GENERAL AND REFUNDING MORTGAGE INDENTURE
AND
DEED OF TRUST
BANGOR HYDRO-ELECTRIC COMPANY
TO
CHEMICAL BANK,
AS TRUSTEE
DATED AS OF
JUNE 1, 1995
TABLE OF CONTENTS
PAGE
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. General Definitions. . . . . . . . . . . . . . . . . . . . . 7
Section 1.02. Bonded; Funded Cash . . . . . . . . . . . . . . . . . . . 23
Section 1.03. Net Earnings Certificate; Adjusted Net
Earnings; Annual Interest Requirements . . . . . . . . . . 24
Section 1.04. Property Additions; Cost. . . . . . . . . . . . . . . . . 27
Section 1.05. Compliance Certificates and Opinions. . . . . . . . . . . 30
Section 1.06. Form of Documents Delivered to Trustee. . . . . . . . . . 32
Section 1.07. Acts of Holders . . . . . . . . . . . . . . . . . . . . . 32
Section 1.08. Notices, Etc., to Trustee and Company . . . . . . . . . . 34
Section 1.09. Notice to Holders of Bonds; Waiver. . . . . . . . . . . . 35
Section 1.10. Conflict with Trust Indenture Act . . . . . . . . . . . . 35
Section 1.11. Effect of Headings and Table of Contents. . . . . . . . . 36
Section 1.12. Successors and Assigns. . . . . . . . . . . . . . . . . . 36
Section 1.13. Separability Clause . . . . . . . . . . . . . . . . . . . 36
Section 1.14. Benefits of Indenture . . . . . . . . . . . . . . . . . . 36
Section 1.15. Governing Law . . . . . . . . . . . . . . . . . . . . . . 36
Section 1.16. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . 36
Section 1.17. Investment of Cash Held by Trustee. . . . . . . . . . . . 37
Section 1.18. Approval of Signers . . . . . . . . . . . . . . . . . . . 37
ARTICLE TWO
BOND FORMS
Section 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . 38
Section 2.02. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE THREE
THE BONDS
Section 3.01. Limit on Amount of Bonds; Issuable in Series. . . . . . . 39
Section 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . 42
Section 3.03. Execution, Dating, Certificate of
Authentication . . . . . . . . . . . . . . . . . . . . . . 42
Section 3.04. Temporary Bonds . . . . . . . . . . . . . . . . . . . . . 43
Section 3.05. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . . . 44
Section 3.06. Mutilated, Destroyed, Lost and Stolen Bonds . . . . . . . 45
Section 3.07. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . 48
Section 3.09. Cancellation by Bond Registrar. . . . . . . . . . . . . . 48
Section 3.10. Computation of Interest . . . . . . . . . . . . . . . . . 48
Section 3.11. Payment to Be in Proper Currency. . . . . . . . . . . . . 49
ARTICLE FOUR
ISSUANCE OF BONDS
Section 4.01. General . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 4.02. Issuance of Bonds on the Basis of Pledged
Bonds; Disposition and Exchange of Bank
Collateral Bonds . . . . . . . . . . . . . . . . . . . . . 52
Section 4.03. Issuance of Bonds on the Basis of Property
Additions. . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.04. Issuance of Bonds on the Basis of Retired
Bonds. . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 4.05. Issuance of Bonds Upon Deposit of Cash
with Trustee . . . . . . . . . . . . . . . . . . . . . . . 59
Section 4.06. Issuance of General and Refunding Mortgage
Bonds, Series A. . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE FIVE
REDEMPTION OF BONDS
Section 5.01. Applicability of Article. . . . . . . . . . . . . . . . . 61
Section 5.02. Election to Redeem; Notice to Trustee . . . . . . . . . . 61
Section 5.03. Selection of Bonds to Be Redeemed . . . . . . . . . . . . 61
Section 5.04. Notice of Redemption. . . . . . . . . . . . . . . . . . . 62
Section 5.05. Bonds Payable on Redemption Date. . . . . . . . . . . . . 63
Section 5.06. Bonds Redeemed in Part. . . . . . . . . . . . . . . . . . 63
ARTICLE SIX
REPRESENTATIONS AND COVENANTS
Section 6.01. Payment of Bonds; Lawful Possession;
Maintenance of Lien. . . . . . . . . . . . . . . . . . . . 64
Section 6.02. Maintenance of Office or Agency . . . . . . . . . . . . . 64
Section 6.03. Money for Bond Payments to Be Held in Trust . . . . . . . 65
Section 6.04. Corporate Existence . . . . . . . . . . . . . . . . . . . 67
Section 6.05. Maintenance of Properties . . . . . . . . . . . . . . . . 67
Section 6.06. Payment of Taxes; Discharge of Liens. . . . . . . . . . . 67
Section 6.07. Insurance . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 6.08. Recording, Filing, Etc. . . . . . . . . . . . . . . . . . 71
Section 6.09. Limitation on Additional Issuances of
Bonds Under 1936 Mortgage. . . . . . . . . . . . . . . . . 72
Section 6.10 Waiver of Certain Covenants. . . . . . . . . . . . . . . . 72
Section 6.11. Certificate to Trustee. . . . . . . . . . . . . . . . . . 73
ARTICLE SEVEN
PLEDGED BONDS; ADDITIONAL CLASS "A" MORTGAGES;
DISCHARGE OF CLASS "A" MORTGAGE
Section 7.01. Registration and Ownership of Pledged Bonds . . . . . . . 73
Section 7.02. Payments on Pledged Bonds . . . . . . . . . . . . . . . . 73
Section 7.03. Surrender of Pledged Bonds. . . . . . . . . . . . . . . . 74
Section 7.04. No Transfer of Pledged Bonds. . . . . . . . . . . . . . . 74
Section 7.05. Voting of Pledged Bonds and Bank
Collateral Bonds . . . . . . . . . . . . . . . . . . . . . 74
Section 7.06. Designation of Additional Class "A"
Mortgages. . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 7.07. Discharge of Class "A" Mortgage . . . . . . . . . . . . . 78
ARTICLE EIGHT
POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY
Section 8.01. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . 82
Section 8.02. Dispositions Without Release. . . . . . . . . . . . . . . 83
Section 8.03. Release of Mortgaged Property if Bonding
Ratio Test Satisfied . . . . . . . . . . . . . . . . . . . 84
Section 8.04. Release of Limited Amount of Mortgaged
Property . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 8.05. Release of Mortgaged Property Not Subject
to a Class "A" Mortgage. . . . . . . . . . . . . . . . . . 86
Section 8.06. Withdrawal or Other Application of Funded
Cash . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 8.07. Release of Property Taken by Eminent
Domain, Etc. . . . . . . . . . . . . . . . . . . . . . . . 91
Section 8.08. Alternative Release Provision . . . . . . . . . . . . . . 92
Section 8.09. Disclaimer or Quitclaim . . . . . . . . . . . . . . . . . 92
Section 8.10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 93
ARTICLE NINE
SATISFACTION AND DISCHARGE
Section 9.01. Satisfaction and Discharge of Bonds . . . . . . . . . . . 94
Section 9.02. Satisfaction and Discharge of Indenture . . . . . . . . . 96
Section 9.03. Application of Trust Money. . . . . . . . . . . . . . . . 97
ARTICLE TEN
EVENTS OF DEFAULT; REMEDIES
Section 10.01. Events of Default. . . . . . . . . . . . . . . . . . . . 97
Section 10.02. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . 99
Section 10.03. Entry Upon Mortgaged Property. . . . . . . . . . . . . . 100
Section 10.04. Power of Sale; Suits for Enforcement . . . . . . . . . . 100
Section 10.05. Incidents of Sale. . . . . . . . . . . . . . . . . . . . 101
Section 10.06. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . . . 103
Section 10.07. Application of Money Collected. . . . . . . . . . . . 104
Section 10.08. Receiver . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 10.09. Trustee May File Proofs of Claim . . . . . . . . . . . . 105
Section 10.10. Trustee May Enforce Claims Without
Possession of Bonds . . . . . . . . . . . . . . . . . . . 105
Section 10.11. Limitation on Suits. . . . . . . . . . . . . . . . . . . 106
Section 10.12. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . . . . . . . . . . 106
Section 10.13. Restoration of Rights and Remedies. . . . . . . . . . 107
Section 10.14. Rights and Remedies Cumulative. . . . . . . . . . . . . . 107
Section 10.15. Delay or Omission Not Waiver. . . . . . . . . . . . . 107
Section 10.16. Control by Holders of Bonds . . . . . . . . . . . . . 107
Section 10.17. Waiver of Past Defaults . . . . . . . . . . . . . . . 108
Section 10.18. Undertaking for Costs . . . . . . . . . . . . . . . . . . 108
Section 10.19. Waiver of Appraisement and Other Laws . . . . . . . . . . 109
Section 10.20. Defaults Under Class "A" Mortgages. . . . . . . . . . . . 109
ARTICLE ELEVEN
THE TRUSTEE
Section 11.01. Certain Duties and Responsibilities. . . . . . . . . . . 109
Section 11.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . 110
Section 11.03. Certain Rights of Trustee. . . . . . . . . . . . . . . . 110
Section 11.04. Not Responsible for Recitals or Issuance
of Bonds. . . . . . . . . . . . . . . . . . . . . . . . . 111
Section 11.05. May Hold Bonds . . . . . . . . . . . . . . . . . . . . . 112
Section 11.06. Money Held in Trust. . . . . . . . . . . . . . . . . . . 112
Section 11.07. Compensation and Reimbursement . . . . . . . . . . . . . 112
Section 11.08. Disqualification; Conflicting Interests. . . . . . . . . 113
Section 11.09. Corporate Trustee Required; Eligibility. . . . . . . . . 113
Section 11.10. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . 114
Section 11.11. Acceptance of Appointment by Successor . . . . . . . . . 115
Section 11.12. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . . . . . . . 116
Section 11.13. Preferential Collection of Claims Against
Company . . . . . . . . . . . . . . . . . . . . . . . . . 116
Section 11.14. Co-Trustees and Separate Trustees. . . . . . . . . . . . 117
Section 11.15. Appointment of Authenticating Agent. . . . . . . . . . . 118
ARTICLE TWELVE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
Section 12.01. Lists of Holders; Preservation of
Information . . . . . . . . . . . . . . . . . . . . . . . 120
Section 12.02. Reports by Trustee and Company . . . . . . . . . . . . . 121
ARTICLE THIRTEEN
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 13.01. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . . . . . . . . . . 121
Section 13.02. Successor Corporation Substituted. . . . . . . . . . . . 123
Section 13.03. Extent of Lien Hereof on Property of
Successor Corporation . . . . . . . . . . . . . . . . . . 124
Section 13.04. Release of Company Upon Conveyance Other
Transfer. . . . . . . . . . . . . . . . . . . . . . . . . 124
Section 13.05. Merger into Company; Extent of Lien Hereof . . . . . . . 124
ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
Section 14.01. Supplemental Indentures Without Consent
of Holders. . . . . . . . . . . . . . . . . . . . . . . . 125
Section 14.02. Supplemental Indentures With Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 127
Section 14.03. Execution of Supplemental Indentures . . . . . . . . . . 129
Section 14.04. Effect of Supplemental Indentures. . . . . . . . . . . . 129
Section 14.05. Conformity With Trust Indenture Act. . . . . . . . . . . 130
Section 14.06. Reference in Bonds to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . . . 130
ARTICLE FIFTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section 15.01. Purposes for Which Meetings May be Called. . . . . . . . 130
Section 15.02. Call, Notice and Place of Meetings . . . . . . . . . . . 130
Section 15.03. Persons Entitled to Vote at Meetings;
Record Date . . . . . . . . . . . . . . . . . . . . . . . 131
Section 15.04. Quorum; Action . . . . . . . . . . . . . . . . . . . . . 132
Section 15.05. Attendance at Meetings; Determination of
Voting Rights; Conduct and Adjournment
of Meetings . . . . . . . . . . . . . . . . . . . . . . . 133
Section 15.06. Counting Votes and Recording Action of
Meetings. . . . . . . . . . . . . . . . . . . . . . . . . 134
Section 15.07. Action Without Meeting . . . . . . . . . . . . . . . . . 135
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 16.01. Liability Solely Corporate . . . . . . . . . . . . . . . 135
EXHIBIT A Description of Property
EXHIBIT B Modification to the 1936 Mortgage
GENERAL AND REFUNDING MORTGAGE INDENTURE AND DEED OF TRUST,
dated as of June 1, 1995, between BANGOR HYDRO-ELECTRIC COMPANY, a Maine
corporation, the post office address of which is 33 State Street, Bangor,
Maine 04401, and CHEMICAL BANK, a corporation organized and existing under
the laws of the State of New York, the post office address of which is 450
West 33rd Street, New York, New York 10001, as Trustee;
W I T N E S S E T H :
WHEREAS, all capitalized terms used in this Indenture have the
respective meanings set forth in Article One; and
WHEREAS, the Company deems it necessary to borrow and,
pursuant to this Indenture, to issue Bonds for its corporate purposes from
time to time, and to mortgage and pledge the property hereinafter described
to secure payment of the Bonds; and
WHEREAS, all acts and things have been done and performed
which are necessary to make this Indenture, when duly executed and delivered,
a valid and binding mortgage and deed of trust for the security of all Bonds
duly issued hereunder and Outstanding from time to time; and the execution
and delivery of this Indenture have been in all respects duly authorized.
NOW, THEREFORE, to secure the payment of the principal of,
premium, if any, and interest, if any, on all Bonds issued and Outstanding
under this Indenture when payable in accordance with the provisions thereof
and hereof, and to secure the performance by the Company of, and its
compliance with, the covenants and conditions of this Indenture, and in
consideration of the premises and of One Dollar paid to the Company by the
Trustee, the Company hereby grants, bargains, sells, releases, conveys,
assigns, transfers, mortgages, pledges, sets over and confirms to Chemical
Bank, as Trustee, and grants to the Trustee a security interest in, the
following:
GRANTING CLAUSE FIRST
All right, title and interest of the Company in and to
property (other than Excepted Property), real, personal and mixed and
wherever situated, in any case used or to be used in or in connection
with the Primary Purposes of the Company's Business (whether or not such
use is the sole use of such property), including without limitation (a)
all land and interests in land subject to the Lien of and referenced in
the 1936 Mortgage and in supplements thereto (and related real estate
property descriptions), which mortgage and supplements (and
descriptions) are described in Exhibit A to this Indenture, except land
and interests in land which have been specifically released from such
Lien from time to time; (b) all other lands, easements, servitudes and
other rights and interests in or relating to real property or the
occupancy or use of the same; (c) all plants, generators, turbines,
engines, boilers, fuel handling and transportation facilities, air and
water pollution control and sewage and solid waste disposal facilities
and other machinery and facilities for the generation of electric
energy; (d) all switchyards, lines, towers, substations, transformers
and other machinery and facilities for the transmission of electric
energy; (e) all lines, poles, conduits, conductors, meters, regulators
and other machinery and facilities for the transmission or distribution
of electric energy; (f) all buildings, offices, warehouses and other
structures; and (g) all pipes, cables, insulators, ducts, tools,
equipment, apparatus and facilities and all other property, of whatever
kind and nature, ancillary to or otherwise used or to be used in
conjunction with any or all of the foregoing or otherwise, directly or
indirectly, in furtherance of the Primary Purposes of the Company's
Business;
GRANTING CLAUSE SECOND
Subject to the applicable exceptions permitted by Section
8.10, Section 13.03 and Section 13.05, all property (other than Excepted
Property) of the kind and nature described in Granting Clause First
which may be hereafter acquired by the Company, it being the intention
of the Company that all such property acquired by the Company after the
date of the execution and delivery of this Indenture shall be as fully
embraced within and subjected to the Lien hereof as if such property
were owned by the Company as of the date of the execution and delivery
of this Indenture;
GRANTING CLAUSE THIRD
Any Excepted Property, and any other property of the Company,
real, personal or mixed, not described in Granting Clause First or
Granting Clause Second, which may, from time to time after the date of
the execution and delivery of this Indenture, by delivery or by one or
more supplemental indentures, be subjected to the Lien hereof by the
Company or by anyone in its behalf, the Trustee being hereby authorized
to receive the same at any time as additional security hereunder; it
being understood that any such subjection to the Lien hereof of any
Excepted Property or other property as additional security may be made
subject to such reservations, limitations or conditions respecting the
use and disposition of such property or the proceeds thereof as shall be
set forth in such instrument; and
GRANTING CLAUSE FOURTH
All bonds of the Collateral Series due July 1, 2000 issued by
the Company under the 1936 Mortgage and pursuant to the supplemental
indenture relating to such series, assigned to the Trustee from time to
time and held as security for all Bonds outstanding hereunder (the "Bank
Collateral Bonds").
GRANTING CLAUSE FIFTH
All other property of whatever kind and nature subjected or
intended to be subjected to the Lien of this Indenture by any of the
terms and provisions hereof;
TOGETHER WITH
(Subject to the provisions of Section 8.01 hereof) the tolls,
rents, revenues, issues, earnings, income, product and profits
appertaining to the aforesaid property or any part thereof.
EXCEPTED PROPERTY
Expressly excepting and excluding, however, from the Lien and
operation of this Indenture the following property of the Company,
whether now owned or hereafter acquired (the "Excepted Property"):
(a) all cash on hand, in banks or in
other financial institutions with which the Company maintains
deposits, shares of stock, bonds, notes, evidences of
indebtedness and other securities (including without
limitation stock of subsidiaries or affiliates, partnership
interests and member interests in limited liability companies)
not hereafter paid or delivered to, deposited with, or held
by, the Trustee hereunder or required so to be;
(b) accounts receivable and unbilled
revenues;
(c) all contracts, leases and other
agreements of whatsoever kind and nature (including pole
attachment agreements and joint pole agreements), contract
rights, bills, notes and other instruments, claims, credits,
demands, judgments, choses in action, patents, patent licenses
and other patent rights, patent applications, trade names,
trademarks and other general intangibles;
(d) all permits, licenses, franchises
(including municipal franchises and other rights to use public
ways) and rights (however characterized) granted by any
governmental entity;
(e) all motor vehicles, automobiles,
buses, trucks, truck cranes, tractors, trailers and similar
vehicles, movable equipment, all rolling stock, railcars,
containers and other railroad equipment, all vessels, boats,
barges and other marine equipment, all airplanes, airplane
engines and flight equipment, and all components, spare parts,
accessories, supplies and fuel used or to be used in
connection with any of the foregoing;
(f) all goods, wares, merchandise,
equipment, spare parts and tools held for sale or lease in the
ordinary course of business or for use or consumption in, or
in the operation of, any properties of, or for the benefit of,
the Company, or held in advance of use thereof for maintenance
or replacement purposes; all fuel, materials and supplies and
other personal property which are consumable (otherwise than
by ordinary wear and tear) in their use for one or more of the
Primary Purposes of the Company's Business (including without
limitation nuclear fuel in whatever form);
(g) all office furniture and office
equipment; all satellites and other equipment and materials
used or to be used in outer space; all business machines; all
communications equipment (including telephone equipment); and
all computer, record production, storage and retrieval
equipment used exclusively for corporate administrative or
clerical purposes, and all components, spare parts,
accessories, and supplies used or to be used in connection
with any of the foregoing;
(h) all crops, timber, sand, gravel,
rocks, earth, natural gas, coal, ore, uranium, gas, oil and
other minerals harvested, mined or extracted or otherwise
separated from the land, or lying or being upon, within or
under any properties of the Company, including the Mortgaged
Property, all mineral rights, leases and royalties and income
therefrom, and all rights to explore for minerals, and gas or
oil wells or any lease or real estate acquired for the purpose
of obtaining gas or oil rights;
(i) all emissions or pollution allowances
or credits (or similar rights) created under the Clean Air Act
or under any similar existing or future law relating to
abatement or control of pollution of the atmosphere, water or
soil;
(j) all electric energy, gas, steam,
water, ice and other products generated, manufactured,
produced, provided or purchased by the Company for sale,
transmission or distribution or used or to be used by the
Company;
(k) all leasehold interests and leasehold
improvements;
(l) all property, real, personal and
mixed, which is:
(A) not specifically subjected or
required to be subjected to the Lien of this Indenture
by any express provision hereof; and
(B) not used or to be used for one or
more of the Primary Purposes of the Company's Business,
or in connection with the operation of any property
specifically subjected or required to be subjected to
the Lien of this Indenture by the express provisions
hereof; and
(m) the Company's franchise to be a
corporation.
it being understood that the Company may, however, pursuant to Granting
Clause Third, subject to the Lien of this Indenture any Excepted
Property, whereupon the same shall cease to be Excepted Property.
PROVIDED, HOWEVER, that (x) if, at any time after the occurrence of an
Event of Default, the Trustee, or any separate trustee or co-trustee
appointed under Section 11.14 or any receiver appointed pursuant to
statutory provision or order of court, shall have entered into
possession of all or substantially all of the Mortgaged Property, all
the Excepted Property described or referred to in the foregoing clauses
(c), (d) and (e), then owned or held or thereafter acquired by the
Company shall immediately, and, in the case of any Excepted Property
described or referred to in clause (k), upon demand of the Trustee or
such other trustee or receiver, become subject to the Lien of this
Indenture to the extent permitted by law (but subject to Liens in effect
at such time on such Excepted Property of the Company which is then in
existence), and the Trustee or such other trustee or receiver may, to
the extent permitted by law, at the same time likewise take possession
thereof, and (y) whenever all Events of Default shall have been cured
and the possession of all or substantially all of the Mortgaged Property
shall have been restored to the Company, such Excepted Property shall
again be excepted and excluded from the Lien hereof to the extent set
forth above; it being understood that the Company may, however, pursuant
to Granting Clause Third, subject to the Lien of this Indenture any
Excepted Property, whereupon the same shall cease to be Excepted
Property;
TO HAVE AND TO HOLD all such properties, rights and interests
in property granted, bargained, sold, warranted, released, conveyed,
assigned, transferred, mortgaged, pledged, set over and confirmed or in which
a security interest has been
granted by the Company in this Indenture or intended or agreed to be so
granted, together with all the appurtenances thereto, unto the Trustee and
its successors and assigns forever.
SUBJECT, HOWEVER, to Permitted Liens and to Liens which have
been granted by the Company to other Persons prior to the date of the
execution and delivery of this Indenture (including, without limitation, the
Lien of the 1936 Mortgage), and subject also, as to any property hereafter
acquired by the Company, to vendors' Liens, purchase money mortgages and
other Liens thereon at the time of the acquisition thereof (including, but
not limited to, the Lien of any Class "A" Mortgage), it being understood that
with respect to any of such property which is now or hereafter becomes
subject to the Lien of any Class "A" Mortgage, the Lien of this Indenture
shall at all times be junior and subordinate to the Lien of such Class "A"
Mortgage;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate
benefit and security of all present and future Holders of the Bonds, and to
secure the payment of the principal of, premium, if any, and interest, if
any, on the Bonds issued and Outstanding under this Indenture when payable in
accordance with the provisions thereof and hereof, and to secure the
performance by the Company of, and its compliance with, the covenants and
conditions of this Indenture without any preference, priority or distinction
of any one Bond over any other Bond by reason of priority in the issue or
negotiation thereof or otherwise;
PROVIDED, HOWEVER, and these presents are made upon the
condition, that if the Company shall pay or cause to be paid the principal
of, premium, if any, and interest, if any, on the Bonds at the times and in
the manner therein and herein provided, or shall provide, in the manner
permitted hereby, for the payment thereof, and if the Company shall also pay
or cause to be paid all other sums payable hereunder by it and perform all of
the covenants and comply with all of the conditions of this Indenture, then
this Indenture and the estate and rights hereby granted shall cease,
terminate and be void; and
IT IS HEREBY COVENANTED AND AGREED, by and between the Company
and the Trustee, that all Bonds are to be authenticated, delivered and
issued, and that all Mortgaged Property is to be held, subject to the further
covenants, conditions, uses and trusts hereinafter set forth, and the
Company, for itself and its successors and assigns, does hereby covenant and
agree to and with the Trustee and its successors in trust, for the benefit of
all Holders of the Bonds, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.001. GENERAL 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 terms used herein (and which are not specifically
defined herein) which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(c) all terms used herein (and which are not specifically
defined herein) which are defined in the Uniform Commercial Code (as in
effect in Maine) have the meanings assigned to them therein;
(d) the word "or" is not exclusive;
(e) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with Generally Accepted
Accounting Principles; and
(f) 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.
"ACT", when used with respect to any Holder of a Bond, has the
meaning specified in Section 1.07(a).
"ADJUSTED NET EARNINGS" means the amount calculated in
accordance with Section 1.03(a); PROVIDED, HOWEVER, that if any of the
property of the Company owned by it at the time of the making of any Net
Earnings Certificate (a) shall have been acquired during or after any period
for which Adjusted Net Earnings of the Company are to be computed, (b) shall
not have been acquired in exchange or substitution for property the net
earnings of which have been included in the Adjusted Net Earnings of the
Company, and (c) had been operated as a separate unit and items of revenue
and expense attributable thereto are readily ascertainable, then the net
earnings of such property (computed in the manner provided for the
computation of the Adjusted Net Earnings of the Company) during such period
or such part of such period as shall have preceded the acquisition thereof,
to the extent that the same have not otherwise been included in the Adjusted
Net Earnings of the Company, shall be so included.
"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; "AFFILIATED" has a
meaning correlative to the foregoing. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct generally 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.
"ANNUAL INTEREST REQUIREMENTS" means the amount calculated in
accordance with Section 1.03(b).
"APPRAISER" means a Person engaged in the business of
appraising property or competent to determine the Fair Value or fair market
value of the particular property in question, and who or which, unless
required to be Independent, may be employed by or Affiliated with the
Company.
"APPRAISER'S CERTIFICATE" means a certificate signed by an
Appraiser; any Appraiser's Certificate which is relied upon by an Independent
Engineer, for purposes of an Independent Engineer's Certificate, shall be
signed by an Independent Appraiser.
"AUTHENTICATING AGENT" means any Person (other than the
Company or an Affiliate of the Company) authorized by the Trustee to act on
behalf of the Trustee to authenticate one or more series of Bonds.
"AUTHORIZED EXECUTIVE OFFICER" means the Chairman of the
Board, the Chief Executive Officer, the President, any Vice President
(whether or not his or her title includes a modifier such as "Executive",
"Senior" or the like), the Treasurer, the Controller, the Secretary, the
Clerk or any other officer of the Company designated in an Officer's
Certificate delivered to the Trustee to be an Authorized Executive Officer.
"AUTHORIZED PUBLICATION" means a newspaper or financial
journal of general circulation, printed in the English language and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays; or, in the alternative, shall mean such form
of communication as may have come into general use for the dissemination of
information of similar import. In the event that successive weekly
publications in an Authorized Publication are required hereunder they may be
made (unless otherwise expressly provided herein) on the same or different
days of the week and in the same or in different Authorized Publications. In
case, by reason of the suspension of publication of any Authorized
Publication, or by reason of any other cause, it shall be impractical without
extraordinary expense to make publication of any notice in an Authorized
Publication as required by this Indenture, then such method of publication or
notification as shall be made with the approval of the Trustee shall be
deemed the equivalent of the required publication of such notice in an
Authorized Publication.
"AUTHORIZED PURPOSES" means the authentication and delivery of
Bonds, the release of property, the discharge of a Class "A" Mortgage or the
withdrawal of cash under any of the provisions of this Indenture.
"BANK COLLATERAL BONDS" has the meaning specified in Granting
Clause Fourth.
"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.
"BOND REGISTER" and "BOND REGISTRAR" have the respective
meanings specified in Section 3.05(a).
"BONDED" has the meaning specified in Section 1.02(a).
"BONDS" means any bonds authenticated and delivered under this
Indenture.
"BUSINESS DAY", when used with respect to a Place of Payment
or any other particular location specified in the Bonds or 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
location so specified are generally authorized or required by law, regulation
or executive order to remain closed, except as may be otherwise specified as
contemplated by Section 3.01.
"CLASS "A" BONDS" means bonds or other obligations now or
hereafter issued and Outstanding under the 1936 Mortgage or any other Class
"A" Mortgage.
"CLASS "A" MORTGAGE" means, collectively, the 1936 Mortgage
and each other mortgage or deed of trust or similar indenture entered into by
any corporation that is subsequently merged into or consolidated with the
Company, or into which the Company is merged, and hereafter designated an
additional Class "A" Mortgage in an indenture supplemental hereto complying
with the requirements of Section 7.06(b)(i).
"CLEAN AIR ACT" means the Clean Air Act (42 U.S.C. Sections
740 ET SEQ.) and any amendments to or regulations promulgated thereunder in
effect from time to time.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, 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 (if any) performing such duties at
such time.
"COMPANY" means Bangor Hydro-Electric Company, a Maine
corporation, unless and until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY ORDER" or "COMPANY REQUEST" means a written order or
request signed in the name of the Company by an Authorized Executive Officer
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 450 West 33rd Street, New York, New York 10001,
Attention: Corporate Trustee Administration Department.
"COST" with respect to Property Additions has the meaning
specified in Section 1.04(c).
"CUSTOMARY EXCEPTIONS" means, with respect to any Opinion of
Counsel required to be delivered hereunder, such exceptions to opinions as
are customarily expressed in opinions of counsel rendered in connection with
similar transactions at the time such Opinion of Counsel is to be delivered
and, in any event, shall include exceptions based upon limitations imposed by
(a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other laws affecting the enforcement of mortgagees' and other creditors'
rights, and (b) general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
"DEFAULTED INTEREST" has the meaning specified in Section
3.07(b).
"DISCOUNT BOND" means any Bond pursuant to the terms of which
an amount less than the principal amount thereof may be due and payable upon
a declaration of acceleration of the Maturity thereof.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Bonds denominated in Dollars, Government Obligations; or
(b) with respect to Bonds denominated in a currency other
than Dollars or in a composite currency, such other obligations or
instruments as shall be specified with respect to such Bonds, as
contemplated by Section 3.01.
"ENGINEER" means a Person engaged in the engineering
profession or otherwise qualified to pass on engineering matters (including,
without limitation, a Person licensed as a professional engineer, whether or
not then engaged in the engineering profession) or an Appraiser or other
Person (including without limitation an investment banking firm) engaged in
the business of appraising property or otherwise competent to determine the
value of the particular property in question, who, in each case, unless
required to be Independent, may be employed by or Affiliated with the
Company.
"ENGINEER'S CERTIFICATE" means a certificate signed by an
Authorized Executive Officer and by an Engineer; PROVIDED, HOWEVER, that, in
connection with the release of any property from the Lien of this Indenture,
the Engineer's Certificate as to the Fair Value of such property, and as to
the nonimpairment by reason of such release of the security of this Indenture
in contravention of the provisions hereof, shall be made by an Independent
Engineer if the Fair Value of such property and of all other property
released since the commencement of the then current calendar year, as set
forth in the certificates required by this Indenture, is ten percent (10%) or
more of the aggregate principal amount of the Bonds at the time Outstanding;
but such a certificate of an Independent Engineer shall not be required in
the case of any release of property, if the Fair Value thereof as set forth
in the certificates required by this Indenture is less than Twenty-Five
Thousand Dollars ($25,000) or less than one percent (1%) of the aggregate
principal amount of the Bonds at the time Outstanding; and PROVIDED, FURTHER,
that at the option of the Company the percentages set forth in the foregoing
proviso (and in any similar calculation involving the valuation of Property
Additions or property used or operated by others than the Company) may be
calculated with reference to the sum of the principal amount of the Bonds at
the time Outstanding plus the principal amount of the Class A Bonds at the
time Outstanding other than Pledged Bonds, if the Trustee shall have received
an Opinion of Counsel satisfactory to the Trustee to the effect that such
calculation is not inconsistent with the Trust Indenture Act.
"EVENT OF DEFAULT" has the meaning specified in Section 10.01.
"EXCEPTED PROPERTY" has the meaning specified in the "Excepted
Property" clause set forth above.
"FAIR VALUE" when applied to property means its value as
determined without deduction for any Prior Liens upon such property and
without deduction to reflect that such property may be of value only to the
Company or another operator of the Mortgaged Property as a whole, which value
may be determined without physical inspection by use of accounting and
engineering records and other data maintained by, or available to, the
Company.
"FUNDED CASH" has the meaning specified in Section 1.02(b).
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means, with respect
to any computation required or permitted under this Indenture, such
accounting principles as are generally accepted in the United States at the
date of such computation or, at the option of the Company from time to time,
at the date of the execution and delivery of this Indenture or any Class "A"
Mortgage which then remains in effect; PROVIDED, HOWEVER, that in determining
generally accepted accounting principles applicable to the Company for
purposes of making any computation required or permitted hereunder, the
Company may, but shall not be required to, reflect any accounting
pronouncement, order, rule or regulation of any accounting standard setting
body, administrative agency, regulatory authority or other governmental body
having jurisdiction over the Company.
"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, and
which are 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 $100,000,000; 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.
"GOVERNMENTAL AUTHORITY" means the government of the United
States or any state or territory thereof or of the District of Columbia or of
any county, municipality or other political subdivision of any thereof, or
any department, agency, authority or other instrumentality of any of the
foregoing.
"HOLDER" means a Person in whose name a Bond is registered in
the Bond 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, including the terms of particular series of Bonds
established as contemplated by Section 3.01.
"INDEPENDENT", when applied to any accountant or Engineer,
means such a Person who (a) is in fact independent, (b) does not have any
direct material financial interest in the Company or in any other obligor
upon the Bonds or in any Affiliate of the Company or of such other obligor,
(c) is not connected with the Company or such other obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or any Person
performing similar functions, and (d) is selected by an Authorized Executive
Officer and approved by the Trustee in the exercise of reasonable care.
"INDEPENDENT ENGINEER'S CERTIFICATE" means a certificate
signed by an Independent Engineer.
"INTEREST PAYMENT DATE", when used with respect to any Bond,
means the Stated Maturity of an installment of interest on such Bond.
"INVESTMENT SECURITIES" means any of the following obligations
or securities on which neither the Company nor an Affiliate thereof is the
obligor: (a) Government Obligations; (b) interest bearing deposit accounts
(which may be represented by certificates of deposit) in national or state
banks (which may include the Trustee or any Paying Agent) having a combined
capital and surplus of not less than One Hundred Million Dollars
($100,000,000); (c) bankers' acceptances drawn on and accepted by commercial
banks (which may include the Trustee or any Paying Agent) having a combined
capital and surplus of not less than One Hundred Million Dollars
($100,000,000); (d) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, any state or
territory of the United States of America or the District of Columbia, or any
political subdivision of any of the foregoing, which are rated in any of the
three highest rating categories (without regard to modifiers) by a nationally
recognized statistical rating organization; (e) bonds or other obligations of
any agency or instrumentality of the United States of America; (f) commercial
or finance company paper which is rated in any of the two highest rating
categories (without regard to modifiers) by a nationally recognized
statistical rating organization; (g) corporate debt securities rated in
either of the two highest rating categories (without regard to modifiers) by
a nationally recognized statistical rating organization; (h) repurchase
agreements with banking or financial institutions having a combined capital
and surplus of not less than One Hundred Million Dollars ($100,000,000)
(which may include the Trustee or any Paying Agent) with respect to any of
the foregoing obligations or securities; and (i) securities issued by any
regulated investment company (including any investment company for which the
Trustee is the advisor), as defined in Section 851 of the Internal Revenue
Code of 1986, as amended, or any successor section of such Code or successor
federal statute, provided that the portfolio of such investment company is
limited to obligations that are bonds, notes, certificates of indebtedness,
treasury bills or other securities now or hereafter issued by, or which are
guaranteed as to principal and interest by the full faith and credit of, the
United States of America, which portfolio may include repurchase agreements
which are fully collateralized by any such obligations.
"LIEN" means any mortgage, pledge, security interest,
encumbrance, easement, lease, reservation, restriction, servitude, charge or
similar right or lien of any kind, including, without limitation, any
conditional sale or other title retention agreement, any lease in the nature
thereof, any filing of, or agreement to give, any financing statement under
the Uniform Commercial Code of any jurisdiction, and any defect or
irregularity in record title.
"MATURED EVENT OF DEFAULT", when used with respect to any
Class "A" Mortgage, means the occurrence of any default or any other event
under such Class "A" Mortgage, and the expiration of the applicable grace
period, if any, specified in such Class "A" Mortgage, if the effect of such
default or other event is to accelerate, or to permit the acceleration of,
the maturity of any amount due under such Class "A" Mortgage.
"MATURITY", when used with respect to any Bond, means the date
on which the principal of such Bond or an installment of principal becomes
due and payable as provided in such Bond or in this Indenture, whether at the
Stated Maturity, by declaration of acceleration, upon call for redemption or
otherwise.
"MORTGAGED PROPERTY" means as of any particular time all
property which at such time is subject, or is intended by the terms of this
Indenture to be subject, to the Lien of this Indenture. Nothing in this
Indenture is intended to prohibit the Lien of this Indenture from continuing
to extend to Mortgaged Property after it is transferred by the Company to a
subsidiary or Affiliate of the Company, or to another third party, if the
Company retains, pursuant to binding agreements in form acceptable to the
Trustee, the ability to cause such subsidiary, Affiliate or third party to
comply with the agreements and covenants required on the part of the Company
to be complied with hereunder with respect to such Mortgaged Property;
PROVIDED, HOWEVER, that any such transferred property shall not constitute
Property Additions or be available for use as a basis for an Authorized
Purpose hereunder after the date of transfer.
"NET EARNINGS CERTIFICATE" has the meaning specified in
Section 1.03.
"1936 MORTGAGE" means the Mortgage and Deed of Trust dated as
of July 1, 1936 from the Company to Citibank, N.A., successor by merger to
City Bank Farmers Trust Company, as trustee, as from time to time amended and
supplemented.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Authorized Executive Officer.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be employed by or Affiliated with or be counsel to the Company.
"OUTSTANDING", when used:
(a) with respect to Bonds, means, as of the date of determination, all Bonds
theretofore authenticated and delivered under this Indenture, except:
(i) Bonds theretofore paid, retired,
redeemed, discharged or canceled, or delivered to the Trustee
for cancellation;
(ii) Bonds deemed to have been paid in
accordance with Section 9.01;
(iii) Bonds deposited with or held in
pledge by the Trustee under any of the provisions of this
Indenture, including any so held under any sinking,
improvement, maintenance, replacement or analogous fund; and
(iv) Bonds which have been paid pursuant
to Section 3.06 or in exchange for or in lieu of which other
Bonds have been authenticated and delivered pursuant to this
Indenture, other than any such Bonds in respect of which there
shall have been presented to the Trustee proof satisfactory to
it and the Company that such Bonds are held by a bona fide
purchaser in whose hands such Bonds are valid obligations of
the Company;
PROVIDED, HOWEVER, that in determining whether or not the Holders of the
requisite principal amount of the Bonds Outstanding under this
Indenture, or the Outstanding Bonds 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 Bonds:
(x) Bonds owned by the Company or any
other obligor upon the Bonds or any Affiliate of the Company
or of such other obligor (unless the Company, such Affiliate
or such obligor owns all Bonds Outstanding under this
Indenture, or (except for purposes of actions to be taken by
holders of Bonds generally under Sections 10.16 or 10.17
hereof) all Outstanding Bonds 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
Bonds which the Trustee knows to be so owned shall be so
disregarded; PROVIDED, HOWEVER, that Bonds so owned which have
been pledged in good faith may be regarded as Outstanding if
it is established to the reasonable satisfaction of the
Trustee that the pledgee, and not the Company, or any such
other obligor or Affiliate of either thereof, has the right so
to act with respect to such Bonds and that the pledgee is not
the Company or any other obligor upon the Bonds or any
Affiliate of the Company or of such other obligor; and
(y) the principal amount of a Discount
Bond 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 10.02(a); and
(b) with respect to Class "A" Bonds, has the meaning
specified in the related Class "A" Mortgage.
"PAYING AGENT" means any Person, including the Company or an
Affiliate of the Company, authorized by the Company to pay the principal of
and premium, if any, or interest, if any, on any Bonds on behalf of the
Company.
"PERCENTAGE CALCULATION PROVISO" means the adjustment to the
calculations used to determine whether a certificate of an Independent
Engineer or an Independent public accountant is required for a purpose under
this Indenture, in each case described in the FURTHER PROVISO to the
definition of "ENGINEER'S CERTIFICATE".
"PERIODIC OFFERING" means an offering of Bonds of a series
from time to time any or all of the specific terms of which Bonds, 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 at or
about the time of the authentication of such Bonds.
"PERMITTED LIENS" means, at any time, any of the following:
(a) the Lien of this Indenture and all liens and encumbrances junior
thereto;
(b) Liens for taxes, assessments and other governmental
charges or requirements not delinquent or which are currently being
contested in good faith by appropriate proceedings;
(c) mechanics', workmen's, repairmen's, materialmen's,
warehousemen's and carriers' Liens, Liens or privileges of any employees
of the Company for salary or wages earned, but not yet payable, and
other Liens, including without limitation Liens for worker's
compensation awards, arising in the ordinary course of business for
charges or requirements which are not delinquent or which are being
contested in good faith and by appropriate proceedings;
(d) any attachment, judgment and other similar Lien arising
in connection with court proceedings (i) in an amount not in excess of
the greater of Five Million Dollars ($5,000,000) or three percent (3%)
of the principal amount of the sum of (x) the principal amount of Bonds
Outstanding at the time such attachment, judgment or Lien arises, and
(y) the principal amount of the Class "A" Bonds Outstanding at the time
such attachment, judgment or Lien arises, other than Pledged Bonds, or
(ii) with respect to which the Company shall (A) in good faith be
prosecuting an appeal or other proceeding for review and with respect to
which the Company shall have secured a stay of execution pending such
appeal or other proceeding, or (B) have the right to prosecute an appeal
or other proceeding for review;
(e) easements, leases, reservations or other rights of
others in, on or over, and laws, regulations and restrictions affecting,
and defects and irregularities in record title to, the Mortgaged
Property or any part thereof; PROVIDED, HOWEVER, that such easements,
leases, reservations, rights, laws, regulations, restrictions, defects
and irregularities do not in the aggregate materially impair the use by
the Company of the Mortgaged Property considered as a whole for the
purposes for which it is held by the Company;
(f) any defects or irregularities in title to any rights-of-
way or to any real estate used or to be used primarily for right-of-way
purposes or held under lease, easement, license or similar right;
PROVIDED, HOWEVER, that (i) the Company shall have obtained from the
apparent owner of the lands or estates therein covered by any such
right-of-way a sufficient right, by the terms of the instrument granting
such right-of-way, lease, easement, license or similar right, to the use
thereof for the purpose for which the Company acquired the same, (ii)
the Company has power under eminent domain, or similar statutes, to
remove such defects or irregularities, or (iii) such defects or
irregularities may be otherwise remedied without undue effort or
expense;
(g) Liens securing indebtedness neither created, assumed nor
guaranteed by the Company, nor on account of which it customarily pays
interest, upon property of the Company, existing at the date of the
execution and delivery of this Indenture, or, as to property hereafter
acquired, at the time of the acquisition thereof by the Company, upon
real estate or rights in or relating to real estate acquired by the
Company to be used for one or more of the Primary Purposes of the
Company's Business;
(h) leases existing at the date of the execution and
delivery of this Indenture affecting property owned by the Company at
said date and renewals and extensions thereof and leases for a term of
not more than fifteen (15) years (including extensions or renewals at
the option of the tenant) affecting property acquired by the Company
after said date;
(i) any Lien vested in any lessor, licensor or permitter for
rent to become due or for other obligations or acts to be performed, the
payment of which rent or the performance of which other obligations or
acts is required under leases, subleases, licenses or permits, so long
as the payment of such rent or the performance of such other obligations
or acts is not delinquent or is being contested in good faith and by
appropriate proceedings;
(j) any controls, restrictions, obligations, duties or other
burdens imposed by any federal, state, municipal or other law, or by any
rule, regulation or order of any Governmental Authority, upon any
property of the Company or the operation or use thereof or upon the
Company with respect to any of its property or the operation or use
thereof or with respect to any franchise, grant, license, permit or
public purpose requirement, or any rights reserved to or otherwise
vested in any Governmental Authority to impose any such controls,
restrictions, obligations, duties or other burdens;
(k) Liens granted on air or water pollution control, sewage
or solid waste disposal, or other similar facilities of the Company in
connection with the issuance of pollution control revenue bonds (or
bonds issued to refund such bonds) in order to finance the cost of, or
the construction or acquisition of, such facilities;
(l) any right which any Governmental Authority may have by
virtue of any franchise, license, contract or statute to purchase, or
designate a purchaser of or order the sale of, any property of the
Company upon payment of cash or reasonable compensation therefor or to
terminate any franchise, license or other rights or to regulate the
property and business of the Company;
(m) any Liens which have been bonded for the full amount in
dispute or for the payment of which other adequate security arrangements
have been made;
(n) agreements for and obligations relating to the joint or
common use of property owned solely by the Company or owned by the
Company in common or jointly with one or more parties;
(o) liens securing indebtedness incurred by a Person, other
than the Company, which indebtedness has been neither assumed nor
guaranteed by the Company nor on which it customarily pays interest,
existing on property which the Company owns jointly or in common with
such Person or such Person and others, if there is a bar against
partition of such property, which would preclude the sale of such
property by such other Person or the holder of such lien without the
consent of the Company;
(p) liens in favor of a government or governmental entity
securing (i) payments pursuant to a statute (other than taxes and
assessments), or (ii) indebtedness incurred to finance all or part of
the purchase price or Cost of construction of the property subject to
such lien;
(q) any other liens or encumbrances of whatever nature or
kind which do not, individually or in the aggregate, materially impair
the Lien of this Indenture or the security afforded thereby for the
benefit of the Bondholders, as evidenced by an Opinion of Counsel to
such effect;
(r) any trustee's lien hereunder; and
(s) Prepaid Liens.
"PERSON" means any individual, corporation, association,
partnership, joint venture, trust or
unincorporated organization or any Governmental Authority.
"PLACE OF PAYMENT" when used with respect to the Bonds of any
series, or any Tranche thereof, means the place or places, specified as
contemplated by Section 3.01, at which, subject to Section 6.02, principal of
and premium, if any, and interest, if any, on the Bonds of such series or
Tranche are payable upon presentation.
"PLEDGED BONDS" means Class "A" Bonds issued and delivered to,
and held by, the Trustee hereunder.
"PREDECESSOR BOND" of any particular Bond means every previous
Bond evidencing all or a portion of the same debt as that evidenced by such
particular Bond; and, for the purposes of this definition, any Bond
authenticated and delivered under Section 3.06 in exchange for or in lieu of
a mutilated, destroyed, lost or stolen Bond shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Bond.
"PREPAID LIEN" means any Lien securing indebtedness for the
payment of which money in the necessary amount (taking into consideration the
amount of income reasonably projected to be earned on such amount) shall have
been irrevocably deposited in trust with the trustee or other holder of such
Lien; PROVIDED, HOWEVER, that if such indebtedness is to be redeemed or
otherwise prepaid prior to the stated maturity thereof, any notice requisite
to such redemption or prepayment shall have been given in accordance with the
mortgage or other instrument creating such Lien or irrevocable instructions
to give such notice shall have been given to such trustee or other holder.
"PRIMARY PURPOSES OF THE COMPANY'S BUSINESS" means the
generation, production, transmission or distribution of electric energy in
any form and for any purpose in the State of Maine.
"PRIOR LIEN" means each Class "A" Mortgage and any other
mortgage, lien, charge, encumbrance, security interest on or in, or pledge
of, any Mortgaged Property existing both at and immediately prior to the time
of the acquisition by the Company of such Mortgaged Property, or created as a
purchase money mortgage on such Mortgaged Property at the time of, or in
connection with, its acquisition by the Company, in each case ranking prior
to or on a parity with the Lien of this Indenture.
"PROPERTY ADDITIONS" has the meaning specified in Section
1.04(a).
"REDEMPTION DATE", when used with respect to any Bond to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Bond to be
redeemed, means the price (or stated percentage of the principal amount
thereof) at which it is to be redeemed pursuant to this Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Bonds of any series means the date specified for that
purpose as contemplated by Section 3.01.
"REQUIRED CURRENCY" has the meaning specified in Section 3.11.
"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 vice president, any assistant treasurer, the
cashier, any assistant cashier, any senior trust officer, 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.
"RETIRED BONDS" means (A) any Bonds authenticated and
delivered under this Indenture which (a) no longer remain Outstanding by
reason of the applicability of subclause (i) or (ii) of clause (a) in the
definition of "Outstanding", (b) have not been made the basis under any of
the provisions of the Indenture of one or more Authorized Purposes, and (c)
have not been, and are not to be, paid, redeemed, purchased or otherwise
retired by the application thereto of Funded Cash and (B) any Class "A" Bonds
Outstanding as of the date of authentication and delivery of the Series A
Bonds (and not having been made the basis under any of the provisions of this
Indenture of the authentication and delivery of Bonds, or the withdrawal of
cash or the release of property under the Class "A" Mortgage, subject to any
provisions thereof permitting the revocation of the waiver of the right to
the authentication and delivery of bonds thereunder), which subsequent
thereto shall have been paid, retired, redeemed, discharged or canceled or
surrendered to the trustee under the Class "A" Mortgage for cancellation, or
for the purchase, payment or redemption of which moneys in the necessary
amount shall have been deposited with or shall then be held by the trustee
under the Class "A" Mortgage with irrevocable direction so to apply the same
(provided that any such purchase, payment, retirement, redemption,
cancellation or surrender of bonds shall not have been, or shall not be,
effected with cash which has been used as the basis for the release of
property or the issuance of additional bonds under the Class "A" Mortgage or
which represents the proceeds of insurance deposited with the trustee
thereunder); PROVIDED, HOWEVER, that, in the case of redemption, the notice
required by the Class "A" Mortgage shall have been given or have been
provided for to the satisfaction of the trustee under the Class "A" Mortgage
as evidenced by an Officer's Certificate. For purposes of any Officer's
Certificate delivered pursuant to Section 4.04(b)(ii) hereof, bonds otherwise
conforming to the requirements of this definition, which will, concurrently
with the authentication and delivery of the bonds as to which said Officer's
Certificate pertains, be surrendered to the Trustee hereunder or to the
trustee under the Class "A" Mortgage, as the case may be, for cancellation
(otherwise than upon exchanges or transfers of bonds), shall be deemed to be
"Retired Bonds".
"SERIES A BONDS" means the series of Bonds issued pursuant to
the provisions of Section 4.06.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Bonds of any series means a date fixed by the Trustee
pursuant to Section 3.07.
"STATED INTEREST RATE" means a rate more than zero at which an
obligation by its terms is stated to bear simple interest, which rate may be
a variable rate. Any calculation or other determination to be made under
this Indenture by reference to the Stated Interest Rate on a Bond shall be
made without regard to the effective interest cost to the Company of such
Bond and without regard to the Stated Interest Rate on, or the effective cost
to the Company of, any other obligation for which such Bond is pledged or
otherwise delivered as security.
"STATED MATURITY", when used with respect to any obligation or
any installment of principal thereof or interest thereon, means the date on
which the principal of such obligation or such installment of principal
(whether as a result of scheduled amortization or otherwise) or interest is
due and payable (without regard to any provisions for redemption, prepayment,
acceleration, purchase or extension).
"SUCCESSOR CORPORATION" has the meaning set forth in Section
13.01(b).
"TRANCHE" means a group of Bonds which (a) are of the same
series, and (b) have identical terms except as to principal amount or date of
issuance (other than original issuance).
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939, or any successor statute, as in force at such time.
"TRUSTEE" means Chemical Bank, a corporation organized and
existing under the laws of the State of New York, until a successor Trustee
shall have become such with respect to one or more series of Bonds pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, "Trustee" as used with respect
to the Bonds of any series shall mean the Trustee with respect to Bonds of
that series.
"UNBONDED" as applied to Bonds (including Retired Bonds),
Class "A" Bonds or Property Additions means that such Bonds, Class "A" Bonds
or Property Additions are not Bonded.
"UNITED STATES" means the United States of America, its
territories, its possessions and other areas subject to its political
jurisdiction.
Section
1.001. BONDED; FUNDED CASH.
(a) "BONDED" as applied to Bonds (including Retired Bonds),
Class "A" Bonds or Property Additions means that such
Bonds, Class "A" Bonds or Property Additions are within one or more of the
following classes:
(i) the aggregate amount of Property Additions which have
been used as a basis for the authentication and delivery of Bonds
pursuant to Section 4.03, the withdrawal of cash pursuant to Section
4.05(c) or the withdrawal of cash pursuant to Section 8.06(a)(i);
(ii) Bonds which have been used as a basis for the authentication
and delivery of Bonds pursuant to Section 4.04, the withdrawal of cash
pursuant to Section 4.05(c) or the withdrawal of cash pursuant to
Section 8.06(a)(ii), and Bonds paid, purchased or redeemed with money
used or applied by the Trustee pursuant to Section 8.06(a)(v);
(iii) Bonds, Class "A" Bonds and Property Additions which have been
used as the basis of the release of property from the Lien of this
Indenture;
(iv) Bonds with respect to which the Company has waived its right
to the authentication and delivery of Bonds pursuant to Section 4.02 or
Section 4.03;
(v) Bonds, Class "A" Bonds and Property Additions which have
been allocated or used as a basis for any credit against the
requirements of any improvement, maintenance or replacement fund for any
series of Bonds; PROVIDED, HOWEVER, that any such Bonds, Class "A" Bonds
or Property Additions so allocated or used shall be reinstated as
Unbonded when all of the Bonds of the series of Bonds in connection with
which such fund was established are retired;
(vi) Class "A" Bonds which have been (w) used as a basis for the
authentication and delivery of Bonds pursuant to Section 4.02 or the
withdrawal of cash pursuant to Section 4.05(c), (x) used as a basis for
the authentication and delivery of Bonds pursuant to Section 4.04, (y)
used as a basis for the issuance of Class "A" Bonds then Outstanding
under a Class "A" Mortgage, or (z) used as a basis for the release of
property or the withdrawal of cash under any Class "A" Mortgage; and
(vii) the aggregate amount of Property Additions designated in an
Engineer's Certificate delivered to the Trustee pursuant to clause (iii)
of Section 7.07(a) to be deemed to have been made the basis of the
authentication and delivery of Bonds then Outstanding which shall have
been originally authenticated and delivered under Section 4.02 on the
basis of Pledged Bonds.
(b) "FUNDED CASH" means:
(i) cash, held by the Trustee hereunder, to the extent
that it represents the proceeds of insurance on, or cash deposited
in connection with the release of property, or the proceeds of the
release of obligations secured by a purchase money mortgage which
obligations have been delivered to the Trustee pursuant to Article
Eight and used as a credit in any application for the release of
property hereunder, or the proceeds of payment to the Trustee on
account of the principal of obligations secured by a purchase money
mortgage which obligations have been delivered to it pursuant to
Article Eight and used as a credit in any application for the
release of property hereunder, all subject, however, to the
provisions of Section 8.06(c);
(ii) any cash deposited with the Trustee under Section 4.05; and
(iii) any cash received by the Trustee from the payment of the
principal of Pledged Bonds.
Section 1.002. NET EARNINGS CERTIFICATE; ADJUSTED NET
EARNINGS; ANNUAL INTEREST REQUIREMENTS.
A "NET EARNINGS CERTIFICATE" means a certificate signed by an
Authorized Executive Officer and an accountant (who may be employed by or
Affiliated with the Company), stating:
(a) the "ADJUSTED NET EARNINGS" of the Company for a period
of twelve (12) consecutive calendar months within the eighteen (18)
calendar months immediately preceding the first day of the month in
which the Company Order requesting the authentication and delivery under
this Indenture of Bonds is delivered to the Trustee, specifying:
(i) its operating revenues (which may
include revenues of the Company subject when collected or
accrued to possible refund at a future date);
(ii) its operating expenses, excluding (A)
expenses for taxes on income or profits and other taxes
measured by, or dependent on, net income, (B) provisions for
reserves for renewals, replacements, depreciation, depletion
or retirement of property (or any expenditures therefor), or
provisions for amortization of assets, (C) expenses or
provisions for interest on any indebtedness of the Company,
for the amortization of debt discount, premium, expense or
loss on reacquired debt, for any maintenance and replacement,
improvement or sinking fund or other device for the retirement
of any indebtedness, or for other similar amortization, (D)
expenses or provisions for any non-recurring charge to income
or to retained earnings of whatever kind or nature (including
without limitation the recognition of expense or impairment
due to the non-recoverability of assets or expense), whether
or not recorded as a non-recurring charge in the Company's
books of account, and (E) provisions for any refund of
revenues previously collected or accrued by the Company
subject to possible refund;
(iii) the amount remaining after deducting
the amount required to be stated in such certificate by clause
(ii) above from the amount required to be stated therein by
clause (i) above;
(iv) its other income, net of related
expenses, which other income may include any portion of the
allowance for funds used during construction and other
deferred costs (or any analogous amounts) which is not
included in "other income" (or any analogous item) in the
Company's books of account; and
(v) the Adjusted Net Earnings of the
Company for such period of twelve (12) consecutive calendar
months (being the sum of the amounts required to be stated in
such certificate by clauses (iii) and (iv) above); and
(b) the "ANNUAL INTEREST REQUIREMENTS", being the interest
requirements for one year, at the respective Stated Interest Rates, if
any, borne prior to Maturity, upon:
(i) all Bonds Outstanding hereunder at
the date of such certificate, except any for the payment or
redemption of which the Bonds applied for are to be issued;
PROVIDED, HOWEVER, that, if Outstanding Bonds of any series
bear interest at a variable rate or rates, then the interest
requirement on the Bonds of such series shall be determined by
reference to the rate or rates in effect on the day
immediately preceding the date of such certificate;
(ii) all Bonds then applied for in pending
applications for new Bonds, including the application in
connection with which such certificate is made; PROVIDED,
HOWEVER, that if Bonds of any series are to bear interest at a
variable rate or rates, then the interest requirement on the
Bonds of such series shall be determined by reference to the
rate or rates to be in effect at the time of the initial
authentication and delivery of such Bonds; and PROVIDED,
FURTHER, that the determination of the interest requirement on
Bonds of a series subject to a Periodic Offering shall be
further subject to the provisions of clause (iv) of Section
4.01(a);
(iii) all Class "A" Bonds Outstanding under Class "A"
Mortgages at the date of such certificate, except any Pledged
Bonds and except any for the payment or redemption of which
the Bonds applied for are to be issued; PROVIDED, HOWEVER,
that, if the Outstanding Class "A" Bonds of any series bear
interest at a variable rate or rates, then the interest
requirement on the Class "A" Bonds of such series shall be
determined by reference to the rate or rates in effect on the
day immediately preceding the date of such certificate; and
(iv) the principal amount of all other
indebtedness (except (A) Pledged Bonds, (B) industrial
development revenue bonds issued with respect to air or water
pollution control, sewage or solid waste disposal, or other
similar facilities of the Company to the extent that any other
indebtedness of the Company issued to support the repayment of
such indebtedness is included in Annual Interest Requirements
pursuant to one of the other clauses of this definition, (C)
indebtedness for the payment of which the Bonds applied for
are to be issued, and (D) indebtedness secured by a Prepaid
Lien prior to the Lien of this Indenture upon property subject
to the Lien of this Indenture), outstanding on the date of
such certificate and secured by a Lien prior to the Lien of
this Indenture upon property subject to the Lien of this
Indenture, if such indebtedness has been issued, assumed or
guaranteed by the Company or if the Company customarily pays
the interest upon the principal thereof; PROVIDED, HOWEVER,
that if any such indebtedness bears interest at a variable
rate or rates, then the interest requirement on such
indebtedness shall be determined by reference to the rate or
rates in effect on the day immediately preceding the date of
such certificate.
In any case where a Net Earnings Certificate is required as a
condition precedent to the authentication and delivery of Bonds, such
certificate shall be accompanied by a certificate signed by an Independent
public accountant if the aggregate principal amount of Bonds then applied for
plus the aggregate principal amount of Bonds authenticated and delivered
hereunder since the commencement of the then current calendar year (other
than those with respect to which a Net Earnings Certificate is not required,
or with respect to which a Net Earnings Certificate accompanied by a
certificate signed by an Independent public accountant has previously been
furnished to the Trustee) is ten percent (10%) or more of the aggregate
principal amount of the Bonds at the time Outstanding (subject to the
Percentage Calculation Proviso), which certificate shall provide that such
Independent public accountant has reviewed the Net Earnings Certificate and
that such Independent public accountant has no knowledge that any statements
in such Net Earnings Certificate are not true; but no such certificate need
be signed by an Independent public accountant, as to dates or periods not
covered by annual reports required to be filed by the Company, with respect
to conditions precedent which depend upon a state of facts as of a date or
dates or for a period or periods different from that required to be covered
by such annual reports.
Section 1.003. PROPERTY ADDITIONS; COST.
(a) "PROPERTY ADDITIONS" means, as of any particular time,
any item, unit or element of property which at such time is owned by the
Company and is subject to the Lien of this Indenture. Property Additions:
(i) need not consist of a specific or
completed development, plant, betterment, addition, extension,
improvement or enlargement, but may include construction work
in progress and property in the process of purchase insofar as
the Company shall have acquired legal title to such property,
and may include the following:
(A) fractional and other undivided
interests of the Company in property owned jointly or in
common with other Persons, whether or not there are with
respect to such property, other agreements or
obligations on the part of the Company, if there is a
bar against partition of such property which would
preclude the sale of such property by any or all of such
other Persons or the holder or holders of any lien or
liens on the interest of any of such other Persons in
such property, without the consent of the Company;
(B) engineering, economic,
environmental, financial, geological and legal or other
surveys, data processing equipment and software,
preliminary to or associated with the acquisition or
construction of property included or intended to be
included in the Mortgaged Property, provided that any
such property is not Excepted Property or, if it is
Excepted Property, such property has been subjected to
the Lien and operation of this Indenture as provided in
Granting Clause Third;
(C) paving, grading and other
improvements to, under or upon highways, bridges, parks
or other public property of analogous character required
for or in connection with the installation or repair of
overhead, surface or underground facilities and paid for
and used or to be used by the Company, notwithstanding
that the Company may not hold legal title thereto;
(D) property located over, on or under
property owned by other Persons, including governmental
or municipal agencies, bodies or subdivisions, under
permits, licenses, easements, franchises and other
similar privileges, if the Company shall have the right
to remove the same;
(E) intangible property (including any
acquisition premium paid in connection with the
acquisition of any property), regardless of whether the
Cost thereof is permitted to be recorded in the plant
account of the Company or is permitted to be recovered
by the Company through the rates that it charges its
customers; and
(ii) may include renewals, replacements
and substitution of property not excluded from the definition of
"Property Additions"; but
(iii) shall not include:
(A) Excepted Property (other than
Excepted Property which has been subjected to the Lien
and operation of this Indenture as provided in Granting
Clause Third); or
(B) any property the cost of
acquisition or construction of which is properly
chargeable to an operating expense account of the
Company.
(b) When any Property Additions are certified to the Trustee
as the basis of any Authorized Purpose (except as otherwise provided in
Section 8.06):
(i) there shall be deducted from the Cost
or Fair Value thereof to the Company, as the case may be (as
of the date so certified), an amount equal to the Cost (or as
to Property Additions of which the Fair Value to the Company
at the time the same became Property Additions was less than
the Cost as determined pursuant to subsection (c) of this
Section, then such Fair Value in lieu of Cost) of all Property
Additions retired to the date of such certification (other
than the Property Additions, if any, in connection with the
application for release of which such certificate is filed)
and not theretofore deducted from the Cost or Fair Value to
the Company of Property Additions theretofore certified to the
Trustee; and
(ii) there may, at the option of the
Company, be added to such Cost or Fair Value, as the case may
be, the sum of:
(A) the principal amount of any
obligations secured by a purchase money mortgage and any
cash (other than proceeds of such purchase money
obligations), not theretofore so added and which the
Company then elects so to add, received by the Trustee
representing the proceeds of insurance on, or of the
release or other disposition of, Property Additions
retired; and
(B) twenty-fifteenths (20/15ths) of
the principal amount of any Bond or Bonds, or portion of
such principal amount, not theretofore so added and
which the Company then elects so to add, the right to
the authentication and delivery of which under the
provisions of Section 4.04 and subclause (B) of clause
(iii) of Section 8.05(a) shall at any time theretofore
have been waived as the basis of the release of Property
Additions retired; PROVIDED, HOWEVER, that the aggregate
of the amounts added under clause (ii) above shall in no
event exceed the amounts deducted under clause (i)
above.
(c) The term "COST" with respect to Property Additions made
the basis for one or more Authorized Purposes shall mean the sum of (i)
any cash or its equivalent forming a part of such Cost, plus all costs
and allowances for funds used during the construction thereof and other
deferred costs relating to such construction, but only to the extent of
the greater of the amount permitted by Generally Accepted Accounting
Principles or the amount permitted by accounting regulations or orders
issued by any governmental regulatory commission, (ii) an amount
equivalent to the fair market value in cash (as of the date of delivery)
of any securities or other property delivered in payment therefor or for
the acquisition thereof, (iii) the principal amount of any obligations
secured by a Prior Lien (other than a Class "A" Mortgage) upon such
Property Additions outstanding at the time of the acquisition of such
Property Additions, and (iv) the principal amount of any other
indebtedness incurred or assumed as all or part of the Cost to the
Company of such Property Additions; PROVIDED, HOWEVER, that,
notwithstanding any other provision of this Indenture, in any case where
Property Additions shall have been acquired (otherwise than by
construction) by the Company without any consideration consisting of
cash, securities or other property or the incurring or assumption of
indebtedness, no determination of Cost shall be required, and wherever
in this Indenture provision is made for Cost or Fair Value, the Cost, in
such case, shall mean an amount equal to the greater of (x) the Fair
Value thereof, or (y) the book value of such acquired Property Additions
at the time of the acquisition thereof.
(d) If any Property Additions are shown by the Engineer's
Certificate provided for in clause (ii) of Section 4.03(b) to include
property which has been used or operated by others than the Company in a
business similar to that in which it has been or is to be used or
operated by the Company, the Cost thereof may include the amount of cash
or the value of any portion of the securities paid or delivered for any
goodwill or going concern value rights simultaneously acquired for which
no separate or distinct consideration shall have been paid or
apportioned, and in such case the term Property Additions as defined
herein may include such goodwill and going concern value rights,
regardless of whether such Cost is permitted to be recorded in the plant
account of the Company or is permitted to be recovered by the Company
through the rates that it charges its customers.
(e) For the purposes of the deductions required by this
Section, the Cost or the Fair Value to the Company of Property Additions
retired shall be the Cost or the Fair Value thereof to the Company at
the time such property became Property Additions.
(f) All Property Additions which shall be retired,
abandoned, destroyed, released or otherwise disposed of (including
damaged or destroyed Property Additions (or portions thereof) for which
the Company shall have received proceeds pursuant to Section 6.07(b) but
with respect to which the Company shall have elected not to rebuild or
repair) shall for the purpose of this Section 1.04 be deemed Property
Additions retired and for other purposes of this Indenture shall
thereupon cease to be Property Additions, but may at any time thereafter
again become Property Additions as provided in this Indenture. Neither
any reduction in the Cost or book value of property recorded in the
plant account of the Company, nor the transfer of any amount appearing
in such account to intangible or adjustment accounts, otherwise than in
connection with actual retirements of physical property abandoned,
destroyed, released or disposed of, and otherwise than in connection
with the removal of such property in its entirety from plant account,
shall be deemed to constitute a retirement of Property Additions.
Section 1.004. COMPLIANCE CERTIFICATES AND OPINIONS.
(a) 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 Officer's
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,
it being understood 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.
(b) Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture other than
the certificate required by Section 6.11 shall include:
(i) a statement that each individual or
counsel signing such certificate or opinion has read such
covenant or condition and the definitions herein relating
thereto;
(ii) 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;
(iii) a statement that, in the opinion of
each such individual or counsel, 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 complied with; and
(iv) a statement as to whether, in the
opinion of each such individual or counsel, such condition or
covenant has been complied with.
(c) Any Opinion of Counsel provided for herein may be based,
insofar as it relates to factual matters, upon statements made by the
Company in documents filed with any governmental regulatory commission
or upon a certificate or opinion of, or representations by, an officer
or officers of the Company, unless, in the case of such a certificate or
opinion, 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. If, in order to render any
Opinion of Counsel provided for herein, the signer thereof shall deem it
necessary that additional facts or matters be stated in any Engineer's
Certificate provided for herein, then such Engineer's Certificate may
state all such additional facts or matters as the signer of such Opinion
of Counsel may request. In addition, in giving any Opinion of Counsel
provided for herein, counsel may rely upon (i) prior opinions of counsel
for the Company, (ii) opinions of special counsel for the Company and
its subsidiaries, (iii) opinions of in-house counsel for any of the
Company's divisions or subsidiaries, and (iv) title insurance policies,
title insurance commitments and reports, lien search certificates and
other similar evidences of the existence of liens on property.
Section 1.005. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) 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.
(b) 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.
(c) 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 1.006. 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 Fifteen, 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 or 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 Bond,
shall be sufficient for any purpose of this Indenture and (subject to
Section 11.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section. The record of any meeting
of Holders shall be proved in the manner provided in Section 15.06.
(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 clause (a) of the definition of
"Outstanding") and serial numbers of Bonds held by any Person, and the
date of holding the same, shall be proved by the Bond Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind every
future Holder of the same Bond and the Holder of every Bond 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 Bond.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage of
principal amount of Bonds 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 Bonds by
written notice by such Holder or any subsequent Holder, proven in the
manner in which such instrument was proven.
(f) Bonds 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 Bonds 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 Bonds 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 Company Order, 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 date 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 Bonds have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Bonds shall be computed
as of the record date.
Section 1.007. NOTICES, ETC., TO TRUSTEE AND COMPANY.
(a) 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, the Trustee by any Holder or by the Company, or the
Company by the Trustee or by any Holder, shall be sufficient for every
purpose hereunder (unless otherwise expressly provided herein) if the
same shall be in writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted by telecopy, telex
or other direct written electronic means, or transmitted by registered
mail or reputable overnight courier, charges prepaid to the applicable
address set opposite such party's name below or to such other address as
either party hereto may from time to time designate:
If to the Trustee, to:
Chemical Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration
Department
Telephone: (212) 946-3347
Telecopy: (212) 946-7799 or 7800
If to the Company, to:
Bangor Hydro-Electric Company
33 State Street
Bangor, Maine 04401
Attention: Chief Financial Officer
Telephone: (207) 945-5621
Telecopy: (207) 990-6954
(b) Any communication contemplated herein shall be deemed to
have been made, given, furnished and filed if personally delivered, on
the date of delivery, if transmitted by telecopy, telex or other direct
written electronic means, on the date of transmission, and if
transmitted by registered mail or reputable overnight courier, on the
date of receipt.
Section 1.008. NOTICE TO HOLDERS OF BONDS; WAIVER.
(a) 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 such Holder as it appears in the Bond
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice.
(b) 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.
(c) 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 0.10. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or
conflicts with any duties under any required provision of the Trust Indenture
Act imposed hereon by Section 318(c) thereof, or any successor section of
such Act, such required provision shall control.
Section 0.11. 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 0.12. 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 0.13. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Bonds 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 0.14. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Bonds, 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 0.15. GOVERNING LAW.
This Indenture and the Bonds shall be governed by and
construed in accordance with the laws of the State of Maine, except (a) to
the extent that the law of any other jurisdiction shall be mandatorily
applicable, (b) to the extent that perfection and the effect of perfection of
the Lien of this Indenture may be governed by the laws of states other than
the State of Maine as provided by law, and (c) that the rights, duties,
obligations, immunities and standard of care of the Trustee shall be governed
by the laws of the jurisdiction in which its Corporate Trust Office shall be
located.
Section 0.16. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of any Bond shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture
or of the Bonds other than a provision in Bonds of any series, or any Tranche
thereof, or in the indenture supplemental hereto which establishes the terms
of such Bonds or Tranche, which specifically states that such provision shall
apply in lieu of this Section) payment of 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, at Maturity or at the Stated Maturity, and, if such payment is made or
duly provided for on such Business Day, no interest shall accrue on the
amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to such
Business Day.
Section 0.17. INVESTMENT OF CASH HELD BY TRUSTEE.
Any cash held by the Trustee or any Paying Agent under any
provision of this Indenture (other than unclaimed moneys held under Section
6.03(e)) shall, except as otherwise provided in Article Nine, at the request
of the Company evidenced by Company Order, be invested or reinvested in
Investment Securities designated by the Company and certified in such Company
Order to constitute Investment Securities, and any interest on such
Investment Securities shall be promptly paid over to the Company as received
free and clear of any Lien; PROVIDED, HOWEVER, that following the occurrence
and during the continuance of an Event of Default, the Trustee shall not pay
such interest over to the Company, but shall instead hold such interest as
part of the Mortgaged Property. Such Investment Securities shall be held
subject to the same provisions hereof as the cash used to purchase the same,
but upon a like request of the Company shall be sold, in whole or in
designated part, and the proceeds of such sale shall be held subject to the
same provisions hereof as the cash used to purchase the Investment Securities
so sold. If such sale shall produce a net sum less than the cost of the
Investment Securities so sold, the Trustee shall have no liability for such
deficiency and the Company shall pay to the Trustee or any such Paying Agent,
as the case may be, such amount in cash as, together with the net proceeds
from such sale, shall equal the cost of the Investment Securities so sold,
and if such sale shall produce a net sum greater than the cost of the
Investment Securities so sold, the Trustee or any such Paying Agent, as the
case may be, shall, upon Company Order, promptly pay over to the Company an
amount in cash equal to such excess, free and clear of any Lien.
Section 0.18. APPROVAL OF SIGNERS.
The acceptance by the Trustee of any document, the signer of
which is required by some provision hereof to be approved by the Trustee,
shall be sufficient evidence of its approval of the signer within the meaning
of this Indenture.
ARTICLE TWO
BOND FORMS
Section
1.001. FORMS GENERALLY.
(a) The definitive Bonds of each series shall be in
substantially the forms established in the indenture supplemental hereto
establishing such series, or in a Board Resolution relating to such
series, or in an Officer's Certificate pursuant to a supplemental
indenture or Board Resolution, in any case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (including, without limitation,
as are appropriate for the establishment of a global security to be
registered in the name of a depository or its nominee), 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 depository or as may, consistently
herewith, be determined by the officers executing such Bonds, as
evidenced by their execution of the Bonds. If the forms of Bonds of any
series are established in a Board Resolution or in an Officer's
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 clause (ii)
of Section 4.01(a) for the authentication and delivery of such Bonds.
(b) The Bonds of each series shall be issuable in registered
form without coupons. The definitive Bonds shall be produced in such
manner as shall be determined by the officers executing such Bonds, as
evidenced by their execution thereof.
Section 1.002. 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 Bonds of the series designated therein
referred to in the within-mentioned Indenture.
Chemical Bank,
as Trustee
By:________________________
Authorized Officer
ARTICLE THREE
THE BONDS
Section
1.001. LIMIT ON AMOUNT OF BONDS; ISSUABLE IN SERIES.
(a) The aggregate principal amount of Bonds which may be
authenticated and delivered under this Indenture shall be unlimited.
(b) The Bonds may be issued in one or more series. Subject
to subsection (c) of this Section, there shall be established in one or
more indentures supplemental hereto, or in a Board Resolution, or an
Officer's Certificate pursuant to a supplemental indenture or a Board
Resolution, prior to the issuance of Bonds of any series:
(i) the title of the Bonds of such series
(which title shall contain the words "General and Refunding
Mortgage Bonds" but shall otherwise distinguish the Bonds of
such series from Bonds of all other series);
(ii) any limit upon the aggregate principal amount of
the Bonds of such series which may be authenticated and
delivered under this Indenture (except for Bonds authenticated
and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Bonds of such series pursuant to
Section 3.04, 3.05, 3.06, 5.06 or 14.06 and except for any
Bonds which, pursuant to Section 3.03(d), are deemed never to
have been authenticated and delivered hereunder);
(iii) the Person (without specific
identification) to whom interest on the Bonds of such series,
or any Tranche thereof, shall be payable on any Interest
Payment Date, if other than the Person in whose name that Bond
(or one or more Predecessor Bonds) is registered at the close
of business on the Regular Record Date for such interest;
(iv) the date or dates on which the
principal of the Bonds of such series (including any scheduled
amortization payments payable prior to the final Maturity of
the Bonds) is payable;
(v) the rate or rates at which the Bonds
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 the Bonds on any Interest Payment Date; and the
basis of computation of interest, if other than as provided in
Section 3.10;
(vi) the place or places where (A) the
principal of (including installments of principal, if any,
payable prior to the final Maturity of the Bonds) and premium,
if any, and interest, if any, on the Bonds of such series, or
any Tranche thereof, shall be payable upon presentation
thereof (and, if payments of principal are to be paid prior to
the final Maturity thereof without surrender of a certificate
evidencing the Bonds, the method, if any, of evidencing the
payment of such principal amounts), (B) any Bonds of such
series, or any Tranche thereof, may be surrendered for
registration of transfer, (C) Bonds of such series, or any
Tranche thereof, may be surrendered for exchange, and (D)
notices and demands to or upon the Company in respect of the
Bonds of such series, or any Tranche thereof, and this
Indenture may be served;
(vii) the period or periods within which,
the price or prices at which and the terms and conditions upon
which the Bonds of such series, or any Tranche thereof, may be
redeemed, in whole or in part, at the option of the Company;
(viii) the obligation, if any, of the
Company to redeem or purchase the Bonds of such series, or any
Tranche thereof, pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the
terms and conditions upon which such Bonds shall be redeemed
or purchased, in whole or in part, pursuant to such
obligation;
(ix) the denominations in which Bonds, if
any, of such series, or any Tranche thereof, shall be issuable
if other than denominations of $1,000 and any integral
multiple thereof;
(x) the currency or currencies, including
composite currencies, in which payment of the principal of and
premium, if any, and interest, if any, on the Bonds of such
series, or any Tranche thereof, shall be payable (if other
than in Dollars); PROVIDED, HOWEVER, that, unless otherwise
expressly provided herein, for purposes of calculations under
this Indenture (including, without limitation, calculations of
Annual Interest Requirements contemplated by Section 1.03 and
calculations of principal amount under Article Four), any
amounts denominated in a currency other than Dollars or in a
composite currency shall be converted to Dollar equivalents by
calculating the amount of Dollars which could have been
purchased by the amount of such other currency based (A) 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 the date of such calculation, or
(B) if on such fifth Business Day it shall not be possible or
practical to obtain such quotations from such three banks, on
such other quotations or alternative methods of determination
as shall be selected by an Authorized Executive Officer and
which shall be reasonably acceptable to the Trustee;
(xi) if the principal of or premium, if
any, or interest, if any, on the Bonds 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 Bonds are stated to be payable, the period
or periods within which, and the terms and conditions upon
which, such election may be made;
(xii) if the principal of or premium, if
any, or interest, if any, on the Bonds 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; PROVIDED, HOWEVER, that, notwithstanding any provision
of this Indenture to the contrary, for purposes of
calculations under this Indenture (including without
limitation calculations under Article Four), any such election
shall be disregarded;
(xiii) if the amount of payments of
principal of or premium, if any, or interest, if any, on the
Bonds of such series, or any Tranche thereof, may be
determined with reference to an index or other fact or event
ascertainable outside of this Indenture, the manner in which
such amounts shall be determined;
(xiv) if other than the principal amount
thereof, the portion of the principal amount of Bonds of such
series, or any Tranche thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant
to Section 10.02(a);
(xv) the terms, if any, pursuant to which
the Bonds of such series, or Tranche thereof, may be converted
into or exchanged for shares of capital stock or other
securities of the Company or any other Person;
(xvi) the obligations or instruments, if
any, which shall be considered Eligible Obligations in respect
of the Bonds of such series, or any Tranche thereof,
denominated in a currency other than Dollars or in a composite
currency, and any additional or alternative provisions for the
reinstatement of the Company's indebtedness in respect of such
Bonds after the satisfaction and discharge thereof as provided
in Section 9.01;
(xvii) if a service charge will be made for
the registration of transfer or exchange of Bonds of such
series, or any Tranche thereof, the amount or terms thereof;
(xviii) any exceptions to Section 1.16, or
variation in the definition "Business Day", with respect to
the Bonds of such series, or any Tranche thereof; and
(xix) any other terms of the Bonds of such
series, or any Tranche thereof, not inconsistent with the
provisions of this Indenture (including, without limitation,
as are appropriate for the establishment of a global security
to be registered in the name of a depository or its nominee).
(c) With respect to Bonds of a series subject to a Periodic
Offering, the indenture supplemental hereto which establishes such
series or the Board Resolution or Officer's Certificate pursuant to such
supplemental indenture or Board Resolution, as the case may be, may
provide general terms or parameters for Bonds of such series and provide
either that the specific terms of particular Bonds of such series shall
be specified in a Company Order or that such terms shall be determined
by the Company or its agent in accordance with a Company Order as
contemplated by clause (ii) of Section 4.01(a).
Section 1.002. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 3.01 with
respect to any series of Bonds, the Bonds of each series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 1.003. EXECUTION, DATING, CERTIFICATE OF
AUTHENTICATION.
(a) The Bonds shall be executed on behalf of the Company by
an Authorized Executive Officer, and may have the corporate seal of the
Company affixed thereto reproduced thereon and attested by any other
Authorized Executive Officer. The signature of any or all of these
officers on the Bonds may be manual or facsimile.
(b) Bonds bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company
shall 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 Bonds or did not hold such offices at the date of such
Bonds.
(c) Each Bond shall be dated the date of its authentication.
(d) No Bond shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears
on such Bond a certificate of authentication substantially in the form
provided for herein executed by the Trustee or an Authenticating Agent
by manual signature of an authorized officer thereof, and such
certificate upon any Bond shall be conclusive evidence, and the only
evidence, that such Bond has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Bond 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 Bond to the Bond Registrar for
cancellation or shall cancel such Bond and deliver evidence of such
cancellation to the Trustee, in each case as provided in Section 3.09,
together with a written statement (which need not comply with Section
1.05 and need not be accompanied by an Opinion of Counsel) stating that
such Bond has never been issued and sold by the Company, for all
purposes of this Indenture such Bond shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits hereof.
Section 1.004. TEMPORARY BONDS.
(a) Pending the preparation of definitive Bonds of any
series or Tranche, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Bonds which are
printed, lithographed, typewritten, mimeographed, photocopied or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Bonds in lieu of which they are issued, with
such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Bonds may determine, as
evidenced by their execution of such Bonds, PROVIDED, HOWEVER, that
temporary Bonds need not recite specific redemption, sinking fund,
conversion or exchange provisions.
(b) After the preparation of definitive Bonds of such series
or Tranche, the temporary Bonds of such series or Tranche shall be
exchangeable for definitive Bonds of such series or Tranche upon
surrender of the temporary Bonds of such series or Tranche at the office
or agency of the Company maintained pursuant to Section 6.02 in a Place
of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Bonds of any
series or Tranche, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor definitive Bonds of the
same series or Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
(c) Until exchanged in full as hereinabove provided, the
temporary Bonds shall in all respects be entitled to the same benefits
under this Indenture as definitive Bonds of the same series or Tranche
and of like tenor authenticated and delivered hereunder.
Section 1.005. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
(a) The Company shall cause to be kept in one of the offices
designated pursuant to Section 6.02 a register (the register kept in
accordance with this Section being referred to herein as the "Bond
Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Bonds and
the registration of transfer thereof. The Person maintaining the Bond
Register is referred to herein as the "Bond Registrar." Anything herein
to the contrary notwithstanding, the Company may designate one of its
offices as the office in which the Bond Register shall be maintained, in
which event the Company shall act as Bond Registrar.
(b) Upon surrender for registration of transfer of any Bond
of a series at the office or agency of the Company maintained pursuant
to Section 6.02 in a Place of Payment for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Bonds of the
same series and Tranche, of authorized denominations and of like tenor
and aggregate principal amount.
(c) At the option of the Holder, any Bond may be exchanged
for one or more new Bonds of the same series and Tranche, of authorized
denominations and of like tenor and aggregate principal amount, upon
surrender of the Bonds to be exchanged at any such office or agency.
Whenever any Bonds are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Bonds which
the Holder making the exchange is entitled to receive.
(d) All Bonds issued upon any registration of transfer or
exchange of Bonds shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Bonds surrendered upon such registration of transfer
or exchange.
(e) Every Bond 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 Bond Registrar or any transfer agent duly executed by the Holder
thereof or his attorney duly authorized in writing.
(f) Unless otherwise provided in an indenture supplemental
hereto, Board Resolution or Officer's Certificate with respect to Bonds
of any series, or any Tranche thereof, no service charge shall be made
for any registration of transfer or exchange of Bonds, 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 Bonds, other than exchanges
pursuant to Section 3.04, 5.06 or 14.06 not involving any transfer.
(g) The Company shall not be required to issue and the Bond
Registrar shall not be required to register the transfer of or to
exchange (a) Bonds of any series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Bonds of such series called for redemption, or (b) any Bond so selected
for redemption in whole or in part, except the unredeemed portion of any
Bond being redeemed in part.
Section 1.006. MUTILATED, DESTROYED, LOST AND STOLEN BONDS.
(a) If any mutilated Bond is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Bond of the same series and Tranche, and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Bond, and (ii) 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 Bond has been acquired by a bona
fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Bond, a new Bond of the same series and Tranche, and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
(c) Notwithstanding the foregoing, in case any such
mutilated, destroyed, lost or stolen Bond has become or is about to
become due and payable, the Company in its discretion may, instead of
issuing a new Bond, pay such Bond.
(d) Upon the issuance of any new Bond 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.
(e) Every new Bond of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Bond shall constitute
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Bond shall be at any time enforceable
by anyone, and any such new Bond shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other
Bonds of such series duly issued hereunder.
(f) 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 Bonds.
Section 1.007. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.
(a) Unless otherwise provided as contemplated by Section
3.01 with respect to the Bonds of any series, or any Tranche thereof,
interest on any Bond 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 Bond (or one or more Predecessor Bonds) is registered
at the close of business on the Regular Record Date for such interest.
(b) Any interest on any Bond 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 clause (i) or (ii)
below.
(i) The Company may elect to make payment
of any Defaulted Interest to the Persons in whose names the
Bonds of such series (or their respective Predecessor Bonds)
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 Bond 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
provided in this clause (i). 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 10 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 Bonds of such series at the
address of such Holder as it appears in the Bond 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 Bonds of such series (or their respective Predecessor
Bonds) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the
following clause (ii).
(ii) The Company may make payment of any
Defaulted Interest on the Bonds of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Bonds 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 clause (ii), such manner of
payment shall be deemed practicable by the Trustee.
(c) Subject to the foregoing provisions of this Section and
Section 3.05, each Bond delivered under this Indenture upon registration
of, transfer of, or in exchange for, or in lieu of, any other Bond shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Bond.
Section 1.008. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name any Bond is registered as the
absolute owner of such Bond for the purpose of receiving payment of principal
of and premium, if any, and (subject to Sections 3.05 and 3.07) interest, if
any, on such Bond and for all other purposes whatsoever, whether or not such
Bond 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.
Section 1.009. CANCELLATION BY BOND REGISTRAR.
All Bonds surrendered for payment, redemption, registration of
transfer or exchange, or upon purchase or other acquisition by or on behalf
of the Company, shall, if surrendered to any Person other than the Bond
Registrar, be delivered to the Bond Registrar and, if not theretofore
canceled, shall be promptly canceled by the Bond Registrar. The Company may
at any time deliver to the Bond Registrar for cancellation any Bonds
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 Bonds so delivered shall be promptly canceled by the Bond
Registrar. No Bonds shall be authenticated in lieu of or in exchange for any
Bonds canceled as provided in this Section, except as expressly permitted by
this Indenture. All canceled Bonds held by the Bond Registrar shall be
disposed of in accordance with a Company Order and the Bond Registrar shall
promptly deliver a certificate of disposition to the Company unless, by a
Company Order, the Company shall direct that canceled Bonds be returned to
it. The Bond Registrar shall promptly deliver evidence of any cancellation
of a Bond in accordance with this Section to the Trustee and the Company.
Section 0.10. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01
for Bonds of any series, or any Tranche thereof, interest (if any) on the
Bonds of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Section 0.11. PAYMENT TO BE IN PROPER CURRENCY.
In the case of any Bonds denominated in any currency other
than 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, if any, or interest, if any,
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.
ARTICLE FOUR
ISSUANCE OF BONDS
Section
1.001. GENERAL.
(a) Subject to the provisions of Section 4.02, 4.03, 4.04,
4.05 or 4.06, whichever may be applicable, the Trustee shall
authenticate and deliver Bonds of a series, for original issue, at one
time or from time to time in accordance with the Company Order referred
to below, upon receipt by the Trustee of:
(i) if the terms of such series are
established in an indenture supplemental hereto, Board
Resolution or Officer's Certificate, as contemplated by
Section 3.01, the indenture supplemental hereto, Board
Resolution or Officer's Certificate establishing such series;
(ii) a Company Order requesting the
authentication and delivery of such Bonds and, to the extent
that the terms of such Bonds shall not have been established
in the indenture supplemental hereto which established such
series or in a Board Resolution or in an Officer's
Certificate, all as contemplated by Section 3.01, either
establishing such terms or, in the case of Bonds of a series
subject to a Periodic Offering, specifying procedures,
acceptable to the Trustee, by which such terms are to be
established (which procedures may provide for authentication
and delivery pursuant to oral or electronic instructions from
the Company or any agent or agents thereof, which oral
instructions are to be promptly confirmed electronically or in
writing);
(iii) the Bonds of such series or Tranche,
executed on behalf of the Company as provided herein;
(iv) a Net Earnings Certificate showing
the Adjusted Net Earnings of the Company for the period
therein specified to have been not less than an amount equal
to two (2) times the Annual Interest Requirements therein
specified, all in accordance with the provisions of Section
1.03; PROVIDED, HOWEVER, that the Trustee shall not be
entitled to receive a Net Earnings Certificate hereunder if
the Bonds of such series are to have no Stated Interest Rate
prior to Maturity; and PROVIDED, FURTHER, that, with respect
to Bonds of a series subject to a Periodic Offering, other
than Bonds theretofore authenticated and delivered, (A) it
shall be assumed in such Net Earnings Certificate that none of
such Bonds shall have a Stated Interest Rate in excess of a
maximum rate to be stated therein, and no Bonds which would
have a Stated Interest Rate at the time of the initial
authentication and delivery thereof in excess of such maximum
rate shall be authenticated and delivered under the authority
of such Net Earnings Certificate, and (B)the Trustee shall be
entitled to receive such Net Earnings Certificate only once,
at or prior to the time of the first authentication and
delivery of the Bonds of such series (unless the Company Order
or the oral or electronic instructions referred to in clause
(ii) above requesting the authentication and delivery of such
Bonds is delivered on or after the date which is two years
after the most recent Net Earnings Certificate with respect to
such series was delivered pursuant to this clause (iv), in
which case this subclause (B) shall not apply);
(v) an Opinion of Counsel to the effect
that:
(A) the forms of such Bonds have been
duly authorized by the Company and have been established
in conformity with the provisions of this Indenture;
(B) the terms of such Bonds have been
duly authorized by the Company and have been established
in conformity with the provisions of this Indenture; and
(C) such Bonds, 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 to
the Customary Exceptions;
PROVIDED, HOWEVER, that, with respect to Bonds 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 and delivery of Bonds of
such series and that the opinions described in subclauses (B)
and (C) of clause (v) above may state, respectively:
(1) that, when the terms of such Bonds
shall have been established pursuant to a Company Order
or Orders or pursuant to such procedures as may be
specified from time to time by a Company Order or
Orders, all as contemplated by and in accordance with
the indenture supplemental hereto, Board Resolution or
Officer's Certificate delivered pursuant to clause (i)
above, such terms will have been duly authorized by the
Company and will have been established in conformity
with the provisions of this Indenture; and
(2) that such Bonds, when
authenticated and delivered by the Trustee in accordance
with this Indenture and the Company Order or Orders or
the specified procedures referred to in subclause (1)
above 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 to the Customary
Exceptions;
(vi) an Officer's Certificate to the
effect that, to the knowledge of the signer, no Event of
Default, or event which with notice or lapse of time or both
would constitute an Event of Default, has occurred and is
continuing; PROVIDED, HOWEVER, that with respect to Bonds of a
series subject to a Periodic Offering, either (A) such an
Officer's Certificate shall be delivered at the time of the
authentication and delivery of each Bond of such series, or
(B) the Officer's Certificate delivered at the time of the
first authentication and delivery of the Bonds of such series
shall state that the statements therein shall be deemed to be
made at the time of each subsequent authentication and
delivery of Bonds of such series; and
(vii) such other Opinions of Counsel,
certificates and other documents as may be required under
Section 4.02, 4.03, 4.04 or 4.05, whichever may be applicable
to the authentication and delivery of the Bonds of such
series.
(b) With respect to Bonds of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the authorization by
the Company of any of such Bonds, the forms and terms thereof, the
legality, validity, binding effect and enforceability thereof and the
compliance of the authentication and delivery thereof with the terms and
conditions of this Indenture, upon the Opinion or Opinions of Counsel
and the certificates and other documents delivered pursuant to this
Article Four at or prior to the time of the first authentication and
delivery of Bonds of such series until any of such opinions,
certificates or other documents have been superseded or revoked or
expire by their terms.
(c) In connection with the authentication and delivery of
Bonds 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 Bonds do not violate any laws with respect to, or any
rules, regulations or orders of, any governmental agency or commission
having jurisdiction over the Company.
Section 1.002. ISSUANCE OF BONDS ON THE BASIS OF PLEDGED
BONDS; DISPOSITION AND EXCHANGE OF BANK COLLATERAL BONDS.
(a) Bonds of any one or more series may be authenticated and
delivered upon the basis of, and in an aggregate principal amount not
exceeding, the aggregate principal amount of Unbonded Class "A" Bonds
issued and delivered to the Trustee for such purpose.
(b) No Bonds of any series shall be authenticated and
delivered by the Trustee upon the basis of the issuance and delivery to
the Trustee of Class "A" Bonds until the Trustee shall have received:
(i) Class "A" Bonds (A) maturing on such
dates and in such principal amounts that, at each Stated
Maturity of the Bonds of such series (or the Tranche thereof
then to be authenticated and delivered), there shall mature
Class "A" Bonds equal in principal amount to the Bonds of such
series or Tranche then to mature, and (B) containing, in
addition to any mandatory redemption provisions applicable to
all Class "A" Bonds Outstanding under the related Class "A"
Mortgage, mandatory redemption provisions correlative to the
provisions, if any, for the mandatory redemption (pursuant to
a sinking fund or otherwise) of the Bonds of such series or
Tranche or for the redemption thereof at the option of the
Holder; it being expressly understood that such Class "A"
Bonds (1) may, but need not, bear interest, any such interest
to be payable at the same times as interest on the Bonds of
such series or Tranche, (2) may, but need not, contain
provisions for the redemption thereof at the option of the
Company, any such redemption to be made at a redemption price
or prices not less than the principal amount thereof, and (3)
shall be held by the Trustee in accordance with Article Seven;
(ii) the documents with respect to the
Bonds of such series specified in Section 4.01; PROVIDED,
HOWEVER, that no Net Earnings Certificate shall be required to
be delivered if there shall be delivered an Officer's
Certificate to the effect that such Class "A" Bonds have been
authenticated and delivered under the related Class "A"
Mortgage on the basis of retired Class "A" Bonds, except that
a Net Earnings Certificate shall nevertheless be required to
be delivered if:
(A) the Stated Maturity of the Class
"A" Bonds on the basis of which the Class "A" Bonds to
be made the basis of the authentication and delivery of
Bonds under this Section are to be or have been
authenticated and delivered under the related Class "A"
Mortgage is a date more than five years after the date
of the Company Order requesting the authentication and
delivery of such Bonds under this Section; and
(B) the Stated Interest Rate, if any,
on such retired Class "A" Bonds in effect immediately
prior to Maturity is less than the Stated Interest Rate,
if any, on such Bonds to be in effect upon the initial
authentication and delivery thereof (such Stated
Interest Rate to be determined, in the case of a series
subject to a Periodic Offering, as provided in Section
4.01(a)(iv));
(iii) an Opinion of Counsel to the effect
that:
(A) the forms of such Class "A" Bonds
have been duly authorized by the Company and have been
established in conformity with the provisions of the
related Class "A" Mortgage;
(B) the terms of such Class "A" Bonds
have been duly authorized by the Company and have been
established in conformity with the provisions of the
related Class "A" Mortgage; and
(C) such Class "A" Bonds have been
duly issued under the related Class "A" Mortgage and
constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by such Class
"A" Mortgage, and enforceable in accordance with their
terms, subject to the Customary Exceptions;
PROVIDED, HOWEVER, that, with respect to Bonds 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 and
delivery of Bonds of such series (and shall be entitled to rely on such
Opinion of Counsel with respect to the Class "A" Bonds to the same extent as
provided in Section 4.01(b)) and that the opinions described in subclauses
(B) and (C) of clause (iii) above may state, respectively:
(1) that, when the terms of such Class
"A" Bonds shall have been established in accordance with
the instrument or instruments creating the series of
which such Class "A" Bonds are a part, such terms will
have been duly authorized by the Company and will have
been established in conformity with the provisions of
the related Class "A" Mortgage; and
(2) that such Class "A" Bonds, when
authenticated and delivered by the trustee under the
related Class "A" Mortgage in accordance with such
instrument or instruments 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 such Class "A" Mortgage, and will
constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by such Class
"A" Mortgage, and enforceable in accordance with their
terms, subject to the Customary Exceptions; and
(iv) an Officer's Certificate stating that
no part of the principal amount of the Class "A" Bonds upon
the basis of which the Bonds are to be authenticated and
delivered has theretofore been Bonded.
(c) The Bank Collateral Bonds shall be assigned to the
Trustee from time to time as contemplated by the 1936 Mortgage and held
as security for all Bonds Outstanding. Notwithstanding any other
provision of this Indenture to the contrary, unless an Event of Default
shall have occurred and be continuing, and provided that the Trustee
shall have received a Company Order citing this subsection and an
Officer's Certificate stating that no Event of Default has occurred and
is continuing, the Trustee shall execute appropriate documents and
instruments (in the form provided by the Company) releasing without
recourse the interest of the Trustee in and the Lien of this Indenture
on all or a specified portion of the Bank Collateral Bonds, and shall
deliver such Bank Collateral Bonds (i) to the Company, upon the maturity
of such Bank Collateral Bonds, without any payment of principal being or
required to be made thereon, (ii) to the Company, in exchange for an
equal principal amount of Pledged Bonds to be concurrently issued by the
Company to the Trustee under Section 29 of the 1936 Mortgage as the
basis for the authentication and delivery of Bonds in compliance with
this Section, or (iii) to the trustee under the 1936 Mortgage
concurrently with the delivery of all Pledged Bonds to such trustee
pursuant to Section 7.07. The Company shall deliver any Bank Collateral
Bonds received by it from the Trustee to the trustee under the 1936
Mortgage for cancellation.
Section 1.003. ISSUANCE OF BONDS ON THE BASIS OF PROPERTY
ADDITIONS.
(a) Bonds of any one or more series may be authenticated and
delivered upon the basis of Property Additions which do not constitute
Bonded Property Additions in a principal amount not exceeding seventy-
five percent (75%) of the balance of the Cost or of the Fair Value of
such Unbonded Property Additions to the Company (whichever shall be
less) after making any deductions and any additions pursuant to Section
1.04(b).
(b) No Bonds of any series shall be authenticated and
delivered by the Trustee upon the basis of Property Additions until the
Trustee shall have received:
(i) the documents with respect to the
Bonds of such series specified in Section 4.01;
(ii) an Engineer's Certificate dated as of
a date not more than ninety (90) days prior to the date of the
Company Order requesting the authentication and delivery of
such Bonds:
(A) describing in reasonable detail
all such property and stating that all such property
constitutes Property Additions;
(B) stating that such Property
Additions are desirable for use in the proper conduct of
the business of the Company;
(C) stating that no part of such
Property Additions is then Bonded;
(D) stating the Cost of Property
Additions made the basis for such application;
(E) stating, except as to Property
Additions acquired, made or constructed wholly through
the delivery of securities or other property, that the
amount of cash forming all or part of the Cost thereof
was equal to or more than an amount to be stated
therein;
(F) briefly describing, with respect
to any Property Additions acquired, made or constructed
in whole or in part through the delivery of securities
or other property, the securities or other property so
delivered and stating the date of such delivery;
(G) stating what part, if any, of such
Property Additions includes property which within six
months prior to the date of acquisition thereof by the
Company had been used or operated by others than the
Company in a business similar to that in which it has
been or is to be used or operated by the Company and
stating whether or not, in the judgment of the signers,
the Fair Value thereof to the Company, as of the date of
such certificate, is less than Twenty-Five Thousand
Dollars ($25,000) and whether or not such Fair Value is
less than one percent (1%) of the aggregate principal
amount of Bonds then Outstanding (subject to the
Percentage Calculation Proviso);
(H) stating, in the judgment of the
signers, the Fair Value to the Company, as of the date
of such certificate, of such Property Additions, except
any thereof with respect to the Fair Value to the
Company of which a statement is to be made in an
Independent Engineer's Certificate as provided for in
clause (iii) below;
(I) stating the amount (if any)
required to be deducted under clause (i) of Section
1.04(b) and the amount (if any) elected to be added
under subclauses (A) and (B) of clause (ii) of Section
1.04(b);
(J) stating the amount of such
Property Additions remaining after any deductions or
additions pursuant to subclause (I); and
(K) stating that the Liens, if any, of
the character described in clause (e) of the definition
of "Permitted Liens" to which any property included in
such Property Additions is subject do not, in the
judgment of the signers, materially impair the use of
such property for the purposes for which the same is
held by the Company;
(iii) in case any Property Additions are
shown by the Engineer's Certificate provided for in clause
(ii) above to include property which, within six months prior
to the date of acquisition thereof by the Company, had been
used or operated by others than the Company in a business
similar to that in which it has been or is to be used or
operated by the Company and such certificate does not show the
Fair Value thereof to the Company, as of the date of such
certificate, to be less than Twenty-Five Thousand Dollars
($25,000) or less than one percent (1%) of the aggregate
principal amount of Bonds then Outstanding (subject to the
Percentage Calculation Proviso), an Independent Engineer's
Certificate stating, in the judgment of the signer, the Fair
Value to the Company, as of the date of such Independent
Engineer's Certificate, of (A) such Property Additions which
have been so used or operated and (at the option of the
Company) as to any other Property Additions included in the
Engineer's Certificate provided for in clause (ii) above, and
(B) in case such Independent Engineer's Certificate is being
delivered in connection with the authentication and delivery
of Bonds, any property so used or operated which has been
subjected to the Lien of this Indenture since the commencement
of the then current calendar year as the basis for the
authentication and delivery of Bonds and as to which an
Independent Engineer's Certificate has not previously been
furnished to the Trustee;
(iv) in case any Property Additions are
shown by the Engineer's Certificate provided for in clause
(ii) above to have been acquired, made or constructed in whole
or in part through the delivery of securities or other
property, a written appraisal of an Engineer stating, in the
judgment of the Engineer, the Fair Value in cash of such
securities or other property at the time of delivery thereof
in payment for or for the acquisition of such Property
Additions;
(v) an Opinion of Counsel to the effect:
(A) that (except as to paving, grading
and other improvements to, under or upon highways,
bridges, parks or other public property of analogous
character) this Indenture is, or upon the delivery of,
or the filing or recording in the proper places and
manner of, the instruments of conveyance, assignment or
transfer, if any, specified in said opinion, will be, a
Lien on all the Property Additions to be made the basis
of the authentication and delivery of such Bonds,
subject to no Lien thereon prior to the Lien of this
Indenture except Permitted Liens, the Lien of the 1936
Mortgage and the Lien of any other Class "A" Mortgage;
and
(B) that the Company has corporate
authority to operate the Property Additions with respect
to which such application is made; and
(vi) copies of the instruments of
conveyance, assignment and transfer, if any, specified in the
Opinion of Counsel provided for in clause (v) above.
(c) The amount of the Cost of any Property Additions and the
Fair Value thereof to the Company and the Fair Market Value in cash of
any securities or other property so delivered in payment therefor or for
the acquisition thereof and the amount of any deductions and any
additions made pursuant to Section 1.04 shall be determined for the
purposes of this Section by the appropriate certificate provided for in
this Section.
Section 1.004. ISSUANCE OF BONDS ON THE BASIS OF RETIRED
BONDS.
(a) Bonds of any one or more series may be authenticated and
delivered upon the basis of, and in an aggregate principal amount not
exceeding the aggregate principal amount of, Unbonded Retired Bonds.
(b) No Bonds of any series shall be authenticated and
delivered by the Trustee upon the basis of Retired Bonds until the
Trustee shall have received:
(i) the documents with respect to the
Bonds of such series specified in Section 4.01; PROVIDED,
HOWEVER, that no Net Earnings Certificate shall be required to
be delivered unless:
(A) the Stated Maturity of the Retired
Bonds to be made the basis of the authentication and
delivery of such Bonds under this Section is a date more
than five years after the date of the Company Order
requesting the authentication and delivery of such
Bonds; and
(B) the Stated Interest Rate, if any,
on such Retired Bonds in effect immediately prior to
Maturity is less than the Stated Interest Rate, if any,
on such Bonds to be in effect upon the initial
authentication and delivery thereof (such Stated
Interest Rate to be determined, in the case of a series
subject to a Periodic Offering, as provided in Section
4.01(a)(iv)); and
(ii) an Officer's Certificate stating that
Retired Bonds, specified by series, in an aggregate principal
amount not less than the aggregate principal amount of Bonds
to be authenticated and delivered, have theretofore been
authenticated and delivered and, as of the date of such
Officer's Certificate, constitute Retired Bonds and are the
basis for the authentication and delivery of such Bonds.
Section 1.005. ISSUANCE OF BONDS UPON DEPOSIT OF CASH WITH
TRUSTEE.
(a) Bonds of any one or more series may be authenticated and
delivered upon the basis of, and in an aggregate principal not exceeding
the amount of, any deposit with the Trustee of cash for such purpose.
(b) No Bonds of any series shall be authenticated and
delivered by the Trustee upon the basis of the deposit of cash until the
Trustee shall have received the documents with respect to the Bonds of
such series specified in Section 4.01.
(c) All cash deposited with the Trustee under the provisions
of this Section, and all cash required by Section 7.02(a) to be applied
in accordance with the provisions of this Section, shall be held by the
Trustee as a part of the Mortgaged Property and may be withdrawn from
time to time by the Company, upon application of the Company to the
Trustee, in an amount equal to the aggregate principal amount of Bonds
to the authentication and delivery of which the Company shall be
entitled under any of the provisions of this Indenture by virtue of
compliance with all applicable provisions of this Indenture (except as
otherwise provided in subsection (d) of this Section). If such
application is made pursuant to Section 4.02, then such application
must be made prior to the maturity of the Bonds authenticated and
delivered pursuant to this Section on the basis of the cash to be so
withdrawn, and the terms of the Class "A" Bonds made the basis of such
application shall, to the extent required by Section 4.02(b)(i),
correspond to the terms of such Bonds.
(d) Upon any such application for withdrawal, the Company
shall comply with all applicable provisions of this Indenture relating
to the authentication and delivery of Bonds except that the Company
shall not in any event be required to comply with Section 4.01 or to
deliver a Net Earnings Certificate.
(e) Any withdrawal of cash under subsection (c) of this
Section shall operate as a waiver by the Company of its right to the
authentication and delivery of the Bonds on which it is based and such
Bonds may not thereafter be authenticated and delivered hereunder. Any
Property Additions which have been made the basis of any such right to
the authentication and delivery of Bonds so waived shall have the status
of Bonded Property Additions and shall be deemed to have been made the
basis of the withdrawal of such cash; any Retired Bonds which have been
made the basis of any such right to the authentication and delivery of
Bonds so waived shall be deemed to have been made the basis of the
withdrawal of such cash; and any Pledged Bonds which have been made the
basis of any such right to the authentication and delivery of Bonds so
waived shall be deemed to have been made the basis of the withdrawal of
such cash.
(f) If at any time the Company shall so direct, any sums
deposited with the Trustee under the provisions of this Section may be
used or applied to the purchase, redemption or payment of Bonds in the
manner and subject to the conditions provided in clauses (iv) and (v) of
Section 8.06(a); PROVIDED, HOWEVER, that, none of such cash shall be
applied to the payment of more than the principal amount of any Bonds so
purchased, redeemed or paid, except to the extent that the aggregate
principal amount of all Bonds theretofore, and of all Bonds then to be,
purchased, redeemed or paid with cash deposited under this Section is
not less than the aggregate cost (certified to the Trustee in an
Officers' Certificate) for principal, premium, if any, interest, if any,
and brokerage commission, if any, on or with respect to all Bonds
theretofore, and on or with respect to all Bonds then to be, purchased,
redeemed or paid with cash so deposited.
Section 1.006. ISSUANCE OF GENERAL AND REFUNDING MORTGAGE
BONDS, SERIES A.
(a) At any time after the execution and delivery of this
Indenture (whether before or after the recording hereof), upon the
application of the Company, a series of Bonds entitled "General and
Refunding Mortgage Bonds, Series A" may be authenticated and delivered
by the Trustee in an aggregate principal amount not exceeding
$126,000,000.
(b) No Series A Bonds shall be authenticated and delivered by
the Trustee until the Trustee shall have received the documents with
respect to the Series A Bonds specified in Section 4.01 (PROVIDED,
HOWEVER, that no Net Earnings Certificate shall be required to be
delivered) and Sections 4.02, 4.03, 4.04 and 4.05 need not be complied
with.
ARTICLE FIVE
REDEMPTION OF BONDS
Section
1.001. APPLICABILITY OF ARTICLE.
Bonds 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 3.01 for Bonds of such series or Tranche) in accordance with this
Article.
Section 1.002. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Bonds shall be
evidenced by a Board Resolution or an Officer's 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 series, Tranche and
principal amount of such Bonds to be redeemed. In the case of any redemption
of Bonds (a) prior to the expiration of any restriction on such redemption
provided in the terms of such Bonds 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 Bonds, the Company shall furnish the Trustee
with an Officer's Certificate evidencing compliance with such restriction or
condition.
Section 1.003. SELECTION OF BONDS TO BE REDEEMED.
(a) If less than all the Bonds of any series, or any Tranche
thereof, are to be redeemed, the particular Bonds (or portions thereof)
to be redeemed shall be selected by the Bond Registrar from the
Outstanding Bonds of such series or Tranche not previously called for
redemption, by such method as shall be provided for any particular
series, or, in the absence of any such provision, by such method as the
Bond Registrar shall deem fair and appropriate and which may, in any
case, provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Bonds of such series or Tranche or
any integral multiple thereof) of the principal amount of Bonds of such
series or Tranche of a denomination larger than the minimum authorized
denomination for Bonds of such series or Tranche; PROVIDED, HOWEVER,
that if, as indicated in an Officer's Certificate, the Company shall
have offered to purchase all Bonds then Outstanding of any series, or
any Tranche thereof, and less than all of such Bonds shall have been
tendered to the Company for such purchase, the Bond Registrar, if so
directed by Company Order, shall select for redemption all such Bonds
which have not been so tendered.
(b) The Bond Registrar shall promptly notify the Company and
the Trustee in writing of the Bonds selected for redemption and, in the
case of any Bonds selected to be redeemed in part, the principal amount
thereof to be redeemed.
(c) For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Bonds
shall relate, in the case of any Bonds redeemed or to be redeemed only
in part, to the portion of the principal amount of such Bonds which has
been or is to be redeemed.
Section 1.004. NOTICE OF REDEMPTION.
(a) Notice of redemption shall be given in the manner
provided in Section 1.09 to the Holders of the Bond to be redeemed not
less than 30 days prior to the Redemption Date.
(b) All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if less than all the Bonds of any
series or Tranche are to be redeemed, the identification of
the particular Bonds to be redeemed and the portion of the
principal amount of any Bond to be redeemed in part;
(iv) that on the Redemption Date the Redemption Price,
together with accrued interest, if any, to the Redemption
Date, will become due and payable upon each such Bond to be
redeemed and, if applicable, that interest thereon will cease
to accrue on and after said date;
(v) the place or places where such Bonds
are to be surrendered for payment of the Redemption Price;
(vi) that the redemption is for a sinking or other fund,
if such is the case; and
(vii) such other matters as the Company shall deem
desirable or appropriate.
(c) With respect to any notice of redemption of Bonds at the
election of the Company, unless, upon the giving of such notice, such
Bonds shall be deemed to have been paid in accordance with Section 9.01,
such notice may state that such redemption shall be conditional 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 Bonds 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 Bonds. 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.
(d) Notice of redemption of Bonds to be redeemed at the
election of the Company, and any notice of non-satisfaction of a
condition for redemption as aforesaid, shall be given by the Company or,
at the Company's request, by the Bond Registrar in the name and at the
expense of the Company. Notice of mandatory redemption of Bonds shall
be given by the Bond Registrar in the name and at the expense of the
Company.
Section 1.005. BONDS 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 Bonds
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 Bonds or portions thereof, if interest-bearing, shall
cease to bear interest. Upon surrender of any such Bond for redemption in
accordance with such notice, such Bond or portion 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 Bond the Stated Maturity of which is on or prior to the Redemption
Date shall be payable to the Holder of such Bond, or one or more Predecessor
Bonds, registered as such at the close of business on the related Regular
Record Date according to the terms of such Bond and subject to the provisions
of Section 3.07.
Section 1.006. BONDS REDEEMED IN PART.
Any Bond 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 deliver to the Holder
of such Bond, without service charge, a new Bond or Bonds of the same series
and Tranche, 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 Bond so surrendered; PROVIDED,
HOWEVER, that the payment of any principal in accordance with the scheduled
amortization payments specified for the Bonds of any series, or any Tranche
thereof, as contemplated by Section 3.01, shall not constitute a redemption
in part subject to this Section 5.06 (except as otherwise specified as
contemplated by Section 3.01 for Bonds of such series or Tranche).
ARTICLE SIX
REPRESENTATIONS AND COVENANTS
Section
1.001. PAYMENT OF BONDS; LAWFUL POSSESSION; MAINTENANCE OF LIEN.
(a) The Company shall pay the principal of and premium, if
any, and interest, if any, on the Bonds of each series in accordance
with the terms of such Bonds and this Indenture.
(b) At the date of the execution and delivery of this
Indenture, the Company is lawfully possessed of the Mortgaged Property
and has good right and lawful authority to mortgage and pledge the
Mortgaged Property.
(c) The Company shall maintain and preserve the Lien of this
Indenture so long as any Bonds shall remain Outstanding.
Section 1.002. MAINTENANCE OF OFFICE OR AGENCY.
(a) The Company shall maintain in each Place of Payment for
the Bonds of any series, or any Tranche thereof, an office or agency
where such Bonds may be presented or surrendered for payment, where such
Bonds may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of such
Bonds and this 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 1.09. If at any time
the Company shall fail to maintain any such required office or agency in
respect of Bonds of any series, or any Tranche thereof, or shall fail to
furnish the Trustee with the address thereof, such presentations and
surrenders of such Bonds 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.
(b) The Company may also from time to time designate one or
more other offices or agencies where the Bonds 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 Bonds 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 1.09, of any such designation or rescission
and of any change in the location of any such other office or agency.
(c) Anything herein to the contrary notwithstanding, any
office or agency required by this Section may be maintained at an office
of the Company, in which event the Company shall perform all functions
to be performed at such office or agency.
Section 1.003. MONEY FOR BOND PAYMENTS TO BE HELD IN TRUST.
(a) If the Company shall at any time act as its own Paying
Agent with respect to the Bonds 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 Bonds, 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.
(b) Whenever the Company shall have one or more Paying
Agents for the Bonds 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 such Bonds, deposit with such Paying Agents sums
sufficient (without duplication) to pay the principal and premium or
interest so becoming due, such sums 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.
(c) The Company shall cause each Paying Agent for the Bonds
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:
(i) hold all sums held by it for the
payment of the principal of and premium, if any, or interest,
if any, on the Bonds 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;
(ii) give the Trustee notice of any
default by the Company (or any other obligor upon the Bonds of
such series) in the making of any payment of principal of and
premium, if any, or interest, if any, on the Bonds of such
series or Tranche; and
(iii) 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 and furnish to the Trustee such information as it
possesses regarding the names and addresses of the Persons
entitled to such sums.
(d) 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, if so stated in a Company Order
delivered to the Trustee, in accordance with the provisions of Article
Nine; 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.
(e) 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 Bond and
remaining unclaimed for two years after such principal and premium, if
any, or interest, if any, 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 Bond 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 specified therein, which shall
not be less than 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be paid to the Company.
Section 1.004. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Thirteen
and Section 8.02(e), 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) of the Company; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such right
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
would not adversely affect the interests of the Holders in any material
respect.
Section 1.005. MAINTENANCE OF PROPERTIES.
The Company shall cause (or, with respect to property owned in
common with others, make reasonable effort to cause) the Mortgaged Property,
as a whole, to be maintained and kept in good 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 such repairs, renewals,
replacements, betterments and improvements thereof, as, in the judgment of
the Company, may be necessary in order that the operation of the Mortgaged
Property, considered as a whole, may be conducted in accordance with common
industry practice; 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 (including, without
limitation, such of its properties as are used predominantly for the
generation of electric energy) if such discontinuance is, in the judgment of
the Company, desirable in the conduct of its business.
Section 1.006. PAYMENT OF TAXES; DISCHARGE OF LIENS.
The Company shall pay all taxes and assessments and other
governmental charges lawfully levied or assessed upon the Mortgaged Property,
or upon any part thereof, or upon the interest of the Trustee in the
Mortgaged Property, before the same shall become delinquent, and will duly
observe and conform in all material respects to all valid requirements of any
Governmental Authority relative to any of the Mortgaged Property; and all
covenants, terms and conditions upon or under which any of the Mortgaged
Property is held; and the Company shall not suffer any Lien to be hereafter
created upon the Mortgaged Property, or any part thereof, prior to the Lien
hereof, other than Permitted Liens and other than, in the case of property
hereafter acquired, vendors' Liens, purchase money mortgages and any other
Lien thereon at the time of the acquisition thereof (including, but not
limited to, the Lien of the 1936 Mortgage and any other Class "A" Mortgage);
and within four months after any lawful claim or demand for labor, materials,
supplies or other objects has become delinquent which if unpaid would or
might by law be given precedence over the Lien of this Indenture as a Lien
upon any of the Mortgaged Property, the Company shall pay or cause to be
discharged or make adequate provisions to satisfy or discharge the same;
PROVIDED, HOWEVER, that nothing in this Section contained shall require the
Company to observe or conform to any requirement of Governmental Authority or
to cause to be paid or discharged, or to make provision for, any such Lien,
or to pay any such tax, assessment or governmental charge so long as the
validity thereof shall be contested in good faith and by appropriate legal
proceedings; and PROVIDED, FURTHER, that nothing in this Section contained
shall require the Company to pay, discharge or make provisions for any tax,
assessment or other governmental charge the validity of which shall not be so
contested if adequate security for the payment of such tax, assessment or
other governmental charge and for any damages which may reasonably be
anticipated from failure to pay the same shall be given to the Trustee, nor
shall anything in this Section require the Company to pay, discharge or make
provisions for any Liens existing on the Mortgaged Property at the date of
execution and delivery of this Indenture.
Section 1.007. INSURANCE.
(a) The Company will keep or cause to be kept all the
Mortgaged Property insured with reasonable deductibles and retentions
against loss by fire and other risks of casualty to the extent that
property of similar character is usually so insured by companies
similarly situated and operating like properties, by insurance companies
which the Company believes to be reputable; or the Company will, in lieu
of or supplementing such insurance in whole or in part, adopt some other
method or plan of protection or, alone or in conjunction with any other
Person or Persons, create an insurance fund to protect the Mortgaged
Property against such losses.
(b) Proceeds of any insurance or alternative method or plan
of protection of the Company against losses of the kind specified in
Section 6.07(a) shall be paid to the Company, and the Company shall be
under no obligation to use such proceeds to rebuild or repair damaged or
destroyed Mortgaged Property to the extent that the Fair Value of all of
the Mortgaged Property after the damage or destruction of Mortgaged
Property with respect to which such proceeds are payable equals or
exceeds an amount equal to twenty-fifteenths (20/15ths) of the aggregate
principal amount of Bonds Outstanding and Class "A" Bonds Outstanding
(other than Pledged Bonds), as evidenced by:
(i) an Engineer's Certificate delivered
to the Trustee stating that the Fair Value of the Mortgaged
Property remaining after such damage or destruction of
Mortgaged Property is a specified amount; and
(ii) an Officer's Certificate delivered to
the Trustee stating that the Fair Value of all of the
Mortgaged Property, as certified in the Engineer's Certificate
provided for in clause (i) of Section 6.07(b) equals or
exceeds an amount equal to twenty-fifteenths (20/15ths) of the
aggregate principal amount of Bonds Outstanding and Class "A"
Bonds Outstanding (other than Pledged Bonds).
(c) If the Company cannot deliver the Engineer's Certificate
and Officer's Certificate described in clauses (i) and (ii) of Section
6.07(b), (i) the proceeds of such insurance paid with respect to any
such loss shall be paid to the Trustee within 30 days of the receipt by
the Company of such proceeds, as the interest of the Trustee may appear,
or to the trustee of a Class "A" Mortgage, or to the trustee or other
holder of any mortgage or other Lien prior hereto upon the Mortgaged
Property so destroyed or damaged, if the terms thereof require such
proceeds so to be paid; and (ii) if the Company shall adopt such other
method or plan, it will pay or cause to be paid to the Trustee on
account of any losses of the kind specified in Section 6.07(a) sustained
because of the destruction or damage of any Mortgaged Property within 90
days of the occurrence of such destruction or damage, an amount of cash
equal to such loss less any amount otherwise paid with respect to such
loss to the Trustee, or to the trustee of a Class "A" Mortgage, or to
the trustee or other holder of any mortgage or other Lien prior hereto
upon the Mortgaged Property so destroyed or damaged, if the terms
thereof require payments for such loss so to be paid. Any amounts of
cash so required to be paid by the Company pursuant to any such method
or plan shall for the purposes of this Indenture be deemed to be
proceeds of insurance.
(d) Any moneys paid to the Trustee by the Company or
received by the Trustee as proceeds of any insurance shall be held by
the Trustee and shall, at the request of the Company, be paid by the
Trustee to the Company to reimburse the Company for an equal amount
spent for the purchase or other acquisition of property which becomes
Mortgaged Property at the time of such purchase or acquisition, or in
the rebuilding or renewal of the Mortgaged Property destroyed or
damaged, upon receipt by the Trustee of:
(i) an Officer's Certificate requesting
such reimbursement and stating that the item for which
reimbursement is being requested has not previously been
reimbursed by the trustee under any Class "A" Mortgage;
(ii) an Engineer's Certificate stating the
amounts so expended or committed for expenditure and the
nature of such rebuilding or renewal and the Fair Value to the
Company of the property purchased or acquired or rebuilt or
renewed or to be rebuilt or renewed and if:
(A) within six months prior to the
date of acquisition thereof by the Company, such
property has been used or operated, by a Person other
than the Company, in a business similar to that in which
it has been or is to be used or operated by the Company,
and
(B) the Fair Value to the Company of
such property as set forth in such Engineer's
Certificate is not less than Twenty-Five Thousand
Dollars ($25,000) and not less than one percent (1%) of
the aggregate principal amount of the Bonds at the time
Outstanding (subject to the Percentage Calculation
Proviso),
the Engineer making such certificate shall be an Independent Engineer;
and
(iii) an Opinion of Counsel stating that, in the opinion
of the signer, the property so purchased or acquired or
rebuilt or renewed or to be rebuilt or renewed is or will be
subject to the Lien hereof to the same extent as was the
property so destroyed or damaged.
(e) Any such money not so applied within eighteen (18)
months after its receipt by the Trustee, or in respect of which notice
in writing of intention to apply the same to the work of rebuilding or
renewal then in progress and uncompleted or to the purchase or other
acquisition of property shall not have been given to the Trustee by the
Company within such eighteen (18) months, or which the Company shall at
any time notify the Trustee is not to be so applied, shall thereafter be
withdrawn, used or applied in the manner, to the extent and for the
purposes, and subject to the conditions, provided in Section 8.06.
(f) Whenever under the provisions of this Section the
Company is required to deliver moneys to the Trustee and at the same
time shall have satisfied the conditions set forth herein for
reimbursement, there shall be paid to or retained by the Trustee or
reimbursed to the Company, as the case may be, only the net amount.
(g) In the event that the Company adopts a method or plan of
protection other than insurance as provided in Section 6.07(a), the
Company shall furnish to the Trustee a certificate of a qualified Person
appointed by the Company with respect to the adequacy of such method or
plan.
Section 1.008. RECORDING, FILING, ETC.
(a) The Company shall cause this Indenture and all
indentures and instruments supplemental hereto (or notices, memoranda or
financing statements or continuation statements as may be recorded or
filed to place third parties on notice thereof) to be promptly recorded
and filed and re-recorded and re-filed in such manner and in such
places, as may be required by law in order fully to preserve, protect
and perfect the security of the Holders of the Bonds and all rights of
the Trustee, and shall furnish to the Trustee:
(i) promptly after the execution and
delivery of this Indenture and of each supplemental indenture,
an Opinion of Counsel either stating that in the opinion of
such counsel this Indenture or such supplemental indenture (or
notice or memorandum thereof or financing statement in
connection therewith) has been properly recorded and filed, so
as to make effective and perfect the Lien intended to be
created hereby or thereby, and reciting the details of such
action, or stating that in the opinion of such counsel no such
action is necessary to make such Lien effective or to perfect
such Lien. The Company shall be deemed to be in compliance
with this clause (i) if (A) the Opinion of Counsel herein
required to be delivered to the Trustee shall state that this
Indenture or such supplemental indenture (or financing
statement or notice or memorandum thereof) has been received
for recording or filing in each jurisdiction in which it is
required to be recorded or filed and that, in the opinion of
counsel (if such is the case), such receipt for recording or
filing makes effective and perfects the Lien intended to be
created by this Indenture or such supplemental indenture, and
(B) such opinion is delivered to the Trustee within such time,
following the date of the execution and delivery of this
Indenture or such supplemental indenture, as shall be
practicable having due regard to the number and distance of
the jurisdictions in which this Indenture or such supplemental
indenture is required to be recorded or filed; and
(ii) on or before June 1 of each year,
beginning June 1, 1996, an Opinion of Counsel either stating
that in the opinion of the signer such action has been taken,
since the date of the most recent Opinion of Counsel furnished
pursuant to this clause (ii) or the first Opinion of Counsel
furnished pursuant to clause (i) of this subsection (a), with
respect to the recording, filing, re-recording, and re-filing
of this instrument and of each indenture supplemental to this
Indenture (or financing statement or continuation statement or
notice or memorandum thereof), as is necessary to maintain and
perfect the Lien hereof, and reciting the details of such
action (such counsel may rely on earlier Opinions of Counsel
reciting such details), or stating that in the opinion of such
counsel no such action is necessary to maintain or perfect
such Lien.
(b) The Company shall execute and deliver such supplemental
indenture or indentures and such further instruments and do such further
acts as the Trustee may reasonably request upon the advice of its
counsel or as may be necessary or proper to carry out more effectually
the purposes of this Indenture and to make subject to the Lien hereof
any property hereafter acquired, made or constructed, intended to be
subject to the Lien hereof, and to transfer to any new trustee or
trustees or co-trustee or co-trustees, the estate, powers, instruments
or funds held in trust hereunder.
Section 1.009. LIMITATION ON ADDITIONAL ISSUANCES OF BONDS
UNDER 1936 MORTGAGE.
The Company covenants and agrees that, from and after the date
of authentication and delivery of the Series A Bonds, the Company will not
issue any additional bonds under the 1936 Mortgage except for issuances of
such bonds to the Trustee as Pledged Bonds pursuant to Section 4.02 hereof.
Upon the payment in full of all indebtedness secured by the 1936 Mortgage
(other than bonds held by the Trustee) the Company will promptly take all
necessary action, including without limitation pursuant to Section 7.07, to
obtain and effect the release and cancellation of the lien of the 1936
Mortgage upon any of the Mortgaged Property and the discharge and
satisfaction of the 1936 Mortgage.
Section 0.10 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any term, provision or condition set forth in (a) any additional covenant or
restriction specified with respect to the Bonds of any series, or any Tranche
thereof, as contemplated by Section 3.01 if before the time for such
compliance the Holders of at least a majority in aggregate principal amount
of the Outstanding Bonds of all series and Tranches with respect to which
compliance with 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 6.04, 6.05, 6.06, 6.07 or 6.09 or
Article Thirteen if before the time for such compliance the Holders of at
least a majority in aggregate principal amount of Bonds 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 so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
Section 0.11. CERTIFICATE TO TRUSTEE.
The Company will deliver to the Trustee on or before June 1 in
each year (beginning with 1996) an Officer's Certificate (which need not
comply with Section 1.05) as to whether or not to the best knowledge of the
signer thereof the Company is in default in the performance and observance of
the terms, provisions, covenants and conditions of this Indenture (without
regard to any period of grace or requirements of notice provided hereunder)
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which the signer may have knowledge. The
signatory to such Officer's Certificate shall be either the principal
executive officer, principal financial officer or principal accounting
officer of the Company.
ARTICLE SEVEN
PLEDGED BONDS; ADDITIONAL CLASS "A" MORTGAGES;
DISCHARGE OF CLASS "A" MORTGAGE
Section
1.001. REGISTRATION AND OWNERSHIP OF PLEDGED BONDS.
All Pledged Bonds shall be registered in the name of the
Trustee or its nominee and shall be owned and held by the Trustee, subject to
the provisions of this Indenture, for the benefit of the Holders of all Bonds
from time to time Outstanding, and the Company shall have no interest
therein. The Trustee shall be entitled to exercise all rights of bondholders
under each Class "A" Mortgage either in its discretion or as otherwise
provided in this Article or in Article Ten.
Section 1.002. PAYMENTS ON PLEDGED BONDS.
(a) Any payment by the Company of principal of or premium or
interest on any Pledged Bonds shall be applied by the Trustee to the
payment of any principal, premium or interest, as the case may be, in
respect of the Bonds which is then due, and, to the extent of such
application, the obligation of the Company hereunder to make such
payment in respect of the Bonds shall be deemed to have been satisfied
and discharged. If, at the time of any such payment of principal of
Pledged Bonds, there shall be no principal then due in respect of the
Bonds, the proceeds of such payment in respect of the Pledged Bonds
shall be deemed to constitute Funded Cash and shall be held by the
Trustee as part of the Mortgaged Property, to be withdrawn, used or
applied in the manner, to the extent and for the purposes, and subject
to the conditions, provided in Section 4.05. If, at the time of any
such payment of premium or interest on Pledged Bonds, there shall be no
premium or interest, as the case may be, then due in respect of the
Bonds, the proceeds of such payment in respect of the Pledged Bonds
shall be remitted to the Company upon receipt by the Trustee of a
Company Order requesting the same; PROVIDED, HOWEVER, that following the
occurrence and during the continuance of an Event of Default, the
Trustee shall not pay such proceeds over to the Company, but shall
instead hold such proceeds as part of the Mortgaged Property.
(b) Each supplemental indenture pursuant to which any
Pledged Bonds are issued shall contain a provision to the effect that
any payment by the Company hereunder of principal of or premium or
interest on Bonds which shall have been authenticated and delivered upon
the basis of the issuance and delivery to the Trustee of such Pledged
Bonds (other than by the application of the proceeds of a payment in
respect of such Pledged Bonds) shall, to the extent thereof, be deemed
to satisfy and discharge the obligation of the Company, if any, to make
a payment of principal, premium or interest, as the case may be, in
respect of such Pledged Bonds which is then due.
Section 1.003. SURRENDER OF PLEDGED BONDS.
At the time any Bonds of any series, or any Tranche thereof,
which shall have been authenticated and delivered upon the basis of Pledged
Bonds, cease to be Outstanding (other than as a result of the application of
the proceeds of the payment or redemption of such Pledged Bonds), the Trustee
shall surrender to or upon the order of the Company an equal principal amount
of such Pledged Bonds having the same Stated Maturity and provisions, if any,
for mandatory redemption as such Bonds.
Section 1.004. NO TRANSFER OF PLEDGED BONDS.
The Trustee shall not sell, assign or otherwise transfer any
Pledged Bonds except to a successor trustee under this Indenture. The
Company may take such actions as it shall deem necessary, desirable or
appropriate to effect compliance with such restrictions on transfer,
including the placing of a legend on each Pledged Bond and the issuance of
stop-transfer instructions to the trustee under the related Class "A"
Mortgage or any other transfer agent thereunder.
Section 1.005. VOTING OF PLEDGED BONDS AND BANK
COLLATERAL BONDS.
(a) The Trustee shall, as the holder of Pledged Bonds
Outstanding under each Class "A" Mortgage, attend such meeting or meetings of
bondholders under such Class "A" Mortgage or, at its option, deliver its
proxy in connection therewith, as relate to matters with respect to which it
is entitled to vote or consent. So long as no Event of Default hereunder
shall have occurred and be continuing, either at any such meeting or
meetings, or otherwise when the consent of the holders of the Class "A" Bonds
Outstanding under any Class "A" Mortgage is sought without a meeting, the
Trustee shall vote as holder of such Pledged Bonds, or shall consent with
respect thereto, as follows:
(i) the Trustee shall vote all Pledged Bonds Outstanding
under the 1936 Mortgage then held by it, or consent with respect
thereto, in favor of any or all amendments or modifications of the 1936
Mortgage of substantially the same tenor and effect as any or all of
those set forth in Exhibit B to this Indenture; and
(ii) with respect to any other amendments or modifications of the
1936 Mortgage and to any amendments or modifications of any other Class
"A" Mortgage:
(A) at any time when the Pledged Bonds
Outstanding constitute less than a majority in aggregate
principal amount of the Class "A" Bonds then Outstanding under
such Class "A" Mortgage, the Trustee shall vote all Pledged
Bonds Outstanding under such Class "A" Mortgage then held by
it, or consent with respect thereto, proportionately with what
the Trustee reasonably believes, which belief may be based on
an Officer's Certificate of the Company or a certificate of
the trustee under said Class "A" Mortgage (provided that in
the case of a discrepancy the certificate of such trustee
shall control), will be the vote or consent of the holders of
all other Class "A" Bonds Outstanding under such Class "A"
Mortgage the holders of which are eligible to vote or consent;
PROVIDED, HOWEVER, that the Trustee shall not so vote in favor
of, or so consent to, any amendment or modification of a Class
"A" Mortgage which, if it were an amendment or modification of
this Indenture, would require the consent of Holders, without
the prior consent, obtained in the manner prescribed in
Section 14.02, of Holders of Bonds which would be required
under said Section 14.02 for such an amendment or modification
of this Indenture; and
(B) at any time when the Pledged Bonds
Outstanding constitute at least a majority in aggregate
principal amount of the Class "A" Bonds then Outstanding under
such Class "A" Mortgage, the Trustee shall vote all Pledged
Bonds Outstanding under such Class "A" Mortgage then held by
it, or consent with respect thereto, in accordance with the
written direction of the Company evidenced by an Officer's
Certificate or, in the absence of any such direction,
proportionately with what the Trustee reasonably believes,
which belief may be based on a certificate of the trustee
under said Class "A" Mortgage, will be the vote or consent of
the holders of all other Class "A" Bonds Outstanding under
such Class "A" Mortgage the holders of which are eligible to
vote or consent; PROVIDED, HOWEVER, that the Trustee shall not
so vote in favor of, or so consent to, any amendment or
modification of a Class "A" Mortgage which, if it were an
amendment or modification of this Indenture, would require the
consent of Holders, without the prior consent, obtained in the
manner prescribed in Section 14.02, of Holders of Bonds which
would be required under said Section 14.02 for such an
amendment or modification of this Indenture.
(b) Notwithstanding anything in Section 7.05(a) to the
contrary, so long as no Event of Default hereunder shall have occurred and be
continuing, when any vote or consent of the holders of Bank Collateral Bonds
is sought, the Trustee shall vote any Bank Collateral Bonds, or shall consent
with respect thereto, in accordance with written instructions received by the
Trustee from the holder or holders of a majority in aggregate principal
amount of the Bank Collateral Bonds then Outstanding other than the Trustee.
Section 1.006. DESIGNATION OF ADDITIONAL CLASS "A" MORTGAGES.
(a) In the event that, after the date of the execution and
delivery of this Indenture, a corporation which was the mortgagor under
a mortgage or deed of trust or similar indenture is merged into or with
or consolidated with the Company, such mortgage, deed of trust or
similar indenture may be designated an additional Class "A" Mortgage
upon delivery to the Trustee of the following:
(i) a Company Order authorizing the
designation of such mortgage, deed of trust or similar
indenture as an additional Class "A" Mortgage;
(ii) an Officer's Certificate (A) stating
that no event has occurred and is continuing which entitles
the trustee under such mortgage, deed of trust or similar
indenture to accelerate the maturity of the obligations
outstanding thereunder, (B) reciting the aggregate principal
amount of obligations theretofore issued under such mortgage,
deed of trust or similar indenture and the aggregate principal
amount of obligations then outstanding thereunder, and (C)
either (x) stating that all obligations outstanding under such
mortgage, deed of trust or similar indenture that were issued
on the basis of property additions were issued in principal
amounts that did not exceed seventy-five percent (75%) of the
balance of the cost or Fair Value of such property additions
to the issuer thereof (whichever was less) after making
deductions and additions similar to those provided for in
Section 1.04 hereof, or (y) in the event that the foregoing
clause (x) is not the case, stating that the Company has
irrevocably waived its right to the authentication and
delivery of further obligations under such mortgage, deed of
trust or similar indenture in a principal amount equal to the
excess of the aggregate dollar amount of property additions
certified to the trustee under such mortgage, deed of trust or
similar indenture as the basis for all obligations outstanding
thereunder that were issued on the basis of property additions
(and outstanding obligations issued on the basis of
retirements of obligations issued on the basis of property
additions) over twenty-fifteenths (20/15ths) of the aggregate
principal amount of all such outstanding obligations; and
(iii) an Opinion of Counsel to the effect that (A) the
corporation that was the mortgagor under such mortgage, deed
of trust or similar indenture has been duly and lawfully
merged into or with or consolidated with the Company; (B) such
mortgage, deed of trust or similar indenture is qualified
under the Trust Indenture Act; (C) the Company has duly
assumed and agreed to perform and pay the obligations of the
mortgagor under such mortgage, deed of trust or similar
indenture; (D) such mortgage, deed of trust or similar
indenture constitutes a Lien upon the property described
therein prior to the Lien of this Indenture; (E) the Lien of
this Indenture constitutes a Lien on the property described in
such mortgage, deed of trust or similar indenture of the
character described in Granting Clause First, and in any
subsequent generic grant of unspecified property as
contemplated in Granting Clause Third, acquired by the Company
from such corporation by virtue of such merger or
consolidation, subject to no Lien thereon prior to the Lien of
this Indenture except the Lien of such mortgage, deed of trust
or similar indenture, Permitted Liens and Liens of the
character permitted to exist or to be hereafter created under
Section 6.06; (F) the terms of such mortgage, deed of trust or
similar indenture, as then in effect do not permit the further
issuance of obligations thereunder except on the basis of
cash, property additions of a character substantially similar
to Property Additions or the retirement of outstanding
obligations; (G) the terms of such mortgage, deed of trust or
similar indenture, as then in effect and taking into account
any waiver contemplated by clause (y) of subclause (C) of
clause (ii) above, do not permit the further issuance of
obligations thereunder upon the basis of property additions in
a principal amount exceeding seventy-five percent (75%) of the
balance of the cost or the Fair Value thereof to the issuer
thereof (whichever shall be less) after making deductions and
additions similar to those provided for in Section 1.04; and
(H) the indentures supplemental hereto and to the Class "A"
Mortgage referred to in subsection (b) of this Section comply
with the applicable requirements of clauses (i) and (ii) of
said subsection (b).
(b) At such time as the Company and the Trustee (in the case
of clause (i) below) or the trustee under the Class "A" Mortgage (in the
case of clause (ii) below) have executed, and the Company has caused to
be recorded:
(i) an indenture supplemental hereto (A)
in which such mortgage, deed of trust or similar indenture has
been designated as an additional Class "A" Mortgage, and (B)
by which the Company has specifically imposed the Lien of this
Indenture upon properties of the character described in
Granting Clause First, and in any subsequent generic grant of
unspecified property as contemplated in Granting Clause Third,
acquired by the Company from such corporation by virtue of the
merger or consolidation (and later improvements, extensions
and additions thereto and renewals and replacements thereof)
as contemplated by Section 13.05(b); and
(ii) an indenture supplemental to such
mortgage, deed of trust or similar indenture by which such
mortgage, deed of trust or similar indenture has been amended
to provide that a Matured Event of Default thereunder shall
include an Event of Default hereunder or a Matured Event of
Default under any other Class "A" Mortgage; PROVIDED, HOWEVER,
that the waiver or cure of such Event of Default or Matured
Event of Default and the rescission and annulment of the
consequences thereof shall constitute a waiver of the
corresponding Matured Event of Default under such mortgage,
deed of trust or similar indenture and a rescission and
annulment of the consequences thereof;
then such mortgage, deed of trust or similar indenture and all
obligations issued and outstanding thereunder shall for all purposes
hereof be treated as a Class "A" Mortgage and as Class "A" Bonds,
respectively, to the full and same extent as if specifically identified
in Article One.
Section
1.001. DISCHARGE OF CLASS "A" MORTGAGE.
(a) The Trustee shall surrender for cancellation to the
trustee under any Class "A" Mortgage all Pledged Bonds then held by the
Trustee issued under such Class "A" Mortgage upon receipt by the Trustee
of:
(i) a Company Order requesting such
surrender for cancellation of such Pledged Bonds;
(ii) an Officer's Certificate to the
effect that no Class "A" Bonds are Outstanding under such
Class "A" Mortgage other than Pledged Bonds and that promptly
upon such surrender such Class "A" Mortgage will be satisfied
and discharged pursuant to the terms thereof;
(iii) an Engineer's Certificate:
(A) describing in reasonable detail
all property constituting Property Additions designated
by the Company, in its discretion, to be deemed, on and
after the date of such surrender for cancellation and
for all purposes of this Indenture, to have been made
the basis of the authentication and delivery of all
Bonds then Outstanding which shall have been
authenticated and delivered under Section 4.02 on the
basis of Pledged Bonds authenticated and delivered under
such Class "A" Mortgage, such Property Additions to
have, in the aggregate, a Cost (or as to Property
Additions of which the Fair Value to the Company
specified pursuant to subclause (H) or clause (iv) below
is less than the Cost thereof, then such Fair Value in
lieu of Cost) not less than twenty-fifteenths (20/15ths)
of the aggregate principal amount of such Bonds;
(B) stating that all such property
constitutes Property Additions;
(C) stating that such Property
Additions are desirable for use in the proper conduct of
the business of the Company;
(D) stating that such Property
Additions, to the extent of the Cost (or as to Property
Additions of which the Fair Value to the Company
specified pursuant to subclause (H) or clause (iv) below
is less than the Cost thereof, then such Fair Value in
lieu of Cost) to the Company to be deemed to have been
made the basis of the authentication and delivery of
such Bonds, will no longer constitute Bonded Property
Additions (other than pursuant to clause (vii) of the
definition of "Bonded") upon the discharge of the Class
"A" Mortgage pursuant to which such Pledged Bonds were
issued;
(E) stating, except as to Property
Additions acquired, made or constructed wholly through
the delivery of securities or other property, that the
amount of cash forming all or part of the Cost thereof
was equal to or more than an amount to be stated
therein;
(F) briefly describing, with respect
to any Property Additions acquired, made or constructed
in whole or in part through the delivery of securities
or other property, the securities or other property so
delivered and stating the date of such delivery;
(G) stating what part, if any, of such
Property Additions included property which within six
months prior to the date of acquisition thereof by the
Company had been used or operated by others than the
Company in a business similar to that in which it has
been or is to be used or operated by the Company and
stating whether or not, in the judgment of the signers,
the Fair Value thereof to the Company, as of the date of
such certificate, is less than Twenty-Five Thousand
Dollars ($25,000) and whether or not the fair value
thereof to the Company, as of such date, is less than
one percent (1%) of the aggregate principal amount of
Bonds then Outstanding (subject to the Percentage
Calculation Proviso);
(H) stating, in the judgment of the
signers, the Fair Value to the Company, as of the date
of such certificate, of such Property Additions, except
any thereof with respect to the Fair Value to the
Company of which a statement is to be made in an
Independent Engineer's Certificate as provided for in
clause (iv) below; PROVIDED, HOWEVER, that if any such
Property Additions shall have theretofore been certified
to the trustee under such Class "A" Mortgage as the
basis for the authentication and delivery of Class "A"
Bonds:
(1) which are Pledged Bonds as of the
date of such certificate; or
(2) the retirement of which shall have
theretofore been made the basis
(whether directly or indirectly when
considered in light of the issuance
and retirement of successive issues
of Class "A" Bonds) of the
authentication and delivery of
Pledged Bonds then held by the
Trustee;
then there may be stated, in lieu of the Fair Value of
such Property Additions as of the date of such
certificate, the Fair Value thereof as so certified to
the trustee under such Class "A" Mortgage; and
(I) stating that the Liens, if any, of
the character described in clause (e) of the definition
of "Permitted Liens" to which any property included in
such Property Additions is subject do not, in the
judgment of the signers, materially impair the use of
such property for the purposes for which the same is
held by the Company;
(iv) in case any Property Additions are
shown by the Engineer's Certificate provided for in clause
(iii) above to include property which, within six months prior
to the date of acquisition thereof by the Company, had been
used or operated by others than the Company in a business
similar to that in which it has been or is to be used or
operated by the Company and such certificate does not show the
Fair Value thereof to the Company, as of the date of such
certificate, to be less than Twenty-Five Thousand Dollars
($25,000) or less than one percent (1%) of the aggregate
principal amount of Bonds then Outstanding (subject to the
Percentage Calculation Proviso), an Independent Engineer's
Certificate stating, in the judgment of the signer, the Fair
Value to the Company, as of the date of such Independent
Engineer's Certificate, of (A) such Property Additions which
have been so used or operated and (at the option of the
Company) as to any other Property Additions included in the
Engineer's Certificate provided for in clause (iii) above, and
(B) any property so used or operated which has been subjected
to the Lien of this Indenture since the commencement of the
then current calendar year as the basis for the authentication
and delivery of Bonds and as to which an Independent
Engineer's Certificate has not previously been furnished to
the Trustee;
(v) in case any Property Additions are shown by the
Engineer's Certificate provided for in clause (iii) above to
have been acquired, made or constructed in whole or in part
through the delivery of securities or other property, a
written appraisal of an Engineer stating, in the judgment of
the Engineer, the Fair Value in cash of such securities or
other property at the time of delivery thereof in payment for
or for the acquisition of such Property Additions;
(vi) an Opinion of Counsel to the effect:
(A) that (except as to paving, grading
and other improvements to, under or upon highways,
bridges, parks or other public property of analogous
character) this Indenture is, or upon (x) the delivery
of, or the filing or recording in the proper places and
manner of, the instruments of conveyance, assignment or
transfer, if any, specified in said opinion, or (y) the
satisfaction and discharge of the Class "A" Mortgage to
be satisfied and discharged pursuant to this Section,
will be, a Lien on all the Property Additions to be
deemed to have been made the basis of the authentication
and delivery of Bonds then Outstanding which shall have
been authenticated and delivered under Section 4.02 on
the basis of Pledged Bonds authenticated and delivered
under such Class "A" Mortgage, subject to no Lien
thereon prior to the Lien of this Indenture except
Permitted Liens; and
(B) that the Company has corporate
authority to operate the Property Additions with respect
to which such application is made;
(vii) an Opinion of Counsel to the effect
that upon satisfaction and discharge of such Class "A"
Mortgage the Lien of this Indenture on the property formerly
subject to the Lien of such Class "A" Mortgage, to the extent
the same is part of the Mortgaged Property, will be subject to
no Lien prior to the Lien of this Indenture except Permitted
Liens and Liens of the character permitted to exist or to be
hereafter created under Section 6.06; and
(viii) copies of the instruments of
conveyance, assignment and transfer, if any, specified in the
Opinion of Counsel provided for in clause (vi) above.
(b) The amount of the Cost of any Property Additions and the
Fair Value thereof to the Company and the fair market value in cash of
any securities or other property so delivered in payment therefor or for
the acquisition thereof shall be determined for the purposes of this
Section by the appropriate certificate provided for in this Section.
ARTICLE
EIGHT
POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY
Section
1.001. QUIET ENJOYMENT.
Unless one or more Events of Default shall have occurred and
be continuing, the Company shall be permitted to possess, use and enjoy the
Mortgaged Property (except such cash as is expressly required to be deposited
with the Trustee and except, to the extent not otherwise provided herein,
such securities as are expressly required to be deposited with the Trustee).
Section 1.002. DISPOSITIONS WITHOUT RELEASE.
Unless an Event of Default shall have occurred and be
continuing, the Company may at any time and from time to time, without any
release or consent by, or report to, the Trustee:
(a) sell or otherwise dispose of, free from the Lien of this
Indenture, or abandon or otherwise retire, any machinery, apparatus,
equipment, frames, towers, poles, wire, pipe, cable, conduit, mains
tubes, drains, valves, tools, or implements, or any other fixture or
personalty, then subject to the Lien hereof, which shall have become
old, inadequate, obsolete, worn out, unfit, unadapted, unserviceable,
undesirable or unnecessary for use in one or more of the Primary
Purposes of the Company's Business;
(b) cancel or make changes in or alterations of or
substitutions for any and all leases;
(c) alter, change the location of, add to, repair and
replace any and all transmission and distribution lines, pipes,
substations, machinery, fixtures and other equipment;
(d) cancel, make changes in or substitutions for or dispose
of any and all rights of way (including easements and licenses);
(e) surrender or assent to the modification of any franchise
(including in that term, without limitation, any ordinances, permits,
licenses or other operating rights, however denominated, granted by
federal, state, municipal or other governmental authority) under which
the Company or any of its property may be operating if, in the judgment
of the Company, it is advisable to do so;
(f) abandon, or permit the abandonment of, the operation of
any Mortgaged Property, if, in the judgment of the Company, the
operation of such Mortgaged Property is not, under the circumstances,
necessary or important for the operation of the remaining Mortgaged
Property, or whenever the Company deems such abandonment to be advisable
for any reason; PROVIDED HOWEVER, that if the amount at which such
Mortgaged Property and all other Mortgaged Property so abandoned during
the same calendar year was originally charged to the fixed property
accounts of the Company is equal to ten percent (10%) or more of the
aggregate principal amount of Bonds Outstanding (subject to the
Percentage Calculation Proviso) immediately prior to such abandonment,
there shall be furnished to the Trustee an Independent Engineer's
Certificate to the effect that such Mortgaged Property is not, under the
circumstances, necessary or important for the operation of the remaining
property of the Company or that such abandonment is advisable for some
other specified reason, and that such abandonment will not impair the
security under this Indenture in contravention of the provisions hereof;
and
(g) grant, free from the Lien of this Indenture, easements,
ground leases or rights of way in, upon, over or across the property or
rights of way of the Company for the purpose of roads, pipelines,
transmission lines, distribution lines, communication lines, railways,
removal of coal or other minerals or timber, and other like purposes, or
for the joint or common use of real property, rights of way, facilities
or equipment; PROVIDED, HOWEVER, that such grant shall not materially
impair the use of the property or rights of way for the purposes for
which such property or rights of way are held by the Company.
Section 1.003. RELEASE OF MORTGAGED PROPERTY IF BONDING RATIO
TEST SATISFIED.
Unless an Event of Default shall have occurred and be
continuing, upon receipt of a Company Order requesting the release of
Mortgaged Property pursuant to this Section 8.03, the Trustee shall execute
and deliver to the Company the documents and instruments described in Section
8.03(a), releasing from the Lien of this Indenture such Mortgaged Property if
the Fair Value of all of the Mortgaged Property (excluding the Mortgaged
Property to be released but including any Property Additions to be acquired
by the Company with the proceeds of, or otherwise in connection with, such
release) stated on the Engineer's Certificates delivered pursuant to Section
8.03(b) and Section 8.03(c), equals or exceeds an amount equal to twenty-
fifteenths (20/15ths) of the aggregate principal amount of Bonds Outstanding
at the date of such Company Order as stated on the Officer's Certificate
delivered pursuant to Section 8.03(d), upon receipt by the Trustee of:
(a) appropriate documents and instruments releasing without
recourse the interest of the Trustee in the Mortgaged Property to be
released, and describing in reasonable detail the Mortgaged Property to
be released;
(b) an Engineer's Certificate, dated the date of such
Company Order, stating (i) that the signers of such Engineer's
Certificate have examined the Officer's Certificate delivered pursuant
to Section 8.03(d) in connection with such release, (ii) the Fair Value,
in the opinion of the signers of such Engineer's Certificate, of (A) all
of the Mortgaged Property, and (B) the Mortgaged Property to be
released, in each case as of a date not more than 90 days prior to the
date of such Company Order, and (iii) that in the judgment of such
signers, such release (A) will not materially adversely affect the
Primary Purposes of
the Company's Business, and (B) will not impair the security under this
Indenture in contravention of the provisions hereof;
(c) in case any Property Additions are being acquired by the
Company with the proceeds of, or otherwise in connection with, such
release, (i) an Engineer's Certificate, dated the date of such Company
Order, as to the Fair Value, as of a date not more than 90 days prior to
the date of such Company Order, of the Property Additions being so
acquired (and if within six months prior to the date of acquisition by
the Company of the Property Additions being so acquired, any property
included within such Property Additions had been used or operated by
others than the Company in a business similar to that in which it has
been or is to be used or operated by the Company, and the Fair Value
thereof to the Company, as set forth in such Engineer's Certificate, is
not less than Twenty-Five Thousand Dollars ($25,000) and not less than
one percent (1%) of the aggregate principal amount of Bonds then
Outstanding (subject to the Percentage Calculation Proviso), such
certificate shall be an Independent Engineer's Certificate), and (ii) an
Opinion of Counsel to the effect of Section 4.03(b)(v); and
(d) an Officer's Certificate, dated the date of such Company
Order, (i) setting forth the aggregate principal amount of Outstanding
Bonds at the date of such Company Order, and stating that the Fair Value
of all of the Mortgaged Property (excluding the Mortgaged Property to be
released but including any Property Additions to be acquired by the
Company with the proceeds of, or otherwise in connection with, such
release) stated on the Engineer's Certificates filed pursuant to
Sections 8.03(b) and (if applicable) 8.03(c) equals or exceeds an amount
equal to twenty-fifteenths (20/15ths) of such aggregate principal
amount, and (ii) that, to the knowledge of the signer, no Event of
Default has occurred and is continuing.
Section 1.004. RELEASE OF LIMITED AMOUNT OF MORTGAGED
PROPERTY.
If the Company is unable, or elects not, to obtain, in
accordance with Section 8.03, the release from the Lien of this Indenture of
Mortgaged Property, unless an Event of Default shall have occurred and be
continuing, upon receipt of a Company Order requesting the release of
Mortgaged Property pursuant to this Section 8.04, the Trustee shall execute
and deliver to the Company the documents and instruments described in Section
8.04(a) releasing from the Lien of this Indenture such Mortgaged Property if
the Fair Value thereof, as stated on the Engineer's Certificate delivered
pursuant to Section 8.04(b), is less than one percent (1%) of the sum of (i)
the principal amount of Bonds Outstanding and (ii) the principal amount of
the Class "A" Bonds Outstanding other than Pledged Bonds at the date of such
Company Order, provided that the aggregate Fair Value of all Mortgaged
Property released pursuant to this Section 8.04, as stated on all Engineer's
Certificates filed pursuant to this Section 8.04(b) in any period of 12
consecutive calendar months which includes the date of such Engineer's
Certificate, shall not exceed three percent (3%) of the aggregate principal
amount of Bonds Outstanding and Class "A" Bonds Outstanding (other than
Pledged Bonds) at the date of such Company Order as stated on the Officer's
Certificate delivered pursuant to Section 8.04(c), upon receipt by the
Trustee of:
(a) appropriate documents and instruments releasing without
recourse the interest of the Trustee in the Mortgaged Property to be
released, and describing in reasonable detail the Mortgaged Property to
be released;
(b) an Engineer's Certificate, dated the date of such
Company Order, stating (i) that the signers of such Engineer's
Certificate have examined the Officer's Certificate delivered pursuant
to Section 8.04(c) in connection with such release, (ii) the Fair Value,
in the opinion of the signers of such Engineer's Certificate, of such
Mortgaged Property to be released as of a date not more than 90 days
prior to the date of such Company Order, and (iii) that in the judgment
of such signers, such release will not impair the security under this
Indenture in contravention of the provisions hereof;
(c) an Officer's Certificate, dated the date of such Company
Order, (i) setting forth the sum of (x) the principal amount of Bonds
Outstanding and (y) the principal amount of the Class "A" Bonds
Outstanding other than Pledged Bonds at the date of such Company Order,
(ii) stating that one percent (1%) of such aggregate principal amount
exceeds the Fair Value of the Mortgaged Property for which such release
is applied for, (iii) stating that three percent (3%) of such aggregate
principal amount equals or exceeds the aggregate Fair Value of all
Mortgaged Property released from the Lien of this Indenture pursuant to
this Section 8.04, as shown by all Engineer's Certificates filed
pursuant to Section 8.04(b) in such period of 12 consecutive calendar
months, and (iv) stating that, to the knowledge of the signer, no Event
of Default has occurred and is continuing.
Section 1.005. RELEASE OF MORTGAGED PROPERTY NOT SUBJECT TO A
CLASS "A" MORTGAGE.
(a) If the Company is unable, or elects not, to obtain, in
accordance with Section 8.03, the release from the Lien of this
Indenture of Mortgaged Property which is not subject to a Class "A"
Mortgage, unless an Event of Default shall have occurred and be
continuing and on the basis of cash, Government Obligations, purchase
money obligations, Property Additions acquired by the Company with the
proceeds of, or otherwise in connection with, such release, or the
waiver of the right to the authentication and delivery of Bonds as
described in subclause (B) of clause (iii) of this Section 8.05(a), or a
combination thereof, upon receipt of a Company Order requesting the
release of Mortgaged Property pursuant to this Section 8.05, the Trustee
shall execute and deliver to the Company the documents and instruments
described in Section 8.05(a)(i) releasing such Mortgaged Property from
the Lien of this Indenture, upon receipt by the Trustee of:
(i) appropriate documents and instruments
releasing without recourse the interest of the Trustee in the
Mortgaged Property to be released, describing in reasonable
detail the Mortgaged Property to be released and stating the
amount and character of the proceeds to be received by the
Company therefor;
(ii) an Engineer's Certificate, dated the
date of such Company Order, stating (A) the Fair Value, in the
opinion of the signers of such Engineer's Certificate, of the
Mortgaged Property to be released as of a date not more than
90 days prior to the date of such Company Order, (B) the fair
market value in cash, in the opinion of such signers (which
opinion may be based on an Appraiser's Certificate dated
within 90 days of the date of such Company Order), of any
Government Obligations and purchase money obligations included
in the consideration for such release, and (C) that in the
judgment of such signers, such release will not impair the
security under this Indenture in contravention of the
provisions hereof;
(iii) (A) an aggregate amount of Government
Obligations and purchase money obligations having a fair
market value in cash as evidenced by such Appraiser's
Certificate, cash and evidence of the acquisition by the
Company of Property Additions with the proceeds of, or
otherwise in connection with, such release (the amount of such
Property Additions shall be the Fair Value thereof as of a
date not more than 90 days prior to the date of such Company
Order, as evidenced to the Trustee by an Engineer's
Certificate dated the date of such Company Order, and if
within six months prior to the date of acquisition by the
Company of the Property Additions being so acquired, any
property included within such Property Additions had been used
or operated by others than the Company in a business similar
to that in which it has been or is to be used or operated by
the Company, and the Fair Value thereof to the Company, as set
forth in such Engineer's Certificate, is not less than Twenty-
Five Thousand Dollars ($25,000) and not less than one percent
(1%) of the aggregate principal amount of Bonds then
Outstanding (subject to the Percentage Calculation Proviso),
such certificate shall be an Independent Engineer's
Certificate), not less than the Fair Value of the Mortgaged
Property to be released, or (B) an Officer's Certificate,
dated the date of such Company Order, waiving the right of the
Company to the authentication and delivery of an aggregate
principal amount of Bonds up to the amount required by
subclause (A) of clause (iii) of this Section 8.05(a), on the
basis of Retired Bonds under Section 4.04, and stating the
matters required to be stated in the Officer's Certificates
provided for in clause (vi) of Section 4.01(a) and
Section 4.04 (except that the Company shall not in any event
be required to deliver a Net Earnings Certificate), in either
case appropriately modified to reflect that the action being
taken is the waiver of the right to, rather than a request
for, the authentication and delivery of Bonds, or (C), a
combination of the items specified subclauses (A) and (B) of
clause (iii) of this Section 8.05(a);
(iv) in case any obligations secured by
purchase money mortgage upon the Mortgaged Property to be
released are included in the consideration for such release
and are delivered to the Trustee in connection with such
release, an Opinion of Counsel, dated the date of the Company
Order, stating that, in the opinion of the signer, such
obligations are valid obligations enforceable in accordance
with their terms, subject to the Customary Exceptions, and
that the purchase money mortgage securing the same is
sufficient to afford a valid purchase money Lien upon the
property to be released subject to no Lien prior thereto
except Permitted Liens and such Liens, if any, as shall have
existed thereon just prior to such release as Liens prior to
the Lien of this Indenture; and
(v) an Officer's Certificate, dated the
date of such Company Order, stating that, to the knowledge of
the signer, no Event of Default has occurred and is
continuing.
In connection with any use of Property Additions permitted by
subclause (iii) of this subsection, the Trustee shall also be entitled
to receive an Opinion of Counsel to the effect of Section 4.03(b)(v).
(b) Any purchase money obligations received or to be received
by the Trustee under this Indenture in consideration for the release of
any Mortgaged Property from the Lien of this Indenture by the Trustee,
and the purchase money mortgage securing such purchase money
obligations, shall upon Company Order be released by the Trustee from
the Lien of this Indenture and delivered or assigned to the Company, or
as it shall request, upon payment by the Company to the Trustee of the
unpaid principal of such purchase money mortgage and/or of the
obligations thereby secured; the principal of any such purchase money
obligations not so released shall be paid to or collected by the Trustee
as and when such principal shall become payable, and the Company shall
take any action which in its judgment may be desirable or which shall be
necessary to preserve the security of such purchase money mortgage.
(c) Any cash deposited with the Trustee under this Section
8.05 may thereafter be withdrawn, used or applied in the manner, to the
extent and for the purposes, and subject to the conditions, provided in
Section 8.06.
Section 1.006. WITHDRAWAL OR OTHER APPLICATION OF FUNDED
CASH.
(a) Subject to the provisions of Section 4.05 and Section
7.02(a) and except as hereafter in this Section provided, unless an
Event of Default shall have occurred and be continuing, any Funded Cash
held by the Trustee, and any other cash which is required to be
withdrawn, used or applied as provided in this Section:
(i) may be withdrawn from time to time by
the Company to the extent of the Cost or the Fair Value to the
Company (whichever is less) of Unbonded Property Additions,
after making any deductions and additions pursuant to Section
1.04, described in an Engineer's Certificate, dated not more
than ninety (90) days prior to the date of the Company Order
requesting such withdrawal and complying with clause (ii) of
Section 4.03(b), delivered to the Trustee; PROVIDED, HOWEVER,
that the deductions and additions contemplated by Section 1.04
shall not be required to be made if such Property Additions
were acquired, made or constructed on or after the ninetieth
(90th) day preceding the date of such Company Order;
(ii) may be withdrawn from time to time by
the Company (A) in the case of cash deposited with the Trustee
under Section 4.05, to the extent of the amount thereof, and
(B) in the case of all other Funded Cash and any other cash,
in an amount equal to twenty-fifteenths (20/15ths) of the
aggregate principal amount of Bonds the authentication and
delivery of which the Company shall be entitled under the
provisions of Section 4.04, by virtue of compliance with all
applicable provisions of Section 4.04 (except as hereinafter
in this Section otherwise provided); PROVIDED, HOWEVER, that
such withdrawal of cash shall operate as a waiver by the
Company of the right to the authentication and delivery of
such Bonds and, to such extent no such Bonds may thereafter be
authenticated and delivered hereunder; and any such Bonds
which were the basis of such right to the authentication and
delivery of Bonds so waived shall be deemed to have been made
the basis of such withdrawal of cash;
(iii) may be withdrawn from time to time by
the Company in an amount equal to twenty-fifteenths (20/15ths)
of the aggregate principal amount of any Outstanding Bonds
delivered to the Trustee;
(iv) may, upon the request to the Company,
be used by the Trustee for the purchase of Bonds in the
manner, at the time or times, in the amount or amounts, at the
price or prices (not exceeding twenty-fifteenths (20/15ths) of
the principal amount thereof) and otherwise as directed or
approved by the Company; or
(v) may, upon the request of the Company,
be applied by the Trustee to the payment at Stated Maturity of
any Bonds or to the redemption of any Bonds which are, by the
terms, redeemable, in each case of such series as may be
designated by the Company, any such redemption to be in the
manner and as provided in Article Five.
(b) Such moneys shall, from time to time, be paid or used or
applied by the Trustee, as aforesaid, upon the request of the Company in
a Company Order, and upon receipt by the Trustee of an Officer's
Certificate stating that no Event of Default has occurred and is
continuing. If and to the extent that the withdrawal of cash is based
upon Unbonded Property Additions (as permitted under the provisions of
clause (i) of Section 8.06(a)), the Company shall, subject to the
provisions of said clause (i) and except as hereafter in this subsection
(b) provided, comply with all applicable provisions of this Indenture as
if such Property Additions were made the basis for the authentication
and delivery of Bonds equal in principal amount to seventy-five percent
(75%) of the cash so to be withdrawn. If and to the extent that the
withdrawal of cash is based upon the right to the authentication and
delivery of Bonds (as permitted under the provisions of clause (ii) of
Section 8.06(a)), the Company shall, except as hereafter in this
subsection (b) provided, comply with all applicable provisions of
Section 4.04 relating to such authentication and delivery.
Notwithstanding the foregoing provisions of this subsection (b), in no
event shall the Company be required to comply with Section 4.01 or to
deliver a Net Earnings Certificate.
(c) The principal of and interest on any obligations secured
by a purchase money mortgage held by the Trustee shall be collected by
the Trustee as and when the same become payable. Unless an Event of
Default shall have occurred and be continuing, the interest received by
the Trustee on any such obligations shall be remitted to the Company,
and any payments received by the Trustee on account of the principal of
any such obligations in excess of the amount of credit used by the
Company in respect of such obligations upon the release of any property
from the Lien hereof shall be deemed not to constitute Funded Cash and
shall also be remitted to the Company.
(d) The Trustee shall have and may exercise all the rights
and powers of any owner of such obligations and of all substitutions
therefor and, without limiting the generality of the foregoing, may
collect and receive all insurance moneys payable to it under any of the
provisions thereof and apply the same in accordance with the provisions
thereof, may consent to extensions thereof at a higher or lower rate of
interest, may join in any plan or plans of voluntary or involuntary
reorganization or readjustment or rearrangement and may accept and hold
hereunder new obligations, stocks or other securities issued in exchange
therefor under any such plan. Any discretionary action which the
Trustee may be entitled to take in connection with any such obligations
or substitutions therefor shall be taken, so long as no Event of Default
shall exist, in accordance with a Company Order, and, during the
existence of an Event of Default, in its own discretion.
(e) Any Bonds received by the Trustee pursuant to the
provisions of this Section shall forthwith be canceled by the Trustee.
Section 1.007. RELEASE OF PROPERTY TAKEN BY EMINENT DOMAIN,
ETC.
Should any of the Mortgaged Property, or any interest therein,
be taken by exercise of the power of eminent domain or be sold to an entity
possessing the power of eminent domain under a threat to exercise the same,
and should the Company not elect to obtain the release of such property
pursuant to other provisions of this Article Eight, the Trustee shall, upon
request of the Company evidenced by a Company Order, release from the Lien
hereof all its right, title and interest in and to the property so taken or
sold (or with respect to an interest in property, subordinate the Lien hereof
to such interest), upon receiving (a) an Opinion of Counsel to the effect
that such property has been taken by exercise of the power of eminent domain
or has been sold to an entity possessing the power of eminent domain under
threat of an exercise of such power, an Officer's Certificate stating the
amount of net proceeds received or to be received for such property so taken
or sold under threat of exercise of such power, and the amount so stated
shall be deemed to be the Fair Value of such property, and (c) a deposit by
the Company of an amount in cash equal to the Cost of the Mortgaged Property
so taken or sold (or, if the Fair Value to the Company of such property at
the time the same became Mortgaged Property was less than the Cost thereof as
certified to the Trustee in an Officer's Certificate, then such Fair Value in
lieu of Cost); PROVIDED, HOWEVER, that no such deposit shall be required to
be made hereunder if the proceeds of such taking or sale shall, as indicated
in an Officer's Certificate delivered to the Trustee, have been deposited
with the trustee or other holder of a Class "A" Mortgage or other Lien prior
to the Lien of this Indenture. Any cash deposited with the Trustee under
this Section may thereafter be withdrawn, used or applied in the manner, to
the extent and for the purposes, and subject to the conditions, provided in
Section 8.06.
Section 1.008. ALTERNATIVE RELEASE PROVISION.
In lieu of the other provisions for the release of the
Mortgaged Property provided in this Indenture, unless an Event of Default
shall have occurred and be continuing, the Company may in the alternative
obtain the release of any part of the Mortgaged Property which is subject to
the Lien of a Class "A" Mortgage (except cash or obligations secured by a
purchase money mortgage) by delivery to the Trustee of an Officer's
Certificate as to the non-existence of an Event of Default referred to above,
an Engineer's Certificate as to the Fair Value of the property to be released
and a copy of a release of such part of the Mortgaged Property from the Lien
of such Class "A" Mortgage executed by the trustee thereunder; PROVIDED,
HOWEVER, that this Section shall not apply with respect to any release of
Mortgaged Property from the Lien of any Class "A" Mortgage in connection with
the discharge of such Class "A" Mortgage.
Section 1.009. DISCLAIMER OR QUITCLAIM.
In case the Company has sold, exchanged, dedicated or
otherwise disposed of, or has agreed or intends to sell, exchange, dedicate
or otherwise dispose of, or a Governmental Authority has lawfully ordered the
Company to divest itself of, any property of a character excepted from the
Lien hereof, or the Company desires to disclaim or quitclaim title to
property to which the Company does not purport to have title, the Trustee
shall, from time to time, execute such instruments of disclaimer or quitclaim
as may be appropriate upon receipt by the Trustee of the following:
(a) an Officer's Certificate describing in reasonable detail
the property to be disclaimed or quitclaimed and having attached thereto
such instruments of disclaimer or quitclaim to be executed by the
Trustee; and
(b) an Opinion of Counsel stating the signer's opinion that
such property is not subject to the Lien hereof or required to be
subject thereto by any of the provisions hereof and that the execution
of such disclaimer or quitclaim is appropriate.
Section 8.10. MISCELLANEOUS.
(a) If the Mortgaged Property shall be in the possession of
a receiver or trustee, lawfully appointed, the powers hereinbefore
conferred upon the Company with respect to the release of any part of
the Mortgaged Property or any interest therein or the withdrawal of cash
may be exercised, with the approval of the Trustee, by such receiver or
trustee, notwithstanding that an Event of Default may have occurred and
be continuing, and any request, certificate, appointment or approval
made or signed by such receiver or trustee for such purposes shall be as
effective as if made by the Company or any of its officers or appointees
in the manner herein provided; and if the Trustee shall be in possession
of the Mortgaged Property under any provision of this Indenture, then
such powers may be exercised by the Trustee in its discretion
notwithstanding that an Event of Default may have occurred and be
continuing.
(b) If any property released from the Lien of this Indenture
as provided in Section 8.03, 8.04 or 8.05 shall continue to be owned by
the Company after such release, this Indenture shall not become or be,
or be required to become or be, a Lien upon such property or any
improvement, extension or addition to such property or renewals,
replacements or substitutions of or for any part or parts of such
property unless the Company shall execute and deliver to the Trustee an
indenture supplemental hereto, in recordable form, containing a grant,
conveyance, transfer and mortgage thereof to the Trustee.
(c) Notwithstanding the occurrence and continuance of an
Event of Default, the Trustee, in its discretion, may release from the
Lien hereof any part of the Mortgaged Property or permit the withdrawal
of cash, upon compliance with the other conditions specified in this
Article in respect thereof.
(d) No purchaser in good faith of property purporting to
have been released hereunder shall be bound to ascertain the authority
of the Trustee to execute the release, or to inquire as to any facts
required by the provisions hereof for the exercise of this authority;
nor shall any purchaser or grantee of any property or rights permitted
by this Article to be sold, granted, exchanged, dedicated or otherwise
disposed of, be under obligation to ascertain or inquire into the
authority of the Company to make any such sale, grant, exchange,
dedication or other disposition.
ARTICLE NINE
SATISFACTION AND DISCHARGE
Section
1.001. SATISFACTION AND DISCHARGE OF BONDS.
(a) Any Bond or Bonds, 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:
(i) money (including Funded Cash not
otherwise applied pursuant to Section 8.06) in an amount which
shall be sufficient, or
(ii) in the case of a deposit made prior
to the Maturity of such Bonds 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 shall be sufficient, or
(iii) a combination of (i) or (ii) 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 Bonds or portions thereof; PROVIDED,
HOWEVER, that in the case of the provision for payment or redemption of
less than all the Bonds of any series or Tranche, such Bonds or portions
thereof shall have been selected by the Bond 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 Bonds, 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 9.03; and
(y) if Eligible Obligations shall have
been deposited with the Trustee, an Opinion of Counsel that
the obligations so deposited with the Trustee constitute
Eligible Obligations and do not contain provisions permitting
the redemption or other prepayment at the option of the issuer
thereof, and an opinion of an Independent public accountant of
nationally recognized standing, selected by the Company, to
the effect that the other requirements set forth in clause
(ii) above have been satisfied.
(b) 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) of Section 9.01(a), (i) the
Holders of the Bonds or portions thereof in respect of which such
deposit was made shall no longer be entitled to the benefit of the
covenants of the Company under Article Six (except the covenants
contained in Sections 6.02 and 6.03), and (ii) the Trustee shall, upon
receipt of a Company Request, acknowledge in writing that such Bonds or
portions thereof 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.
(c) If payment at Stated Maturity of less than all of the
Bonds of any series, or any Tranche thereof, is to be provided for in
the manner and with the effect provided in this Section, the Bond
Registrar shall select such Bonds, or portions of principal amount
thereof in the manner specified by Section 5.03 for selection for
redemption of less than all the Bonds of a series or Tranche, unless a
different manner is specified as contemplated by Section 3.01 for Bonds
of such series or Tranche.
(d) In the event that Bonds 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 Bonds,
to the Holders of such Bonds to the effect that such deposit has been
made and the effect thereof.
(e) Notwithstanding the satisfaction and discharge of any
Bonds as aforesaid, the obligations of the Company and the Trustee in
respect of such Bonds under Sections 3.04, 3.05, 3.06, 5.04, 6.02, 6.03,
11.07 and 11.15, Article Seven and this Article Nine shall survive.
(f) The Company shall pay, and shall indemnify the Trustee
and each Holder of Bonds 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.
(g) Anything herein to the contrary notwithstanding, if, at
any time after a Bond would be deemed to have been satisfied or
discharged pursuant to this Section (without regard to the provisions of
this subsection (g)), 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 Bond shall thereupon be
deemed retroactively not to have been satisfied and discharged, as
aforesaid, and to remain Outstanding.
Section 1.002. SATISFACTION AND DISCHARGE OF INDENTURE.
(a) 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
(i) either:
(A) all Bonds theretofore
authenticated and delivered (other than (1) Bonds which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06, and (2)
Bonds deemed to have been paid in accordance with
Section 9.01) have been delivered to the Trustee for
cancellation; or
(B) all Bonds not theretofore
delivered to the Trustee for cancellation (other than
Bonds described in clause (1) of subclause (A) above)
shall be deemed to have been paid in accordance with
Section 9.01;
(ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(iii) the Company has delivered to the Trustee an
Officer's 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.
(b) Notwithstanding the satisfaction and discharge of this
Indenture as aforesaid, the obligations of the Company and the Trustee
under Sections 11.07 and 11.15 and, if subclause (a)(i)(B) of this
Section is applicable, Sections 3.04, 3.05, 3.06, 5.04, 6.02 and 6.03
and this Article Nine shall survive.
(c) Upon satisfaction and discharge of this Indenture as
provided in this Section, the Trustee shall assign, transfer, reconvey
and otherwise turn over to the Company the Mortgaged Property (other
than money and Eligible Obligations held by the Trustee pursuant to
Section 9.03) and shall execute and deliver to the Company such deeds
and other instruments as, in the judgment of the Company, shall be
necessary, desirable or appropriate to effect or evidence such
assignment, transfer, reconveyance and turning over and the release and
discharge of the Lien of this Indenture.
Section 1.003. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited with
the Trustee pursuant to Section 9.01, 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 Bonds or portions of
principal amount thereof in respect of which such deposit was made, all
subject, however, to the provisions of Section 6.03; PROVIDED, HOWEVER, that,
unless an Event of Default shall have occurred and be continuing, 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 upon Company Order, to the extent practicable, be invested in Eligible
Obligations of the type described in clause (ii) of Section 9.01(a) maturing
at such times and in such amounts as 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 Bonds or portions thereof on and prior to Maturity thereof, and
interest earned from such reinvestment shall be paid over to the Company as
received by the Trustee, free and clear of the Lien of this Indenture; and
PROVIDED, FURTHER, that unless an Event of Default shall have occurred and be
continuing, any moneys held in trust in accordance with this Section on the
Maturity of all such Bonds in excess of the amount required to pay the
principal of and premium, if any, and interest, if any, then due on such
Bonds shall upon Company Order be paid over to the Company free and clear of
the Lien of this Indenture.
ARTICLE TEN
EVENTS OF DEFAULT; REMEDIES
Section
1.001. EVENTS OF DEFAULT.
An "Event of Default", wherever used herein with respect to
the Bonds, means any one the following events:
(a) failure to pay interest, if any, on any Bond within
sixty (60) days after same becomes due and payable; or
(b) failure to pay the principal of or premium, if any, on
any Bond after 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 a
default in the performance of which or breach of which is elsewhere in
this Section specifically dealt with) for a period of sixty (60) days
after there has been given, by registered or certified mail, to the
Company by Trustee, or to the Company and the Trustee by the Holders of
at least 50% in principal amount of the Bonds then Outstanding, 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, unless the Trustee, or the Trustee and the Holders of a
principal amount of Bonds not less than the principal amount of Bonds
the Holders of which gave such notice, as the case may be, shall agree
in writing to an extension of such period prior to its expiration;
PROVIDED, HOWEVER, that the Trustee, or the Trustee and the Holders of
such principal amount of Bonds, as the case may be, shall be deemed to
have agreed to an extension of such period if corrective action is
initiated by the Company within such period and is being diligently
pursued; or
(d) the entry by a court having jurisdiction in the premises
of (i) 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 (ii) 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 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 ninety (90) consecutive days; or
(e) 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
(f) the occurrence of a Matured Event of Default under any
Class "A" Mortgage; PROVIDED, HOWEVER, that, anything in this Indenture
to the contrary notwithstanding, the waiver or cure of such event of
default under such Class "A" Mortgage and the rescission and annulment
of the consequences thereof shall constitute a waiver of the
corresponding Event of Default hereunder and a rescission and annulment
of the consequences thereof.
Section 1.002. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
(a) If an Event of Default shall have occurred and be
continuing, then in every such case the Trustee or the Holders of not
less than a majority in aggregate principal amount of the Bonds then
Outstanding may declare the principal amount (or, if any of the Bonds
are Discount Bonds, such portion of the principal amount of such Bonds
as may be specified in the terms thereof as contemplated by Section
3.01) of all of the Bonds 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), together with premium, if any, and accrued
interest, if any, thereon, shall become immediately due and payable.
(b) At any time after such a declaration of acceleration of
the maturity of the Bonds then Outstanding shall have been made, but
before any sale of any of the Mortgaged Property has been made and
before a judgment or decree for payment of the money due shall have been
obtained by the Trustee as provided in this Article, 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:
(i) the Company shall have paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue interest, if any, on
all Bonds then Outstanding;
(B) the principal of and premium, if
any, on any Bonds then Outstanding which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed
therefor in such Bonds; and
(C) all amounts due to the Trustee
under Section 11.07; and
(ii) any Event or Events of Default, other
than the non-payment of the principal of Bonds which shall
have become due solely by such declaration of acceleration,
shall have been cured or waived as provided in Section 10.17.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
Section 1.003. ENTRY UPON MORTGAGED PROPERTY.
If an Event of Default shall have occurred and be continuing,
the Company, upon demand of the Trustee and if and to the extent permitted by
law, shall forthwith surrender to the Trustee the actual possession of, and
the Trustee, by such officers or agents as it may appoint, may enter upon and
take possession of, the Mortgaged Property; and the Trustee may hold, operate
and manage the Mortgaged Property and make all needful repairs and such
renewals, replacements, betterments and improvements as to the Trustee shall
seem prudent; and the Trustee may receive the rents, issues, profits,
revenues and other income of the Mortgaged Property; and, after deducting the
costs and expenses of entering, taking possession, holding, operating and
managing the Mortgaged Property, as well as payments for insurance and taxes
and other proper charges upon the Mortgaged Property prior to the Lien of
this Indenture and reasonable compensation to itself, its agents and counsel,
the Trustee may apply the same as provided in Section 10.07. Whenever all
that is then due in respect of the principal of and premium, if any, and
interest, if any, on the Bonds and under any of the terms of this Indenture
shall have been paid and all defaults hereunder shall have been cured, the
Trustee shall surrender possession of the Mortgaged Property to the Company.
Section 1.004. POWER OF SALE; SUITS FOR ENFORCEMENT.
If an Event of Default shall have occurred and be continuing,
the Trustee, by such officers or agents as it shall appoint, with or without
entry, in its discretion may, subject to the provisions of Section 10.16 and
if and to the extent permitted by law:
(a) sell, subject to any mandatory requirements of
applicable law, the Mortgaged Property as an entirety, or in such
parcels as the Holders of a majority in aggregate principal amount of
the Bonds then Outstanding shall in writing request, or in the absence
of such request, as the Trustee may determine, to the highest bidder at
public auction at such place and at such time (which sale may be
adjourned by the Trustee from time to time in its discretion by
announcement at the time and place fixed for such sale, without further
notice) and upon such terms as the Trustee may fix and briefly specify
in a notice of sale to be published once in each week for three
successive weeks prior to such sale in an Authorized Publication in each
Place of Payment for the Bonds of each series; or
(b) proceed to protect and enforce its rights and the rights
of the Holders of Bonds under this Indenture by sale pursuant to
judicial proceedings or by a suit, action or proceeding in equity or at
law or otherwise, whether for the specific performance of any covenant
or agreement contained in this Indenture or in aid of the execution of
any power granted in this Indenture or for the foreclosure of this
Indenture or for the enforcement of any other legal, equitable or other
remedy, as the Trustee, being advised by counsel, shall deem most
effectual to protect and enforce any of the rights of the Trustee or the
Holders of Bonds.
The security afforded by this Indenture is given primarily for a business and
commercial purpose. The real estate encumbered by this Indenture is not used
exclusively for residential purposes. The power of sale granted by
subsection (a) of this Section is made in addition to and not in derogation
of the Statutory Power of Sale set forth in Sec. 501-A of Chapter 9 of Title
33 of Maine Revised Statutes Annotated, as it may be amended from time to
time, which is hereby incorporated by reference herein. To the extent, if
any, that said subsection (a), or any part thereof, is found to be
unenforceable because of a conflict with the provisions of the Statutory
Power of Sale, or any related provisions of Maine law, then such Statutory
Power of Sale shall control.
Section 1.005. INCIDENTS OF SALE.
Upon any sale of any of the Mortgaged Property, whether made
under the power of sale hereby given or pursuant to judicial proceedings, to
the extent permitted by law:
(a) the principal amount (or, if any of the Bonds are
Discount Bonds, such portion of the principal amount of such Bonds as
may be specified in the terms thereof as contemplated by Section 3.01)
of all Outstanding Bonds, if not previously due, shall at once become
and be immediately due and payable together with premium, if any, and
accrued interest, if any, thereon;
(b) any Holder or Holders of Bonds or the Trustee may bid
for and purchase the property offered for sale, and upon compliance with
the terms of sale may hold, retain and possess and dispose of such
property, without further accountability, and may, in paying the
purchase money therefor, deliver any Outstanding Bonds or claims for
interest thereon in lieu of cash to the amount which shall, upon
distribution of the net proceeds of such sale, be payable thereon, and
such Bonds, in case the amounts so payable thereon shall be less than
the amount due thereon, shall be returned to the Holders thereof after
being appropriately stamped to show partial payment;
(c) the Trustee may make and deliver to the purchaser or
purchasers a good and sufficient deed, bill of sale and instrument of
assignment and transfer of the property sold;
(d) the Trustee is hereby irrevocably appointed the true and
lawful attorney of the Company, in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and
transfer of the property so sold; and for that purpose it may execute
all necessary deeds, bills of sale and instruments of assignment and
transfer, and may substitute one or more persons, firms or corporations
with like power, the Company hereby ratifying and confirming all that
its said attorney or such substitute or substitutes shall lawfully do by
virtue hereof; but, if so requested by the Trustee or by any purchaser,
the Company shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such purchaser or
purchasers all proper deeds, bills of sale, instruments of assignment
and transfer and releases as may be designated in any such request;
(e) all right, title, interest, claim and demand whatsoever,
either at law or in equity or otherwise, of the Company of, in and to
the property so sold shall be divested and such sale shall be a
perpetual bar both at law and in equity against the Company, its
successors and assigns, and against any and all persons claiming or who
may claim the property sold or any part thereof from, through or under
the Company; and
(f) the receipt of the Trustee or of the officer making such
sale shall be a sufficient discharge to the purchaser or purchasers at
such sale for his or their purchase money and such purchaser or
purchasers and his or their assigns or personal representatives shall
not, after paying such purchase money and receiving such receipt, be
obliged to see to the application of such purchase money, or be in
anywise answerable for any loss, misapplication or nonapplication
thereof.
Section 1.006. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
(a) If an Event of Default described in Section 10.01(a) or
10.01(b) shall have occurred and be continuing, the Company shall, upon
demand of the Trustee, pay to it, for the benefit of the Holders of the
Bonds with respect to which such Event of Default shall have occurred,
the whole amount then due and payable on such Bonds for principal and
premium, if any, and interest, if any, and, in addition thereto, such
further amount as shall be sufficient to cover any amounts due to the
Trustee under Section 11.07.
(b) 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 Bonds 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 Bonds, wherever situated.
(c) The Trustee shall, to the extent permitted by law, be
entitled to sue and recover judgment as aforesaid either before, during
or after the pendency of any proceedings for the enforcement of the Lien
of this Indenture, and in case of a sale of the Mortgaged Property or
any part thereof and the application of the proceeds of sale as
aforesaid, the Trustee, in its own name and as trustee of an express
trust, shall be entitled to enforce payment of, and to receive, all
amounts then remaining due and unpaid upon the Bonds then Outstanding
for principal, premium if any, and interest, if any, for the benefit of
the Holders thereof, and shall be entitled to recover judgment for any
portion of the same remaining unpaid, with interest as aforesaid. No
recovery of any such judgment by the Trustee and no levy of any
execution upon any such judgment upon any of the Mortgaged Property or
any other property of the Company shall affect or impair the Lien of
this Indenture upon the Mortgaged Property or any part thereof or any
rights, powers or remedies of the Trustee hereunder, or any rights,
powers or remedies of the Holders of the Bonds.
(d) If an Event of Default occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights
and the rights of the Holders 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 1.007. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article,
including any rents, profits, revenues and other income collected pursuant to
Section 10.03 (after the deductions therein provided) and any proceeds of any
sale (after deducting the costs and expenses of such sale, including a
reasonable compensation to the Trustee, its agents and counsel, and any
taxes, assessments or Liens prior to the Lien of this Indenture, except any
thereof subject to which such sale shall have been made), whether made under
any power of sale herein granted or pursuant to judicial proceedings, and any
money collected by the Trustee under Sections 7.02 and 8.06(c) or (d),
together with, in the case of an entry or sale or as otherwise provided
herein, any other sums then held by the Trustee as part of the Mortgaged
Property, 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
Bonds 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 11.07;
SECOND: To the payment of the whole amount
then due and unpaid upon the Outstanding Bonds for principal and premium, if
any, and interest, if any, in respect of which or for the benefit of which
such money has been collected; and in case such proceeds shall be
insufficient to pay in full the whole amount so due and unpaid upon such
Bonds, then to the payment of such principal and interest, if any, without
any preference or priority, ratably according to the aggregate amount so due
and unpaid, with any balance then remaining to the payment of premium, if
any, ratably as aforesaid; PROVIDED, HOWEVER, that any money collected by the
Trustee pursuant to Sections 7.02 and 8.06(c) in respect of interest and
Section 10.03 shall first be applied to the payment of interest so due; and
THIRD: To the payment of the remainder, if
any, to the Company or to whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may order.
Section 1.008. RECEIVER.
If an Event of Default shall have occurred and, during the
continuance thereof, the Trustee shall have commenced judicial proceedings to
enforce any right under this Indenture, the Trustee shall, to the extent
permitted by law, be entitled, as against the Company, without notice or
demand and without regard to the adequacy of the security for the Bonds or
the solvency of the Company, to the appointment of a receiver of the
Mortgaged Property.
Section 1.009. TRUSTEE MAY FILE PROOFS OF CLAIM.
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Bonds or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Bonds shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee 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:
(i) 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 Bonds 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 11.07) and of the
Holders allowed in such judicial proceeding; and
(ii) 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 Holders, to pay to the Trustee any amounts due it under
Section 11.07.
(b) 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 Bonds 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 0.10. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF BONDS.
All rights of action and claims under this Indenture or on the
Bonds may be prosecuted and enforced by the Trustee without the possession of
any of the Bonds or the production thereof in 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, and 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 0.11. 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:
(a) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default;
(b) the Holders of not less than a majority in aggregate
principal amount of the Bonds then Outstanding 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 sixty (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 sixty-day period by the
Holders of a majority in aggregate principal amount of the Bonds then
Outstanding;
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 obtain 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 0.12. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTERESt.
Notwithstanding any other provision in this Indenture, the
Holder of any Bond shall have the right, which is absolute and unconditional
to receive payment of the principal of and premium, if any, and (subject to
Section 3.07) interest, if any, on such Bond on the Stated Maturity or
Maturities expressed in such Bond (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 0.13. 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.
Section 0.14. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in Section 3.06(f), 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, subject to
Section 10.11, 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 0.15. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of 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 0.16. CONTROL BY HOLDERS OF BONDS.
If an Event of Default shall have occurred and be continuing,
the Holders of a majority in aggregate principal amount of the Bonds then
Outstanding 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 herein; PROVIDED,
HOWEVER, that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and could not involve the Trustee in
personal liability in circumstances where indemnity would not, in the
Trustee's sole discretion, be adequate;
(b) such direction shall not be unduly prejudicial to the
rights of the nonassenting Holders; and
(c) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 0.17. WAIVER OF PAST DEFAULTS.
(a) Before any sale of any of the Mortgaged Property 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
Holders of not less than a majority in aggregate principal amount of the
Bonds then Outstanding may on behalf of the Holders of all the Bonds
then Outstanding waive any past default hereunder and its consequences,
except a default:
(i) in the payment of the principal of or
premium, if any, or interest, if any, on any Bond Outstanding,
or
(ii) in respect of a covenant or provision
hereof which under Section 14.02(a) cannot be modified or
amended without the consent of the Holder of each Outstanding
Bond of any series or Tranche affected.
(b) 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 0.18. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder of Bonds by
its 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 Bonds then
Outstanding, 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 Bond on or after the Stated Maturity or Maturities expressed in such Bond
(or, in the case of redemption, on or after the Redemption Date).
Section 0.19. WAIVER OF APPRAISEMENT AND OTHER LAWS.
To the full extent that it may lawfully so agree, the Company
shall not at any time set up, claim or otherwise seek to take the benefit or
advantage of any appraisement, valuation, stay, extension or redemption law
now or hereafter in effect, in order to prevent or hinder the enforcement of
this Indenture or the absolute sale of the Mortgaged Property, or any part
thereof, or the possession thereof, or any part thereof, by any purchaser at
any sale under this Article; and the Company, for itself and all who may
claim under it, so far as it or they now or hereafter may lawfully do so,
hereby waives the benefit of all such laws. The Company, for itself and all
who may claim under it, waives, to the extent that it may lawfully do so, all
right to have the Mortgaged Property marshalled upon any foreclosure of the
Lien hereof, and agrees that any court having jurisdiction to foreclose the
Lien of this Indenture may order the sale of the Mortgaged Property as an
entirety.
Section 0.20. DEFAULTS UNDER CLASS "A" MORTGAGES.
In addition to every other right and remedy provided herein,
the Trustee may exercise any right or remedy available to the Trustee in its
capacity as owner and holder of Pledged Bonds which arises as a result of a
default or Matured Event of Default under any Class "A" Mortgage, whether or
not an Event of Default shall then have occurred and be continuing.
ARTICLE ELEVEN
THE TRUSTEE
Section
1.0021. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties
and responsibilities specified with respect to an indenture trustee in
the Trust Indenture Act.
(b) 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.
(c) 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 1.0022. NOTICE OF DEFAULTS.
(a) The Trustee shall give the Holders notice of any default
hereunder in the manner and to the extent required to do so by the Trust
Indenture Act, unless such default shall have been cured or waived;
PROVIDED, HOWEVER, that in the case of any default of the character
specified in Section 10.01(c), no such notice to Holders shall be given
until at least forty-five (45) days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which
is, or after notice or lapse of time, or both, would become, an Event of
Default.
(b) The Trustee shall give to the trustee under each Class
"A" Mortgage a copy of each notice of default given to the Holders
pursuant to this Section. In addition, the Trustee shall give to the
Holders copies of each notice of default under any Class "A" Mortgage
given to the Trustee in its capacity as owner and holder of Pledged
Bonds issued and outstanding thereunder.
Section 1.0023. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 11.01:
(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 is specifically prescribed herein) may, in the
absence of bad faith on its part, rely upon an Officer's 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 (subject to applicable legal
requirements) be entitled to examine, during normal business hours, 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; and
(h) except as otherwise provided in Section 10.01(c), the
Trustee shall not be charged with knowledge of any Event of Default
unless either (i) a Responsible Officer of the Trustee assigned to the
Corporate Trustee Administration Department of the Trustee (or any
successor division or department of the Trustee) shall have actual
knowledge of the Event of Default, or (ii) written notice of such Event
of Default shall have been given to the Trustee by the Company, any
other obligor on the Bonds or by any Holder of such Bonds or, in the
case of an Event of Default described in Section 10.01(f), by the
trustee under the related Class "A" Mortgage.
Section 1.0024. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
BONDS.
The recitals contained herein and in the Bonds (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Bonds or of any
security therefor. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Bonds or the
proceeds thereof. The Trustee shall have no responsibility for filing any
document or notice at any time in any public office for the purpose of
perfecting, maintaining the perfection of, or making effective the Lien of
this Indenture or for any other purpose and shall have no responsibility for
seeing to the insurance on the Mortgaged Property or for paying any taxes
relating thereto.
Section 1.0025. MAY HOLD BONDS.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Bond Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Bonds
and, subject to Sections 11.08 and 11.13, may otherwise deal with the Company
with the same rights it would have if it were not such Trustee,
Authenticating Agent, Paying Agent, Bond Registrar or other agent.
Section 1.0026. 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 with the Company.
Section 1.0027. COMPENSATION AND REIMBURSEMENT.
(a) The Company shall:
(i) pay to the Trustee from time to time
reasonable compensation for all services rendered by it
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of
an express trust);
(ii) except as otherwise expressly
provided herein, reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances reasonably
incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel). except any such expense, disbursement or advance
as may be attributable to its negligence, wilful misconduct or
bad faith; and
(iii) indemnify the Trustee and hold it
harmless from and against any loss, liability or expense
incurred without negligence, wilful 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 reasonable 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.
(b) As security for the performance of the obligations of
the Company under this Section, the Trustee shall have a Lien prior to
the Bonds upon the Mortgaged Property and any money collected by the
Trustee as proceeds of the Mortgaged Property, other than property and
funds held in trust under Section 9.03.
Section 1.0028. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee shall have or acquire any conflicting interest
within the meaning of the Trust Indenture Act, it shall either eliminate such
conflicting interest or resign to the extent, in the manner and with the
effect, and subject to the conditions, provided in the Trust Indenture Act
and this Indenture.
Section 1.0029. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall
be:
(a) 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, 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, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or other
Person and doing business under the laws of a foreign government,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 or the Dollar
equivalent of the applicable foreign currency and subject to supervision
or examination by authority of such foreign government or a political
subdivision thereof substantially equivalent to supervision or
examination applicable to United States institutional trustees,
and, in either case, qualified and eligible under this Article and not
otherwise disqualified under Section 310(a)(5) of the Trust Indenture Act.
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.
Section 0.10. 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 11.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 11.11 shall not have been
delivered to the Trustee within thirty (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.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Bonds then Outstanding
delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with
Section 11.08 after written request therefor by the Company or
by any Holder who has been a bona fide Holder for at least six
months, or
(ii) the Trustee shall cease to be
eligible under Section 11.09 and shall fail to resign after
written request therefor by the Company or by any such Holder,
or
(iii) 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, or (y) subject to Section 10.18, any Holder who has
been a bona fide Holder for at least six months may, on behalf
of itself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee
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 (other than as contemplated in clause (y) of
subsection (d) of this Section), the Company, by a Board Resolution,
shall take prompt steps to appoint a successor Trustee or Trustees and
shall comply with the applicable requirements of Section 11.11. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by
Act of the Holders of a majority in principal amount of the Bonds then
Outstanding 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 11.11, become the successor Trustee and to that extent supersede
the successor Trustee appointed by the Company. If no successor Trustee
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 11.11, any Holder who has
been a bona fide Holder of a Bond for at least six months may, on behalf
of itself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee
by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the Bond
Register. Each notice shall include the name of the successor Trustee
and the address of its corporate trust office.
Section 0.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee, 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) Upon request of any such successor Trustee, the Company
shall execute any instruments which fully vest in and confirm to such
successor Trustee all rights, powers and trusts referred to in
subsection (a) of this Section.
(c) 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 0.12. 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 Bonds
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 Bonds so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Bonds.
Section 0.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
COMPANY.
If the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Bonds), the Trustee shall be subject to any
and all applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or such other obligor). For
purposes of Section 311(b)(4) and (6) of the Trust Indenture Act:
(a) "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; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company (or any such obligor) 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 (or any such
obligor) arising from the making, drawing, negotiating or incurring of
the draft, bill of exchange, acceptance or obligation.
Section 0.14. CO-TRUSTEES AND SEPARATE TRUSTEES.
(a) At any time or times, for the purpose of meeting the
legal requirements of any jurisdiction in which any of the Mortgaged
Property may at the time be located, the Company and the Trustee shall
have power to appoint, and, upon the written request of the Trustee or
of the Holders of at least a majority in aggregate principal amount of
the Bonds then Outstanding, the Company shall for such purpose join with
the Trustee in the execution and delivery of all instruments and
agreements necessary or proper to appoint, one or more Persons approved
by the Trustee either to act as co-trustee, jointly with the Trustee, of
all or any part of the Mortgaged Property, or to act as separate trustee
of any such property, in either case with such powers as may be provided
in the instrument of appointment, and to vest in such Person, in the
capacity aforesaid, any property, title, right or power deemed necessary
or desirable, subject to the other provisions of this Section. If the
Company does not join in such appointment within fifteen (15) days after
the receipt by it of a request so to do, or if an Event of Default shall
have occurred and be continuing, the Trustee alone shall have the power
to make such appointment.
(b) Should any written instrument or instruments from the
Company be required by any co-trustee or separate trustee so appointed
to more fully confirm to such co-trustee or separate trustee such
property, title, right or power, any and all such instruments shall, on
request, be executed, acknowledged and delivered by the Company.
(c) Every co-trustee or separate trustee shall, to the
extent permitted by law, but to such extent only, be appointed subject
to the following conditions:
(i) the Bonds shall be authenticated and
delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and
other personal property held by, or required to be deposited
or pledged with, the Trustee hereunder, shall be exercised
solely, by the Trustee;
(ii) the rights, powers, duties and
obligations hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment shall be
conferred or imposed upon and exercised or performed either by
the Trustee or by the Trustee and such co-trustee or separate
trustee jointly, as shall be provided in the instrument
appointing such co-trustee or separate trustee, except to the
extent that under any law of any jurisdiction in which any
particular act is to be performed, the Trustee shall be
incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised
and performed by such co-trustee or separate trustee;
(iii) the Trustee at any time, by an
instrument in writing executed by it, with the concurrence of
the Company, may accept the resignation of or remove any co-
trustee or separate trustee appointed under this Section, and,
if an Event of Default shall have occurred and be continuing,
the Trustee shall have power to accept the resignation of, or
remove, any such co-trustee or separate trustee without the
concurrence of the Company. Upon the written request of the
Trustee, the Company shall join with the Trustee in the
execution and delivery of all instruments and agreements
necessary or proper to effectuate such resignation or removal.
A successor to any co-trustee or separate trustee so resigned
or removed may be appointed in the manner provided in this
Section;
(iv) no co-trustee or separate trustee
hereunder shall be personally liable by reason of any act or
omission of the Trustee, or any other such trustee hereunder;
and
(v) any Act of Holders delivered to the
Trustee shall be deemed to have been delivered to each such
co-trustee and separate trustee.
Section 0.15. APPOINTMENT OF AUTHENTICATING AGENT.
(a) The Trustee may appoint an Authenticating Agent or
Agents with respect to the Bonds of one or more series, or any Tranche
thereof, which shall be authorized to act on behalf of the Trustee to
authenticate Bonds of such series or Tranche issued upon original
issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Bonds 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. Wherever reference is made in this Indenture to the
authentication and delivery of Bonds 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 $50,000,000 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.
(b) 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.
(c) 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.
(d) The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this
Section, and the Trustee shall have no liability for such payments. The
Trustee shall not be responsible for any misconduct, bad faith or
negligence on the part of any Authenticating Agent appointed with due
care by the Trustee hereunder.
(e) The provisions of Sections 3.08, 11.04 and 11.05 shall
be applicable to each Authenticating Agent.
(f) If an appointment with respect to the Bonds of one or
more series, or any Tranche thereof, shall be made pursuant to this
Section, the Bonds of such series or Tranche may have endorsed thereon,
in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially
in the following form:
This is one of the Bonds of the series designated
therein referred to in the within-mentioned Indenture.
Chemical Bank,
as Trustee
By____________________________
As Authenticating Agent
By____________________________
Authorized Officer
(g) If all of the Bonds of a series, or any Tranche thereof,
may not be originally issued at one time, and if the Trustee does not
have an office capable of authenticating Bonds upon original issuance
located in a Place of Payment where the Company wishes to have Bonds of
such series or such Tranche authenticated upon original issuance, the
Trustee, if so requested by the Company in writing (which writing need
not comply with Section 1.05 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 having an office in a Place of Payment
designated by the Company with respect to such series of Bonds or such
Tranche.
ARTICLE TWELVE
LISTS OF HOLDERS; REPORTS BY TRUSTEE AND COMPANY
Section
1.0016. LISTS OF HOLDERS; PRESERVATION OF INFORMATION.
Semiannually, not later than May 15 and November 15 in each
year, and at such other times as the Trustee may request in writing, the
Company shall furnish or cause to be furnished to the Trustee information as
to the names and addresses of the Holders, and the Trustee shall preserve
such information and similar information received by it in any other capacity
and afford to the Holders access to information so preserved by it, all to
such extent, if any, and in such manner as shall be required by the Trust
Indenture Act. Every Holder of Bonds, by receiving and holding the same,
agrees 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 of Bonds in accordance with Section 312 of the Trust Indenture
Act, or any successor section of such Act, 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 312(b) of the Trust Indenture Act, or any successor section of
such Act.
Section 1.0017. REPORTS BY TRUSTEE AND COMPANY.
Annually, not later than sixty (60) days after May 15 in each
year commencing with the first May 15th following the first issuance of Bonds
pursuant to Section 3.01, if required by Section 313(a) of the Trust
Indenture Act, or any successor section of such Act, the Trustee shall
transmit to the Holders and the Commission a report with respect to any
events described in Section 313(a) of the Trust Indenture Act, or any
successor section of such Act, in such manner and to the extent required by
the Trust Indenture Act. The Trustee shall transmit to the Holders and the
Commission, and the Company shall file with the Trustee and transmit to the
Holders, such other information, reports and other documents, if any, at such
times and in such manner, as shall be required by the Trust Indenture Act. A
copy of each report required to be transmitted to the Holders pursuant to
Section 313 of the Trust Indenture Act shall, at the time of such
transmission to the Holders, be furnished to the Company and be filed by the
Trustee with each stock exchange. if any, upon which the Bonds of any series,
or any Tranche thereof, are listed and also with the Commission. The Company
agrees to notify the Trustee when and as the Bonds of such series, of any
such Tranche, become admitted to trading on any national securities exchange.
ARTICLE THIRTEEN
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section
1.0018. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, or otherwise transfer or lease, subject to the Lien of
this Indenture, the Mortgaged Property as or substantially as an entirety to
any Person, unless:
(a) such consolidation, merger, conveyance, other transfer
or lease shall be on such terms as shall fully preserve in all material
respects the Lien and security of this Indenture and the rights and
powers of the Trustee and the Holders of the Bonds hereunder;
(b) the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance
or other transfer, or which leases, the Mortgaged Property as or
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any state or
territory thereof or the District of Columbia (such corporation being
hereinafter sometimes called the ("Successor Corporation") and shall
execute and deliver to the Trustee an indenture supplemental hereto, in
form recordable and satisfactory to the Trustee, which:
(i) in the case of a consolidation,
merger, conveyance or other transfer, or in the case of a
lease if the term thereof extends beyond the last Stated
Maturity of the Bonds then Outstanding, contains an assumption
by the Successor Corporation of the due and punctual payment
of the principal of and premium, if any, and interest, if any,
on all the Bonds then Outstanding and the performance and
observance of every covenant and condition of this Indenture
to be performed or observed by the Company, and
(ii) in the case of a consolidation,
merger, conveyance or other transfer, contains a grant,
conveyance, transfer and mortgage by the Successor
Corporation, of the same tenor of the Granting Clauses herein:
(A) confirming the Lien of this
Indenture on the Mortgaged Property (as constituted
immediately prior to the time such transaction became
effective) and subjecting to the Lien of this Indenture
all property real, personal and mixed, thereafter
acquired by the Successor Corporation which shall
constitute an improvement, extension or addition to the
Mortgaged Property (as so constituted) or a renewal,
replacement or substitution of or for any part thereof,
and
(B) at the election of the Successor
Corporation, subjecting to the Lien of this Indenture
such property, real, personal or mixed, in addition to
the property described in subclause (A) above, then
owned or thereafter acquired by the Successor
Corporation as the Successor Corporation shall, in its
sole discretion, specify or describe therein,
and the Lien confirmed or created by such grant, conveyance, transfer
and mortgage shall have force, effect and standing similar to those
which the Lien of this Indenture would have had if the Company had not
been a party to such consolidation, merger, conveyance or other transfer
and had itself, after the time such transaction became effective,
purchased, constructed or otherwise acquired the property subject to
such grant, conveyance, transfer and mortgage;
(c) in the case of a lease, such lease shall be made
expressly subject to termination by the Company or by the Trustee at any
time during the continuance of an Event of Default, and also by the
purchaser of the property so leased at any sale thereof hereunder,
whether such sale be made under the power of sale hereby conferred or
pursuant to judicial proceedings; and
(d) the Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each of which shall
state that such consolidation, merger, conveyance or other transfer or
lease, and such supplemental indenture, comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 1.0019. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other
transfer, subject to the Lien of this Indenture, of the Mortgaged Property as
or substantially as an entirety in accordance with Section 13.01, the
Successor Corporation shall succeed to, and be substituted for, and may
exercise every power and right of, the Company under this Indenture with the
same effect as if such Successor Corporation had been named as the "Company"
herein. Without limiting the generality of the foregoing:
(a) all property of the Successor Corporation then subject
to the Lien of this Indenture, of the character described in Section
1.04(a), shall constitute Property Additions;
(b) the Successor Corporation may execute and deliver to the
Trustee, and thereupon the Trustee shall, subject to the provisions of
Article Four, authenticate and deliver, Bonds upon the basis of Property
Additions or upon any other basis provided in Article Four; and
(c) the Successor Corporation may, subject to the applicable
provisions of this Indenture, cause Property Additions to be applied to
any other Authorized Purpose.
All Bonds so executed by the Successor Corporation, and authenticated and
delivered by the Trustee, shall in all respects be entitled to the same
benefit of the Lien and security of this Indenture as all Bonds executed,
authenticated and delivered prior to the time such consolidation, merger,
conveyance or other transfer became effective.
Section 1.0020. EXTENT OF LIEN HEREOF ON PROPERTY OF
SUCCESSOR CORPORATION.
Unless, in the case of a consolidation, merger, conveyance or
other transfer contemplated by Section 13.01, the indenture supplemental
hereto contemplated in clause (ii) of Section 13.01(b), or any other
indenture, contains a grant, conveyance, transfer and mortgage by the
Successor Corporation as described in subclause (B) thereof, neither this
Indenture nor such supplemental indenture shall become or be required to
become or be a Lien upon any of the properties then owned or thereafter
acquired by the Successor Corporation except properties acquired from the
Company in or as a result of such transaction and improvements, extensions
and additions to such properties and renewals, replacements and substitutions
of or for any part or parts of such properties.
Section 1.0021. RELEASE OF COMPANY UPON CONVEYANCE OTHER
TRANSFER.
In the case of a conveyance or other transfer contemplated in
Section 13.01, upon the satisfaction of all the conditions specified in
Section 13.01 the Company (such term being used in this Section without
giving effect to such transaction) shall be released and discharged from all
obligations and covenants under this Indenture and on and under all Bonds
then Outstanding unless the Company shall have delivered to the Trustee an
instrument in which it shall waive such release and discharge.
Section 1.0022. MERGER INTO COMPANY; EXTENT OF LIEN HEREOF.
(a) Nothing in this Indenture shall be deemed to prevent or
restrict any consolidation or merger after the consummation of which the
Company would be the surviving or resulting corporation or any
conveyance or other transfer or lease, subject to the Lien of this
Indenture, of any part of the Mortgaged Property which does not
constitute the entirety, or substantially the entirety, thereof.
(b) Unless, in the case of a consolidation or merger
described in subsection (a) of this Section, an indenture supplemental
hereto shall otherwise provide, this Indenture shall not become or be,
or be required to become or be, a Lien upon any of the properties
acquired by the Company in or as a result of such transaction or any
improvements, extensions or additions to such properties or any
renewals, replacements or substitutions of or for any part or parts of
such properties.
ARTICLE FOURTEEN
SUPPLEMENTAL INDENTURES
Section
1.0023. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
(a) 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:
(i) 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 Bonds, all
as provided in Article Thirteen; or
(ii) to add one or more covenants of the
Company or other provisions for the benefit of all Holders or
for the benefit of the Holders of, or to remain in effect only
so long as there shall be Outstanding, Bonds of one or more
specified series, or one or more specified Tranches thereof,
or to surrender any right or power herein conferred upon the
Company; or
(iii) to correct or amplify the description
of any property at any time subject to the Lien of this
Indenture, or better to assure, convey and confirm unto the
Trustee any property subject or required to be subjected to
the Lien of this Indenture, or to subject to the Lien of this
Indenture additional property; or
(iv) to convey, transfer and assign to the
Trustee and to subject to the Lien of this Indenture with the
same force and effect as if included in the Granting Clauses
herein, property of subsidiaries of the Company used or to be
used for one or more purposes which if owned by the Company
would constitute property used or to be used for one or more
of the Primary Purposes of the Company's Business, which
property shall for all purposes of this Indenture be deemed to
be property of the Company, together with such other
provisions as may be appropriate to express the respective
rights of the Trustee and the Company in regard thereto;
(v) 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 Bonds 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
Bond of such series or Tranche remains Outstanding; or
(vi) to establish the form or terms of
Bonds of any series or Tranche as contemplated by Sections
2.01 and 3.01; or
(vii) to provide for the authentication and
delivery of bearer bonds and coupons appertaining thereto
representing interest, if any, thereon and for the procedures
for the registration, exchange and replacement thereof and for
the giving of notice to, and the solicitation of the vote or
consent of, the holders thereof, and for any and all other
matters incidental thereto; or
(viii) to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee or
by a co-trustee or separate trustee; or
(ix) to provide for the procedures
required to permit the Company to utilize, at its option, a
non-certificated system of registration for all, or any series
or Tranche of, the Bonds; or
(x) to change any place or places where
(A) the principal of and premium, if any, and interest, if
any, on all or any series of Bonds, or any Tranche thereof,
shall be payable, (B) all or any series of Bonds, or any
Tranche thereof, may be surrendered for registration of
transfer, (C) all or any series of Bonds, or any Tranche
thereof, may be surrendered for exchange, and (D) notices and
demands to or upon the Company in respect of all or any series
of Bonds, or any Tranche thereof, and this Indenture may be
served; or
(xi) 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
changes to the provisions hereof or to add other provisions
with respect to matters or questions arising under this
Indenture, provided that such other changes or additions shall
not adversely affect the interests of the Holders of Bonds of
any series or Tranche in any material respect; or
(xii) to reflect changes in Generally
Accepted Accounting Principles; or
(xiii) to provide the terms and conditions
of the exchange or conversion, at the option of the holders of
Bonds of any series, of the Bonds of such series for or into
Bonds of other series or stock or other securities of the
Company or any other corporation; or
(xiv) to change the words "General and
Refunding Mortgage Bonds" to "First Mortgage Bonds" in the
descriptive title of all Outstanding Bonds at any time after
the discharge of the 1936 Mortgage; or
(xv) to comply with the rules or
regulations of any national securities exchange on which any
of the Bonds may be listed; or
(xvi) to modify Section 3.01(a) to change
the aggregate principal amount of Bonds which may be
authenticated and delivered under this Indenture.
(b) Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the date of the execution and
delivery of this Indenture or at any time thereafter shall be amended
and:
(i) 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 evidence such amendment
hereof; or
(ii) 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 or are contained herein to reflect
any provisions of the Trust Indenture Act as in effect at such
date, the Company and the Trustee may, without the consent of
any Holders, enter into an indenture supplemental hereto to
effect such changes or elimination.
Section 1.0024. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
(a) With the consent of the Holders of not less than a
majority in aggregate principal amount of the Bonds 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
Bonds of more than one series Outstanding hereunder and if a proposed
supplemental indenture shall directly affect the rights of the Holders
of Bonds 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 Bonds of all series so directly affected, considered
as one class, shall be required; and PROVIDED, FURTHER, that if the
Bonds 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 Bonds 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 Bonds 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 Bond of each series or
Tranche so directly affected:
(i) change the Stated Maturity of the
principal of, or any installment of principal of or interest
on, any Bond, or reduce the principal amount thereof or the
rate of interest thereon (or the amount of any installment of
interest thereon) or change the method of calculating such
rate or reduce any premium payable upon the redemption
thereof, or reduce the amount of the principal of a Discount
Bond that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section
10.02(a), or change the coin or currency (or other property),
in which any Bond 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
(ii) permit the creation of any Lien
ranking prior to the Lien of this Indenture with respect to
all or substantially all of the Mortgaged Property or
terminate the Lien of this Indenture on all or substantially
all of the Mortgaged Property, or deprive such Holder of the
benefit of the security of the Lien of this Indenture; or
(iii) reduce the percentage in principal
amount of the Outstanding Bonds 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 15.04(a) for quorum or voting; or
(iv) modify any of the provisions of this
Section, Section 6.10 or Section 10.17, 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 Bond affected
thereby.
(b) A supplemental indenture which (i) changes or eliminates
any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of the Holders of, or which is to
remain in effect only so long as there shall be Outstanding, Bonds of
one or more specified series, or one or more Tranches thereof, or (ii)
modifies the rights of the Holders of Bonds 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 Bonds of any
other series or Tranche.
(c) It shall not be necessary for any Act of Holders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 14.03. 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 11.01) shall be fully protected
in relying upon, an Opinion of 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 14.04. 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 Bonds 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 14.05. 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 14.06. REFERENCE IN BONDS TO SUPPLEMENTAL INDENTURES.
Bonds 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 Bonds 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 delivered in exchange for
Outstanding Bonds of such series or Tranche.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
Section
1.0025. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Bonds 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 Bonds of such series
or Tranches.
Section 1.0026. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Bonds of one or more, or all, series, or any Tranche or Tranches
thereof, for any purpose specified in Section 15.01, to be held at such
time and (except as provided in subsection (b) of this Section) at such
place in the Borough of Manhattan 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 1.09, not less than twenty-
one (21) nor more than one hundred and eighty (180) days prior to the
date fixed for the meeting.
(b) The Trustee may be asked to call a meeting of the
Holders of Outstanding Bonds 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 15.01, by
written request setting forth in reasonable detail the action proposed
to be taken at the meeting. If the Trustee shall have been asked by the
Company to call such a meeting, the Company shall determine the time and
place for such meeting by giving notice thereof in the manner provided
in subsection (a) of this Section, or shall direct the Trustee, in the
name and at the expense of the Company, to give such notice. If the
Trustee shall have been asked to call such a meeting by Holders in
accordance with this subsection (b), and the Trustee shall not have
given the notice of such meeting within twenty-one (21) days after
receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Holders of Bonds of such
series and Tranches in the amount above specified, may determine the
time and the place in the Borough of Manhattan, 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 Bonds of one or more, or all,
series, or any Tranche or Tranches thereof, shall be valid without
notice if the Holders of all Outstanding Bonds of such series or
Tranches 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 Bonds of
such series, or any Tranche or Tranches thereof, or by such of them as
are not present at the meeting in person or by proxy, and by the
Company.
Section 1.0027. PERSONS ENTITLED TO VOTE AT MEETINGS; RECORD
DATE.
To be entitled to vote at any meeting of Holders of Bonds 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 Bonds of such series or
Tranches on the record date fixed as provided below, or (b) a Person
appointed by an instrument in writing by a Holder or Holders of one or more
Outstanding Bonds of such series or Tranches on the record date fixed as
provided below as proxy for such Holder or Holders. The only Persons who
shall be entitled to attend any meeting of Holders of Bonds of any series or
Tranche shall be the Persons entitled to vote at such meeting, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel. The Company may fix in advance a record date in
accordance with Section 1.07(g) for the determination of Holders who are
entitled to vote at a meeting called pursuant to Section 15.02 and, if the
Company does not so fix a record date, the Trustee may
do so.
Section 1.0028. QUORUM; ACTION.
(a) The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Bonds 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 of Bonds 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 Bonds of such series and Tranches, considered as one class,
the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Bonds 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 Bonds of such series and
Tranches, be dissolved. In any other case the meeting may be adjourned
for such period as may be 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 such period as may be determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Except as
provided by Section 15.05(e), notice of the reconvening of any meeting
adjourned for more than thirty (30) days shall be given as provided in
Section 1.09 not less than ten (10) 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 Bonds of such series
and Tranches which shall constitute a quorum.
(b) Except as limited by Section 14.02, 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 Bonds 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 Bonds 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 Bonds of such series and Tranches,
considered as one class.
(c) Any resolution passed or decision taken at any meeting of
Holders of Bonds duly held in accordance with this Section shall be
binding on all the Holders of Bonds 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 1.0029. ATTENDANCE AT MEETINGS; DETERMINATION OF
VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Bonds may be in
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
Bonds with respect to which it was given unless and until specifically
revoked by the Holder or future Holder of such Bonds before being voted;
provided that if a record date has been established in accordance with
Section 15.03, only a Holder of Bonds as to which a proxy was given who
was the Holder thereof on such record date may subsequently revoke such
proxy.
(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 Bonds in regard to proof of the
holding of such Bonds 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 Bonds shall be proved in the manner
specified in Section 1.07 and the appointment of any proxy shall be
proved in the manner specified in Section 1.07. 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 1.07 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 15.02(b), in
which case the Company or the Holders of Bonds 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 a 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 Bonds 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 Outstanding Bonds held or
represented by him; PROVIDED, HOWEVER, that no vote shall be cast or
counted at any meeting in respect of any Bond 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 Bond or proxy.
(e) Any meeting duly called pursuant to Section 15.02 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 Bonds 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 1.0030. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.
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 Bonds, 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 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 15.02 and, if applicable, Section
15.04. At least two copies 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 the other 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 1.0031. 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 1.07.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section
1.0032. 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 Bonds, 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 Bonds 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 Bonds 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
Bonds.
---------------------------------------------
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.
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.
BANGOR HYDRO-ELECTRIC COMPANY
By: /s/ Robert S. Briggs
---------------------------
Title: President
[Corporate Seal]
Attest:
/s/ Frederick S. Samp
- ------------------------
Clerk
CHEMICAL BANK,
as Trustee
By: /s/ W. B. Dodge
------------------------
Title: Vice President
-------------------------
[Corporate Seal]
Attest:
/s/ Wanda Eiland
-----------------------
Trust Officer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On June 28, 1995 before me personally appeared the above-named
ROBERT S. BRIGGS, a PRESIDENT, and FREDERICK S. SAMP, a CLERK, of Bangor
Hydro-Electric Company, the corporation that executed the within and
foregoing instrument, and severally acknowledged said instrument to be their
free act and deed in their said capacities and the free act and deed of the
said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on
the day and year first above mentioned.
/s/ Matthew H. Frances
--------------------------
Notary Public
#31-5032254
My Commission expires August 22, 1996
[NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On June 27, 1995 before me personally appeared the above-named
W. B. Dodge, a Vice-President, and Wanda Eiland, a Trust Officer of Chemical
Bank, the national banking institution that executed the within and foregoing
instrument as Trustee, and severally acknowledged said instrument to be their
free act and deed in their said capacities and the free act and deed of the
said national banking institution, as such Trustee.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on
the day and year first above mentioned.
/s/ Emily Fayan
------------------------
Notary Public
#24-4737006
My Commission expires December 31, 1995
[NOTARIAL SEAL]
EXHIBIT A
DESCRIPTION OF PROPERTY
All land and interests in land subject to the lien of and referenced in
the Mortgage and Deed of Trust, dated as of July 1, 1936, between Bangor
Hydro-Electric Company and City Bank Farmers Trust Company (as predecessor to
Citibank, N.A.), as supplemented and amended by duly recorded indentures
supplemental thereto (and related real estate property descriptions) (the
"1936 Mortgage") except land and interests in land which have been
specifically released from such lien from time to time; and as originally
recorded in the following places in the State of Maine: in Aroostook County
Registry of Deeds, Book 444, Page 130; in Hancock County Registry of Deeds,
in Book 654, Page 79; in Penobscot County Registry of Deeds, in Book 1117,
Page 3, in Piscataquis County Registry of Deeds, in Book 257, Page 241, in
Washington County Registry of Deeds, in Book 418, Page 102; in Cumberland
County Registry of Deeds, in Book 3957, Page 1; in Waldo County Registry of
Deeds, in Book 786, Page 119; in the City Clerk's Office for the City of
Bangor, in Book 19, Page 304; and in the Rockingham County Registry of Deeds
in the State of New Hampshire, in Book 2351, Page 203.
Such land and interests in land are further described in certain
supplemental indentures, dated respectively as of March 1, 1938, recorded in
the Penobscot County Registry of Deeds in Book 1129, Page 380; January 17,
1939, recorded in the Penobscot County Registry of Deeds in Book 1134, Page
445; March 1, 1941, recorded in the Penobscot County Registry of Deeds in
Book 1167, Page 226; February 11, 1942, recorded in the Penobscot County
Registry of Deeds in Book 1177, Page 412; July 10, 1945, recorded in the
Penobscot County Registry of Deeds in Book 1223, Page 382; July 8, 1947,
recorded in the Penobscot County Registry of Deeds in Book 1268, Page 48;
September 13, 1949, recorded in the Penobscot County Registry of Deeds in
Book 1308, Page 446; May 20, 1952, recorded in the Penobscot County Registry
of Deeds in Book 1363, Page 193; December 1, 1984, recorded in the Penobscot
County Registry of Deeds in Book 3608, Page 117; March 15, 1989, recorded in
the Penobscot County Registry of Deeds in Book 4408, Page 165; July 3, 1990,
recorded in the Penobscot County Registry of Deeds in Book 4678, Page 205;
March 31, 1992, recorded in the Penobscot County Registry of Deeds in Book
5037, Page 229; October 22, 1992, recorded in the Penobscot County Registry
of Deeds in Book 5192, Page 1; and June 23, 1995. Additional supplemental
indentures are recorded in certain other registries of deeds in the State of
Maine. Recording information for such registrations are on file at the
offices of the Company.
EXHIBIT B
Modifications to the 1936 Mortgage
1. The modification of Section 1 by modifying the definition of "net
earnings of the Company" to incorporate the definition of "Adjusted Net
Earnings" from the General and Refunding Mortgage Indenture and Deed of
Trust, dated as of June 1, 1995.
2. The modification of the sixth paragraph of Section 27 of the 1936
Mortgage by (i) substituting "18 months" for "15 months," and
(ii) deleting the phrase "at least twice the interest charges" and
inserting in lieu thereof the phrase "one and one-half (1.50) times the
interest charges."
3. The modification of Section 49 of the 1936 Mortgage by (i) deleting the
last two sentences of the first paragraph thereof, and (ii) adding the
words "in excess of $300,000 for any one loss" before the words "being
payable to the Trustee as its interest may appear" in the first sentence
of the first paragraph thereof.
4. The deletion of ARTICLE SEVENTH of the 1936 Mortgage in its entirety and
all references thereto.
5. The modification of Section 86 of the 1936 Mortgage by deleting all
provisions thereof after subsection (b).
6. The modification of Section 87 of the 1936 Mortgage by deleting the
second paragraph thereof, beginning "Provided, however . . .".
7. The modification of Section 88 of the 1936 Mortgage by deleting (i) all
provisions therein which relate to, incorporate or depend upon any
provisions of Sections 86 and 87 referred to in paragraphs 5 and 6
above, and (ii) the last sentence thereof.