
Indenture to be made, given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing or,
alternatively, may be embodied in and evidenced by the record of Holders voting
in favor thereof, either in person or by proxies duly appointed in writing, at
any meeting of Holders duly called and held in accordance with the provisions
of Article Thirteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record of both are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 901)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meetings of Holders shall be
proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof or may be
proved in any other manner which the Trustee and the Company deem sufficient.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The principal amount (except as otherwise contemplated in clause
(y) of the proviso to the definition of Outstanding) and serial numbers of
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of a Holder shall bind the Holder of any Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) Until such time as written instruments shall have been delivered
to the Trustee with respect to the requisite percentage of principal amount of
Securities for the action contemplated by such instruments, any such instrument
executed and delivered by or on behalf of the Holder may be revoked with
respect to any or all of such Securities by written
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notice by such Holder or any subsequent Holder, proven in the manner in which
such instrument was proven.
(f) Securities of any series, or any Tranche thereof, authenticated
and delivered after any Act of Holders may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any action taken
by such Act of Holders. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in the opinion
of the Trustee and the Company, to such action may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
(g) If the Company shall solicit from Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company
may, at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. If such a record dated is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on the record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of the Outstanding
securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the record date. If
such a record date is not fixed, such record date shall be the later of 30 days
prior to the first solicitation of such request, demand, authorization,
direction, notice, consent, waiver or other Act or the date of the most recent
list of Holders furnished to the Trustee pursuant to Section 1001 prior to such
solicitation.
Section 105. Notices, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, election, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided), if in writing and mailed, first-class postage prepaid, to the
Company addressed to the attention of its Treasurer, at 5300 Maryland
Way, Brentwood, Tennessee 37027, or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver. Except as
otherwise expressly provided herein, where this Indenture provides for notice
to Holders of any event, such notice shall be sufficiently given, and shall be
deemed given, to Holders if in writing and mailed, first-class postage prepaid,
to each Holder affected by such event, at the address of
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such Holder as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
Notice.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice to Holders by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
Any notice required by this Indenture may be waived in writing by the
Person entitled to receive such notice, either before or after the event
otherwise to be specified therein, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act. If any provision of
this Indenture limits, qualifies or conflicts with another provision hereof
which is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
Section 108. Effect of Headings and Table of Contents. The Article and
Section headings in this Indenture and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause. In case any provision in this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or the
Securities, express or implied, shall give to any Person, other than the
parties hereto, their successors hereunder and the Holders, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of Illinois.
Section 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities other than a provision in Securities of
any series, or any Tranche thereof, or in the Board Resolution or Officers'
Certificate which establishes the terms of such Securities or Tranche, which
specifically states that such provision shall apply in lieu of this Section)
payment of
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interest or principal and premium, if any, need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, and, if such
payment is made or duly provided for on such Business Day, then no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date or Stated Maturity, as the case may be,
to such Business Day.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. The definitive Securities of each series
shall be in substantially the forms thereof established in Board Resolutions or
Officers' Certificates pursuant to Board Resolutions, or in indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the forms of Securities of any series are
established in a Board Resolution or in an Officers' Certificate pursuant to a
Board Resolution, such Board Resolution and Officers' Certificate, if any,
shall be delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in such manner as
shall be determined by the officers executing such Securities, as evidenced by
their execution thereof.
Section 202. Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication shall be in substantially the form set
forth below:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANK OF AMERICA ILLINOIS,
as Trustee
By:__________________________
Authorized Signatory
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Section 203. Securities in Global Form. If Securities of a series, or
any Tranche thereof, are issuable in whole or in part in global form, any such
Security may provide that it shall represent the aggregate amount of
Outstanding Securities from time to time endorsed thereon and may also provide
that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges or increased to reflect the
issuance of additional Securities. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons, as shall be specified therein or in the Company Order
delivered to the Trustee pursuant to Section 303.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited. The Securities will rank pari passu with all
other unsecured indebtedness of the Company; provided, however, that if
designated pursuant to Section 301(r), a particular series of Securities, or
any Tranche thereof, may be collateralized by the Company's First Mortgage
Bonds or other securities of the Company or other specified Person.
The Securities may be issued in one or more series. Subject to the last
paragraph of this Section, there shall be established in a Board Resolution or
in an Officers' Certificate pursuant to a Board Resolution, or established in
one or more indentures supplemental hereto, prior the issuance of Securities of
any series,
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all other
series);
(b) any limit upon the aggregate principal amount of the Securities
of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 406 or 1206
and, except for any Securities which, pursuant to Section 303, are deemed
never to have been authenticated and delivered hereunder);
(c) whether Securities of such series, or any Tranche thereof, may
be issued in whole or in part in global form and, if so, the identity of
the Depositary for such Securities in global form, and the terms and
conditions, if any, upon which interests in such Securities in global form
may be exchanged, in whole or in part, for the individual Securities
represented thereby;
(d) the Person or Persons (without specific identification) to whom
interest on Securities of such series, or any Tranche thereof, shall be
payable on any Interest Payment Date, if other than the Person in whose
name that Security (or one or more
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Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest;
(e) the date or dates on which the principal of the Securities of
such series is payable;
(f) the rate or rates at which the Securities of such series, or any
Tranche thereof, shall bear interest, if any (including the rate or rates
at which overdue principal, premium or interest shall bear interest, if
any), or any method or methods by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on Securities on any Interest
Payment Date; and the basis of computation of interest, if other than as
provided in Section 310;
(g) the place or places where (1) the principal of and premium, if
any, and interest, if any, on Securities of such series, or any Tranche
thereof, shall be payable, (2) any Securities of such series, or any
Tranche thereof, may be surrendered for registration of transfer, (3)
Securities of such series, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in respect of
the Securities of such series, or any Tranche thereof, and this Indenture
may be served;
(h) the period or periods within which, the price or prices at which
and the terms and conditions upon which the Securities of such series, or
any Tranche thereof, may be redeemed, in whole or in part, at the option
of the Company;
(i) the obligation, if any, of the Company to redeem or purchase the
Securities of such series, or any Tranche thereof, pursuant to any sinking
fund or analogous provisions or at the option of the Company or a Holder
thereof and the period or periods within which, the price or prices at
which and the terms and conditions upon which such Securities shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(j) the denominations in which Securities, if any, of such series,
or any Tranche thereof shall be issuable if other than denominations of
$1,000 and any integral multiple thereof;
(k) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
at the election of the Company or a Holder thereof, in a coin or currency
other than that in which the Securities are stated to be payable, the
period or periods within which, and the terms and conditions upon which,
such election may be made;
(l) the currency or currencies, including composite currencies, in
which payment of the principal of and premium, if any, and interest, if
any, on the Securities
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<PAGE> 21
of such series, or any Tranche thereof, shall be payable (if other than
the currency of the United States);
(m) if the principal of or premium, if any, or interest, if any, on
the Securities of such series, or any Tranche thereof, are to be payable,
or are to be payable at the election of the Company or a Holder thereof,
in securities or other property, the type and amount of such securities or
other property, or the method by which such amount shall be determined,
and the period or periods within which, and the terms and conditions upon
which, any such election may be made;
(n) if the amount of payments of principal of or premium, if any, or
interest, if any, on the Securities of such series, or any Tranche
thereof, may be determined with reference to an index, the manner in which
such amounts shall be determined;
(o) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series, or any Tranche thereof,
which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 802;
(p) any Events of Default, in addition to those specified in Section
801, with respect to the Securities of such series, and any covenants of
the Company for the benefit of the Holders of the Securities of such
series in addition to those set forth in Article Six;
(q) the terms, if any, pursuant to which the Securities of such
series, or any Tranche thereof, may be converted into or exchanged for
shares of capital stock or other securities of the Company or any other
specified Person, in addition to, or in modification of, those set forth
in Article Fifteen;
(r) if the Securities of such Series, or any Tranche thereof, are to
be collateralized by a series of the Company's First Mortgage Bonds or
other securities of the Company or any other specified Person, a
description of such securities and such other terms, if any, relating to
the pledge and custody of such Securities;
(s) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities of such
series, or any Tranche thereof, denominated in a currency other than
United States Dollars or in a composite currency, and any additional or
alternative provisions for the reinstatement of the Company's indebtedness
in respect of such Securities after the satisfaction and discharge thereof
as provided in Section 701;
(t) if a service charge will be made for the registration of
transfer or exchange of Securities of such series, or any Tranche thereof,
the amount or terms thereof;
(u) any exceptions to Section 113, or variation in the definition of
"Business Day," with respect to the Securities of such series, or any
Tranche thereof; and
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(v) any other terms of the Securities of such series, or any Tranche
thereof, not inconsistent with the provisions of this Indenture.
If any of the terms of the series, or any Tranche thereof, are established
in a Board Resolution or in an Officers' Certificate pursuant to a Board
Resolution, such Board Resolution and Officer's Certificate, if any, shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities. With respect to Securities of a series subject to a Periodic
Offering, such Board Resolution or Officers' Certificate may provide general
terms or parameters for the Securities of such series and provide either that
the specific terms of particular Securities of such series, or any Tranche
thereof, shall be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with a Company Order as
contemplated by the proviso of the third paragraph of Section 303.
Section 302. Denominations. Unless otherwise provided as contemplated
by Section 301 with respect to any series of Securities, the Securities of each
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
Section 303. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President, one of its Vice Presidents or any
other duly authorized officer, under its corporate seal affixed thereto or
reproduced thereon attested by its Secretary, one of its Assistant Secretaries
or any other duly authorized officer. The signature of any or all of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall the bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication and delivery, together with a Company
Order for the authentication and delivery of such Securities, and the Trustee
in accordance with such Company Order shall authenticate and make available for
delivery such Securities; provided, however, that, with respect to Securities
of a series subject to a Periodic Offering, (a) such Company Order may be
delivered by the Company to the Trustee prior to the delivery to the Trustee of
such Securities for authentication and delivery, (b) the Trustee shall
authenticate and make available for delivery Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series, all
pursuant to a Company Order or pursuant to such procedures acceptable to the
Trustee as may be specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates, interest rate or rates
and any other terms of Securities of such series shall be determined by Company
Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize
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<PAGE> 23
authentication and delivery pursuant to oral or electronic instructions from
the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing.
In authenticating Securities of any series, and accepting responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 901(a)(2)) shall be fully
protected in relying upon, an Opinion of Counsel stating:
(a) that the forms of such Securities have been duly authorized by
the Company and have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities have been duly authorized by
the Company and have been established in conformity with the provisions of
this Indenture;
(c) that such Securities, when authenticated and delivered by the
Trustee and issued and delivered by the Company in the manner and subject
to any conditions specified in such Opinion of Counsel, will have been
duly issued under this Indenture, and will constitute valid and legally
binding obligations of the Company, entitled to the benefits provided by
this Indenture, and enforceable in accordance with their terms, subject,
as to enforcement, to laws relating to or affecting generally the
enforcement of creditors' rights, including, without limitation,
bankruptcy and insolvency laws and to general principles of equity; and
(d) that all laws and requirements in respect of the execution and
delivery by the Company of such Securities have been complied with and
that all registration requirements in respect of the offer and sale of
such Securities by the Company have been complied with;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the opinions described in clauses (b) and
(c) above may, alternatively, state, respectively,
(x) that, when the terms of such Securities shall have been
established pursuant to a Company Order or pursuant to such procedures
as may be specified from time to time by a Company Order, all as
contemplated by and in accordance with a Board Resolution or an
Officers' Certificate pursuant to a Board Resolution, as the case may
be, such terms will have been duly authorized by the Company and will
have been established in conformity with the provisions of this
Indenture; and
(y) that such Securities, when (1) executed by the Company, (2)
authenticated and delivered by the Trustee in accordance with this
Indenture, (3) issued and delivered by the Company and (4) paid for,
all as contemplated
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by and in accordance with the aforesaid Company Order or specified
procedures, as the case may be, will have been duly issued under this
Indenture and will constitute valid and legally binding obligations of
the Company, entitled to the benefits provided by the Indenture, and
enforceable in accordance with their terms, subject, as to enforcement,
to laws relating to or affecting generally the enforcement of
creditors' rights, including, without limitation, bankruptcy and
insolvency laws and to general principles of equity.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 201 and 301 and this Section, as
applicable, at or prior to the time of the first authentication of Securities
of such series unless and until such opinion or other documents have been
superseded or revoked. In connection with the authentication and delivery of
Securities of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate and deliver
such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
If the form or terms of the Securities of any series have been established
by or pursuant to a Board Resolution as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if the issuance
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
If the Company shall establish pursuant to Section 301(c) that Securities
of a series, or any Tranche thereof, may be issued in whole or in part in
global form, then the Company shall execute and the Trustee shall, in
accordance with this Section and the Company Order with respect to such series
or Tranche, authenticate and deliver one or more Securities in global form that
(i) shall represent and shall be denominated in an authorized aggregate amount
equal to the aggregate principal amount of the Outstanding Securities of such
series or Tranche and tenor to be represented by one or more Securities in
global form (ii) shall be registered, if in registered form, in the name of the
Depositary for such Security or Securities in global form or the nominee of
such Depositary, (iii) shall be delivered to such Depositary or pursuant to
such Depositary's instruction and (iv) shall bear a legend substantially to the
following effect (with such modifications as are necessary to reflect the name
of the Depositary):
"Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the
Company or its agent for registration of transfer, exchange or payment,
and any certificate to be issued is registered in the name of Cede & Co.
or such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE
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HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL in so much
as the registered owner hereof, Cede & Co., has an interest herein.
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Company by DTC or a successor
depositary, this Security may not be transferred except as a whole by DTC
to a nominee of DTC or by a nominee of DTC to DTC or another nominee of
DTC or by DTC or any such nominee to a successor depositary or a nominee
of such successor depositary.
This Security may be exchanged for certificated Securities registered in
the names of the various beneficial owners hereof only if (a) DTC is at
any time unwilling or unable to continue as depositary and as a successor
depositary is not appointed by the Company within 90 days, or (b) the
Company elects to issue certificated Securities to beneficial owners (as
certified to the Company by DTC or a successor depositary) of all
Securities of the series designated below."
Each Depositary designated pursuant to Section 301(c) for a Registered
Security in global form must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and any other applicable statute
or regulation.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or its agent by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that
such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered hereunder to the
Company, or any Person acting on its behalf, but shall never have been issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits hereof.
Section 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall
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authenticate and make available for delivery, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities;
provided, however, that temporary Securities need not recite specific
redemption, sinking fund, conversion or exchange provisions.
Except in the case of temporary Securities in global form, which shall be
exchanged in accordance with the provisions thereof, if temporary Securities of
any series are issued, the Company shall cause definitive Securities of such
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of the
Company maintained pursuant to Section 602 in a Place of Payment for such
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series, the Company shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor definitive Securities of the same series, of authorized denominations
and of like tenor and aggregate principal amount.
Unless otherwise specified as contemplated by Section 301 with respect to
a temporary Security in global form, until so exchanged in full as hereinabove
provided, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder.
Section 305. Registration; Registration of Transfer and Exchange. The
Company shall cause to be kept at the office of the Security Registrar
designated pursuant to Section 602 a register (referred to as the "Security
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and the
registration of transfer thereof.
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company maintained pursuant to Section 602 in a
Place of Payment for such series, the Company shall execute, and the Trustee
shall authenticate and make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of authorized denominations and of like tenor and aggregate principal
amount.
Notwithstanding any other provision of this Section, unless and until it
is exchanged in whole or in part for the individual Securities represented
thereby, in definitive form, a Security in global form representing all or a
portion of the Securities of a series, or any Tranche thereof, may not be
transferred except as a whole by the Depositary for such series or Tranche to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such
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<PAGE> 27
nominee to a successor Depositary for such series or Tranche or a nominee of
such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at any such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series, or any
Tranche thereof, notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series or Tranche or if at
any time the Depositary for the Securities of such series or Tranche shall no
longer be eligible under Section 303, the Company, by Company Order, shall
appoint a successor Depositary with respect to the Securities of such series or
Tranche. If a successor Depositary for the Securities of such series or
Tranche is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301(c) shall no longer be effective with respect
to the Securities of such series or Tranche and the Company will execute, and
the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Securities of such series or Tranche, will authenticate
and deliver, Securities of such series or Tranche in definitive form in an
aggregate principal amount and like terms and tenor equal to the principal
amount of the Security or Securities in global form representing such series or
Tranche in exchange for such Security or Securities in global form.
The Company may at any time and in its sole discretion determine that
individual Securities of any series, or any Tranche thereof, issued in global
form shall no longer be represented by such Security or Securities in global
form. In such event the Company will execute, and the Trustee, upon receipt of
a Company Order for the authentication and delivery of individual definitive
Securities of such series or Tranche and of the same terms and tenor, will
authenticate and deliver individual Securities of such series or Tranche in
definitive form in authorized denominations and in an aggregate principal
amount equal to the principal amount of the Security or Securities in global
form representing such series or Tranche in exchange for such Security or
Securities in global form.
If specified by the Company pursuant to Section 301 with respect to a
series of Securities, or any Tranche thereof, the Depositary for such series or
Tranche of Securities may surrender a Security in global form for such series
or Tranche of Securities in exchange in whole or in part for individuals
Securities of such series or Tranche in definitive form and of like terms and
tenor on such terms as are acceptable to the Company, the Trustee and such
Depositary. Thereupon, the Company shall execute, and the Trustee upon receipt
of a Company Order for the authentication and delivery of individual definitive
Securities of such series or Tranche, shall authenticate and deliver, without
service charge:
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(a) to the Depositary or to each Person specified by such Depositary
a new individual Security or Securities of the same series or Tranche and
of the same tenor, of authorized denominations, in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in
the Security in global form; and
(b) to such Depositary a new Security in global form in a
denomination equal to the difference, if any, between the principal amount
of the surrendered Security in global form and the aggregate principal
amount of the individual Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the
Trustee. Securities issued in exchange for a Security in global form pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the persons in whose names such Securities are so registered or to the
Depositary.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed or shall be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar or any transfer agent duly executed by the Holder thereof or his
attorney duly authorized in writing.
Unless otherwise provided in a Board Resolution or an Officers'
Certificate pursuant to a Board Resolution, or in an indenture supplemental
hereto, with respect to Securities of any series, or any Tranche thereof, no
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 306 or 1206 not involving any transfer.
The Company shall not be required (a) to issue, to register the transfer
of or to exchange Securities of any series during a period of 15 days
immediately preceding the date notice is given identifying the serial numbers
of the Securities of such series called for redemption or (b) to issue, to
register the transfer of or to exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall
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authenticate and make available for delivery in exchange therefor a new
Security of the same series, and of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the ownership of and the destruction, loss or
theft of any Security and (b) such security or indemnity as may be reasonably
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series, and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
Notwithstanding the foregoing, in case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the
Company in its discretion may, instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall at any time be enforceable by anyone, and any
such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of such series
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 301 with respect to the
Securities of any series, or any Tranche thereof, interest on any Security
which is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such Interest Payment Date.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the related Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in paragraph (a) or (b) below:
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(a) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this paragraph provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 20 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall promptly cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at the address of such Holder as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following paragraph (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this paragraph, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners. The Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the absolute owner of such Security for the purpose
of receiving payment of principal of and premium, if any, and (subject to
Sections 305 and 307) interest, if any, on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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Section 309. Cancellation. All Securities surrendered for payment,
redemption, conversion, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and, if not theretofore canceled,
shall be promptly canceled by the Trustee. The Company may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever or which the Company shall not have issued and sold, and all
securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be returned to
the Company.
Section 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Section 311. Payment to Be in Proper Currency. In the case of any
Securities denominated in any currency other than United States Dollars or in a
composite currency (the "Required Currency"), except as otherwise provided
therein, the obligation of the Company to make any payment of the principal
thereof, or the premium or interest thereon, shall not be discharged or
satisfied by any tender by the Company, or recovery by the Trustee, in any
currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the Trustee timely holding the full amount
of the Required Currency then due and payable. If any such tender or recovery
is in a currency other than the Required Currency, the Trustee may take such
actions as it considers appropriate to exchange such currency for the Required
Currency. The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall be borne by
the Company, the Company shall remain fully liable for any shortfall or
delinquency in the full amount of Required Currency then due and payable, and
in no circumstances shall the Trustee be liable therefor except in the case of
its negligence or willful misconduct. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the Trustee, is
less than the full amount of Required Currency then due and payable.
Section 312. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
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<PAGE> 32
ARTICLE FOUR
REDEMPTION OF SECURITIES
Section 401. Applicability of Article. Securities of any series, or any
Tranche thereof, which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of such series or Tranche) in
accordance with this Article.
Section 402. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by a Board Resolution or an
Officers' Certificate. The Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of such Securities to be redeemed. In the
case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company which
is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 403. Selection of Securities to Be Redeemed. If less than all
the Securities of any series, or any Tranche thereof, are to be redeemed, the
particular Securities to be redeemed shall be selected by the Security
Registrar from the Outstanding Securities of such series or Tranche not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of such
series or Tranche or any integral multiple thereof) of the principal amount of
Securities of such series or Tranche of a denomination larger than the minimum
authorized denomination for Securities of such series or Tranche; provided,
however, that if, as indicated in an Officers' Certificate, the Company shall
have offered to purchase all Securities then Outstanding of any series, or any
Tranche thereof, and less than all of such Securities shall have been tendered
to the Company for such purchase, the Trustee, if so directed by Company Order,
shall select for redemption all such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 404. Notice of Redemption. Notice of redemption shall be given
in the manner provided in Section 106 to the Holders to be redeemed not less
than 30 nor more than 60 days prior to the Redemption Date.
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All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the CUSIP number(s), if any;
(d) if less than all the Securities of any series or Tranche are to
be redeemed, the identification of the particular Securities to be
redeemed and the portion of the principal amount of any Security to be
redeemed in part;
(e) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date;
(f) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(g) that the redemption is for a sinking fund, if such is the case.
With respect to any notice of redemption of Securities at the election of
the Company, unless, upon the giving of such notice, such Securities shall be
deemed to have been paid in accordance with Section 701, such notice may state
that such redemption shall be conditioned upon the receipt by the Trustee, on
or prior to the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Securities and
that if such money shall not have been so received such notice shall be of no
force or effect and the Company shall not be required to redeem such
Securities. In the event that such notice of redemption contains such a
condition and such money is not so received, the redemption shall not be made
and within a reasonable time thereafter notice shall be given, in the manner in
which the notice of redemption was given, that such money was not so received
and such redemption was not required to be made.
Notice of redemption of Securities to be redeemed at the election of the
Company, and any notice of nonsatisfaction of a condition for redemption as
aforesaid, shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 405. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, and the conditions, if any, set
forth in such notice having been satisfied, the Securities or portions thereof
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless, in
the case of an unconditional notice of redemption, the Company shall default in
the payment of the Redemption Price and accrued interest, if any) such
Securities or portions thereof, if interest-bearing, shall cease to bear
interest. Upon surrender of any such Security for redemption in accordance
with such notice, such Security or portion
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thereof shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that any
installment of interest on any Security the Stated Maturity of which
installment is on or prior to the Redemption Date shall be payable to the
Holder of such Security, or one or more Predecessor Securities, registered as
such at the close of business on the related Regular Record Date according to
the terms of such Security and subject to the provisions of Section 307.
Section 406. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Security, without service
charge, a new Security or Securities of the same series, of any authorized
denomination requested by such Holder and of like tenor and in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE FIVE
SINKING FUNDS
Section 501. Applicability of Article. The provisions of this Article
shall be applicable to any sinking fund for the retirement of the Securities of
any series, or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or Tranche.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series, or any Tranche thereof, is herein referred to as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of any series, or any Tranche
thereof, is herein referred to as an "optional sinking fund payment." If
provided for by the terms of Securities of any series, or any Tranche thereof,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 502. Each sinking fund payment shall be applied to the
redemption of Securities of the series or Tranche in respect of which it was
made as provided for by the terms of such Securities.
Section 502. Satisfaction of Sinking Fund Payments with Securities. The
Company (a) may deliver Outstanding Securities (other than any previously
called for redemption) of a series or Tranche in respect of which a mandatory
sinking fund payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of such mandatory
sinking fund payment; provided, however, that no Securities shall be applied in
satisfaction of a mandatory sinking fund payment if such Securities shall have
been previously so applied. Securities so applied shall be received and
credited for such purpose by the Trustee at the
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Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such mandatory sinking fund payment shall
be reduced accordingly.
Section 503. Redemption of Securities for Sinking Fund. Not less than
45 days prior to each sinking fund payment date for the Securities of any
series, or any Tranche thereof, the Company shall deliver to the Trustee an
Officers' Certificate specifying:
(a) The amount of the next succeeding mandatory sinking fund payment
for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment to be
made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment;
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by delivering and crediting Securities of such
series or Tranche pursuant to Section 502 and stating the basis for such
credit and that such Securities have not previously been so credited, and
the Company shall also deliver to the Trustee any Securities to be so
delivered. If the Company shall not deliver such Officers' Certificate,
the next succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking fund
payment. Not less than 30 days before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 403 and cause notice
of the redemption thereof to be given in the name of and at the expense of
the Company in the manner provided in Section 404. Such notice having
been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 405 and 406.
ARTICLE SIX
COVENANTS
Section 601. Payment of Principal, Premium and Interest. The Company
shall pay the principal of and premium, if any, and interest, if any, on the
Securities of each series in accordance with the terms of such Securities and
this Indenture.
Section 602. Maintenance of Office or Agency. The Company shall
maintain in each Place of Payment for the Securities of any series, or any
Tranche thereof, an office or agency where such Securities may be presented or
surrendered for payment, where such Securities may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Company in respect of such Securities and this
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Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency and prompt notice to the Holders of any such change in the manner
specified in Section 106. If at any time the Company shall fail to maintain
any such required office or agency in respect of Securities of any series, or
any Tranche thereof, or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of such Securities may be made and
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive
such respective presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series, or any Tranche thereof,
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set forth above. The
Company shall give prompt written notice to the Trustee, and prompt notice to
the Holders in the manner specified in Section 106, of any such designation or
rescission and of any change in the location of any such other office or
agency.
Anything herein to the contrary notwithstanding, any office or agency
required by this Section may be maintained at any office of the Company, in
which event the Company shall perform all functions to be performed at such
office or agency.
Section 603. Money for Securities Payments to Be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to the
Securities of any series, or any Tranche thereof, it shall, on or before each
due date of the principal of and premium, if any, or interest, if any, on any
of such Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and premium or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities of any series, or any Tranche thereof, it shall, prior to each due
date of the principal of and premium, if any, or interest, if any, on such
Securities, deposit with such Paying Agents sums sufficient (without
duplication) to pay the principal and premium or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying Agent is the Trustee)
the Company shall promptly notify the Trustee of its action or failure so to
act.
The Company shall cause each Paying Agent for the Securities of any
series, or any Tranche thereof, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent
shall:
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(a) hold all sums held by it for the payment of the principal of and
premium, if any, or interest, if any, on Securities of such series or
Tranche in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of and premium, if any, or interest, if any, on the
Securities of such series or Tranche; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of and premium, if any,
or interest, if any, on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest has become due and
payable shall be paid to the Company on Company Request, or, if then held by
the Company, shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such payment to the
Company, may at the expense of the Company cause to be mailed, on one occasion
only, notice to such Holder that such money remains unclaimed and that, after a
date of such mailing, any unclaimed balance of such money then remaining will
be paid to the Company.
Section 604. Corporate Existence. Subject to the rights of the Company
under Article Eleven, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the rights (charter and statutory) and franchises of the Company; provided,
however, that the Company shall not be required to preserve any such right or
franchise if, in the judgment of the Company, the preservation thereof is no
longer desirable in the conduct of the business of the Company and the loss
thereof will not adversely affect the interests of the Holders in any material
respect.
Section 605. Maintenance of Properties. The Company shall cause (or,
with respect to property owned in common with others, make reasonable effort to
cause) all its properties used or useful in the conduct of its business to be
maintained and kept in good
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condition, repair and working order and shall cause (or, with respect to
property owned in common with others, make reasonable effort to cause) to be
made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as, in the judgment of the Company, may be necessary
so that the business carried on in connection therewith may be properly
conducted; provided, however, that nothing in this Section shall prevent the
Company from discontinuing, or causing the discontinuance of, the operation and
maintenance of any of its properties if such discontinuance is, in the judgment
of the Company, desirable in the conduct of its business.
Section 606. Statement as to Compliance; Notice of Default. The Company
shall deliver to the Trustee, on or prior to June 1 in each year, a written
statement, which need not comply with Section 102, signed by its principal
executive officer, principal financial officer or principal accounting officer,
stating, as to each signer thereof, that
(a) a review of the activities of the Company during the immediately
preceding twelve month period and of performance under this Indenture has
been made under such officer's supervision, and
(b) to the best of such officer's knowledge, based on such review,
either (1) the Company has fulfilled all its obligations under this
Indenture throughout such period or if there has been a default in the
fulfillment of any such obligation, specifying each such default known to
such officer and the nature and status thereof and (2) no Event of Default
has occurred and is continuing or, if an Event of Default has occurred and
is continuing, specifying each such Event of Default known to such officer
and the nature and status thereof.
The Company shall file with the Trustee written notice of the occurrence
of any Default or Event of Default within five Business Days of its becoming
aware of any such Default or Event of Default.
Section 607. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth
in (a) Section 602 or any additional covenant or restriction specified with
respect to the Securities of any series, or any Tranche thereof, as
contemplated by Section 301 if before the time for such compliance the Holders
of at least a majority in aggregate principal amount of the Outstanding
Securities of all series and Tranches with respect to which compliance with
Section 602 or such additional covenant or restriction is to be omitted,
considered as one class, shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition and (b) Section 604, 605, 606 or Article Eleven if
before the time for such compliance the Holders of at least a majority in
principal amount of Securities Outstanding under this Indenture shall, by Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition; but, in the case of
(a) or (b), no such waiver shall extend to or affect such term, provision or
condition except to the extent expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in any such term, provision or condition shall remain in full force and effect.
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ARTICLE SEVEN
SATISFACTION AND DISCHARGE
Section 701. Satisfaction and Discharge of Securities. Any Security and
Securities, or any portion of the principal amount thereof, shall be deemed to
have been paid for all purposes of this Indenture, and the entire indebtedness
of the Company in respect thereof shall be deemed to have been satisfied and
discharged, if there shall have been irrevocably deposited with the Trustee, in
trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of such
Securities or portions thereof, Eligible Obligations, which shall not
contain provisions permitting the redemption or other prepayment thereof
at the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will provide
moneys which, together with the money, if any, deposited with or held by
the Trustee, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Securities or portions thereof; provided, however,
that in the case of the provision for payment or redemption of less than all
the Securities of any series or Tranche, such Securities or portions thereof
shall have been selected by the Security Registrar as provided herein and, in
the case of a redemption, the notice requisite to the validity of such
redemption shall have been given or irrevocable authority shall have been given
by the Company to the Trustee to give such notice, under arrangements
satisfactory to the Trustee; and provided, further, that the Company shall have
delivered to the Trustee:
(x) if such deposit shall have been made prior to the Maturity of
such Securities, a Company Order stating that the money and Eligible
Obligations deposited with the Trustee in accordance with this Section
shall be held by the Trustee, in trust, as provided in Section 703; and
(y) if Eligible Obligations shall have been deposited with the
Trustee, an opinion of an independent public accountant of nationally
recognized standing, selected by the Company, to the effect that the
requirements set forth in clause (b) above have been satisfied.
Upon receipt by the Trustee of money or Eligible Obligations, or both, in
accordance with this Section, together with the documents required by clauses
(x) and (y) above, the Trustee shall, upon receipt of a Company Request,
acknowledge in writing that the Security or Securities or portions thereof with
respect to which such deposit was made are deemed to have been paid for all
purposes of this Indenture and that the entire indebtedness of the Company in
respect thereof is deemed to have been satisfied and discharged.
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If payment at Stated Maturity of less than all of the Securities of any
series, or any Tranche thereof, is to be provided for in the manner and with
the effect provided in this Section, the Security Registrar shall select such
Securities, or portions of principal amount thereof, in the manner specified by
Section 403 for selection for redemption of less than all the Securities of a
series or Tranche, as the case may be.
In the event that Securities which shall be deemed to have been paid as
provided in this Section do not mature and are not to be redeemed within the
sixty (60) day period commencing with the date of the deposit with the Trustee
of moneys or Eligible Obligations, as aforesaid, the Company shall, as promptly
as practicable, give a notice, in the same manner as a notice of redemption
with respect to such Securities, to the Holders of such Securities to the
effect that such deposit has been made and the effect thereof.
Notwithstanding the satisfaction and discharge of any Securities as
aforesaid, the obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 404, 503 (as to notice of redemption),
602, 603, 907 and 914 and this Article Seven shall survive.
The Company shall pay, and shall indemnify the Trustee and each Holder of
Securities which are deemed to have been paid as provided in this Section
against, any tax, fee or other charge imposed on or assessed against the
Eligible Obligations deposited with the Trustee or the principal or interest
received by the Trustee in respect of such Eligible Obligations.
Anything herein to the contrary notwithstanding, if, at any time after a
Security would be deemed to have been satisfied or discharged pursuant to this
Section (without regard to the provisions of this paragraph), the Trustee shall
be required to return the money or Eligible Obligations, or combination
thereof, deposited with it as aforesaid to the Company or its representative
under any applicable Federal or State bankruptcy, insolvency or other similar
law, the indebtedness of the Company in respect of such Security shall
thereupon be deemed retroactively not to have been satisfied and discharged, as
aforesaid, and to remain Outstanding.
Section 702. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect (except as hereinafter
expressly provided), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either
(1) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(B) Securities deemed to have been paid in accordance with Section
701) have been delivered to the Trustee for cancellation; or
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(2) all Securities not theretofore delivered to the Trustee for
cancellation (other than Securities described in clause (1) (A) above)
shall be deemed to have been paid in accordance with Section 701;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
In the event there shall be Securities of two or more series Outstanding
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of all series as to which it is Trustee and if the other
conditions thereto are met. In the event there shall be two or more Trustees
hereunder, then the effectiveness of each such instrument from each Trustee
hereunder shall be conditioned upon receipt of such instruments from each other
Trustee hereunder.
Notwithstanding the satisfaction and discharge of this Indenture as
aforesaid, the obligations of the Company and the Trustee under Sections 304,
305, 306, 404, 503 (as to notice of redemption), 602, 603, 907 and 914 and this
Article Seven shall survive.
Upon satisfaction and discharge of this Indenture as provided in this
Section, the Trustee shall assign, transfer and turn over to the Company,
subject to the lien provided by Section 907, any and all money, securities and
other property then held by the Trustee for the benefit of the Holders of the
Securities other than money and Eligible Obligations held by the Trustee
pursuant to Section 703.
Section 703. Application of Trust Money. Neither the Eligible
Obligations nor the money deposited with the Trustee pursuant to Section 701,
nor the principal or interest payments on any such Eligible Obligations, shall
be withdrawn or used for any purpose other than, and shall be held in trust
for, the payment of the principal of and premium, if any, and interest, if any,
on the Securities or portions of principal amount thereof in respect of which
such deposit was made, all subject, however, to the provisions of Section 603;
provided, however, that, so long as there shall not have occurred and be
continuing an Event of Default, any cash received from such principal or
interest payments on such Eligible Obligations deposited with the Trustee, if
not then needed for such purpose, shall to the extent practicable, be invested
in Eligible Obligations of the type described in clause (b) in the first
paragraph of Section 701 maturing at such times and in such amount as shall be
sufficient to pay when due the principal of, the premium, if any, and interest,
if any, due and to become due on such Securities or portions thereof on and
prior to the Maturity thereof, and interest earned from such reinvestment shall
be paid over to the Company as received by the Trustee, free and clear of any
trust, lien or pledge under this Indenture except the lien provided by Section
907; and provided, further, that, so long as there shall not have occurred and
be continuing an Event of Default, any moneys held by the Trustee in
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accordance with this Section on the Maturity of all such Securities in excess
of the amount required to pay the principal of and premium, if any, and
interest, if any, then due on such Securities shall be paid over to the Company
free and clear of any trust, lien or pledge under this Indenture except the
lien provided by Section 907.
ARTICLE EIGHT
EVENTS OF DEFAULT; REMEDIES
Section 801. Events of Default. "Events of Default," wherever used
herein with respect to Securities of any series, means any one of the following
events:
(a) failure to pay any interest on any Security of such series
within 30 days after the same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on any
Security of such series when the same becomes due and payable at its
Maturity; or
(c) failure to perform, or breach of, any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty of the
Company a default in the performance of which or breach of which is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of one or more
series of Securities other than such series) for a period of 60 days after
there has been given, by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(d) if an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness, for money borrowed of the Company
(including an event of default under this Indenture with respect to
Securities of any series other than such series), whether such
indebtedness now exists of shall hereafter be created, shall happen and
such event of default shall either (i) result in such indebtedness in an
amount in excess of $15,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise become due and payable or
(ii) result from the failure by the Company to make any payment in excess
of $15,000,000 of the principal of such indebtedness on the date it
becomes due and payable (after the expiration of any applicable grace
periods), and such acceleration shall not have been rescinded or annulled
or such failure to make payment shall not have been cured, as the case may
be, or such indebtedness shall not have been otherwise discharged, within a
period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of the Outstanding
Securities of such series a written notice specifying such event of
default and requiring the Company to cause such acceleration to be
rescinded
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or annulled or to cause such failure to make payment to be cured, as the
case may be, or to cause such indebtedness to be otherwise discharged, and
stating that such notice is a "Notice of Default" hereunder; provided,
however, subject to the provisions of Sections 901 and 902, in the absence
of actual knowledge of a Responsible Officer of the Trustee, as such
officer, assigned to its Corporate Trust Department, the Trustee shall not
be charged with knowledge of any event of default unless written notice
thereof shall have been given to the Trustee by the Company, by the
trustee then acting under any mortgage, indenture or other instrument
(including any other trustee acting under this Indenture for any other
series of Securities) under which such event of default shall have
occurred, by the holder or an agent of any holder of such indebtedness, or
by the Holders of at least 25% in principal amount of the Outstanding
Securities of such series; or
(e) the entry by a court having jurisdiction in the premises of (1)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (2) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition by one or more Persons other than the Company seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and
any such decree or order for relief or any such other decree or order
shall have remained unstayed and in effect for a period of 90 consecutive
days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the company in a case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the filing by
it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the authorization of such action by
the Board of Directors; or
(g) any other Events of Default specified with respect to Securities
of such series.
Section 802. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default shall have occurred and be continuing with respect to
Securities of any series at the
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time Outstanding, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the outstanding Securities of such series
may declare the principal amount (or, if any of the Securities of such series
are Discount Securities, such portion of the principal amount of such
Securities as may be specified in the terms thereof as contemplated by Section
301) of all of the Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon receipt by the Company of notice of such declaration such principal
amount (or specified amount) shall become immediately due and payable;
provided, however, that if an Event of Default shall have occurred and be
continuing with respect to more than one series of Securities, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
outstanding Securities of all such series, considered as one class, may make
such declaration of acceleration, and not the Holders of the Securities of any
one of such series.
At any time after such a declaration of acceleration with respect to
Securities of any series shall have been made and before a judgment or decree
for payment of the money due shall have been obtained by the Trustee as
hereinafter in this Article provided, the Event or Events of Default giving
rise to such declaration of acceleration shall, without further act, be deemed
to have been waived and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee a sum
sufficient to pay:
(1) all overdue interest on all Securities of such series;
(2) the principal of and premium, if any, on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities;
(3) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(4) all amounts due to the Trustee under Section 907; and
(b) any other Event or Events of Default with respect to Securities
of such series, other than the nonpayment of the principal of Securities
of such series which shall have become due solely by such declaration or
acceleration, shall have been cured or waived as provided in Section 813.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
Section 803. Collection of Indebtedness and Suits for Enforcement by
Trustee. If any Event of Default described in clause (a) or (b) of Section 801
shall have occurred and be continuing, the Company shall, upon demand of the
Trustee, pay to it, for the benefit of the
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Holders of the Securities of the series with respect to which such Event of
Default shall have occurred, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest, if any, and, to the
extent permitted by law, interest on premium, if any, and on any overdue
principal and interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover any amounts due to the Trustee under Section 907.
If the Company shall fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series shall have
occurred and be continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 804. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company, of any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustees shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal,
premium, if any, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for amounts due to the Trustee under Section 907) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holder, to
pay to the Trustee any amounts due it under Section 907.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 805. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders in respect of which such judgment has
been recovered.
Section 806. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or premium, if any, or interest, if any, upon
presentation of the Securities in respect of which or for the benefit of which
such money shall have been collected and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
907;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal of and premium, if any, and interest, if any, in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal, premium,
if any, and interest, if any, respectively; provided, however, if such
money was received from the liquidation or other disposition of the
Company's First Mortgage Bonds or other securities of the Company or any
other Person collateralizing a particular series of Securities, or any
Tranche thereof, such money shall be applied pursuant to this clause
SECOND, first to the payment of the amounts then due and unpaid upon the
Securities of such series or any Tranche for principal of and premium, if
any, and interest, if any, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal, premium, if any, and interest, if any, respectively, and
second, to the payment of the amounts then due and unpaid upon other
Securities to the extent and in the manner otherwise set forth in this
clause SECOND; and
THIRD: To the Company.
Section 807. Limitation on Suits. No Holder shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
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(a) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
such series;
(b) the Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities of all series in respect of which an
Event of Default shall have occurred and be continuing, considered as one
class, shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the outstanding Securities of
all series in respect of which an Event of Default shall have occurred and
be continuing, considered as one class;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
Section 808. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any, and
(subject to Section 807) interest, if any, on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent
of such Holder.
Section 809. Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to the Trustee or to such
Holder, then and in every such case, subject to any determination in such
proceeding, the Company, and Trustee and such Holder shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and such Holder shall continue as though
no such proceeding had been instituted.
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Section 810. Rights and Remedies Cumulative. Except as otherwise
provided in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
Section 811. Delay or Omission Not Waiver. No delay or omission of the
Trustee or any Holder to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 812. Control by Holders of Securities. If an Event of Default
shall have occurred and be continuing in respect of a series of Securities, the
Holders of a majority in principal amount of the Outstanding Securities of such
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series; provided, however, that if an Event of Default shall have occurred and
be continuing with respect to more than one series of Securities, the Holders
of a majority in aggregate principal amount of the Outstanding Securities of
all such series, considered as one class, shall have the right to make such
direction, and not the Holders of the Securities of any one of such series; and
provided, further, that
(a) such direction shall not be in conflict with rule of law or with
this Indenture, and shall not involve the Trustee in personal liability in
circumstances where indemnity would not, in the Trustee's sole discretion,
be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 813. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences except a
default
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Security of such series, or
(b) in respect of a covenant or provision hereof which under Section
1202 cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any and all
Events of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 814. Undertaking for Costs. The Company and the Trustee agree,
and each Holder by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in aggregate principal amount of the Outstanding Securities of all
series in respect of which such suit may be brought, considered as one class,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of or premium, if any, or interest, if any, on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
Section 815. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE NINE
THE TRUSTEE
Section 901. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default with respect to Securities of any
series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to
the truth of the statements and the
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correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but
in the case of any such certificates of opinions which
by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not
they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to
Securities of any series shall have occurred and be
continuing, the Trustee shall exercise, with respect to
Securities of such series, such of the rights and powers
vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provisions of this Indenture shall be
construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own
willful misconduct, except that
(1) this subsection shall not be construed to
limit the effect of subsection (a) of this Section;
(2) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the
Holders of a majority in principal amount of the
Outstanding Securities of any one or more series, as
provided herein, relating to the time, method and place
of conducting any proceeding for any remedy available
to the Trustee, under this Indenture with respect to
the Securities of such series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so
provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the
provisions of this Section.
Section 902. Notice of Defaults. Within 90 days after
the occurrence of any Default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series entitled to
receive reports pursuant to Section 1003(c), notice of any
Default hereunder known to the Trustee, unless such Default
shall have been cured and waived; provided, however, that,
except in the case of a Default in
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The payment of the principal of or premium, if any, or interest, if any, on
any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of the Securities of such series; and provided,
further, that in the case of any Default of the character specified in Section
801(c) with respect to Securities of such series, no such notice to Holders
shall be given until at least 75 days after the occurrence thereof.
Section 903. Certain Rights of Trustee. Subject to the provisions of
Section 901:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
or as otherwise expressly provided herein, and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be therein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any Holder pursuant to this Indenture, unless such
Holder shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be
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entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any
Event of Default with respect to the Securities or any series for
which it is acting as Trustee unless either (1) a Responsible Officer
of the Trustee assigned to the corporate trust department of the
Trustee (or any successor division or department of the Trustee) shall
have actual knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee by the
Company, any other obligor on such Securities or by any Holder of such
Securities; and
(i) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed, upon advice of counsel, by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
Section 904. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statement of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 905. May Hold Securities. The Trustee, any Authenticating
Agent, any Paying Agent, and Security Registrar or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 908 and 913, may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 906. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds, except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
Section 907. Compensation and Reimbursement. The Company shall
(a) pay to the Trustee from time to time such compensation
as shall be agreed to in writing between the Company and the Trustee
for all services rendered by it
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hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust);
(b) reimburse the Trustee upon its request for all expenses,
disbursements and advances reasonably incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
compensation and the expenses and disbursements of its agents and
counsel, both internal and external), except any such expense,
disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith; and
(c) indemnify the Trustee and hold it harmless from and
against, any and all loss, damage, claims, liability or expense,
including taxes (other than taxes based upon measured or determined by
the income of the Trustee) reasonably incurred without negligence,
willful misconduct or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities upon all
property and funds held or collected by the Trustee in its capacity as Trustee
other than property and funds held in trust under Section 703 (except as
otherwise provided in Section 703).
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 801(d) or Section 801(e), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or State bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 908. Disqualification; Conflicting Interests.
(a) If the Trustee shall have or acquire any conflicting
interest (as defined in Section 310(b) of the Trust Indenture Act),
and a Default has occurred and is continuing with respect to the
Securities of any series, it shall, within 90 days after ascertaining
that it has such conflicting interest, and if the Default to which
such conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, either
eliminate such conflicting interest or resign with respect to the
Securities of such series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit, in the
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manner and to the extent provided in Section 1003(c), to all
Holders of Securities of such series notice of such failure.
(c) Except in the case of a Default in the payment of the
principal of or interest on any Security, or in the payment of any
sinking fund or purchase fund installment, the Trustee shall not be
required to resign as provided by this Section if the Trustee shall
have sustained the burden of proving, on application to the Commission
and after opportunity for hearing thereon, that (1) the Default to
which the conflicting interest relates may be cured or waived during a
reasonable period and under the procedures described in such
application and (2) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of the Holders. The filing of such an
application shall automatically stay the performance of the duty to
resign until the Commission orders otherwise.
(d) Any resignation of the Trustee pursuant to this Section
shall become effective only upon the appointment of a successor
Trustee, and such successor Trustee's acceptance of such appointment,
in the manner hereinafter specified in this Article.
Section 909. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000 and subject to supervision or examination by Federal or State
authority and qualified and eligible under this Article. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of such supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article. Neither the Company nor any Person directly or indirectly controlling,
controlled by, or under common control with the Company may serve as Trustee
hereunder.
Section 910. Resignation and Removal; Appointment of Successor. (a)
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 911.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 911 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 908(a)
after written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section 909
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (x) the Company by a Board Resolution may remove the
Trustee with respect to all Securities or (y) subject to Section 814,
any Holder who has been a bona fide Holder for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 911. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 911, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 911, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor
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Trustee with respect to the Securities of any series by mailing written
notice of such event by first-class mail, postage prepaid, to all Holders of
Securities of such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 911. Acceptance of Appointment by Successor. (a) In case of
the appointment hereunder of a successor Trustee with respect to the Securities
of all series, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of all sums owed to it, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee, upon payment of all sums owed to it, shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
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(c) Upon request of any such successor Trustee, the Company shall
execute any instruments which fully vest in and confirm to such successor
Trustee all such rights, powers and trusts referred to in subsection (a) or (b)
of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 912. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 913. Preferential Collection of Claims Against Company. (a)
Subject to subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Company
within three months prior to a default, as defined in subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders and the holders of other
indenture securities, as defined in subsection (c) of this Section:
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period and
valid as against the Company and its other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in clause (2) of this paragraph, or from the exercise of any
right of set-off which the Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date of
such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of
any such property, if disposed of, subject, however, to the rights, if
any, of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(1) to retain for its own account (A) payments made
on account of any such claim by any Person (other than the Company)
who is liable thereon, (B) the proceeds
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of the bona fide sale of any such claim by the Trustee to a
third Person and (C) distributions made in cash, securities or other
property in respect of claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law;
(2) to realize, for its own account, upon any property held
by it as security for any such claim, if such property was held prior
to the beginning of such three months' period;
(3) to realize, for its own account, but only to the extent
of the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section,
would occur within three months; or
(4) to receive payment on any claim referred to in clause
(2) or (3) of this paragraph, against the release of any property held
as security for such claim as provided in such clause (2) or (3), as
they case may be, to the extent of the fair value of such property.
For the purposes of clauses (2), (3) and (4) of this paragraph,
property substituted after the beginning of such three months' period for
property held as security at the time of such substitution shall, to the extent
of the fair value of the property released, have the same status as the
property released, and, to the extent that any claim referred to in any of such
paragraphs is created in renewal of or in substitution for or for the purpose
of repaying or refunding any preexisting claim of the Trustee as such creditor,
such claim shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
among the Trustee, the Holders and the holders of other indenture securities in
such manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the Trustee
and the Holders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or
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receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, whether such distribution is made in
cash, securities or other property, but shall not include any such distribution
with respect to the secured portion, if any, of such claim. The court in which
such bankruptcy, receivership or proceedings for reorganization is pending
shall have jurisdiction (1) to apportion among the Trustee, the Holders and the
holders of other indenture securities, in accordance with the provisions of
this paragraph, the funds and property held in such special account and
proceeds thereof, or (2) in lieu of such apportionment, in whole or in part, to
give the provisions of this paragraph due consideration in determining the
fairness of the distributions to be made to the Trustee and the Holders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply to the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period,
it shall be subject to the provisions of this subsection if and only if the
following conditions exist:
(1) the receipt of property or reduction of claim, which
would have given rise to the obligation to account, if such Trustee
had continued as Trustee, occurred after the beginning of such three
months' period; and
(2) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy
court of competent jurisdiction or by this Indenture, for the purpose
of preserving any property which shall at any time be subject to the
lien of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the Holders
at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
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(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction, as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self liquidating paper, as defined in
subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) the term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable;
(2) the term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (A) under which the Trustee is also trustee, (B) which
contains provisions substantially similar to the provisions of this
Section and (C) under which a default exists at the time of the
apportionment of the funds and property held in such special account;
(3) the term "cash transaction" means any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in
checks or other orders drawn upon banks or bankers and payable upon
demand;
(4) the term "self-liquidating paper" means any draft, bill
of exchange, acceptance or obligation which is made, drawn, negotiated
or incurred by the Company for the purpose of financing the purchase,
processing, manufacturing, shipment, storage or sale of goods, wares
or merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligations;
(5) the term "Company" means any obligor upon the
Securities; and
(6) the term "Federal Bankruptcy Act" means the Bankruptcy
Act or Title 11 of the United States Code.
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Section 914. Appointment of Authenticating Agent. The Trustee may
appoint an Authenticating Agent or Agents with respect to the Securities of one
or more series, or any Tranche thereof, which shall be authorized to act on
behalf of the Trustee to authenticate Securities of such series or Tranche
issued upon original issuance, exchange, registration of transfer or partial
redemption thereof or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Whenever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State or territory thereof or the District of Columbia
or the Commonwealth of Puerto Rico, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$25,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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The provisions of Sections 308, 904 and 905 shall be applicable to each
Authenticating Agent.
If an appointment with respect to the Securities of one or more series,
or any Tranche thereof, shall be made pursuant to this Section, the Securities
of such series or Tranche may have endorsed thereon, in addition to the
Trustee's certificate of authentication, and alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANK OF AMERICA ILLINOIS
As Trustee
By __________________________
As Authenticating Agent
By __________________________
Authorized Signatory
If all of the Securities of a series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested by the Company in writing (which writing
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel), shall appoint, in accordance with this Section and in accordance with
such procedures as shall be acceptable to the Trustee, an Authenticating Agent
(which, if so requested by the Company, may be an Affiliate of the Company)
having an office in a Place of Payment designated by the Company with respect
to such series of Securities.
Section 915. Trustee's Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company may,
at the option of the Trustee, set forth in writing any action proposed to be
taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective.
The Trustee shall not be liable for any action taken by, or omission of, the
Trustee in accordance with a proposal included in such application on or after
the date specified in such application (which date shall not be less than three
business days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
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ARTICLE TEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 1001. Company to Furnish Trustee Names and Addresses of
Holders. The Company shall furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than June 1 and December 1, in
each year, a list, in such form as the Trustee may reasonably require,
containing all the information in the possession or control of the
Company, or any of its Paying Agents other than the Trustee, as to the
names and addresses of the Holders as of the preceding May 15 or
November 15, as the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
Section 1002. Preservation of Information; Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders (1) contained in the
most recent list furnished to the Trustee as provided in Section 1001 and (2)
received by the Trustee in any other capacity. The Trustee may (1) destroy any
list furnished to it as provided in Section 1001 upon receipt of a new list so
furnished, (2) destroy any information received by it as Paying Agent (if so
acting) hereunder upon delivering to itself as Trustee, not earlier than May 15
or November 15, a list containing the names and addresses of the Holders
obtained from such information since the delivery of the next previous list, if
any, and (3) destroy any list delivered to itself as Trustee which was complied
from information received by it as Paying Agent (if so acting) hereunder upon
the receipt of a new list so delivered.
(b) If three or more Holders (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other Holders
with respect to their rights under this Indenture or under the Securities and
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five business
days after the receipt of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 1002(a), or
(2) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved
at the time by the Trustee in
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accordance with Section 1002(a), and as to the approximate cost
of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 1002(a) a copy of the
form of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee by such applicants of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interest of the Holders or would be in violation of applicable law. Such
written statement shall specify the basis of such opinion. If the Commission,
after opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders with reasonable promptness after the entry of such order and the
renewal of such tender by such applicants as aforesaid; otherwise the Trustee
shall be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
shall be deemed to have agreed with the Company and the Trustee that neither
the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 1002(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 1002(b).
Section 1003. Reports by Trustee. (a) The Trustee shall transmit
to the Holders as hereinafter provided, on or prior to July 15 in each year, a
brief report with respect to any of the following events which may have
occurred within the previous 12 months (but if no such event has occurred
within such period, no report need be transmitted):
(1) any change in its eligibility and its qualifications under
Section 909;
(2) the creation of or any material change to a relationship
specified in paragraphs (1) through (10) of Section 310(b) of the
Trust Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any
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property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate nor more than
1/2 of 1% of the principal amount of the Securities Outstanding on the
date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other
obligor on the Securities) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except an indebtedness based
upon a creditor relationship arising in any manner described in
Section 913(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property
subject to the lien of this Indenture (and the consideration therefor,
if any) which it has not previously reported;
(7) any additional issue of Securities which the Trustee has
not previously reported; and
(8) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities or the Securities of any
series, except action in respect of a default, notice of which has
been or is to be withheld by the Trustee in accordance with Section
902.
(b) The Trustee shall transmit to the Holders, as provided in
subsection (c) of this Section, a brief report with respect to the character
and amount of any advances (and if the Trustee elects so to state, the
circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to subsection (a) of
this Section (or if no such report has yet been so transmitted, since the date
of execution of this Indenture) for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on property or funds
held or collected by it as Trustee and which it has not previously reported
pursuant to this subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any
time aggregate 10% or less of the principal amount of the Securities
Outstanding at such time, such report to be transmitted within 90 days after
such time.
(c) Reports pursuant to this Section shall be transmitted by mail
(1) to all Holders, as their names and addresses appear in the
Security Register;
(2) to such Holders as have, within two years preceding such
transmission, filed their names and addresses with the Trustee for
that purpose; and
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(3) except in the case of reports pursuant to subsection (b)
of this Section, to each Holder whose name and address is preserved at
the time by the Trustee, as provided in Section 1002(a).
(d) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any
securities exchange.
Section 1004. Reports by Company. The Company shall:
(a) file with the Trustee, within 45 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as amended; or,
if the Company is not required to file information, documents or
reports pursuant to either of said Sections, then it shall file with
the Trustee and the Commission, in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended, in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time
in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(c) transmit, within 30 days after the filing thereof with the
Trustee, to the Holders, in the manner and to the extent provided in
Section 1003(c) with respect to reports pursuant to Section 1003(a),
such summaries of any information, documents and reports required to
be filed by the Company pursuant to paragraphs (a) and (b) of this
Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE TRANSFER OR LEASE
Section 1101. Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or corporations or convey, transfer or lease its properties and
assets substantially as an entirety to any Person or Persons, unless:
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(a) the corporation or corporations formed by such
consolidation or into which the Company is merged or the Person or
Persons which acquire by conveyance or transfer, or which lease, the
properties and assets of the Company substantially as an entirety
shall be a Person or Persons organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all Outstanding Securities
and the performance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness for borrowed money which becomes an
obligation of the Company as a result of such transaction as having
been incurred by the Company at the time of such transaction, no Event
of Default or Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance transfer or lease and such
indenture supplemental hereto complies with this Article and that all
conditions precedent herein provided for or relating to such
transactions have been complied with.
Section 1102. Successor Corporation Substituted. Upon any
consolidation by the Company with or merger by the Company into any other
corporation or corporations or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 1101, the successor corporation or corporations formed by such
consolidation or into which the Company is merged or the Person or Persons to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person or Persons had
been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person or Persons shall be relieved of all obligations
and covenants under this Indenture and the Securities Outstanding hereunder.
ARTICLE TWELVE
SUPPLEMENTAL INDENTURES
Section 1201. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities, all as provided in Article
Eleven; or
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(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities, or any Tranche thereof
(and if such covenants are to be for the benefit of less than all
Securities, stating that such covenants are expressly being included
solely for the benefit of such series or Tranche) or to surrender any
right or power herein conferred upon the Company; or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder; or
(d) to change or eliminate any provision of this Indenture or
to add any new provision to this Indenture; provided, however, that if
such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series or Tranche in any
material respect, such change, elimination or addition shall become
effective with respect to such series or Tranche only when no Security
of such series or Tranche remains Outstanding; or
(e) to provide collateral security for the Securities; or
(f) to establish the form or terms of Securities of any series
or Tranche as contemplated by Sections 201 and 301; or
(g) to evidence and provide for the acceptance of appointment
hereunder by a separate or successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 911(b) ; or
(h) to provide for the procedures required to permit the
Company to utilize, at its option, a noncertificated system of
registration for all, or any series or Tranche of, the Securities; or
(i) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or any
series of Securities, or any Tranche thereof, may be surrendered for
registration of transfer, (3) all or any series of Securities, or any
Tranche thereof, may be surrendered for exchange and (4) notices and
demands to or upon the Company in respect of all or any series of
Securities, or any Tranche thereof, and this Indenture may be served;
provided, however, that any such place is located in New York, New
York, Chicago, Illinois, Nashville, Tennessee or Los Angeles,
California or in any other city located in the United States of
America which has a population of at least 1,000,000 inhabitants; or
(j) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture,
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provided that such other provisions shall not adversely affect
the interests of the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act shall be amended at any time or times after the date of the
execution and delivery of this Indenture and
(x) if any such amendment shall require one or more changes to
any provisions hereof or the inclusion herein of any additional
provisions, or shall by operation of law be deemed to effect such
changes or incorporate such provisions by reference or otherwise, this
Indenture shall be deemed to have been amended so as to conform to
such amendment to the Trust Indenture Act, and the Company and the
Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to effect or evidence such changes or
additional provisions; or
(y) if any such amendment shall permit one or more changes to,
or the elimination of, any provisions hereof which, at the date of the
execution and delivery hereof or at any time thereafter, are required
by the Trust Indenture Act to be contained herein this Indenture shall
be deemed to have been amended to effect such changes or elimination,
and the Company and the Trustee may, without the consent of any
Holders, enter into an indenture supplemental hereto to effect such
changes or elimination; or
(z) if, by reason of any such amendment, one or more
provisions which, at the date of the execution and delivery hereof or
at any time thereafter, are required by the Trust Indenture Act to be
contained herein shall be deemed to be incorporated herein by
reference or otherwise, or otherwise made applicable hereto, and shall
no longer be required to be contained herein, the Company and the
Trustee may, without the consent of any Holders, enter into an
indenture supplemental hereto to effect the elimination of such
provisions.
Section 1202. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities of all series then Outstanding under this
Indenture, considered as one class, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture; provided, however, that
if there shall be Securities of more than one series Outstanding hereunder and
if a proposed supplemental indenture shall directly affect the rights of the
Holders of Securities of one or more, but less than all, of such series, then
the consent only of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of all series so directly affected, considered as
one class, shall be required; and provided, further, that if the Securities of
any series shall have been issued in more than one Tranche and if the proposed
supplemental indenture shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such Tranches, then the
consent only of the Holders of a majority in aggregate principal amount of the
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Outstanding Securities of all Tranches so directly affected, considered
as one class, shall be required; and provided, further, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of each series or Tranche so directly affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce
the principal amount thereof or the rate of interest thereon or the
method of calculating such rate (or the amount of any installment of
interest thereon) or yield or any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount Security
that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 802, or change the coin or
currency (or other property) in which, any Security or any premium or
the interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of such series or Tranche, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver of compliance with
any provision of this Indenture or of any default hereunder and its
consequences, or reduce the requirements of Section 1304 for quorum or
voting, or
(c) modify any of the provisions of this Section, Section 607
or Section 813, except to increase the percentages in principal amount
referred to in this Section or such other Sections or to provide that
other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the
requirements of Sections 911(b) and 1201(g).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or of one or more
Tranches thereof, or which modifies the rights of the Holders of Securities of
such series or Tranches with respect to such covenant or other provision, shall
be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or Tranche.
It shall not be necessary for any Act or Holders under this Section to
approve the particular form or any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 1203. Execution of Supplemental Indentures. In executing,
or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 901) shall be fully protected in relying upon, an opinion of
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Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's own
rights, duties, immunities or liabilities under this Indenture or otherwise.
Section 1204. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby. Any supplemental Indenture permitted by this Article may restate this
Indenture in its entirety, and, upon the execution and delivery thereof, any
such restatement shall supersede this Indenture as theretofore in effect for
all purposes.
Section 1205. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Section 1206. Reference in Securities to Supplemental Indentures.
Securities of any series, or any Tranche thereof, authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series, or any Tranche
thereof, so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and made available for delivery by the Trustee in
exchange for Outstanding Securities of such series or Tranche.
Section 1207. Modification Without Supplemental Indenture. If the
terms of any particular series of Securities shall have been established in a
Board Resolution or an Officers' Certificate pursuant to a Board Resolution as
contemplated by Section 301, and not in an indenture supplemental hereto,
additions to, changes in or the elimination of any of such terms may be
affected by means of a supplemental Board Resolution or Officers' Certificate,
as the case may be, delivered to, and accepted by, the Trustee; provided,
however, that such supplemental Board Resolution or Officers' Certificate shall
not be accepted by the Trustee or otherwise be effective unless all conditions
set forth in this Indenture which would be required to be satisfied if such
additions, changes or elimination were contained in a Supplemental Indenture
shall have been appropriately satisfied. Upon the acceptance thereof by the
Trustee, any such supplemental Board Resolution or Officers' Certificate shall
be deemed to be a "supplemental indenture" for purposes of Section 1204 and
1206.
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ARTICLE THIRTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 1301. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of one or more, or all, series, or any Tranche
or Tranches thereof, may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be made, given or taken by Holders of Securities of such series or Tranches.
Section 1302. Call, Notice and Place of Meetings. (a) The Trustee
may at any time call a meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, for any purpose specified in
Section 1301, to be held at such time and at such place in Chicago, Illinois,
as the Trustee shall determine, or, with the approval of the Company, at any
other place. Notice of every such meeting, setting forth the time and the
place of such meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section 106, not less
than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) If the Trustee shall have been requested to call a meeting
of the Holders of Securities of one or more, or all, series, or any
Tranche or Tranches thereof, by the Company or by the Holders of 25%
in aggregate principal amount of all of such series and Tranches,
considered as one class, for any purpose specified in Section 1301, by
written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have given the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such
series and Tranches in the amount above specified, as the case may be,
may determine the time and the place in Chicago, Illinois, or in such
other place as shall be determined or approved by the Company, for
such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more, or
all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of such
series or Tranche are present in person or by proxy and if
representatives of the Company and the Trustee are present, or if
notice is waived in writing before or after the meeting by the Holders
of all Outstanding Securities of such series, or by such of them as
are not present at the meeting in person or by proxy, and by the
Company and the Trustee.
Section 1303. Persons Entitled to Vote at Meetings. To be entitled
to vote at any meeting of Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, a Person shall be (a) a Holder of one or
more Outstanding Securities of such series or Tranche, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one
or more Outstanding Securities of such series or Tranches by such Holder or
Holders. The only Persons who shall be entitled to attend any meeting of
Holders of Securities of any series or Tranche shall be the Persons entitled to
vote at such meeting and
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their counsel, any representatives of the Trustee and its counsel and
any representatives of the Company and its counsel.
Section 1304. Quorum, Action. The Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a quorum for a
meeting of Holders or Securities of such series and Tranches; provided,
however, that if any action is to be taken at such meeting which this Indenture
expressly provides may be taken by the Holders of a specified percentage, which
is less than a majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, shall constitute a quorum.
In the absence of a quorum within one hour of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series and Tranches, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Except as provided by Section 1305(e), notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1302(a) not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series and Tranches which shall constitute a quorum.
Except as limited by Section 1202, any resolution presented to a
meeting or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted only by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of the
series and Tranches with respect to which such meeting shall have been called,
considered as one class; provided, however, that, except as so limited, any
resolution with respect to any action which this Indenture expressly provides
may be taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of such series and
Tranches, considered as one class, may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of such series and Tranches, considered as
one class.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all
the Holders of Securities of the series and Tranches with respect to which such
meeting shall have been held, whether or not present or represented at the
meeting.
Section 1305. Attendance at Meetings; Determination of Voting
Rights; Conduct and Adjournment of Meetings. (a) Attendance at meeting of
Holders of Securities may be in
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person or by proxy; and, to the extent permitted by law, any such proxy
shall remain in effect and be binding upon any future Holder of the Securities
with respect to which it was given unless and until specifically revoked by the
Holder or future Holder of such Securities before being voted.
(b) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities in regard to proof of the holding of such Securities
and of the appointment of proxies and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(c) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders as provided in Section 1302(b), in which case the Company
or the Holders of Securities of the series and Tranches calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches represented at the
meeting, considered as one class.
(d) At any meeting each Holder or proxy shall be entitled to one vote
for each $1,000 principal amount of Securities held or represented by such
Holder; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1302 at which a quorum
is present may be adjourned from time to time by Persons entitled to vote a
majority in aggregate principal amount of the Outstanding Securities of all
series and Tranches represented at the meeting, considered as one class; and
the meeting may be held as so adjourned without further notice.
Section 1306. Counting Votes and Recording Action of Meeting. The
vote upon any resolution submitted to any meeting of Holders shall be by
written ballots on which shall be subscribed the signatures of the Holders or
of their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities, of the series and Tranches with respect to which
the meeting shall have been called, held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and
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file with the secretary of the meeting their verified written reports
of all votes cast at the meeting. A record of the proceedings of each meeting
of Holders shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 1307. Action Without Meeting. In lieu of a vote of
Holders at a meeting as hereinbefore contemplated in this Article, any request,
demand, authorization, direction, notice, consent, waiver or other action may
be made, given or taken by Holders by written instruments as provided in
Section 104.
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 1401. Liability Solely Corporate. No recourse shall be
had for the payment of the principal of or premium, if any, or interest, if
any, on any Securities, or any part thereof, or for any claim based thereon or
otherwise in respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Indenture, against any
incorporator, stockholder, officer or director, as such, past, present or
future of the Company or of any predecessor or successor corporation (either
directly or through the Company or a predecessor or successor corporation),
whether by virtue of any constitutional provision, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being
expressly agreed and understood that this Indenture and all the Securities are
solely corporate obligations, and that no personal liability whatsoever, shall
attach to, or be incurred by, any incorporator, stockholder, officer or
director, past, present or future, of the Company or of any predecessor or
successor corporation, either directly or indirectly through the Company or any
predecessor or successor corporation, because of the indebtedness hereby
authorized or under or by reason of any of the obligations, covenants or
agreements contained in this Indenture or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal liability is hereby
expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issuance of the
Securities.
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ARTICLE FIFTEEN
CONVERSION OF SECURITIES
Section 1501. Applicability: Conversion Privilege and Conversion
Price. Securities of any series which are convertible into Common Stock,
without par value, of the Company ("Common Stock") shall be convertible in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
Subject to and upon compliance with the provisions of this Article
Fifteen, at the option of the Holder thereof, any Security or any portion of
the principal amount thereof which is $1,000 or an integral multiple of $1,000
may be converted at the principal amount thereof, or of such portion thereof,
into fully paid and nonassessable shares (calculated as to each conversion to
the nearest one-hundredth of a share) of Common Stock of the Company, at the
Conversion Price, determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall expire at the close of business on the
date specified for Securities of such series. In case a Security or portion
thereof is called for redemption, such conversion right in respect of the
Security or portions so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Prices") shall be the price specified
in relation to Securities of such series pursuant to Section 301. The
Conversion Price shall be adjusted in certain instances as provided in
paragraphs (1), (2), (3), (4) and (7) of Section 1504.
Section 1502. Exercise of Conversion Privilege. In order to
exercise the conversion privilege, the Holder of any Security to be converted
shall surrender such Security, together with the conversion notice duly
executed, at any office or agency of the Company maintained for that purpose
pursuant to Section 602, accompanied by written notice to the Company at such
office or agency that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion
thereof to be converted. Securities or portions thereof surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on
such Interest Payment Date shall (unless such Securities or portions thereof
have been called for redemption on a Redemption Date within such period) be
accompanied by payment to the Company or its order, in New York Clearing House
funds or other funds acceptable to the Company, of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of
Securities or portions thereof being surrendered for conversion. No payment or
adjustment shall be made upon any conversion on account of any interest accrued
on the Securities surrendered for conversion or, except as provided in Section
1504, on account of any dividends on the Common Stock issued upon conversion.
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Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1503.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
make available for delivery to the Holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations in aggregate
principal amount equal to the unconverted portion of the principal amount of
such Security.
Section 1503. Fractions of Shares. No fractional shares of Common
Stock shall be issued upon conversion of Securities. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof), the Company shall pay a cash
adjustment in respect of such fractions in an amount equal to the same fraction
of the market price (determined as provided in the last sentence of paragraph 6
of Section 1504) at the close of business on the day of conversion.
Section 1504. Adjustment of Conversion Price. (1) In case the
Company shall pay or make a dividend or other distribution on any class of
capital stock of the Company in Common Stock, the Conversion Price in effect at
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights or warrants to all holders
of its Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share less than the market price (determined as
provided in paragraph (6) of this Section) of
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<PAGE> 78
the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Price
in effect at the opening of business on the day following the date fixed for
such determination shall be reduced by multiplying such Conversion Price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for subscription
or purchase would purchase at such market price and the denominator shall be
the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common Stock
so offered for subscription or purchase, such reduction to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
such certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights or warrants in respect of shares of Common
Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided into
a greater number of shares of Common Stock, the Conversion Price in effect at
the opening of business on the day following the day upon which such
subdivisions become effective shall be proportionately reduced, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Conversion Price in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased, such
reduction or increases, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination become effective.
(4) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidence of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid in cash out of
the retained earnings of the Company and any dividend or distribution referred
to in paragraph (1) of this Section), the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business on the date fixed
for the determination of stockholders entitled to receive such distribution by
a fraction of which the numerator shall be the market price per share
(determined as provided in paragraph (6) of this Section) of the Common Stock
on the date fixed for such determination, reduced by the then fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution filed with the Trustee) of the
portion of the assets or evidence of indebtedness so distributed applicable to
one share of Common Stock and the denominator shall be such market price per
share of the Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
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<PAGE> 79
(5) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a consolidation
or merger to which Section 1511 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed
to be "the date fixed for the determination of stockholders entitled to receive
such distribution" and "the date fixed for such determination") within the
meaning of paragraph (4) of this Section, and (b) a subdivision or combination,
as the case may be, of the number of shares of Common Stock outstanding
immediately prior to such reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective,"
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(6) For the purpose of any computation under paragraph (2) and (4) of
this Section, the market price on any date shall be deemed to be the average of
the daily market prices for the ten consecutive Business Days selected by the
Company commencing not less than ten nor more than 80 Business Days before the
day in question. The closing price for each day shall be the last reported
sales price regular way on the composite tape or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the NASDAQ National Market System
("NASDAQ") or, if the Common Stock is not listed or admitted to trading on
NASDAQ, on the principal national securities exchange on which the Common Stock
is listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, the average of the closing bid and asked
prices as furnished by any NASDAQ member firm selected from time to time by the
Company for that purpose.
(7) The Company may make such reductions in the Conversion Price, in
addition to those required by paragraphs (1), (2), (3) and (4) of this Section,
as it considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not be taxable
to the recipients.
(8) The Trustee has no duty to determine when an adjustment under this
Article Fifteen should be made, how it should be made or what it should be.
The Trustee has no duty to determine whether a supplemental indenture under
Section 1511 need be entered into or whether any provisions of any supplemental
indenture are correct. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Securities. The Trustee shall not be responsible for the
Company's failure to comply with this Article Fifteen.
Section 1505. Notice of Adjustment of Conversion Price;. Whenever
the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 1504 and shall prepare a certificate signed by
the Treasurer or an Assistant Treasurer, the Controller or an
Assistant Controller of the Company setting
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<PAGE> 80
forth the adjusted Conversion Price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate
shall forthwith be filed with the Trustee and at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 602; and
(b) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be required, and as soon as practicable after it is
required, such notice shall be prepared by the Company, filed with the
Trustee and mailed by the Company to all Holders at their last
addresses as they shall appear in the Security Register.
Section 1506. Notice of Certain Corporate Action. In case:
(a) the Company shall declare a divided (or any other
distribution) on Common Stock payable otherwise than in cash of its
retained earnings; or
(b) the Company shall authorize the granting to the holders of
Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common Stock),
or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of
the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
Then the Company shall cause to be filed with the Trustee and at each
office or agency maintained for the purpose of conversion of securities
pursuant to Section 602, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, at least 20 days
(or ten days in any case specified in clause (a) or (b) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the
date on which such reclassification, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of Common
Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. The failure to give notice required by this Section
or any defect therein shall not affect the legality or validity of any
dividend, distribution, rights, warrants, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up, or the vote on
any such action.
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<PAGE> 81
Section 1507. Company to Reserve Common Stock. The Company shall
at all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock then
issuable upon the conversion of all outstanding Securities.
Section 1508. Taxes on Conversions. The Company will pay any and
all transfer taxes that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Securities pursuant thereto. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that of the Holder of the Security or Securities to
be converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of any such
tax, or has established to the satisfaction of the Company that such tax has
been paid.
Section 1509. Covenant as to Common Stock. The Company covenants
that all shares of Common Stock which may be issued upon conversion of
Securities will upon issue be fully paid and nonassessable and, except as
provided in Section 1508, the Company will pay all taxes, liens and charges
with respect to the issue thereof.
Section 1510. Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee for cancellation and
the Trustee shall dispose of the same as provided in Section 309.
Section 1511. Provisions in Case of Consolidation, Merger or Sale
of Assets. In case of any consolidation of the Company with, or merger of the
Company into, any other corporation or corporations, any merger of another
corporation into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company) or any sale or transfer of all or substantially
all of the assets of the Company, the corporation or corporations formed by
such consolidation or resulting from such merger or which acquires such assets,
as the case may be, shall execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then outstanding shall
have the right thereafter, during the period such Security shall be convertible
as specified in Section 1501, to convert such Security only into the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, sale or transfer, assuming
such holder of Common Stock of the Company (i) is not a corporation with which
the Company consolidated or into which the Company merged or which merged into
the Company or to which such sale or transfer was made, as the case may be
("constituent corporation"), or an Affiliate of a constituent corporation and
(ii) failed to exercise his rights or election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, sale or transfer (provided that if the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer is not the same for each share of Common Stock of the Company
held immediately prior to such consolidation, merger, sale or transfer by
others than a constituent corporation or an
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<PAGE> 82
Affiliate thereof and in respect of which such rights or election shall
not have been exercised ("nonelecting share"), then for the purpose of this
Section the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by each nonelecting share
shall be deemed to be the kind and amount as receivable per share by a
plurality of the nonelecting shares). Such supplemental indenture shall
provide for adjustments which, for events subsequent to the effective date of
such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, sales or transfers.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
UNITED CITIES GAS COMPANY
(SEAL) By
_____________________________
Title:
ATTEST:
_____________________________________
Secretary
BANK OF AMERICA ILLINOIS, Trustee
(SEAL) By
_____________________________
Title:
ATTEST:
_____________________________________
Title:
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<PAGE> 84
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On the ________ day of _______________, 1995, before me personally came
[ ], to me known, who, being by me duly sworn, did depose and say that
he is [ ] of United Cities Gas Company, an Illinois and Virginia
corporation, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporation's seal; that it was so affixed
by authority of the Board of Directors of said corporation; and that he signed
his name thereto by like authority.
__________________________________
Notary Public
(NOTARIAL SEAL)
STATE OF ILLINOIS )
) SS.:
COUNTY OF COOK )
On the ____ day of _______________, 1995, before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he is a [ ] of Bank of America Illinois, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporation's seal, that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
__________________________________
Notary Public
(NOTARIAL SEAL)
<PAGE> 85
EXHIBIT 4.07
Chapman and Cutler
Draft 12/9/94
[FORM OF NOTE]
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL insomuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Company by DTC or a successor
depositary, this Security may not be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any such nominee to a successor depositary or a nominee of such
successor depositary.
This Security may be exchanged for certificated Securities registered
in the names of the various beneficial owners hereof only if (a) DTC is at any
time unwilling or unable to continue as depositary and a successor depositary
is not appointed by the Company within 90 days, or (b) the Company elects to
issue certificated Securities to beneficial owners (as certified to the Company
by DTC or a successor depositary) of all Securities of the series designated
below.]
<PAGE> 86
[FACE OF NOTE]
UNITED CITIES GAS COMPANY
___________ NOTE, SERIES __
Original Issue Date: Redeemable: Yes ___ No ___
Interest Rate: Initial Redemption Date:
Stated Maturity Date: Redemption Limitation Date:
Interest Payment Dates: Initial Redemption Price:
Regular Record Dates: Reduction Percentage:
Issue Price (%):
No. _____ Principal Amount
$______________
CUSIP
UNITED CITIES GAS COMPANY, a corporation duly organized and existing
under the laws of the State of Illinois and the Commonwealth of Virginia
(herein called the "Company," which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to , or
registered assigns, the principal sum of
Dollars
on the Stated Maturity Date specified above, and to pay interest thereon from
the Original Issue Date specified above or from the most recent Interest
Payment Date specified above to which interest has been paid or duly provided
for, [semi-annually] in arrears on each Interest Payment Date, commencing with
the Interest Payment Date next succeeding the Original Issue Date, and at
Maturity, at the Interest Rate per annum, if any, specified above, until the
principal hereof is paid or duly provided for. The interest so payable, and
paid or duly provided for, on any Interest Payment Date shall, as provided in
the Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business of the
Trustee referred to on the reverse hereof on the Regular Record Date specified
above for such interest (whether or not a Business Day), next preceding such
Interest Payment Date. Notwithstanding the foregoing, (a) if the Original
Issue Date specified above is after a Regular Record Date and before the
corresponding Interest Payment Date, interest so payable for the period from
and including the Original
<PAGE> 87
Issue Date to but excluding such Interest Payment Date shall be paid on the
Interest Payment Date next succeeding such Interest Payment Date to the Holder
hereof on the related Regular Record Date and (b) interest payable at Maturity
shall be paid to the Person to whom principal shall be paid. Except as
otherwise provided in the Indenture, any such interest not so paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
If the Interest Rate per annum specified above shall be zero, the
principal of this Security shall not bear interest except in the case of a
default in payment of principal at Maturity and in such case the overdue
principal of this Security shall bear interest at the Interest Rate per annum
specified above (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal shall bear interest at the Interest Rate per
annum specified above (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the due date for payment of said
principal to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.
Payment of the principal of and premium, if any, on this Security and
interest hereon at Maturity shall be made upon presentation hereof at the
office of Bank of America Illinois in Chicago, Illinois or at such other office
or agency as may be designated for such purpose by the Company from time to
time. Payment of interest, if any, on this Security (other than interest at
Maturity) shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Payment of the
principal of and premium, if any, and interest, if any, on this Security, as
aforesaid, shall be made in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
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<PAGE> 88
[REVERSE OF NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and issuable in one or more
series under an Indenture, dated as of _______________, 1995 (such Indenture as
originally executed and delivered and as hereafter supplemented or amended,
together with any constituent instruments establishing the terms of particular
Securities, being herein called the "Indenture"), between the Company and Bank
of America Illinois, trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
acceptance of this Security shall be deemed to constitute the consent and
agreement by the Holder hereof to all of the terms and provisions of the
Indenture. This Security is one of the series designated on the face hereof.
If any Interest Payment Date, any Redemption Date or the Stated
Maturity Date shall not be a Business Day (as hereinafter defined), payment of
the amounts due on this Security on such date may be made on the next
succeeding Business Day; and, if such payment is made or duly provided for on
such Business Day, no interest shall accrue on such amounts for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity Date,
as the case may be, to such Business Day.
If, as specified on the face hereof, this Security is redeemable, this
Security is subject to redemption at any time on or after the Initial
Redemption Date specified on the face hereof, as a whole or in part, at the
election of the Company, at the applicable redemption price (as described
below) plus accrued interest to the date fixed for redemption. Such redemption
price shall be the Initial Redemption Price specified on the face hereof for
the twelve-month period commencing on the Initial Redemption Date and shall
decline for the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal to the
Reduction Percentage specified on the face hereof until such redemption price
is 100% of the principal amount of this Security to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem this
Security as contemplated above as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an effective interest cost to the Company (calculated in
accordance with generally accepted financial practice) less than the effective
interest cost to the Company (similarly calculated) of this Security.
[Insert applicable provisions, if any, relating to the optional or
mandatory redemption of Securities of this series pursuant to a sinking fund or
at the election of the Holder.]
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<PAGE> 89
Notice of redemption [(other than at the election of the Holder)]
shall be given by mail to Holders of Securities, not less than 30 days or more
than 60 days prior to the date fixed for redemption, all as provided in the
Indenture. As provided in the Indenture, notice of redemption at the election
of the Company as aforesaid may state that such redemption shall be conditional
upon the receipt by the Trustee of money sufficient to pay the principal of and
premium, if any, and interest, if any, on this Security on or prior to the date
fixed for such redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such event, the
Company shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a new
Security or Securities of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
[Insert applicable provisions, if any, relating to the conversion of
Securities of this series into common stock of the Company.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of this Security of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the Trustee to enter into one or more supplemental indentures for the purpose
of adding any provisions to, or changing in any manner or eliminating any of
the provisions of, the Indenture with the consent of the Holders of not less
than a majority in aggregate principal amount of the Securities of all series
then Outstanding under the Indenture, considered as one class; provided,
however, that if there shall be Securities of more than one series Outstanding
under the Indenture and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been issued in more
than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities then Outstanding, on behalf of the Holders
of all Securities, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange therefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
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<PAGE> 90
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, in the coin or
currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office of Bank of America Illinois in Chicago, Illinois or such other office or
agency as may be designated for such purpose by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and of like
tenor and aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $1,000 and any amount in
excess thereof that is an integral multiple of $1,000. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this series, of any authorized denominations, as requested by the
Holder surrendering the same, and of like tenor upon surrender of the Security
or Securities to be exchanged at the office of Bank of America Illinois in
Chicago, Illinois or such other office or agency as may be designated for such
purpose by the Company from time to time.
The Company shall not be required to (a) register the transfer of or
exchange Securities of this series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for redemption or (b) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Illinois.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
the State of Illinois or
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<PAGE> 91
the city in which is located any office or agency maintained for the payment of
principal of or premium, if any, or interest on this Security, are authorized
or required by law, regulation or executive order to remain closed. All other
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or premium, if any, or interest on any Securities, or any
part thereof, or for any claim based thereon or otherwise in respect thereof,
or of the indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all the Securities are solely corporate obligations and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of the Indenture and
the issuance of the Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
-6-
<PAGE> 92
IN WITNESS WHEREOF, the Company has caused this instrument to de duly
executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto.
Dated: __________________ UNITED CITIES GAS COMPANY
By _________________________
Its
ATTEST: ____________________
Its ______________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _____________________ BANK OF AMERICA ILLINOIS, as Trustee
By _________________________
Its _____________________
-7-
<PAGE> 93
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
_____________________________________________________________________________
[please insert social security or other identifying number of assignee]
_____________________________________________________________________________
[please print or typewrite name and address of assignee]
_____________________________________________________________________________
the within Security of UNITED CITIES GAS COMPANY and does hereby irrevocably
constitute and appoint _______________________________, Attorney, to transfer
said Security on the books of the within-mentioned Company, with full power of
substitution in the premises.
Dated: ___________________
_______________________________________
Notice: The signature to this
assignment must correspond
with the name as written upon
the face of the Security in
every particular without
alteration or enlargement
or any change whatsoever.
-8-
<PAGE> 94
Exhibit 4.08
[FORM OF COMMON STOCK CERTIFICATE]
[FACE OF CERTIFICATE]
NUMBER SHARES
UNITED CITIES GAS COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF ILLINOIS AND THE COMMONWEALTH OF
VIRGINIA
SEE REVERSE FOR
CERTAIN DEFINITIONS
This Certifies That
CUSIP #
is the owner of
fully paid and non-assessable shares of COMMON STOCK, without par value, of
UNITED CITIES GAS COMPANY
transferable by the holder hereof in person or by attorney, upon surrender of
this certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated
_______________________________ ____________________________
SECRETARY PRESIDENT
Countersigned and Registered:
HARRIS TRUST and SAVINGS BANK
(Chicago)
Transfer Agent and Registrar
By_________________________
Authorized Signature
[SEAL]
ILLINOIS COMMERCE COMMISSION
IDENTIFICATION NO._________
<PAGE> 95
[REVERSE OF CERTIFICATE]
The Corporation will furnish to each shareholder, upon request and without
charge, a full statement of the designations, preferences, qualifications,
limitations, restrictions, and special or relative rights of the shares of each
class of the Corporation authorized to be issued, and the variations and
relative rights and preferences between the shares and each series of Preferred
Stock of the Corporation so far as the same have been fixed and determined and
the authority of the Board of Directors to fix and determine the relative
rights and preferences of subsequent series of Preferred Stock.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT___________Custodian__________
TEN ENT -- as tenants by the entireties with right of (Cust) (Minor)
survivorship under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of survivorship Act____________
and not as tenants in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, _______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
_______________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________ Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ________________________________ Attorney, to transfer the said shares
on the books of the within named Corporation with full power of substitution in
the premises.
Dated___________________________
________________________________________________
Notice: The signature to this assignment must
correspond with the name as written upon
the face of the certificate in every
particular, without alteration or
enlargement or any change whatever.
<PAGE> 1
EXHIBIT 4.07
Chapman and Cutler
Draft 12/9/94
[FORM OF NOTE]
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange or payment, and any
certificate to be issued is registered in the name of Cede & Co. or such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL insomuch as the registered owner
hereof, Cede & Co., has an interest herein.
Unless and until this Security is exchanged in whole or in part for
certificated Securities registered in the names of the various beneficial
holders hereof as then certified to the Company by DTC or a successor
depositary, this Security may not be transferred except as a whole by DTC to a
nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any such nominee to a successor depositary or a nominee of such
successor depositary.
This Security may be exchanged for certificated Securities registered
in the names of the various beneficial owners hereof only if (a) DTC is at any
time unwilling or unable to continue as depositary and a successor depositary
is not appointed by the Company within 90 days, or (b) the Company elects to
issue certificated Securities to beneficial owners (as certified to the Company
by DTC or a successor depositary) of all Securities of the series designated
below.]
<PAGE> 2
[FACE OF NOTE]
UNITED CITIES GAS COMPANY
___________ NOTE, SERIES __
Original Issue Date: Redeemable: Yes ___ No ___
Interest Rate: Initial Redemption Date:
Stated Maturity Date: Redemption Limitation Date:
Interest Payment Dates: Initial Redemption Price:
Regular Record Dates: Reduction Percentage:
Issue Price (%):
No. _____ Principal Amount
$______________
CUSIP
UNITED CITIES GAS COMPANY, a corporation duly organized and existing
under the laws of the State of Illinois and the Commonwealth of Virginia
(herein called the "Company," which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value received,
hereby promises to pay to , or
registered assigns, the principal sum of
Dollars
on the Stated Maturity Date specified above, and to pay interest thereon from
the Original Issue Date specified above or from the most recent Interest
Payment Date specified above to which interest has been paid or duly provided
for, [semi-annually] in arrears on each Interest Payment Date, commencing with
the Interest Payment Date next succeeding the Original Issue Date, and at
Maturity, at the Interest Rate per annum, if any, specified above, until the
principal hereof is paid or duly provided for. The interest so payable, and
paid or duly provided for, on any Interest Payment Date shall, as provided in
the Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business of the
Trustee referred to on the reverse hereof on the Regular Record Date specified
above for such interest (whether or not a Business Day), next preceding such
Interest Payment Date. Notwithstanding the foregoing, (a) if the Original
Issue Date specified above is after a Regular Record Date and before the
corresponding Interest Payment Date, interest so payable for the period from
and including the Original
<PAGE> 3
Issue Date to but excluding such Interest Payment Date shall be paid on the
Interest Payment Date next succeeding such Interest Payment Date to the Holder
hereof on the related Regular Record Date and (b) interest payable at Maturity
shall be paid to the Person to whom principal shall be paid. Except as
otherwise provided in the Indenture, any such interest not so paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
If the Interest Rate per annum specified above shall be zero, the
principal of this Security shall not bear interest except in the case of a
default in payment of principal at Maturity and in such case the overdue
principal of this Security shall bear interest at the Interest Rate per annum
specified above (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on any overdue principal shall be payable on demand. Any such
interest on any overdue principal shall bear interest at the Interest Rate per
annum specified above (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the due date for payment of said
principal to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.
Payment of the principal of and premium, if any, on this Security and
interest hereon at Maturity shall be made upon presentation hereof at the
office of Bank of America Illinois in Chicago, Illinois or at such other office
or agency as may be designated for such purpose by the Company from time to
time. Payment of interest, if any, on this Security (other than interest at
Maturity) shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register. Payment of the
principal of and premium, if any, and interest, if any, on this Security, as
aforesaid, shall be made in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts.
-2-
<PAGE> 4
[REVERSE OF NOTE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and issuable in one or more
series under an Indenture, dated as of _______________, 1995 (such Indenture as
originally executed and delivered and as hereafter supplemented or amended,
together with any constituent instruments establishing the terms of particular
Securities, being herein called the "Indenture"), between the Company and Bank
of America Illinois, trustee (herein called the "Trustee," which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. The
acceptance of this Security shall be deemed to constitute the consent and
agreement by the Holder hereof to all of the terms and provisions of the
Indenture. This Security is one of the series designated on the face hereof.
If any Interest Payment Date, any Redemption Date or the Stated
Maturity Date shall not be a Business Day (as hereinafter defined), payment of
the amounts due on this Security on such date may be made on the next
succeeding Business Day; and, if such payment is made or duly provided for on
such Business Day, no interest shall accrue on such amounts for the period from
and after such Interest Payment Date, Redemption Date or Stated Maturity Date,
as the case may be, to such Business Day.
If, as specified on the face hereof, this Security is redeemable, this
Security is subject to redemption at any time on or after the Initial
Redemption Date specified on the face hereof, as a whole or in part, at the
election of the Company, at the applicable redemption price (as described
below) plus accrued interest to the date fixed for redemption. Such redemption
price shall be the Initial Redemption Price specified on the face hereof for
the twelve-month period commencing on the Initial Redemption Date and shall
decline for the twelve-month period commencing on each anniversary of the
Initial Redemption Date by a percentage of principal amount equal to the
Reduction Percentage specified on the face hereof until such redemption price
is 100% of the principal amount of this Security to be redeemed.
Notwithstanding the foregoing, the Company may not, prior to the
Redemption Limitation Date, if any, specified on the face hereof, redeem this
Security as contemplated above as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an effective interest cost to the Company (calculated in
accordance with generally accepted financial practice) less than the effective
interest cost to the Company (similarly calculated) of this Security.
[Insert applicable provisions, if any, relating to the optional or
mandatory redemption of Securities of this series pursuant to a sinking fund or
at the election of the Holder.]
-3-
<PAGE> 5
Notice of redemption [(other than at the election of the Holder)]
shall be given by mail to Holders of Securities, not less than 30 days or more
than 60 days prior to the date fixed for redemption, all as provided in the
Indenture. As provided in the Indenture, notice of redemption at the election
of the Company as aforesaid may state that such redemption shall be conditional
upon the receipt by the Trustee of money sufficient to pay the principal of and
premium, if any, and interest, if any, on this Security on or prior to the date
fixed for such redemption; a notice of redemption so conditioned shall be of no
force or effect if such money is not so received and, in such event, the
Company shall not be required to redeem this Security.
In the event of redemption of this Security in part only, a new
Security or Securities of this series, of like tenor, for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
[Insert applicable provisions, if any, relating to the conversion of
Securities of this series into common stock of the Company.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of this Security of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the Trustee to enter into one or more supplemental indentures for the purpose
of adding any provisions to, or changing in any manner or eliminating any of
the provisions of, the Indenture with the consent of the Holders of not less
than a majority in aggregate principal amount of the Securities of all series
then Outstanding under the Indenture, considered as one class; provided,
however, that if there shall be Securities of more than one series Outstanding
under the Indenture and if a proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such series, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all series so
directly affected, considered as one class, shall be required; and provided,
further, that if the Securities of any series shall have been issued in more
than one Tranche and if the proposed supplemental indenture shall directly
affect the rights of the Holders of Securities of one or more, but less than
all, of such Tranches, then the consent only of the Holders of a majority in
aggregate principal amount of the Outstanding Securities of all Tranches so
directly affected, considered as one class, shall be required. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities then Outstanding, on behalf of the Holders
of all Securities, to waive compliance by the Company with certain provisions
of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange therefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
-4-
<PAGE> 6
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest, if any, on this Security at the times, place and rate, in the coin or
currency, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office of Bank of America Illinois in Chicago, Illinois or such other office or
agency as may be designated for such purpose by the Company from time to time,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations and of like
tenor and aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only as registered
Securities, without coupons, in denominations of $1,000 and any amount in
excess thereof that is an integral multiple of $1,000. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of
Securities of this series, of any authorized denominations, as requested by the
Holder surrendering the same, and of like tenor upon surrender of the Security
or Securities to be exchanged at the office of Bank of America Illinois in
Chicago, Illinois or such other office or agency as may be designated for such
purpose by the Company from time to time.
The Company shall not be required to (a) register the transfer of or
exchange Securities of this series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of this series called for redemption or (b) to register the transfer
of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Illinois.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, which is not a day on which banking institutions or trust companies in
the State of Illinois or
-5-
<PAGE> 7
the city in which is located any office or agency maintained for the payment of
principal of or premium, if any, or interest on this Security, are authorized
or required by law, regulation or executive order to remain closed. All other
terms used in this Security which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
As provided in the Indenture, no recourse shall be had for the payment
of the principal of or premium, if any, or interest on any Securities, or any
part thereof, or for any claim based thereon or otherwise in respect thereof,
or of the indebtedness represented thereby, or upon any obligation, covenant or
agreement under the Indenture, against, and no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, stockholder, officer or
director, as such, past, present or future of the Company or of any predecessor
or successor corporation (either directly or through the Company or a
predecessor or successor corporation), whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly agreed and understood that the
Indenture and all the Securities are solely corporate obligations and that any
such personal liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of the Indenture and
the issuance of the Securities.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
-6-
<PAGE> 8
IN WITNESS WHEREOF, the Company has caused this instrument to de duly
executed and its corporate seal to be hereunto affixed by its officers duly
authorized thereunto.
Dated: __________________ UNITED CITIES GAS COMPANY
By _________________________
Its
ATTEST: ____________________
Its ______________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: _____________________ BANK OF AMERICA ILLINOIS, as Trustee
By _________________________
Its _____________________
-7-
<PAGE> 9
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
_____________________________________________________________________________
[please insert social security or other identifying number of assignee]
_____________________________________________________________________________
[please print or typewrite name and address of assignee]
_____________________________________________________________________________
the within Security of UNITED CITIES GAS COMPANY and does hereby irrevocably
constitute and appoint _______________________________, Attorney, to transfer
said Security on the books of the within-mentioned Company, with full power of
substitution in the premises.
Dated: ___________________
_______________________________________
Notice: The signature to this
assignment must correspond
with the name as written upon
the face of the Security in
every particular without
alteration or enlargement
or any change whatsoever.
-8-
<PAGE> 1
Exhibit 4.08
[FORM OF COMMON STOCK CERTIFICATE]
[FACE OF CERTIFICATE]
NUMBER SHARES
UNITED CITIES GAS COMPANY
INCORPORATED UNDER THE LAWS OF THE STATE OF ILLINOIS AND THE COMMONWEALTH OF
VIRGINIA
SEE REVERSE FOR
CERTAIN DEFINITIONS
This Certifies That
CUSIP #
is the owner of
fully paid and non-assessable shares of COMMON STOCK, without par value, of
UNITED CITIES GAS COMPANY
transferable by the holder hereof in person or by attorney, upon surrender of
this certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer
Agent and registered by the Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile
signatures of its duly authorized officers.
Dated
_______________________________ ____________________________
SECRETARY PRESIDENT
Countersigned and Registered:
HARRIS TRUST and SAVINGS BANK
(Chicago)
Transfer Agent and Registrar
By_________________________
Authorized Signature
[SEAL]
ILLINOIS COMMERCE COMMISSION
IDENTIFICATION NO._________
<PAGE> 2
[REVERSE OF CERTIFICATE]
The Corporation will furnish to each shareholder, upon request and without
charge, a full statement of the designations, preferences, qualifications,
limitations, restrictions, and special or relative rights of the shares of each
class of the Corporation authorized to be issued, and the variations and
relative rights and preferences between the shares and each series of Preferred
Stock of the Corporation so far as the same have been fixed and determined and
the authority of the Board of Directors to fix and determine the relative
rights and preferences of subsequent series of Preferred Stock.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT___________Custodian__________
TEN ENT -- as tenants by the entireties with right of (Cust) (Minor)
survivorship under Uniform Gifts to Minors
JT TEN -- as joint tenants with right of survivorship Act____________
and not as tenants in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received, _______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
_______________________________________________________________________________
_______________________________________________________________________________
________________________________________________________________________ Shares
represented by the within Certificate, and do hereby irrevocably constitute and
appoint ________________________________ Attorney, to transfer the said shares
on the books of the within named Corporation with full power of substitution in
the premises.
Dated___________________________
________________________________________________
Notice: The signature to this assignment must
correspond with the name as written upon
the face of the certificate in every
particular, without alteration or
enlargement or any change whatever.
<PAGE> 1
EXHIBIT 5.01
[CHAPMAN AND CUTLER LETTERHEAD]
December 20, 1994
United Cities Gas Company
5300 Maryland Way
Brentwood, Tennessee 37027
Ladies and Gentlemen:
We have served as counsel for United Cities Gas Company, an
Illinois-Virginia corporation (the "Company"), in connection with the proposed
offering to the public from time to time of its First Mortgage Bonds (the
"Bonds") and/or its notes (the "Notes") and/or shares of its Common Stock,
without par value (the "Common Stock," and collectively with the Bonds and the
Notes, the "Securities"), the aggregate initial offering price of which will
not exceed $200,000,000. As such counsel, we have examined the corporate
organization and history of the Company; its Amended Articles of Incorporation,
as amended to the date hereof; its Bylaws, as amended to the date hereof, and
minute books; and its Registration Statement on Form S-3, as filed with the
Securities and Exchange Commission under the Securities Act of 1933 on the date
hereof, relating to the above-mentioned public offering of the Securities and
have made such further examination as we have deemed necessary or advisable in
order to enable us to express the opinions hereinafter set forth.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Illinois and the
Commonwealth of Virginia.
2. The Bonds will be duly and validly issued and will constitute
legal, valid and binding obligations of the Company upon (a) the due
authorization, by the Board of Directors of the Company or by the
Executive Committee thereof, of an appropriate supplemental indenture to
the Indenture of Mortgage dated as of July 15, 1959 from the Company to
Bank of America
<PAGE> 2
Illinois (successor to Continental Bank, National Association) (the
"Mortgage Trustee") and Robert J. Donahue (successor to M.J. Kruger), as
Trustees, as amended and supplemented (the "Mortgage"), providing for the
creation of the Bonds, and the due execution and delivery of such
instrument by the Company and the Trustees named therein, (b) the due
authorization, by the Board of Directors of the Company or by the
Executive Committee thereof, of the specific terms of the Bonds and of
their issuance and sale, (c) the approval of the appropriate state public
utility regulatory commissions, (d) the execution of the Bonds by the
Company, the filing with the Mortgage Trustee of the appropriate
certificates, instruments and opinions called for thereby, and the
authentication of the Bonds by the Mortgage Trustee, all in accordance
with the provisions of the Mortgage, and (e) the delivery of the Bonds
against payment therefor in accordance with the above-mentioned
authorization of the Board of Directors of the Company, or the Executive
Committee thereof, and the above-mentioned approval of the state public
utility regulatory commissions.
3. The Notes will be duly and validly issued and will constitute
legal, valid and binding obligations of the Company upon (a) the due
authorization, by the Board of Directors of the Company or by the
Executive Committee thereof, of the Indenture (the "Indenture") to be
entered into between the Company and Bank of America Illinois, as trustee
(the "Indenture Trustee"), providing for the creation of the Notes, and
the due execution and delivery of such instrument by the Company and the
Indenture Trustee, (b) the due authorization, by the Board of Directors of
the Company or by the Executive Committee thereof, of the specific terms
of the Notes and of their issuance and sale, (c) the approval of the
appropriate state public utility regulatory commissions, (d) the execution
of the Notes by the Company, the filing with the Indenture Trustee of the
appropriate certificates, instruments and opinions called for thereby, and
the authentication of the Notes by the Indenture Trustee, all in
accordance with the provisions of the Indenture, and (e) the delivery of
the Notes against payment therefor in accordance with the above-mentioned
authorization of the Board of Directors of the Company, or the Executive
Committee thereof, and the above-mentioned approval of the state public
utility regulatory commissions.
4. The Common Stock will be legally issued, fully paid and
non-assessable upon (a) the due authorization by the Board of Directors of
the Company of the number of shares of Common Stock to be issued and sold
and of the specific terms of their
-2-
<PAGE> 3
issuance and sale, (b) the Company having sufficient authorized but
unissued shares of its Common Stock, without par value, at the time of the
issuance and sale of the Common Stock, (c) the approval of the appropriate
state public utility regulatory commissions, (d) the execution of the
certificates representing the Common Stock by the Company, and the
countersignature thereof by the transfer and registrar therefor, and (e)
the delivery of the Common Stock against payment therefor in accordance
with the above-mentioned authorization of the Board of Directors and the
above-mentioned approval of the state public utility regulatory
commissions.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned Registration Statement relating to the Securities of the
Company and to the use of our name and the reference to our firm in said
Registration Statement and in the Prospectus filed as a part thereof.
Respectfully submitted,
CHAPMAN AND CUTLER
-3-
<PAGE> 1
EXHIBIT 12.01
UNITED CITIES GAS COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF CONSOLIDATED EARNINGS TO FIXED CHARGES
FOR THE TWELVE MONTHS ENDED
(Unaudited, in thousands, except ratio amounts)
<TABLE>
<CAPTION>
9-30-94 12-31-93 12-31-92 12-31-91 12-31-90 12-31-89
------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Fixed Charges, as defined:
Interest on long-term debt..................... $14,132 $14,553 $12,965 $11,111 $ 9,009 $ 6,663
Amortization of debt discount.................. 226 220 181 233 231 161
------- ------- ------- ------- ------- -------
Total.................................... $14,358 $14,773 $13,146 $11,344 $ 9,240 $ 6,824
======= ======= ======= ======= ======= =======
Earnings, as defined:
Net income..................................... $12,804 $12,150 $10,218 $ 7,875 $ 3,373 $10,310
Taxes on income................................ 6,141 5,681 5,171 2,564 532 4,811
Fixed charges, as above........................ 14,358 14,773 13,146 11,344 9,240 6,824
------- ------- ------- ------- ------- -------
Total.................................... $33,303 $32,604 $28,535 $21,783 $13,145 $21,945
======= ======= ======= ======= ======= =======
Ratio of Consoldiated Earnings to Fixed
Charges.......................................... 2.32 2.21 2.17 1.92 1.42 3.22
======= ======= ======= ======= ======= =======
</TABLE>
<PAGE> 1
EXHIBIT 23.01
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this S-3 Registration Statement of our report
dated February 15, 1994 appearing in the Annual Report on Form 10-K for the
year ended December 31, 1993 of United Cities Gas Company, and to all
references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Nashville, Tennessee
December 16, 1994
<PAGE> 1
EXHIBIT 25.01
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(B)(2)
------------------------
BANK OF AMERICA ILLINOIS
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ILLINOIS 36-0947896
(JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
231 SOUTH LASALLE STREET, CHICAGO, ILLINOIS 60697
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
------------------------
UNITED CITIES GAS COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ILLINOIS & VIRGINIA 36-1801540
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5300 MARYLAND WAY 37027
BRENTWOOD, TENNESSEE (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
FIRST MORTGAGE BONDS
(TITLE OF INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois.
Chicago Clearing House Association, 164 W. Jackson Boulevard,
Chicago, Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System, Washington,
D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEES:
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
- ------------------------------------------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE> 3
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
NAME OF AMOUNT OWNED AMOUNT GIVEN
OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------ -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
NAME OF AMOUNT OWNED AMOUNT GIVEN
OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------ -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE:
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A COL. B
WHETHER THE COL. C COL. D
SECURITIES
ARE VOTING
OR AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
TITLE OF NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- ------------ ----------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10.OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11.OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE> 5
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE
THAN ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE
WHETHER THERE HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES,
IDENTIFY THE INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY
SUCH DEFAULT.
There is not nor has there been a default with respect to
securities outstanding under this indenture. The trustee is a trustee
under any another indenture under which any other securities of the
obligor are outstanding. There is not nor has there been a default with
respect to the securities outstanding under such other indenture.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A copy of the certification by the Illinois Commissioner of
Banks and Trust Companies of Bank of America Illinois' Charter and
Certificate of Conversion, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-81660.
2. A copy of the certification by the Illinois Commissioner of
Banks and Trust Companies of Bank of America Illinois' Charter and
Certificate of Conversion, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-81660, includes the authority of the trustee
to commence business.
3. A copy of the certificate of authority for Bank of America
Illinois to engage in trust activities issued by the Illinois
Commissioner of Banks and Trust Companies, incorporated herein by
reference to Exhibit 3 to T-1; Registration No. 33-81660.
4
<PAGE> 6
4. A copy of the existing By-laws of Bank of America Illinois as
now in effect, incorporated herein by reference to Exhibit 4 to T-1;
Registration No. 33-55043.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, incorporated herein by reference to Exhibit
6 to T-1; Registration No. 33-81660.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
BANK OF AMERICA ILLINOIS, AN ILLINOIS BANKING CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF ILLINOIS, HAS DULY CAUSED THIS STATEMENT OF
ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE OF ILLINOIS, ON THE 14TH DAY
OF DECEMBER, 1994.
BANK OF AMERICA ILLINOIS
By /s/ K.L. CLARK
___________________________
K.L. Clark
Trust Officer
5
<PAGE> 7
EXHIBIT 7
(OFFICIAL PUBLICATION)
CONSOLIDATED REPORT OF CONDITION OF
CONTINENTAL BANK
of Chicago, Illinois
AND FOREIGN AND DOMESTIC SUBSIDIARIES
A member of the Federal Reserve System, at the close of business on June 30,
1994, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
IN MILLIONS
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.............................................................. $ 1,833
Interest-bearing balances....................................................................................... 1,518
Securities
Held-to-maturity securities..................................................................................... 454
Available-for-sale securities................................................................................... 1,161
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold.............................................................................................. 429
Securities purchased under agreements to resell................................................................. 704
Loans and lease financing receivables:
Loans and leases, net of unearned income................................................. $12,009
LESS: Allowance for loan and lease losses.................................................... 312
LESS: Allocated transfer risk reserve.......................................................... 0
Loans and leases, net of unearned income, allowance and reserve................................................. 11,697
Assets held in trading accounts................................................................................... 1,539
Premises and fixed assets (including capitalized leases).......................................................... 236
Other real estate owned........................................................................................... 191
Investments in unconsolidated subsidiaries and associated companies............................................... 0
Customers' liability to this bank on acceptances outstanding...................................................... 92
Intangible assets................................................................................................. 0
Other assets...................................................................................................... 1,455
------
TOTAL ASSETS.............................................................................................. $21,309
=======
LIABILITIES
Deposits:
In domestic offices............................................................................................. $ 8,771
Noninterest-bearing...................................................................... $ 2,689
Interest-bearing......................................................................... 6,082
In foreign offices, Edge and Agreement subsidiaries, and IBFs..................................................... 4,408
Noninterest-bearing...................................................................... $ 61
Interest-bearing......................................................................... 4,347
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased......................................................................................... 475
Securities sold under agreements to repurchase.................................................................. 224
Demand notes issued to the U.S. Treasury.......................................................................... 1,300
Trading liabilities............................................................................................... 984
Other borrowed money:
With original maturity of one year or less...................................................................... 1,665
With original maturity of more than one year.................................................................... 38
Mortgage indebtedness and obligations under capitalized leases.................................................... 0
Bank's liability on acceptances executed and outstanding.......................................................... 92
Subordinated notes and debentures................................................................................. 398
Other liabilities................................................................................................. 840
-------
TOTAL LIABILITIES......................................................................................... 19,195
-------
Limited-life preferred stock and related surplus.................................................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................................... 0
Common stock...................................................................................................... 685
Surplus........................................................................................................... 827
Undivided profits and capital reserves............................................................................ 630
Net unrealized holding gains (losses) on available-for-sale securities.......................................... (23)
Cumulative foreign currency translation adjustments............................................................... (5)
-------
TOTAL EQUITY CAPITAL...................................................................................... 2,114
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL....................................... $21,309
=======
</TABLE>
I, John J. Higgins, Controller of the above-named bank do hereby declare that
this Report of Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true to
the best of my knowledge and belief.
/s/ John J. Higgins
-----------------------------
Controller
<PAGE> 1
EXHIBIT 25.02
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(B)(2)
------------------------
BANK OF AMERICA ILLINOIS
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ILLINOIS 36-0947896
(JURISDICTION OF INCORPORATION OR (I.R.S. EMPLOYER
ORGANIZATION IF NOT A U.S. NATIONAL BANK) IDENTIFICATION NO.)
231 SOUTH LASALLE STREET, CHICAGO, ILLINOIS 60697
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
------------------------
UNITED CITIES GAS COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ILLINOIS & VIRGINIA 36-1801540
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5300 MARYLAND WAY 37027
BRENTWOOD, TENNESSEE (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
</TABLE>
NOTES
(TITLE OF INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT
IS SUBJECT.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois.
Chicago Clearing House Association, 164 W. Jackson Boulevard,
Chicago, Illinois.
Federal Deposit Insurance Corporation, Washington, D.C.
The Board of Governors of the Federal Reserve System, Washington,
D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEES:
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. B
COL. A AMOUNT
TITLE OF CLASS OUTSTANDING
- ------------------------------------------------- -----------
<S> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING
INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER INDENTURE.
Not applicable by virtue of response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE CLAIM
THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(B)(1) OF
THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES
WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 13.
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR OR
UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE, OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR,
IDENTIFY EACH SUCH PERSON HAVING ANY SUCH CONNECTION AND STATE THE NATURE
OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 13.
1
<PAGE> 3
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
NAME OF AMOUNT OWNED AMOUNT GIVEN
OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------ -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER, AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
NAME OF AMOUNT OWNED AMOUNT GIVEN
OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------ -------------- ------------ -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN
DEFAULT BY THE TRUSTEE:
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A COL. B
WHETHER THE COL. C COL. D
SECURITIES
ARE VOTING
OR AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
TITLE OF NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- ------------ ----------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
2
<PAGE> 4
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 10.OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 11.OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT BY TRUSTEE GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
3
<PAGE> 5
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
AS OF DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF INDEBTEDNESS AMOUNT OUTSTANDING DATE DUE
- ---------------------- ------------------ --------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE
THAN ONE OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE
WHETHER THERE HAS BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES,
IDENTIFY THE INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY
SUCH DEFAULT.
There is not nor has there been a default with respect to
securities outstanding under this indenture. The trustee is a trustee
under another indenture under which other securities of the obligor are
outstanding. There is not nor has there been a default with respect to
the securities outstanding under such other indenture.
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE
QUALIFIED UNDER THE ACT.
Not applicable.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY.
1. A copy of the certification by the Illinois Commissioner of
Banks and Trust Companies of Bank of America Illinois' Charter and
Certificate of Conversion, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-81660.
2. A copy of the certification by the Illinois Commissioner of
Banks and Trust Companies of Bank of America Illinois' Charter and
Certificate of Conversion, incorporated herein by reference to Exhibit 1
to T-1; Registration No. 33-81660, includes the authority of the trustee
to commence business.
3. A copy of the certificate of authority for Bank of America
Illinois to engage in trust activities issued by the Illinois
Commissioner of Banks and Trust Companies, incorporated herein by
reference to Exhibit 3 to T-1; Registration No. 33-81660.
4
<PAGE> 6
4. A copy of the existing By-laws of Bank of America Illinois as
now in effect, incorporated herein by reference to Exhibit 4 to T-1;
Registration No. 33-55043.
5. Not applicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939, incorporated herein by reference to Exhibit
6 to T-1; Registration No. 33-81660.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority, filed herewith.
8. Not applicable.
9. Not applicable.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, THE TRUSTEE,
BANK OF AMERICA ILLINOIS, AN ILLINOIS BANKING CORPORATION ORGANIZED AND EXISTING
UNDER THE LAWS OF THE STATE OF ILLINOIS, HAS DULY CAUSED THIS STATEMENT OF
ELIGIBILITY TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, ALL IN THE CITY OF CHICAGO, AND STATE OF ILLINOIS, ON THE 14TH DAY
OF DECEMBER, 1994.
BANK OF AMERICA ILLINOIS
By /s/ K.L. CLARK
-----------------------------------
K.L. Clark
Trust Officer
5
<PAGE> 7
EXHIBIT 7
(OFFICIAL PUBLICATION)
CONSOLIDATED REPORT OF CONDITION OF
CONTINENTAL BANK
of Chicago, Illinois
AND FOREIGN AND DOMESTIC SUBSIDIARIES
A member of the Federal Reserve System, at the close of business on June 30,
1994, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
IN MILLIONS
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.............................................................. $ 1,833
Interest-bearing balances....................................................................................... 1,518
Securities
Held-to-maturity securities..................................................................................... 454
Available-for-sale securities................................................................................... 1,161
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold.............................................................................................. 429
Securities purchased under agreements to resell................................................................. 704
Loans and lease financing receivables:
Loans and leases, net of unearned income................................................. $12,009
LESS: Allowance for loan and lease losses.................................................... 312
LESS: Allocated transfer risk reserve.......................................................... 0
Loans and leases, net of unearned income, allowance and reserve................................................. 11,697
Assets held in trading accounts................................................................................... 1,539
Premises and fixed assets (including capitalized leases).......................................................... 236
Other real estate owned........................................................................................... 191
Investments in unconsolidated subsidiaries and associated companies............................................... 0
Customers' liability to this bank on acceptances outstanding...................................................... 92
Intangible assets................................................................................................. 0
Other assets...................................................................................................... 1,455
------
TOTAL ASSETS.............................................................................................. $21,309
=======
LIABILITIES
Deposits:
In domestic offices............................................................................................. $ 8,771
Noninterest-bearing...................................................................... $ 2,689
Interest-bearing......................................................................... 6,082
In foreign offices, Edge and Agreement subsidiaries, and IBFs..................................................... 4,408
Noninterest-bearing...................................................................... $ 61
Interest-bearing......................................................................... 4,347
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased......................................................................................... 475
Securities sold under agreements to repurchase.................................................................. 224
Demand notes issued to the U.S. Treasury.......................................................................... 1,300
Trading liabilities............................................................................................... 984
Other borrowed money:
With original maturity of one year or less...................................................................... 1,665
With original maturity of more than one year.................................................................... 38
Mortgage indebtedness and obligations under capitalized leases.................................................... 0
Bank's liability on acceptances executed and outstanding.......................................................... 92
Subordinated notes and debentures................................................................................. 398
Other liabilities................................................................................................. 840
-------
TOTAL LIABILITIES......................................................................................... 19,195
-------
Limited-life preferred stock and related surplus.................................................................. 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................................... 0
Common stock...................................................................................................... 685
Surplus........................................................................................................... 827
Undivided profits and capital reserves............................................................................ 630
Net unrealized holding gains (losses) on available-for-sale securities.......................................... (23)
Cumulative foreign currency translation adjustments............................................................... (5)
-------
TOTAL EQUITY CAPITAL...................................................................................... 2,114
-------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL....................................... $21,309
=======
</TABLE>
I, John J. Higgins, Controller of the above-named bank do hereby declare that
this Report of Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true to
the best of my knowledge and belief.
/s/ John J. Higgins
-----------------------------
Controller
<PAGE> 1
EXHIBIT 25.03
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM T-2
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF
AN INDIVIDUAL DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION
305(B)(2)
------------------------
<TABLE>
<S> <C>
ROBERT J. DONAHUE ###-##-####
(NAME OF TRUSTEE) (SOCIAL SECURITY NUMBER)
231 SOUTH LASALLE STREET
CHICAGO ILLINOIS 60697
(BUSINESS ADDRESS) (ZIP CODE)
</TABLE>
------------------------
UNITED CITIES GAS COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
ILLINOIS & VIRGINIA 36-1801540
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
5300 MARYLAND WAY
BRENTWOOD, TENNESSEE 37027
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
</TABLE>
FIRST MORTGAGE BONDS
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
ITEM 1. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
ITEM 2. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FILE A COPY OF EACH SUCH
INDENTURE AS AN EXHIBIT AND FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of response to Item 9.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON BY THE TRUSTEE AS A
BASIS FOR THE CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF
SECTION 310(B)(1) OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER
SUCH OTHER INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE
SECURITIES WILL RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH
OTHER INDENTURE.
Not applicable by virtue of response to Item 9.
ITEM 3. CERTAIN RELATIONSHIPS BETWEEN THE TRUSTEE AND THE OBLIGOR OR AN
UNDERWRITER.
IF THE TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR
REPRESENTATIVE OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, STATE
THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of response to Item 9.
ITEM 4. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY BY THE TRUSTEE OR HELD BY THE TRUSTEE AS COLLATERAL
SECURITY FOR OBLIGATIONS IN DEFAULT.
DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A COL. B
WHETHER THE COL. C COL. D
SECURITIES
ARE VOTING
OR AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
TITLE OF NONVOTING HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
CLASS SECURITIES FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- ------------ ----------- ---------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response of Item 9.
ITEM 5. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH
UNDERWRITER ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
1
<PAGE> 3
DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
AMOUNT OWNED BENEFICIALLY OR REPRESENTED BY
NAME OF ISSUER AND AMOUNT HELD AS COLLATERAL SECURITY AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING FOR OBLIGATIONS IN DEFAULT IN COL. C
- ------------------ ------------------ ---------------------------- -----------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 9.
ITEM 6.HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN AFFILIATES OR
PRINCIPAL HOLDERS OF VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE
OF THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH
PERSON.
DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING FOR OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 9.
ITEM 7.HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON OWNING 50 PERCENT
OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE
OBLIGOR, FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES
OF SUCH PERSON ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C COL. D
NAME OF ISSUER AMOUNT OWNED BENEFICIALLY OR PERCENT OF CLASS
AND AMOUNT HELD AS COLLATERAL SECURITY FOR REPRESENTED BY AMOUNT
TITLE OF CLASS OUTSTANDING OBLIGATIONS IN DEFAULT GIVEN IN COL. C
- --------------- ----------- --------------------------------- ---------------------
<S> <C> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 9.
2
<PAGE> 4
ITEM 8. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
DECEMBER 14, 1994
<TABLE>
<CAPTION>
COL. A
COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
- --------------------- ------------------ -----------------
<S> <C> <C>
</TABLE>
Not applicable by virtue of response to Item 9.
ITEM 9. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not nor has there been a default with respect to the
securities under this indenture.
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY
OTHER SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE
THAN ONE OUTSTANDING SERIES OR SECURITIES UNDER THE INDENTURE, STATE
WHETHER THERE HAS BEEN A DEFAULT UNDER SUCH INDENTURE OR SERIES, IDENTIFY
THE INDENTURE OR SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH
DEFAULT.
The trustee is not a trustee under any other indenture under which
any other securities or certificates of interest or participation in any
other securities of the obligor are outstanding. There is not nor has
there been a default with respect to the securities under this
indenture.
ITEM 10. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of response to Item 9.
ITEM 11. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF
ELIGIBILITY AND QUALIFICATION.
None.
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939, I, ROBERT J.
DONAHUE, HAVE SIGNED THIS STATEMENT OF ELIGIBILITY AND QUALIFICATION IN THE CITY
OF CHICAGO, AND STATE OF ILLINOIS, ON THE 14TH DAY OF DECEMBER, 1994.
By /s/ Robert J. Donahue
_______________________________
Robert J. Donahue
3
