Exhibit 99.2
SUPPLEMENTAL INDENTURE
Dated as of September 1, 2004
TO
Indenture of Mortgage and Deed of Trust
Dated as of May 1, 1921
___________
THE CONNECTICUT LIGHT AND POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
(f/k/a BANKERS TRUST COMPANY),
Trustee
___________
2004 Series A Bonds, Due September 15, 2014
SUPPLEMENTAL INDENTURE, dated as of the first day
of September, 2004 between THE CONNECTICUT LIGHT AND
POWER COMPANY, a corporation organized and existing
under the laws of the State of Connecticut
(hereinafter called "Company"), and DEUTSCHE BANK
TRUST COMPANY AMERICAS (f/k/a BANKERS TRUST COMPANY),
a corporation organized and existing under the laws of
the State of New York (hereinafter called "Trustee").
WHEREAS, the Company heretofore duly executed,
acknowledged and delivered to the Trustee a certain
Indenture of Mortgage and Deed of Trust dated as of
May 1, 1921, and seventy Supplemental Indentures
thereto dated respectively as of May 1, 1921, February
1, 1924, July 1, 1926, June 20, 1928, June 1, 1932,
July 1, 1932, July 1, 1935, September 1, 1936, October
20, 1936, December 1, 1936, December 1, 1938, August
31, 1944, September 1, 1944, May 1, 1945, October 1,
1945, November 1, 1949, December 1, 1952, December 1,
1955, January 1, 1958, February 1, 1960, April 1,
1961, September 1, 1963, April 1, 1967, May 1, 1967,
January 1, 1968, October 1, 1968, December 1, 1969,
January 1, 1970, October 1, 1970, December 1, 1971,
August 1, 1972, April 1, 1973, March 1, 1974, February
1, 1975, September 1, 1975, May 1, 1977, March 1,
1978, September 1, 1980, October 1, 1981, June 30,
1982, October 1, 1982, July 1, 1983, January 1, 1984,
October 1, 1985, September 1, 1986, April 1, 1987,
October 1, 1987, November 1, 1987, April 1, 1988,
November 1, 1988, June 1, 1989, September 1, 1989,
December 1, 1989, April 1, 1992, July 1, 1992, October
1, 1992, July 1, 1993, July 1, 1993, December 1, 1993,
February 1, 1994, February 1, 1994, June 1, 1994,
October 1, 1994, June 1, 1996, January 1, 1997, May 1,
1997, June 1, 1997, June 1, 1997, May 1, 1998 and May
1, 1998 (said Indenture of Mortgage and Deed of Trust
(i) as heretofore amended, being hereinafter generally
called the "Mortgage Indenture," and (ii) together
with said Supplemental Indentures thereto, being
hereinafter generally called the "Mortgage"), all of
which have been duly recorded as required by law, for
the purpose of securing its First and Refunding
Mortgage Bonds (of which $201,845,000 aggregate
principal amount are outstanding at the date of this
Supplemental Indenture) in an unlimited amount, issued
and to be issued for the purposes and in the manner
therein provided, of which Mortgage this Supplemental
Indenture is intended to be made a part, as fully as
if therein recited at length;
WHEREAS, the Company by appropriate and
sufficient corporate action in conformity with the
provisions of the Mortgage has duly determined to
create a further series of bonds under the Mortgage to
be designated "First and Refunding Mortgage 4-4/5%
Bonds, 2004 Series A" (hereinafter generally referred
to as the "bonds of 2004 Series A"), to consist of
fully registered bonds containing terms and provisions
duly fixed and determined by the Board of Directors of
the Company and expressed in this Supplemental
Indenture, such fully registered bonds and the
Trustee's certificate of its authentication thereof to
be substantially in the forms thereof respectively set
forth in Schedule A appended hereto and made a part
hereof; and
WHEREAS, the execution and delivery of this
Supplemental Indenture and the issue of not in excess
of One Hundred Fifty Million Dollars ($150,000,000)
in aggregate principal amount of bonds of 2004 Series
A and other necessary actions have been duly
authorized by the Board of Directors of the Company;
and
WHEREAS, the Company proposes to execute and
deliver this Supplemental Indenture to provide for the
issue of the bonds of 2004 Series A and to confirm the
lien of the Mortgage on the property referred to
below, all as permitted by Section 14.01 of the
Mortgage Indenture; and
WHEREAS, all acts and things necessary to
constitute this Supplemental Indenture a valid,
binding and legal instrument and to make the bonds of
2004 Series A, when executed by the Company and
authenticated by the Trustee valid, binding and legal
obligations of the Company have been authorized and
performed;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE OF
MORTGAGE AND DEED OF TRUST WITNESSETH:
That in order to secure the payment of the
principal of and interest on all bonds issued and to
be issued under the Mortgage, according to their tenor
and effect, and according to the terms of the Mortgage
and this Supplemental Indenture, and to secure the
performance of the covenants and obligations in said
bonds and in the Mortgage and this Supplemental
Indenture respectively contained, and for the better
assuring and confirming unto the Trustee, its
successor or successors and its or their assigns, upon
the trusts and for the purposes expressed in the
Mortgage and this Supplemental Indenture, all and
singular the hereditaments, premises, estates and
property of the Company thereby conveyed or assigned
or intended so to be, or which the Company may
thereafter have become bound to convey or assign to
the Trustee, as security for said bonds (except such
hereditaments, premises, estates and property as shall
have been disposed of or released or withdrawn from
the lien of the Mortgage and this Supplemental
Indenture, in accordance with the provisions thereof
and subject to alterations, modifications and changes
in said hereditaments, premises, estates and property
as permitted under the provisions thereof), the
Company, for and in consideration of the premises and
the sum of One Dollar ($1.00) to it in hand paid by
the Trustee, the receipt whereof is hereby
acknowledged, and of other valuable considerations,
has granted, bargained, sold, assigned, mortgaged,
pledged, transferred, set over, aliened, enfeoffed,
released, conveyed and confirmed, and by these
presents does grant, bargain, sell, assign, mortgage,
pledge, transfer, set over, alien, enfeoff, release,
convey and confirm unto said Deutsche Bank Trust
Company Americas (f/k/a Bankers Trust Company), as
Trustee, and its successor or successors in the trusts
created by the Mortgage and this Supplemental
Indenture, and its and their assigns, all of said
hereditaments, premises, estates and property (except
and subject as aforesaid), as fully as though
described at length herein, including, without
limitation of the foregoing, the property, rights and
privileges of the Company described or referred to in
Schedule B hereto.
Together with all plants, buildings, structures,
improvements and machinery located upon said real
estate or any portion thereof, and all rights,
privileges and easements of every kind and nature
appurtenant thereto, and all and singular the
tenements, hereditaments and appurtenances belonging
to the real estate or any part thereof described or
referred to in Schedule B or intended so to be, or in
any wise appertaining thereto, and the reversions,
remainders, rents, issues and profits thereof, and
also all the estate, right, title, interest, property,
possession, claim and demand whatsoever, as well in
law as in equity, of the Company, of, in and to the
same and any and every part thereof, with the
appurtenances; except and subject as aforesaid.
TO HAVE AND TO HOLD all and singular the
property, rights and privileges hereby granted or
mentioned or intended so to be, together with all and
singular the reversions, remainders, rents, revenues,
income, issues and profits, privileges and
appurtenances, now or hereafter belonging or in any
way appertaining thereto, unto the Trustee and its
successor or successors in the trust created by the
Mortgage and this Supplemental Indenture, and its and
their assigns, forever, and with like effect as if the
above described property, rights and privileges had
been specifically described at length in the Mortgage
and this Supplemental Indenture.
Subject, however, to permitted liens, as defined
in the Mortgage Indenture.
IN TRUST, NEVERTHELESS, upon the terms and trusts
of the Mortgage and this Supplemental Indenture for
those who shall hold the bonds and coupons issued and
to be issued thereunder, or any of them, without
preference, priority or distinction as to lien of any
of said bonds and coupons over any others thereof by
reason of priority in the time of the issue or
negotiation thereof, or otherwise howsoever, subject,
however, to the provisions in reference to extended,
transferred or pledged coupons and claims for interest
set forth in the Mortgage and this Supplemental
Indenture (and subject to any sinking fund that may
heretofore have been or hereafter be created for the
benefit of any particular series).
And it is hereby covenanted that all such bonds
of 2004 Series A are to be issued, authenticated and
delivered, and that the mortgaged premises are to be
held by the Trustee, upon and subject to the trusts,
covenants, provisions and conditions and for the uses
and purposes set forth in the Mortgage and this
Supplemental Indenture and upon and subject to the
further covenants, provisions and conditions and for
the uses and purposes hereinafter set forth, as
follows, to wit:
ARTICLE 1.
FORM AND PROVISIONS OF BONDS OF 2004 SERIES A
SECTION 1.01. Designation; Amount. The bonds of
2004 Series A shall be designated "First and Refunding
Mortgage 4-4/5% Bonds, 2004 Series A" and, subject to
Section 2.08 of the Mortgage Indenture, shall not
exceed One Hundred Fifty Million Dollars
($150,000,000) in aggregate principal amount at any
one time outstanding. The initial issue of the bonds
of 2004 Series A may be effected upon compliance with
the applicable provisions of the Mortgage Indenture.
SECTION 1.02. Form of Bonds of 2004 Series A.
The bonds of 2004 Series A shall be issued only in
fully registered form without coupons in denominations
of One Thousand Dollars ($1,000) and multiples
thereof.
The bonds of 2004 Series A and the certificate of
the Trustee upon said bonds shall be substantially in
the forms thereof respectively set forth in Schedule A
appended hereto.
SECTION 1.03. Provisions of Bonds of 2004 Series
A; Interest Accrual. The bonds of 2004 Series A shall
mature on September 15, 2014, and shall bear interest,
payable semiannually on the fifteenth day of March and
September of each year, commencing March 15, 2005 at
the rate specified in their title, until the Company's
obligation in respect of the principal thereof shall
be discharged; and shall be payable both as to
principal and interest at the office or agency of the
Company in the Borough of Manhattan, New York, New
York, in any coin or currency of the United States of
America which at the time of payment is legal tender
for the payment of public and private debts. The
interest on the bonds of 2004 Series A, whether in
temporary or definitive form, shall be payable without
presentation of such bonds; and only to or upon the
written order of the registered holders thereof of
record at the applicable record date. The bonds of
2004 Series A shall be callable for redemption in
whole or in part according to the terms and provisions
herein in Article 2.
Each bond of 2004 Series A shall be dated as of
September 17, 2004 and shall bear interest on the
principal amount thereof from the interest payment
date next preceding the date of authentication thereof
by the Trustee to which interest has been paid on the
bonds of 2004 Series A, or if the date of
authentication thereof is prior to March 15, 2005,
then from September 17, 2004, or if the date of
authentication thereof be an interest payment date to
which interest is being paid or a date between the
record date for any such interest payment date and
such interest payment date, then from such interest
payment date. Interest on the bonds of 2004 Series A
shall be computed on the basis of a 360-day year
consisting of twelve 30-day months, and with respect
to any period less than a full month, on the basis of
the actual number of days elapsed in such period.
The person in whose name any bond of 2004 Series
A is registered at the close of business on any record
date (as hereinafter defined) with respect to any
interest payment date shall be entitled to receive the
interest payable on such interest payment date
notwithstanding the cancellation of such bond upon any
registration of transfer or exchange thereof
subsequent to the record date and prior to such
interest payment date, except that if and to the
extent the Company shall default in the payment of the
interest due on such interest payment date, then such
defaulted interest shall be paid to the person in
whose name such bond is registered on a subsequent
record date for the payment of defaulted interest if
one shall have been established as hereinafter
provided and otherwise on the date of payment of such
defaulted interest. A subsequent record date may be
established by the Company by notice mailed to the
owners of bonds of 2004 Series A not less than ten
(10) days preceding such record date, which record
date shall not be more than thirty (30) days prior to
the subsequent interest payment date. The term "record
date" as used in this Section with respect to any
regular interest payment (i.e., March 15 or September
15) shall mean the March 1 or September 1, as the case
may be, next preceding such interest payment date, or
if such March 1 or September 1 shall be a legal
holiday or a day on which banking institutions in the
Borough of Manhattan, New York, New York are
authorized by law to close, the next preceding day
which shall not be a legal holiday or a day on which
such institutions are so authorized to close.
SECTION 1.04. Transfer and Exchange of Bonds of
2004 Series A. The bonds of 2004 Series A may be
surrendered for registration of transfer as provided
in Section 2.06 of the Mortgage Indenture at the
office or agency of the Company in the Borough of
Manhattan, New York, New York, and may be surrendered
at said office for exchange for a like aggregate
principal amount of bonds of 2004 Series A of other
authorized denominations. Notwithstanding the
provisions of Section 2.06 of the Mortgage Indenture,
no charge, except for taxes or other governmental
charges, shall be made by the Company for any
registration of transfer of bonds of 2004 Series A or
for the exchange of any bonds of 2004 Series A for
bonds of other authorized denominations.
SECTION 1.05. Amendment and Restatement of
Mortgage Indenture. Each holder of a bond of 2004
Series A, solely by virtue of its acquisition thereof,
including as an owner of a book-entry interest
therein, shall have and be deemed to have consented,
without the need for any further action or consent by
such holder, to the amendment and restatement of the
Mortgage Indenture in substantially the form set forth
in Schedule C appended hereto and made a part hereof
(the "Amended and Restated Indenture"), with such
additions, deletions, and other changes made to such
form prior to the time of such amendment and
restatement ("Future Changes") (1) that add to the
covenants of the Company in the Amended and Restated
Indenture, or surrender rights or powers of the
Company therein, for the benefit of the holders of the
outstanding bonds issued under the Mortgage Indenture,
(2) as shall be requested by the Trustee and its
counsel, (3) as may be requested by the Connecticut
Department of Public Utility Control or other
regulatory authority having jurisdiction over the
Company, or (4) otherwise, as shall be proposed by the
Company after the date of the execution and delivery
of this Supplemental Indenture, provided that (a) in
the case of any Future Change described in clause (4),
such Future Change is not, in the reasonable judgment
of the Company, inconsistent with the fundamental
structure and terms of the Amended and Restated
Indenture, and (b) in the case of any Future Change
described in clause (3) or (4), such Future Change
does not adversely affect in any material respect the
interests of the holders of the bonds issued under the
Mortgage Indenture.
ARTICLE 2.
REDEMPTION OF BONDS OF 2004 SERIES A
The bonds of 2004 Series A are subject to
redemption prior to maturity, as a whole at any time
or in part from time to time, in accordance with the
provisions of the Mortgage, upon not less than thirty
(30) days and not more than sixty (60) days prior
notice (which notice may be made subject to the
deposit of redemption moneys with the Trustee before
the date fixed for redemption) given by mail as
provided in the Mortgage, at the option of the
Company, at a redemption price equal to the greater of
(i) 100% of the principal amount of the bonds being
redeemed or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate, plus
10 basis points, plus, in each case, accrued and
unpaid interest on the principal amount of the bonds
being redeemed to the date of redemption (the
"Redemption Date").
"Treasury Rate" means, with respect to any
Redemption Date, (i) the yield, under the heading
which represents the average for the immediately
preceding week, appearing in the most recently
published statistical release designated "H.15(519)"
or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded
U.S. Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for
the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or
after the remaining life (as defined below), yields
for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be
determined and the Treasury Rate will be interpolated
or extrapolated from such yields on a straight line
basis, rounding to the nearest month); or (ii) if
such release (or any successor release) is not
published during the week preceding the calculation
date or does not contain such yields, the rate per
annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount)
equal to the comparable treasury price for such
Redemption Date. The Treasury Rate will be calculated
on the third business day preceding the date fixed for
redemption.
"Comparable Treasury Issue" means the United
State Treasury security selected by an Independent
Investment Banker as having a maturity comparable to
the remaining term ("remaining life") of the bonds to
be redeemed that would be utilized, at the time of
selection and in accordance with customary financial
practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining
term of such bonds.
"Comparable Treasury Price" means (i) the
average of five Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or
(ii) if the Independent Investment Banker obtains
fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means an
independent investment banking institution of national
standing appointed by the Company.
"Reference Treasury Dealer" means any five
Primary Treasury Dealers selected by the Company after
consultation with the Independent Investment Banker,
provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"),
the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the
Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker
at 5:00 p.m., New York City time, on the third
business day preceding such Redemption Date.
So long as the bonds are registered in the name
of The Depository Trust Company, as depositary
("DTC"), its nominee or a successor depositary, if the
Company elects to redeem less than all of the bonds,
DTC's practice is to determine by lot the amount of
the interest of each direct participant, in the bonds
of such series to be redeemed. At all other times,
the Trustee shall draw by lot, in such manner as it
deems appropriate, the particular bonds, or portions
of them, to be redeemed.
Notice of redemption shall be given by mail to
the holders of bonds, which, as long as the bonds are
held in the book-entry only system, will be DTC, its
nominee or a successor depositary. On and after the
date fixed for redemption (unless the Company defaults
in the payment of the redemption price and interest
accrued thereon to such date), interest on the bonds
of such series, or the portions of them so called for
redemption, shall cease to accrue.
The bonds of 2004 Series A are not otherwise
subject to redemption.
ARTICLE 3.
MISCELLANEOUS.
SECTION 3.01. Benefits of Supplemental Indenture
and Bonds of 2004 Series A. Nothing in this
Supplemental Indenture, or in the bonds of 2004 Series
A, expressed or implied, is intended to or shall be
construed to give to any person or corporation other
than the Company, the Trustee and the holders of the
bonds and interest obligations secured by the Mortgage
and this Supplemental Indenture, any legal or
equitable right, remedy or claim under or in respect
of this Supplemental Indenture or of any covenant,
condition or provision herein contained. All the
covenants, conditions and provisions hereof are and
shall be for the sole and exclusive benefit of the
Company, the Trustee and the holders of the bonds and
interest obligations secured by the Mortgage and this
Supplemental Indenture.
SECTION 3.02. Effect of Table of Contents and
Headings. The table of contents and the description
headings of the several Articles and Sections of this
Supplemental Indenture are inserted for convenience of
reference only and are not to be taken to be any part
of this Supplemental Indenture or to control or affect
the meaning, construction or effect of the same.
SECTION 3.03. Counterparts. For the purpose of
facilitating the recording hereof, this Supplemental
Indenture may be executed in any number of
counterparts, each of which shall be and shall be
taken to be an original and all collectively but one
instrument.
IN WITNESS WHEREOF, The Connecticut Light and
Power Company has caused these presents to be executed
by its Vice President-Accounting and Controller and
its corporate seal to be hereunto affixed, duly
attested by its Secretary, and Deutsche Bank Trust
Company Americas has caused these presents to be
executed by a Vice President and its corporate seal to
be hereunto affixed, duly attested by a Vice
President, as of the day and year first above written.
THE CONNECTICUT LIGHT AND
POWER COMPANY
Attest:
/s/ O. Kay Comendul By: /s/ John P. Stack
Name: O. Kay Comendul Name: John P. Stack
Title: Secretary Title: Vice President-Accounting
and Controller
(SEAL) Signed, sealed and delivered
in the presence of:
/s/ Jane Seidl
Jane Seidl
/s/ Eileen Kearney
Eileen Kearney
STATE OF CONNECTICUT )
) ss.: Berlin
COUNTY OF HARTFORD )
On this 13th day of September, 2004 before me,
Lisa Barlow, the undersigned officer, personally
appeared John P. Stack and O. Kay Comendul, who
acknowledged themselves to be Vice President-
Accounting and Controller and Secretary,
respectively, of THE CONNECTICUT LIGHT AND POWER
COMPANY, a corporation, and that they, as such Vice
President-Accounting and Controller and Secretary,
being authorized so to do, executed the foregoing
instrument for the purpose therein contained, by
signing the name of the corporation by themselves as
Vice President-Accounting and Controller and
Secretary, and as their free act and deed.
IN WITNESS WHEREOF, I hereunto set my hand and
official seal.
/s/ Lisa Barlow
Lisa Barlow
Notary Public
My commission expires March 31, 2006
(SEAL)
DEUTSCHE BANK TRUST
COMPANY AMERICAS
f/k/a BANKERS TRUST
COMPANY, TRUSTEE
Attest:
/s/ Dorothy Robinson By: /s/ Susan Johnson
Dorothy Robinson Name: Susan Johnson
Vice President Title: Vice President
(SEAL) Signed, sealed and delivered
in the presence of:
/s/ David J. Rocco
David J. Rocco
/s/ Victor Carneiro
Victor Carneiro
STATE OF NEW YORK )
) ss.: New York
COUNTY OF NEW YORK )
On this 9th day of September , before me, Annie
Jaghatspanyan, the undersigned officer, personally
appeared Susan Johnson and Dorothy Robinson who
acknowledged themselves to be a Vice President and a
Vice President, respectively, of DEUTSCHE BANK TRUST
COMPANY AMERICAS f/k/a BANKERS TRUST COMPANY, a
corporation, and that they, as such Susan Johnson and
such Dorothy Robinson, being authorized so to do,
executed the foregoing instrument for the purposes
therein contained, by signing the name of the
corporation by themselves as Vice President and Vice
President, and as their free act and deed.
IN WITNESS WHEREOF, I hereunto set my hand and
official seal.
/s/ Anne Jaghatspanyan
Notary Public
My commission expires July 30, 2005
Anne Jaghatspanyan
Notary Public, State of New York
No. 01JA6062022
Qualified in New York County
(SEAL)
Exhibit 99.3
SCHEDULE A
[FORM OF BOND OF 2004 SERIES A]
No. $
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE MORTGAGE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF
A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE MORTGAGE AND HEREIN,
AND NO TRANSFER OF THIS SECURITY (OTHER THAN A
TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
Unless this Global Security is presented by an
authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to The
Connecticut Light and Power Company or its agent for
registration of transfer, exchange, or payment, and
any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an
interest herein.
THE CONNECTICUT LIGHT AND POWER COMPANY
Incorporated under the Laws of the State of
Connecticut
FIRST AND REFUNDING MORTGAGE 4-4/5% BOND, 2004 SERIES
A
PRINCIPAL DUE SEPTEMBER 15, 2014
FOR VALUE RECEIVED, THE CONNECTICUT LIGHT AND
POWER COMPANY, a corporation organized and existing
under the laws of the State of Connecticut
(hereinafter called the Company), hereby promises to
pay to _______________________, or registered assigns,
the principal sum of _____________________ dollars, on
the fifteenth day of September, 2014 and to pay
interest, including overdue interest, on said sum,
semiannually on the fifteenth days of March and
September in each year, commencing March 15, 2005
until the Company's obligation with respect to said
principal sum shall be discharged, at the rate per
annum specified in the title of this bond from the
interest payment date next preceding the date of
authentication hereof to which interest has been paid
on the bonds of this series, or if the date of
authentication hereof is prior to March 15, 2005,
then from September 17, 2004, or if the date of
authentication hereof is an interest payment date to
which interest is being paid or a date between the
record date for any such interest payment date and
such interest payment date, then from such interest
payment date. Both principal and interest shall be
payable at the office or agency of the Company in the
Borough of Manhattan, New York, New York, in such coin
or currency of the United States of America as at the
time of payment is legal tender for the payment of
public and private debts.
Interest on the bonds of 2004 Series A shall be
computed on the basis of a 360-day year consisting of
twelve 30-day months, and with respect to any period
less than a full month, on the basis of the actual
number of days elapsed for such period.
Each installment of interest hereon (other than
overdue interest) shall be payable to the person who
shall be the registered owner of this bond at the
close of business on the record date, which shall be
the March 1 or September 1, as the case may be, next
preceding the interest payment date, or, if such March
1 or September 1 shall be a legal holiday or a day on
which banking institutions in the Borough of
Manhattan, New York, New York, are authorized by law
to close, the next preceding day which shall not be a
legal holiday or a day on which such institutions are
so authorized to close.
Reference is hereby made to the further provisions
of this bond set forth on the reverse hereof,
including without limitation provisions in regard to
the call and redemption and the registration of
transfer and exchangeability of this bond, and such
further provisions shall for all purposes have the
same effect as though fully set forth in this place.
This bond shall not become or be valid or
obligatory until the certificate of authentication
hereon shall have been signed by Deutsche Bank Trust
Company Americas (f/k/a Bankers Trust Company and
hereinafter with its successors as defined in the
Mortgage hereinafter referred to, generally called the
Trustee), or by such a successor.
IN WITNESS WHEREOF, The Connecticut Light and
Power Company has caused this bond to be executed in
its corporate name and on its behalf by its
________________ by his signature or a facsimile
thereof, and its corporate seal to be affixed or
imprinted hereon and attested by the manual or
facsimile signature of its ________________.
Dated September 17, 2004.
THE CONNECTICUT LIGHT AND POWER
COMPANY
By:_____________________________
Name:
Title:
Attest:
__________________________________
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE]
Deutsche Bank Trust Company Americas hereby
certifies that this bond is one of the bonds described
in the within mentioned Mortgage.
DEUTSCHE BANK TRUST COMPANY
AMERICAS f/k/a BANKERS TRUST
COMPANY, TRUSTEE
By:__________________________________
Name:
Title: Authorized Officer
Dated __________, 20__
[FORM OF BOND]
[REVERSE]
THE CONNECTICUT LIGHT AND POWER COMPANY
FIRST AND REFUNDING MORTGAGE 4-4/5% BOND, 2004 SERIES
A
This bond is one of an issue of bonds of the
Company, of an unlimited authorized amount of coupon
bonds or registered bonds without coupons, or both,
known as its First and Refunding Mortgage Bonds, all
issued or to be issued in one or more series, and is
one of a series of said bonds limited in principal
amount to One Hundred Fifty Million Dollars
($150,000,000), consisting only of registered bonds
without coupons and designated "First and Refunding
Mortgage 4-4/5% Bonds, 2004 Series A," all of which
bonds are issued or are to be issued under, and
equally and ratably secured by, a certain Indenture of
Mortgage and Deed and Trust dated as of May 1, 1921,
and by seventy-one Supplemental Indentures dated
respectively as of May 1, 1921, February 1, 1924, July
1, 1926, June 20, 1928, June 1, 1932, July 1, 1932,
July 1, 1935, September 1, 1936, October 20, 1936,
December 1, 1936, December 1, 1938, August 31, 1944,
September 1, 1944, May 1, 1945, October 1, 1945,
November 1, 1949, December 1, 1952, December 1, 1955,
January 1, 1958, February 1, 1960, April 1, 1961,
September 1, 1963, April 1, 1967, May 1, 1967, January
1, 1968, October 1, 1968, December 1, 1969, January 1,
1970, October 1, 1970, December 1, 1971, August 1,
1972, April 1, 1973, March 1, 1974, February 1, 1975,
September 1, 1975, May 1, 1977, March 1, 1978,
September 1, 1980, October 1, 1981, June 30, 1982,
October 1, 1982, July 1, 1983, January 1, 1984,
October 1, 1985, September 1, 1986, April 1, 1987,
October 1, 1987, November 1, 1987, April 1, 1988,
November 1, 1988, June 1, 1989, September 1, 1989,
December 1, 1989, April 1, 1992, July 1, 1992, October
1, 1992, July 1, 1993, July 1, 1993, December 1, 1993,
February 1, 1994, February 1, 1994, June 1, 1994,
October 1, 1994, June 1, 1996, January 1, 1997, May 1,
1997, June 1, 1997, June 1, 1997, May 1, 1998, May 1,
1998 and September 1, 2004 (said Indenture of Mortgage
and Deed of Trust and Supplemental Indentures being
collectively referred to herein as the "Mortgage"),
all executed by the Company to Deutsche Bank Trust
Company Americas f/k/a Bankers Trust Company, as
Trustee, all as provided in the Mortgage to which
reference is made for a statement of the property
mortgaged and pledged, the nature and extent of the
security, the rights of the holders of the bonds in
respect thereof and the terms and conditions upon
which the bonds may be issued and are secured; but
neither the foregoing reference to the Mortgage nor
any provision of this bond or of the Mortgage shall
affect or impair the obligation of the Company, which
is absolute, unconditional and unalterable, to pay at
the maturities herein provided the principal of and
interest on this bond as herein provided. The
principal of this bond may be declared or may become
due on the conditions, in the manner and at the time
set forth in the Mortgage, upon the happening of an
event of default as in the Mortgage provided.
This bond is transferable by the registered holder
hereof in person or by attorney upon surrender hereof
at the office or agency of the Company in the Borough
of Manhattan, New York, New York, together with a
written instrument of transfer in approved form,
signed by the holder, and a new bond or bonds of this
series for a like principal amount in authorized
denominations will be issued in exchange, all as
provided in the Mortgage. Prior to due presentment
for registration of transfer of this bond the Company
and the Trustee may deem and treat the registered
owner hereof as the absolute owner hereof, whether or
not this bond be overdue, for the purpose of receiving
payment and for all other purposes, and neither the
Company nor the Trustee shall be affected by any
notice to the contrary.
This bond is exchangeable at the option of the
registered holder hereof upon surrender hereof, at the
office or agency of the Company in the Borough of
Manhattan, New York, New York, for an equal principal
amount of bonds of this series of other authorized
denominations, in the manner and on the terms provided
in the Mortgage.
Bonds of this series are to be issued initially
under a book-entry only system and, except as
hereinafter provided, registered in the name of The
Depository Trust Company, New York, New York ("DTC")
or its nominee, which shall be considered to be the
holder of all bonds of this series for all purposes of
the Mortgage, including, without limitation, payment
by the Company of principal of and interest on such
bonds of this series and receipt of notices and
exercise of rights of holders of such bonds of this
series. There shall be a single bond of this series
which shall be immobilized in the custody of DTC with
the owners of book-entry interests in bonds of this
series ("Book-Entry Interests") having no right to
receive bonds of this series in the form of physical
securities or certificates. Ownership of Book-Entry
Interests shall be shown by book-entry on the system
maintained and operated by DTC, its participants (the
"Participants") and certain persons acting through the
Participants. Transfers of ownership of Book-Entry
Interests are to be made only by DTC and the
Participants by that book-entry system, the Company
and the Trustee having no responsibility therefor so
long as bonds of this series are registered in the
name of DTC or its nominee. DTC is to maintain
records of positions of Participants in bonds of this
series, and the Participants and persons acting
through Participants are to maintain records of the
purchasers and owners of Book-Entry Interests. If DTC
or its nominee determines not to continue to act as a
depository for the bonds of this series in connection
with a book-entry only system, another depository, if
available, may act instead and the single bond of this
series will be transferred into the name of such other
depository or its nominee, in which case the above
provisions will continue to apply to the new
depository. If the book-entry only system for bonds
of this series is discontinued for any reason, upon
surrender and cancellation of the single bond of this
series registered in the name of the then depository
or its nominee, new registered bonds of this series
will be issued in authorized denominations to the
holders of Book-Entry Interests in principal amounts
coinciding with the amounts of Book-Entry Interests
shown on the book-entry system immediately prior to
the discontinuance thereof. Neither the Trustee nor
the Company shall be responsible for the accuracy of
the interests shown on that system.
The bonds of 2004 Series A are subject to
redemption prior to maturity, as a whole at any time
or in part from time to time, in accordance with the
provisions of the Mortgage, upon not less than thirty
(30) days and not more than sixty (60) days prior
notice (which notice may be made subject to the
deposit of redemption moneys with the Trustee before
the date fixed for redemption) given by mail as
provided in the Mortgage, at the option of the
Company, at a redemption price equal to the greater of
(i) 100% of the principal amount of the bonds being
redeemed or (ii) the sum of the present values of the
remaining scheduled payments of principal and interest
thereon discounted to the date of redemption on a
semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Treasury Rate, plus
10 basis points, plus, in each case, accrued and
unpaid interest on the principal amount of the bonds
being redeemed to the date of redemption (the
"Redemption Date").
"Treasury Rate" means, with respect to any
Redemption Date, (i) the yield, under the heading
which represents the average for the immediately
preceding week, appearing in the most recently
published statistical release designated "H.15(519)"
or any successor publication which is published weekly
by the Board of Governors of the Federal Reserve
System and which establishes yields on actively traded
U.S. Treasury securities adjusted to constant maturity
under the caption "Treasury Constant Maturities," for
the maturity corresponding to the Comparable Treasury
Issue (if no maturity is within three months before or
after the remaining life (as defined below), yields
for the two published maturities most closely
corresponding to the Comparable Treasury Issue will be
determined and the Treasury Rate will be interpolated
or extrapolated from such yields on a straight line
basis, rounding to the nearest month); or (ii) if
such release (or any successor release) is not
published during the week preceding the calculation
date or does not contain such yields, the rate per
annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount)
equal to the comparable treasury price for such
Redemption Date. The Treasury Rate will be calculated
on the third business day preceding the date fixed for
redemption.
"Comparable Treasury Issue" means the United
State Treasury security selected by an Independent
Investment Banker as having a maturity comparable to
the remaining term ("remaining life") of the bonds to
be redeemed that would be utilized, at the time of
selection and in accordance with customary financial
practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining
term of such bonds.
"Comparable Treasury Price" means (i) the
average of five Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or
(ii) if the Independent Investment Banker obtains
fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations.
"Independent Investment Banker" means an
independent investment banking institution of national
standing appointed by the Company.
"Reference Treasury Dealer" means any five
Primary Treasury Dealers selected by the Company after
consultation with the Independent Investment Banker,
provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"),
the Company shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer Quotations" means,
with respect to each Reference Treasury Dealer and any
Redemption Date, the average, as determined by the
Independent Investment Banker, of the bid and asked
prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount)
quoted in writing to the Independent Investment Banker
at 5:00 p.m., New York City time, on the third
business day preceding such Redemption Date.
So long as the bonds are registered in the name
of The Depository Trust Company, as depositary
("DTC"), its nominee or a successor depositary, if the
Company elects to redeem less than all of the bonds,
DTC's practice is to determine by lot the amount of
the interest of each direct participant, in the bonds
of such series to be redeemed. At all other times,
the Trustee shall draw by lot, in such manner as it
deems appropriate, the particular bonds, or portions
of them, to be redeemed.
Notice of redemption shall be given by mail to
the holders of bonds, which, as long as the bonds are
held in the book-entry only system, will be DTC, its
nominee or a successor depositary. On and after the
date fixed for redemption (unless the Company defaults
in the payment of the redemption price and interest
accrued thereon to such date), interest on the bonds
of such series, or the portions of them so called for
redemption, shall cease to accrue.
The Mortgage provides that the Company and the
Trustee, with consent of the holders of not less than
66-2/3% in aggregate principal amount of the bonds at
the time outstanding which would be affected by the
action proposed to be taken, may by supplemental
indenture add any provisions to or change or eliminate
any of the provisions of the Mortgage or modify the
rights of the holders of the bonds and coupons issued
thereunder; provided, however, that without the
consent of the holder hereof no such supplemental
indenture shall affect the terms of payment of the
principal of or interest or premium on this bond, or
reduce the aforesaid percentage of the bonds the
holders of which are required to consent to such a
supplemental indenture, or permit the creation by the
Company of any mortgage or pledge or lien in the
nature thereof ranking prior to or equal with the lien
of the Mortgage or deprive the holder hereof of the
lien of the Mortgage on any of the property which is
subject to the lien thereof.
As set forth in the Supplemental Indenture
establishing the terms and series of the bonds of this
series, each holder of a bond, solely by virtue of its
acquisition thereof, including as an owner of a book-
entry interest therein, shall have and be deemed to
have consented, without the need for any further
action or consent by such holder, to the amendment and
restatement of the Mortgage in substantially the form
set forth in Schedule C appended to such Supplemental
Indenture and made a part thereof (the "Amended and
Restated Indenture"), with such additions, deletions,
and other changes made to such form prior to the time
of such amendment and restatement ("Future Changes")
(1) that add to the covenants of the Company in the
Amended and Restated Indenture, or surrender rights or
powers of the Company therein, for the benefit of the
holders of the outstanding bonds issued under the
Mortgage, (2) as shall be requested by the Trustee and
its counsel, (3) as may be requested by the
Connecticut Department of Public Utility Control or
other regulatory authority having jurisdiction over
the Company, or (4) otherwise, as shall be proposed by
the Company after the date of the execution and
delivery of such Supplemental Indenture, provided that
(a) in the case of any Future Change described in
clause (4), such Future Change is not, in the
reasonable judgment of the Company, inconsistent with
the fundamental structure and terms of the Amended and
Restated Indenture, and (b) in the case of any Future
Change described in clause (3) or (4), such Future
Change does not adversely affect in any material
respect the interests of the holders of the bonds
issued under the Mortgage.
No recourse shall be had for the payment of the
principal of or the interest on this bond, or any part
thereof, or for any claim based thereon or otherwise
in respect thereof, to any incorporator, or any past,
present or future stockholder, officer or director of
the Company, either directly or indirectly, by virtue
of any statute or by enforcement of any assessment or
otherwise, and any and all liability of the said
incorporators, stockholders, officers or directors of
the Company in respect to this bond is hereby
expressly waived and released by every holder hereof.
Exhibit 99.4
SCHEDULE C
COMPOSITE (INCLUDING ALL AMENDMENTS TO ______________)
________________________________________________
Indenture of Mortgage and Deed of Trust
Dated as of May 1, 1921.
__________________
THE CONNECTICUT LIGHT AND POWER COMPANY
TO
DEUTSCHE BANK TRUST COMPANY AMERICAS
F/K/A BANKERS TRUST COMPANY, TRUSTEE
__________________
As Amended by ________________ Supplemental Mortgages
(to and including Supplemental Mortgage dated as of
____________________.)
________________________________________________
THIS INDENTURE, dated as of the first day of May, 1921,
between THE CONNECTICUT LIGHT AND POWER COMPANY, a corporation of
the State of Connecticut (hereinafter called "Company"), party of
the first part, and DEUTSCHE BANK TRUST COMPANY AMERICAS, f/k/a
BANKERS TRUST COMPANY, as Trustee, a corporation organized and
existing under the laws of the State of New York (hereinafter
called "Trustee"), party of the second part, Witnesseth:
(Recitals omitted, but remain applicable hereto.)
Now, Therefore, This Indenture Witnesseth, that the Company,
for and in consideration of the premises and the sum of $1.00 to
it in hand paid by the Trustee, the receipt whereof is hereby
acknowledged, and of other valuable considerations, in order to
secure the payment of the principal and interest of all said bonds
according to their tenor, and the faithful performance of the
covenants herein contained, has granted, bargained, sold,
assigned, mortgaged, pledged, transferred, set over, aliened,
enfeoffed, released, conveyed and confirmed, and by these presents
does grant, bargain, sell, assign, mortgage, pledge, transfer, set
over, alien, enfeoff, release, convey and confirm unto the
Deutsche Bank Trust Company Americas, Trustee, f/k/a Bankers Trust
Company, as Trustee, and its successor or successors in the trust
hereby created, and its and their assigns, all the following
described property, rights, privileges, and franchises of the
Company, viz:
(All descriptions of real estate, rights, privileges and
easements and all references to prior encumbrances have been
omitted herein, but remain applicable hereto.)
TOGETHER with all plants, buildings, structures, improvements
and machinery located upon said real estate or any portion
thereof, and all rights, privileges and easements of every kind
and nature appurtenant thereto, and all and singular the
tenements, hereditaments and appurtenances belonging to the real
estate or any part thereof hereinbefore described or referred to
or intended so to be, or in any wise appertaining thereto, and the
reversions, remainders, rents, issues and profits thereof; also
all the estate, right, title, interest, property, possession,
claim and demand whatsoever, as well in law as in equity, of the
Company, of, in and to the same and any and every part thereof,
with the appurtenances.
TOGETHER with the following electrical transmission lines and
distributing systems:
(All descriptions of electrical transmission lines and
distributing systems have been omitted herein, but remain
applicable hereto.)
Also all real estate, easements, rights-of-way, water rights,
riparian rights, flowage rights, dams, ponds, lakes, reservoirs,
canals, water-ways, gas plants and systems, substations,
transformer houses, tunnels, subways, bridges, viaducts, locks,
ware-houses, store-houses, tool houses, dwelling houses, out-
houses, buildings, structures, plants, machinery and apparatus,
gates, valves, piping, pumps, furnaces, boilers, engines, steam
engines, gas engines, rotary converters, transformers, switches,
switch-boards, appliances, equipment, tools, fixtures, electric
transmission lines and systems, telephone lines and systems, gas
distribution lines and systems, telephone lines and systems,
towers, poles, cross-arms, insulators, cables, wires, conduits,
ducts, man-holes, devices, motors, meters, lamps, shops, trucks,
automobiles, wagons, vehicles, instruments, and, except as herein
otherwise provided, all property, real and personal of whatsoever
character, and wherever situated, and all rights, privileges, and
franchises, now or at any time hereafter acquired, owned, held or
possessed by the Company.
Expressly excepting and excluding, however, from the Lien of
this Mortgage all right, title and interest of the Company in and
to the following property, whether now owned or hereafter acquired
(herein prior to the Second Effective Date sometimes called
"Excepted Property"); provided, however, that on and after the
Second Effective Date the term Excepted Property shall mean the
property specified in Section 1601(b), and the remainder of this
paragraph shall automatically cease to be of any further force or
effect:
(a) all stocks, bonds or other obligations of persons other
than corporations, and all other securities, unless the same shall
be deposited by the Company with the Trustee as provided in the
Mortgage;
(b) all rights and claims (other than with respect to the
Mortgaged Property), patents, patent rights and other similar
rights, agreements, contracts, accounts receivable, notes and
bills receivable, judgments and other evidences of indebtedness
not specifically assigned to and pledged with the Trustee
hereunder;
(c) electricity, gas, water, electric and gas appliances,
stock in trade, materials, supplies and other products generated,
manufactured, produced, purchased, or otherwise acquired for the
purpose of sale and/or resale, transmission, distribution, storage
or use in the usual course of business or the operation of any of
the properties of the Company;
(d) coal, natural gas, timber, lumber, crops, minerals,
mineral rights and other products of land owned by the Company, in
each case not in the ground;
(e) office furniture and equipment, small tools and
equipment and machinery of portable size, and vehicles and vessels
of every sort, together with all equipment and supplies necessary
to the operation and maintenance of such vehicles and vessels;
(f) all rents, tolls, earnings, profits, revenues, dividends
and income then or thereafter arising from any property, other
than the Mortgaged Property, then or thereafter owned, leased or
operated by the Company;
(g) all leasehold interests, permits, licenses and similar
rights, whether then owned or thereafter acquired by the Company,
which are intended to be hereby conveyed, transferred or assigned
and which may not be legally so conveyed, transferred or assigned,
or which cannot be so conveyed, transferred or assigned without
the consent of other parties whose consent is not secured or
without subjecting the Trustee to a liability not otherwise
contemplated by the provisions of the Mortgage or which otherwise
may not be hereby lawfully and/or effectively granted, conveyed,
mortgaged, transferred and assigned by the Company; and
(h) the last day of the term of each leasehold estate (oral
or written, or any agreement therefor) then owned or thereafter
acquired by the Company;
provided, however, that at any time prior to the Second Effective
Date, but not thereafter (i) if upon the occurrence of any Event
of Default the Trustee or any receiver or trustee or any
governmental subdivision, body or agency appointed or acting
pursuant to statutory provision or order of court shall have
entered into possession of the Mortgaged Property or a substantial
part thereof (other than securities and cash forming a part of the
Mortgaged Property), the property hereinabove released from the
lien hereof shall immediately become subject to the lien hereof to
the extent permitted by law; (ii) whenever all Events of Default
shall have been cured and the possession of the Mortgaged Property
(other than securities and cash forming a part thereof) shall have
been restored to the Company, any property of the character
described in this paragraph so restored to the Company shall again
be excepted and excluded from the Lien of the Mortgage to the
extent hereinabove set forth; and (iii) to the extent not
prohibited by any other provision of the Mortgage, nothing
contained in the release herein provided for shall prevent the
Company, prior to any such entry, from selling, assigning,
transferring, pledging or otherwise disposing of property of the
character thereby released from the Lien hereof by this provision
and in any such case the title, possession or other rights of the
purchaser, assignee or transferee thereof shall be free and clear
of such Lien as would otherwise attach under the Mortgage in the
event of such entry.
It is the intention and it is hereby agreed that all property
of the kind hereinbefore described acquired by the Company after
the date hereof, shall, except as otherwise provided herein, be as
fully embraced within the provisions of this indenture, and
subject to the lien hereby created, as if the said property were
now owned by the Company, and were specifically described herein
and conveyed hereby.
TO HAVE AND TO HOLD all and singular the property, rights,
privileges and franchises hereby granted or mentioned or intended
so to be, together with all and singular the reversions,
remainders, rents, revenues, incomes, issues and profits,
privileges and appurtenances, now or hereafter belonging or in
anywise appertaining thereto, unto the Trustee and its successors
in the trust hereby created and its and their assigns, forever.
But in trust, nevertheless, for the equal and proportionate
benefit and security of all present and future holders of the
bonds and coupons issued and to be issued hereunder and secured by
this indenture, and to secure the payments of such bonds and the
interest thereon when payable in accordance with the provisions
thereof or hereof, and to secure the performance of and compliance
with the covenants and conditions of this indenture without
preference, priority or distinction as to lien or otherwise of any
one bond over any other bond by reason of priority in the issue or
negotiation thereof, and under and subject to the provisions and
conditions and for the uses and purposes hereinafter set forth.
And it is hereby covenanted that all such bonds, with the
coupons for the interest thereon, are to be issued, authenticated
and delivered, and that the mortgaged premises are to be held by
the Trustee upon and subject to the following covenants,
provisions and conditions and for the uses and purposes
hereinafter set forth, as follows, to wit:
IT IS HEREBY COVENANTED AND AGREED by and between the Company
and the Trustee that all the Securities are to be authenticated
and delivered, and that the Mortgaged Property is to be held,
subject to the further covenants, conditions and trusts
hereinafter set forth, and the Company hereby covenants and agrees
to and with the Trustee, for the equal and ratable benefit of all
holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Mortgage, 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 without definition 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 without definition which are
defined in the Uniform Commercial Code of Connecticut as in effect
on the First Effective Date shall have the meanings assigned to
them therein;
(d) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States, and, except
as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the
date of such computation or, at the election of the Company from
time to time, at the First Effective Date; provided, however, that
in determining generally accepted accounting principles applicable
to the Company, effect shall be given, to the extent required, to
any order, rule or regulation of any administrative agency,
regulatory authority or other governmental body having
jurisdiction over the Company; and provided, further, that to the
extent the Company elects to use a computation that is not based
on accounting principles that are generally accepted in the United
States on the date of such computation, the Company shall so state
and shall certify that such principles were in effect at the First
Effective Date;
(e) the table of contents and headings are for reference
purposes only and shall not in any way affect the meaning or
interpretation of this Mortgage.
(f) The terms and provisions hereof that have no force or
effect before the Second Effective Date shall not in any way
affect the meaning or interpretation of any provisions hereof that
shall be in effect on and after the First Effective Date and,
correspondingly, the terms and provisions hereof that have no
force and effect after the Second Effective Date shall not in any
way affect the meaning or interpretation of any provisions hereof
that shall be in effect on and after the Second Effective Date;
(g) any reference to an "Article" or a "Section" refers to
an Article or a Section, as the case may be, of this Mortgage; and
(h) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Mortgage as a whole and not
to any particular Article, Section or other subdivision.
"ACCOUNTANT" means a person engaged in the accounting
profession or otherwise qualified to pass on accounting matters
(including, but not limited to, a Person certified or licensed as
a public accountant, whether or not then engaged in the public
accounting profession), which Person, unless required to be
Independent, may be an employee or Affiliate of the Company.
"ACT", when used with respect to any Holder of a Security,
has the meaning specified in Section 105.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For
the purposes of this definition, "CONTROL" when used with respect
to any specified Person means the power to direct 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.
"AUTHENTICATING AGENT" means any Person or Persons (other
than the Company or an Affiliate of the Company) authorized by the
Trustee to act on behalf of the Trustee to authenticate the
Securities of one or more series.
"AUTHORIZED OFFICER" means the Chairman of the Board, the
Vice Chairman, the President, any Vice President, the Treasurer,
any Assistant Treasurer, or any other officer, manager or agent of
the Company duly authorized pursuant to a Board Resolution to act
in respect of matters relating to this Mortgage.
"AVAILABLE CASH", at any time, shall mean all cash then held
by, or deposited with, the Trustee other than cash so held or
deposited pursuant to Section 307 or Article Eight.
"BOARD OF DIRECTORS" means either the board of directors,
board of managers or similar governing body of the Company or any
committee thereof duly authorized to act in respect of matters
relating to this Mortgage.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary, an Assistant Secretary or an Authorized Officer of
the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to a Place of Payment
or any other particular location specified in the Securities or
this Mortgage, 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, or in the
place in which the Corporate Trust Office is located, are
generally authorized or required by law, regulation or executive
order to remain closed, except as may be otherwise specified as
contemplated by Section 301.
"CAPITALIZED LEASE LIABILITIES" means, with respect to any
Person, the amount, if any, shown as liabilities on such Person's
unconsolidated balance sheet for capitalized leases of electric
transmission and distribution property not owned by such Person,
which amount shall be determined in accordance with generally
accepted accounting principles and practices applicable to the
type of business in which such Person is engaged.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or,
if at any time after the First Effective Date 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 the Person named as the "Company" in the
first paragraph of this Mortgage until a successor Person shall
have become such pursuant to the applicable provisions of this
Mortgage, and thereafter "Company" shall mean such successor
Person.
"COMPANY ORDER" or "COMPANY REQUEST" mean, respectively, a
written order or request, as the case may be, signed in the name
of the Company by an Authorized 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 First Effective Date
is located at 60 Wall Street, 27th Floor, New York, New York 10005-
2858.
"CORPORATION" means a corporation, association, company,
limited liability company, partnership, limited partnership, joint
stock company or business trust, and references to "corporate" and
other derivations of "corporation" herein shall be deemed to
include appropriate derivations of such entities.
"COST" with respect to Property Additions has the meaning
specified in Section 102.
"DEBT", with respect to any Person, means, without
duplication, (A) indebtedness of such Person for borrowed money
evidenced by a bond, debenture, note or other written instrument
or agreement by which such Person is obligated to repay such
borrowed money, (B) any guaranty by such Person of any such
indebtedness of another Person, and (C) any Capitalized Lease
Liabilities of such Person. "Debt" does not include, among other
things, (v) indebtedness of such person under any installment sale
or conditional sale agreement or any other agreement relating to
indebtedness for the deferred purchase price of property or
services, (w) any trade obligation (including obligations under
power or other commodity purchase agreements and any hedges or
derivatives associated therewith), or other obligations of such
Person in the ordinary course of business, (x) obligations of such
Person under any lease agreement that are not Capitalized Lease
Liabilities, (y) any Liens securing indebtedness, neither assumed
nor guaranteed by such Person nor on which it customarily pays
interest, existing upon real estate or rights in or relating to
real estate acquired by such Person for substation, transmission
line, transportation line, distribution line or right of way
purposes or (z) any Rate Reduction Bonds or other obligations
which are non-recourse to such Person.
"DEFAULTED INTEREST" has the meaning specified in Section
307.
"DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 902. "Interest" with respect to a Discount
Security means interest, if any, borne by such Security at a
Stated Interest Rate.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the
time shall be legal tender for the payment of public and private
debts.
"ELECTRIC UTILITY PROPERTY" means any facilities, machinery,
equipment and fixtures for the transmission and distribution of
electric energy, including switchyards, towers, substations,
transformers, poles, lines, cable, conduits, ducts, conductors,
meters, regulators and all other property of the Company, real or
personal, or improvements, extensions, additions, renewals or
replacements of the foregoing, in each case used or useful or to
be used in or in connection with the business of transmitting and
distributing electric energy of the character described in the
Granting Clauses of this Mortgage, whether owned by the Company at
the First Effective Date or hereafter acquired (other than
Excepted Property with respect to all of the property described in
this definition).
"ELIGIBLE OBLIGATIONS" means:
(a) with respect to Securities denominated in Dollars,
Government Obligations or, if specified pursuant to Section 301
with respect to any Securities, other Investment Securities; or
(b) with respect to Securities 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 Securities, as contemplated by Section 301.
"EVENT OF DEFAULT" has the meaning specified in Section 901.
"EXCEPTED PROPERTY",
(A) at any time prior to compliance by the Company with the
requirements of Section 1601(b), the term "Excepted Property" has
the meaning specified in the granting clauses of this Mortgage;
provided, however, that on and after such compliance with Section
1601(b), the term "Excepted Property" shall have the meaning set
forth in clause (B) below, and the definition of "Excepted
Property" set forth in this clause (A) shall automatically cease
to be of any further force or effect;
(B) at any time after compliance by the Company with the
requirements set forth in Section 1601(b), the term "Excepted
Property" shall mean the property described below in this clause
(B); provided, however, that until such compliance with Section
1601(b), the definition of the term "Excepted Property" set forth
in this clause (B) shall be of no force or effect but shall
automatically become and be in full force and effect upon such
compliance with Section 1601(b):
(i) all cash on hand or in banks or other financial
institutions, deposit accounts, securities accounts, shares of
stock, interests in business trusts or general or limited
partnerships or limited liability companies, bonds, notes,
mortgages, other evidences of indebtedness and other securities,
security entitlements and investment property, of whatsoever kind
and nature, not hereafter paid or delivered to, deposited with or
held by the Trustee hereunder or required so to be;
(ii) all rights, contracts, leases, operating agreements
and other agreements of whatsoever kind and nature; all contract
rights, bills, notes and other instruments and chattel paper
(except to the extent that any of the same constitute securities,
security entitlements or investment property, in which case they
are separately excepted from the Lien of this Mortgage under
clause (i) above); all revenues, income and earnings, all
accounts, accounts receivable, rights to payment, payment
intangibles and unbilled revenues, transition property, and all
rents, tolls, earnings, issues, product and profits, revenues,
dividends, income, claims, credits, demands and judgments; all
governmental and other licenses, permits, franchises, consents and
allowances; and all patents, patent licenses and other patent
rights, patent applications, trade names, trademarks, copyrights
and other intellectual property; and all claims, credits, choses
in action, commercial tort claims and other intangible property
and general intangibles including, but not limited to, computer
software;
(iii) all automobiles, buses, trucks, truck cranes,
tractors, trailers and similar vehicles and movable equipment; all
rolling stock, rail cars and other railroad equipment; all
vessels, boats, barges, and other marine equipment; all airplanes,
helicopters, aircraft engines and other flight equipment; all
parts, accessories and supplies used in connection with any of the
foregoing; and all personal property of such character that the
perfection of a security interest therein or other Lien thereon is
not governed by the Uniform Commercial Code as in effect in the
jurisdiction in which such property is located;
(iv) all goods, stock in trade, wares, merchandise and
inventory held for the purpose of sale or lease in the ordinary
course of business; all materials, supplies, inventory and other
items of personal property which are consumable (otherwise than by
ordinary wear and tear) in their use in the operation of the
Mortgaged Property; all fuel, including nuclear fuel, whether or
not any such fuel is in a form consumable in the operation of the
Mortgaged Property, including separate components of any fuel in
the forms in which such components exist at any time before,
during or after the period of the use thereof as fuel; all hand
and other portable tools and equipment; all furniture and
furnishings; and computers and data processing, data storage, data
transmission, telecommunications and other facilities, equipment
and apparatus, which, in any case, are used primarily for
administrative or clerical purposes or are otherwise not necessary
for the operation or maintenance of the facilities, machinery,
equipment or fixtures described or referred to in the Granting
Clauses of this Mortgage;
(v) all coal, lignite, ore, gas, oil and other minerals
and all timber, and all rights and interests in any of the
foregoing, whether or not such minerals or timber shall have been
mined or extracted or otherwise separated from the land; and all
electric energy and capacity, gas (natural or artificial), steam,
water and other products generated, produced, manufactured,
purchased or otherwise acquired by the Company;
(vi) all real property, leaseholds, gas rights, wells,
gathering, tap or other pipe lines, or facilities, equipment or
apparatus, in any case used or to be used primarily for the
production or gathering of natural gas;
(vii) all property which is the subject of a lease
agreement designating the Company as lessee and all right, title
and interest of the Company in and to such property and in, to and
under such lease agreement, whether or not such lease agreement is
intended as security;
(viii) all property, real, personal and mixed, which
prior to the Second Effective Date has been released from the Lien
of the Mortgage;
(ix) all property, real, personal and mixed, which
subsequent to the Second Effective Date, has been released from
the Lien of this Mortgage, and any improvements, extensions and
additions to such properties and renewals, replacements and
substitutions of or for any parts thereof;
(x) all leasehold interests, permits, licenses and
similar rights, whether now owned or hereafter acquired by the
Company, which are intended to be hereby conveyed, transferred or
assigned and which may not be legally so conveyed, transferred or
assigned, or which cannot be so conveyed, transferred or assigned
without the consent of other parties whose consent is not secured
or without subjecting the Trustee to a liability not otherwise
contemplated by the provisions of the Mortgage or which otherwise
may not be hereby lawfully and/or effectively granted, conveyed,
mortgaged, transferred and assigned by the Company;
(xi) the last day of the term of each leasehold estate
(oral or written, or any agreement therefor) then owned or
thereafter acquired by the Company;
(xii) any and all property and plants used by the
Company in the generation of electricity; and
(xiii) all property not acquired or constructed by
the Company for use in its electric transmission and distribution
business;
provided, however, that, at any time on and after the Second
Effective Date, subject to the provisions of Section 1203, (A) if,
at any time after the occurrence of an Event of Default, the
Trustee, or any separate trustee or co-trustee appointed under
Section 1014 or any receiver appointed pursuant to Section 917 or
otherwise, shall have entered into possession of all or
substantially all the Mortgaged Property, to the extent permitted
by law, all the Excepted Property described or referred to in the
foregoing clauses (iii) and (v) then owned or held or thereafter
acquired by the Company, to the extent that the same is used in
connection with, or otherwise relates or is attributable to, the
Mortgaged Property, shall immediately, and, in the case of any
Excepted Property described or referred to in clause (vii), to the
extent that the same is used in connection with, or otherwise
relates or is attributable to, the Mortgaged Property, become
subject to the Lien of this Mortgage, junior and subordinate to
any Liens at that time existing on such Excepted Property, and the
Trustee or such other trustee or receiver may, to the extent
permitted by law or by the terms of any such other Lien (and
subject to the rights of the holders of all such other Liens), at
the same time likewise take possession thereof, (B) 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 any future amendment to this Mortgage subject any Excepted
Property to the Lien of this Mortgage whereupon the same shall
cease to be Excepted Property, and (C) to the extent not
prohibited by any other provision of the Mortgage, nothing
contained in the release herein provided for shall prevent the
Company, prior to any such entering into possession, from selling,
assigning, transferring, pledging or otherwise disposing of
property of the character thereby released from the lien hereof by
this paragraph and in any such case the title, possession or other
rights of the purchaser, assignee or transferee thereof shall be
free and clear of such lien as would otherwise attach under the
Mortgage in the event of such entering into possession.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXPERT" means a Person which is an engineer, appraiser or
other expert and which, with respect to any certificate to be
signed by such Person and delivered to the Trustee, is qualified
to pass upon the matters set forth in such certificate. For
purposes of this definition, (a) "engineer" means a Person engaged
in the engineering profession or otherwise qualified to pass upon
engineering matters (including, but not limited to, a Person
licensed as a professional engineer, whether or not then engaged
in the engineering profession) and (b) "appraiser" means a Person
engaged in the business of appraising property or otherwise
qualified to pass upon the Fair Value or fair market value of
property.
"EXPERTS' CERTIFICATE" means a certificate signed by an
Authorized Officer, by an Accountant and by an Expert (which
Accountant and Expert (a) shall be selected either by the Board of
Directors or by an Authorized Officer, the execution of such
certificate by such Authorized Officer to be conclusive evidence
of such selection, and (b) except as otherwise required in
Sections 401 and 1610, may be an employee or Affiliate of the
Company) and delivered to the Trustee. The amount stated in any
Experts' Certificate as to the Cost, Fair Value or fair market
value of property shall be conclusive and binding upon the
Company, the Trustee and the Holders of the Securities.
"FAIR VALUE", with respect to property, means the fair value
of such property as determined in the reasonable judgment of the
Expert certifying to such value, such determination to be based on
any one or more factors deemed relevant by such Expert including,
without limitation, (a) the amount which would be likely to be
obtained in an arm's-length transaction with respect to such
property between an informed and willing buyer and an informed and
willing seller, under no compulsion, respectively, to buy or sell,
(b) the amount of investment with respect to such property which,
together with a reasonable return thereon, would be likely to be
recovered through ordinary business operations or otherwise, (c)
the Cost, accumulated depreciation, and replacement cost with
respect to such property and/or (d) any other relevant factors;
provided, however, that (x) the Fair Value of property shall be
determined without deduction for any Liens on such property prior
to the Lien of this Mortgage (except as otherwise provided in
Section 1603) and (y) the Fair Value to the Company of Property
Additions may be of less value to a Person which is not the owner
or operator of the Mortgaged Property or any portion thereof than
to a Person which is such owner or operator. Fair Value may be
determined, without physical inspection, by the use of accounting
and engineering records and other data maintained by the Company
or otherwise available to the Expert certifying the same.
"FIRST EFFECTIVE DATE" means the date [__________].
"GOVERNMENTAL AUTHORITY" means the government of the United
States or of 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.
"GOVERNMENT OBLIGATIONS" means securities which are (a) (i)
direct obligations of the United States where the payment or
payments thereunder are supported by the full faith and credit of
the United States or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States where the timely payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation
by the United States or (b) depository receipts issued by a bank
(as defined in Section 3(a)(2) of the Securities Act, which may
include the Trustee or any Authenticating Agent or Paying Agent)
as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of or other amount
with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific
payment of interest on or principal of or other amount with
respect to the Government Obligation evidenced by such depository
receipt.
"HOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDEPENDENT", when applied to any Accountant or Expert,
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 Securities 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) shall be acceptable to the Trustee.
"INDEPENDENT EXPERTS' CERTIFICATE" means a certificate signed
by an Expert who is Independent and delivered to the Trustee.
"INTEREST" with respect to a Discount Security means
interest, if any, borne by such Security at a Stated Interest Rate
rather than interest calculated at any imputed rate.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest
on such Security.
"INVESTMENT SECURITIES" means any of the following
obligations or securities on which neither the Company, any other
obligor on the Securities nor any Affiliate of either is the
obligor: (a) Government Obligations; (b) interest bearing deposit
accounts (which may be represented by certificates of deposit) in
any national or state bank (which may include the Trustee or any
Authenticating Agent or Paying Agent) or savings and loan
association whose outstanding securities (or securities of the
bank holding company owning all of the capital stock of such bank
or savings and loan association) are rated by a nationally
recognized rating organization in either of the two highest rating
categories (without regard to modifiers) for short-term securities
or in any of the three highest rating categories (without regard
to modifiers) for long-term securities; (c) bankers' acceptances
drawn on and accepted by any commercial bank (which may include
the Trustee or any Authenticating Agent or Paying Agent) whose
outstanding securities (or securities of the bank holding company
owning all of the capital stock of such commercial bank) are rated
by a nationally recognized rating organization in either of the
two highest rating categories (without regard to modifiers) for
short-term securities or in any of the three highest rating
categories (without regard to modifiers) for long-term securities;
(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 or the District of Columbia, or any
political subdivision of any of the foregoing, which are rated by
a nationally recognized rating organization in either of the two
highest rating categories (without regard to modifiers) for short-
term securities or in any of the three highest rating categories
(without regard to modifiers) for long-term securities; (e) bonds
or other obligations of any agency or instrumentality of the
United States; (f) corporate debt securities which are rated by a
nationally recognized rating organization in either of the two
highest rating categories (without regard to modifiers) for short-
term securities or in any of the three highest rating categories
(without regard to modifiers) for long-term securities; (g)
repurchase agreements with respect to any of the foregoing
obligations or securities with any banking or financial
institution (which may include the Trustee or any Authenticating
Agent or Paying Agent) whose outstanding securities (or securities
of the bank holding company owning all of the capital stock of
such bank or financial institution) are rated by a nationally
recognized rating organization in either of the two highest rating
categories (without regard to modifiers) for short-term securities
or in any of the three highest rating categories (without regard
to modifiers) for long-term securities; (h) securities issued by
any regulated investment company (including any investment company
for which the Trustee or any Authenticating Agent or Paying Agent
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 or securities of the
character and investment quality contemplated in clauses (a)
through (f) above and repurchase agreements which are fully
collateralized by any of such obligations or securities; and (i)
any other obligations or securities which may lawfully be
purchased by the Trustee in its capacity as such.
"LIEN" means any mortgage, deed of trust, pledge, security
interest, encumbrance, easement, lease, reservation, restriction,
servitude, charge or similar right and any other lien of any kind,
including, without limitation, any conditional sale or other title
retention agreement, any lease in the nature thereof, and any
defect, irregularity, exception or limitation in record title.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of
principal becomes due and payable as provided in such Security or
in this Mortgage, whether at the Stated Maturity, by declaration
of acceleration, upon call for redemption or otherwise.
"MORTGAGE" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or
more Mortgages supplemental hereto entered into pursuant to the
applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental Mortgage, the provisions of
the Trust Indenture Act that are deemed to be a part of and govern
this Mortgage and any such supplemental Mortgage, respectively.
The term "Mortgage" shall also include the provisions or terms of
particular series of Securities established in any Officers'
Certificate, Board Resolution or Company Order delivered pursuant
to Sections 201, 301, 303 and 1307.
"MORTGAGED PROPERTY" means, as of any particular time, all
property which at such time is subject to the Lien of this
Mortgage.
"NOTICE OF DEFAULT" means a written notice of the kind
specified in Section 901(c).
"OFFICERS' CERTIFICATE" means a certificate signed by any two
Authorized Officers of the Company and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company.
"OUTSTANDING", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore
authenticated and delivered under this Mortgage, except:
(a) Securities theretofore canceled or delivered to the
Security Registrar for cancellation;
(b) Securities deemed to have been paid for all purposes of
this Mortgage in accordance with Section 801 (whether or not the
Company's indebtedness in respect thereof shall be satisfied and
discharged for any other purpose); and
(c) Securities, the principal, premium, if any, and
interest, if any, which have been fully paid pursuant to the third
paragraph of Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to
this Mortgage, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory
to it and the Company that such Securities are held by a bona fide
purchaser or purchasers in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether or not the Holders
of the requisite principal amount of the Securities Outstanding
under this Mortgage, or the Securities Outstanding of any series
or Tranche, have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or whether or not a
quorum is present at a meeting of Holders of Securities,
(x) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such
other obligor (unless the Company, such Affiliate or such obligor
owns all Securities Outstanding under this Mortgage, or (except
for the purposes of actions to be taken by Holders of more than
one series or more than one Tranche, as the case may be, voting as
a class under Section 1302) all Securities Outstanding of each
such series and each such Tranche, as the case may be, determined
without regard to this clause (x)) shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver or
upon any such determination as to the presence of a quorum, only
Securities which the Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded; provided, however,
that Securities so owned which have been pledged in good faith may
be regarded as Outstanding if 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 Securities and that the
pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor; and provided, further, that in no event shall any
Security which shall have been delivered to evidence or secure, in
whole or in part, the Company's obligations in respect of other
indebtedness be deemed to be owned by the Company if the principal
of such Security is payable, whether at Stated Maturity or upon
mandatory redemption, at the same time as the principal of such
other indebtedness is payable, whether at Stated Maturity or upon
mandatory redemption or acceleration, but only to the extent of
such portion of the principal amount of such Security as does not
exceed the principal amount of such other indebtedness, and
(y) the principal amount of a Discount Security that shall
be deemed to be Outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of
the Maturity thereof pursuant to Section 902; and
(z) the principal amount of any Security which is
denominated in a currency other than Dollars or in a composite
currency that shall be deemed to be Outstanding for such purposes
shall be the amount of Dollars which could have been purchased by
the principal amount (or, in the case of a Discount Security, the
Dollar equivalent on the date determined as set forth below of the
amount determined as provided in (y) above) of such currency or
composite currency evidenced by such Security, in each such case
certified to the Trustee in an Officers' Certificate, based (i) on
the average of the mean of the buying and selling spot rates
quoted by three banks which are members of the New York Clearing
House Association selected by the Company in effect at 11:00 A.M.
(New York time) in The City of New York on the fifth Business Day
preceding any such determination or (ii) if on such fifth Business
Day it shall not be possible or practicable to obtain such
quotations from such three banks, on such other quotations or
alternative methods of determination which shall be as consistent
as practicable with the method set forth in (i) above;
provided, further, that in the case of any Security the principal
of which is payable from time to time without presentment or
surrender, the principal amount of such Security that shall be
deemed to be Outstanding at any time for all purposes of this
Mortgage shall be the original principal amount thereof less the
aggregate amount of principal thereof theretofore paid.
"OUTSTANDING", when used with respect to Secured Debt, means,
as of the date of determination, all Secured Debt authenticated
and delivered by the trustee or other holder of the Prior Lien
securing the same or, if there be no such trustee or other holder,
theretofore made and delivered or incurred by the Company, except:
(a) Secured Debt theretofore cancelled or delivered to the
trustee or other holder of any such Prior Lien for cancellation;
(b) Secured Debt which has been fully paid or deemed to have
been fully paid;
(c) Secured Debt held by the Trustee subject to the
provisions of Section 1608 hereof;
(d) Secured Debt held by the trustee or other holder of a
Prior Lien upon the same property as that mortgaged or pledged to
secure the Secured Debt so held (under conditions such that no
transfer of ownership or possession of such Secured Debt by the
trustee or other holder of such Prior Lien is permissible
otherwise than to the Trustee to be held subject to the provisions
of Section 1608 hereof, or to the trustee or other holder of some
other Prior Lien upon the same property for cancellation or to be
held uncancelled under the terms of such other Prior Lien under
like conditions);
(e) Secured Debt secured by a Prepaid Lien; and
(f) lost, stolen or destroyed Secured Debt in lieu of or in
substitution for which other Secured Debt shall have been
authenticated and delivered.
"PAYING AGENT" means any Person, including the Company,
authorized by the Company to pay the principal of, and premium, if
any, or interest, if any, on any Securities on behalf of the
Company.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time any or all of the specific terms of which
Securities, including without limitation the rate or rates of
interest, if any, thereon, the Stated Maturity or Maturities
thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents from
time to time subsequent to the initial request for the
authentication and delivery of such Securities by the Trustee, as
contemplated in Section 301 and clause (b) of Section 303.
"PERMITTED LIENS"
(A) at any time prior to the Second Effective Date, the term
"Permitted Liens" shall, with respect to Mortgaged Property, mean
any of the following; provided, however that on and after the
Second Effective Date, the term "Permitted Liens" shall have the
meaning set forth in clause (B) below and the definition of
Permitted Liens set forth in this clause (A) shall automatically
cease to be of any further force or effect:
(a) any Liens or other encumbrances created by others
than the Company and any renewal or extension of any such
Lien or other encumbrance, which at the particular time in
question are Liens upon lands not owned by the Company over
which easements or rights-of-way for towers, poles, wires,
conduits, mains, pipe lines, transmission lines, distribution
lines, metering stations or other facilities or purposes are
held by the Company, securing bonds or other indebtedness
which have not been assumed or guaranteed by the Company and
on which the Company does not customarily pay interest
charges;
(b) undetermined Liens and charges incidental to
construction;
(c) any valid right under any provision of statutory or
common law to purchase, condemn, appropriate or recapture, or
to designate a purchaser of, any of the Mortgaged Property;
(d) the Lien of taxes and assessments not at the time
due and delinquent;
(e) the Lien of specified taxes and assessments which
are delinquent but the validity of which is being contested
at the time by the Company in good faith;
(f) the Lien reserved in leases for rent and other
payments in the nature of rent and for compliance with the
terms of the leases in the case of leasehold estates;
(g) minor defects and irregularities in the titles to
any property which do not materially impair the use of such
property for the purposes for which it is held by the
Company;
(h) easements, rights, exceptions or reservations in
any property of the Company, granted or reserved or created
by law for the purpose of towers, poles, conduits, mains,
pipe lines, transmission lines, distribution lines, metering
stations, roads, streets, alleys, highways, railroad tracks,
docks, water or air rights, wells and other like facilities
or purposes, or for the joint or common use of real property,
facilities and equipment, which do not materially impair the
use of such property for the purposes for which it is held by
the Company;
(i) rights reserved to or vested in any municipality or
public authority to control or regulate any property of the
Company or to use any such property in any manner which does
not materially impair the use of such property for the
purposes for which it is held by the Company;
(j) any obligations or duties, affecting the property
of the Company, to any municipality or public authority with
respect to any franchise, grant, license or permit; and
(k) any irregularities in or deficiencies of title to
any rights-of-way for electric transmission lines, electric
distribution lines, pipe lines, telephone lines, power lines,
water lines and/or appurtenances thereto or other
improvements thereon, and to any real estate used or to be
used primarily for right-of-way purposes, provided that in
the opinion of counsel 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, to the use thereof for
the construction, operation or maintenance of such lines,
appurtenances or improvements for which the same are used or
are to be used, or provided that in the opinion of counsel
the Company has power under its charter or by statute, by the
exercise of eminent domain or a similar right or power, to
remove such irregularities or deficiencies.
(B) at any time on and after the Second Effective Date, the
term "Permitted Lien" shall, with respect to the Mortgaged
Property, mean any of the following; provided, however, that the
definition of Permitted Liens set forth in this Clause (B) shall
be of no force or effect until the Second Effective Date, but
shall automatically become and be in full force and effect on and
after the Second Effective Date:
(a) Liens existing as of the Second Effective Date;
(b) as to property acquired by the Company after the
Second Effective Date, Liens existing or placed thereon at
the time of the acquisition thereof (including, but not
limited to, any Prior Lien);
(c) Liens for taxes, assessments and other governmental
charges or requirements which are not delinquent or which are
being contested in good faith by appropriate proceedings;
(d) mechanics', workmen's, repairmen's, materialmen's,
warehousemen's, and carriers' Liens, other Liens incident to
construction, 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;
(e) Liens in respect of attachments, judgments or
awards arising out of judicial or administrative proceedings
(i) in an amount not exceeding the greater of (A) $10,000,000
and (B) 3% of the aggregate principal amount of all
Securities and Secured Debt then Outstanding or (ii) with
respect to which the Company shall (X) 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 (Y) have
the right to prosecute an appeal or other proceeding for
review;
(f) easements, leases, reservations or other rights of
others in, on, over and/or across, and laws, regulations and
restrictions affecting, and defects, irregularities,
exceptions and limitations in title to, the Mortgaged
Property or any part thereof; provided, however, that such
easements, leases, reservations, rights, laws, regulations,
restrictions, defects, irregularities, exceptions and
limitations 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;
(g) defects, irregularities, exceptions and limitations
in title to real property subject to rights-of-way in favor
of the Company or otherwise or used or to be used by the
Company primarily for right-of-way purposes or real property
held under lease, easement, license or similar right;
provided, however, that (i) the Company shall have obtained
from the apparent owner or owners of such real property 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 purposes for which the Company
acquired the same; or (ii) the Company has power under
eminent domain or similar statutes to remove such defects,
irregularities, exceptions or limitations; or (iii) such
defects, irregularities, exceptions and limitations may be
otherwise remedied without undue effort or expense; and
defects, irregularities, exceptions and limitations in title
to reclaimed lands, flood lands, flooding rights and/or water
rights;
(h) Liens securing indebtedness or other obligations
neither created, assumed nor guaranteed by the Company nor on
account of which it customarily pays interest upon real
property or rights in or relating to real property acquired
by the Company for the purpose of the transmission or
distribution of electric energy, gas or water, for the
purpose of telephonic, telegraphic, radio, wireless or other
electronic communication or otherwise for the purpose of
obtaining rights-of-way or for any other purposes;
(i) leases existing as of the Second Effective Date
affecting properties owned by the Company at said date and
renewals and extensions thereof; and leases affecting such
properties entered into after such date or affecting
properties acquired by the Company after such date which, in
either case, (i) have respective terms of not more than 10
years (including extensions or renewals at the option of the
tenant) or (ii) do not materially impair the use by the
Company of such properties for the respective purposes for
which they are held by the Company;
(j) Liens vested in lessors, licensors, franchisors or
permitters for rent or other amounts 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,
franchises or permits, so long as the payment of such rent or
other amounts or the performance of such other obligations or
acts is not delinquent or is being contested in good faith
and by appropriate proceedings;
(k) controls, restrictions, obligations, duties and/or
other burdens imposed by federal, state, municipal or other
law, or by rules, regulations or orders of Governmental
Authorities, upon the Mortgaged Property or any part thereof
or the operation or use thereof or upon the Company with
respect to the Mortgaged Property or any part thereof 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 Governmental
Authorities to impose any such controls, restrictions,
obligations, duties and/or other burdens;
(l) rights which Governmental Authorities may have by
virtue of franchises, grants, licenses, permits or contracts,
or by virtue of law, to take, condemn, appropriate, occupy,
purchase, recapture or designate a purchaser of or order the
sale of the Mortgaged Property or any part thereof, to
terminate franchises, grants, licenses, permits, contracts or
other rights or to regulate the property and business of the
Company; and any and all obligations of the Company
correlative to any such rights;
(m) Liens required by law or governmental regulations
(i) as a condition to the transaction of any business or the
exercise of any privilege or license, (ii) to enable the
Company to maintain self-insurance or to participate in any
funds established to cover any insurance risks, (iii) in
connection with workmen's compensation, unemployment
insurance, social security, any pension or welfare benefit
plan or (iv) to share in the privileges or benefits required
for companies participating in one or more of the
arrangements described in clauses (ii) and (iii) above;
(n) Liens on the Mortgaged Property or any part thereof
which are granted by the Company to secure duties or public
or statutory obligations or to secure, or serve in lieu of,
surety, stay or appeal bonds;
(o) rights reserved to or vested in others to take or
receive any part of any coal, ore, gas, oil and other
minerals, any timber and/or any electric capacity or energy,
gas, water, steam and any other products, developed,
produced, manufactured, generated, purchased or otherwise
acquired by the Company or by others on property of the
Company;
(p) (i) rights and interests of Persons other than the
Company arising out of contracts, agreements and other
instruments to which the Company is a party and which relate
to the common ownership or joint use of property; and (ii)
all Liens on the interests of Persons other than the Company
in property owned in common by such Persons and the Company;
(q) any restrictions on assignment and/or requirements
of any assignee to qualify as a permitted assignee and/or
public utility or public service corporation;
(r) Liens, if any, which may be deemed to exist with
respect to property leased by the Company pursuant to leases
which are treated under generally accepted accounting
principles as capital leases;
(s) 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;
(t) rights and interests granted pursuant to Section
1602(c);
(u) Prepaid Liens;
(v) any Liens, claims, encumbrances, rights, or
interests of Persons claiming such rights, interests, etc. as
descendants of American Indians or as Indian Tribes, whether
pursuant to the Non-Intercourse Act of 1834 (25 U.S.C. 177)
or otherwise; and
(w) any Lien of the Trustee granted pursuant to Section
1007.
"PERSON" means any individual, corporation, joint venture,
limited liability company, trust or unincorporated organization or
any Governmental Authority.
"PLACE OF PAYMENT", when used with respect to the Securities
of any series, or Tranche thereof, means the place or places,
specified as contemplated by Section 301, at which, subject to
Section 702, principal of and premium, if any, and interest, if
any, on the Securities of such series or Tranche are payable.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes
of this definition, any Security authenticated and delivered under
Section 306 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Security shall be deemed to evidence the same debt
as the mutilated, destroyed, lost or stolen Security.
"PREPAID LIENS" means any Lien securing indebtedness for the
payment of which money in the necessary 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.
"PRIOR LIEN" means any Lien securing Secured Debt.
"PROPERTY ADDITIONS" has the meaning specified in Section
102.
"PURCHASE MONEY LIEN" means, with respect to any property
being acquired or disposed of by the Company or being released
from the Lien of this Mortgage, a Lien on such property which
(a) is taken or retained by the transferor of such property
to secure all or part of the purchase price thereof;
(b) is granted to one or more Persons other than the
transferor which, by making advances or incurring an obligation,
give value to enable the grantor of such Lien to acquire rights in
or the use of such property;
(c) is granted to any other Person in connection with the
release of such property from the Lien of this Mortgage on the
basis of the deposit with the Trustee or the trustee or other
holder of a Lien prior to the Lien of this Mortgage of obligations
secured by such Lien on such property (as well as any other
property subject thereto);
(d) is held by a trustee or agent for the benefit of one or
more Persons described in clause (a), (b) and/or (c) above,
provided that such Lien may be held, in addition, for the benefit
of one or more other Persons which shall have theretofore given,
or may thereafter give, value to or for the benefit or account of
the grantor of such Lien for one or more other purposes; or
(e) otherwise constitutes a purchase money mortgage or a
purchase money security interest under applicable law; and,
without limiting the generality of the foregoing, for purposes of
this Mortgage, the term Purchase Money Lien shall be deemed to
include any Lien described above whether or not such Lien (x)
shall permit the issuance or other incurrence of additional
indebtedness secured by such Lien on such property, (y) shall
permit the subjection to such Lien of additional property and the
issuance or other incurrence of additional indebtedness on the
basis thereof and/or (z) shall have been granted prior to the
acquisition, disposition or release of such property, shall attach
to or otherwise cover property other than the property being
acquired, disposed of or released and/or shall secure obligations
issued prior and/or subsequent to the issuance of the obligations
delivered in connection with such acquisition, disposition or
release.
"RATE REDUCTION BOND" means notes or bonds issued on behalf
of the Company that are wholly or partially secured by Rate
Reduction Bond Property or are unsecured and with respect to which
no recourse may be had to the Company or its assets for the
payment of principal, premium or interest, except for the Rate
Reduction Bond Property securing such notes or bonds.
"RATE REDUCTION BOND PROPERTY" means all charges,
receivables, similar amounts or any other property of the Company
authorized by appropriate Connecticut or other legislation, order,
rule, statute, decree or judgment to be collected by the Company
or any other party from its customers or any other party as
security for, or to assure the payment of principal of, and
premium and interest on, Rate Reduction Bonds and obligations
relating thereto.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or
pursuant to this Mortgage.
"REDEMPTION PRICE", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed
pursuant to this Mortgage, exclusive of accrued and unpaid
interest.
"REGULAR RECORD DATE" for the interest payable on any
Interest Payment Date on the Securities of any series means the
date specified for that purpose as contemplated by Section 301.
"REQUIRED CURRENCY" has the meaning specified in Section 311.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer within the corporate trust administration group
of the Trustee (or any successor group of the Trustee) with direct
responsibility for the administration of this Mortgage and also
means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"SALE AND LEASE BACK TRANSACTION" means any arrangement with
any Person providing for the leasing to the Company of any
Mortgaged Property (except for leases for a term, including any
renewal thereof, of not more than forty-eight (48) months), which
Mortgaged Property has been or is to be sold or transferred by the
Company to such Person.
"SECOND EFFECTIVE DATE" means the earliest date on which the
Holders of all Securities then Outstanding shall have consented
(or shall be deemed to have consented) to the amendment of this
Mortgage substantially in the form that the Mortgage shall have
become effective on the First Effective Date with such changes
thereafter as are permitted by the terms hereof; provided,
however, that the Holders of all Securities issued after the First
Effective Date shall automatically be deemed to have so consented.
"SECURED DEBT" means Debt, other than Securities, created,
issued, incurred or assumed by the Company which is secured by a
Lien, other than a Permitted Lien, upon any Mortgaged Property
(other than Excepted Property) of the Company prior to or on a
parity with the lien of this Mortgage.
"SECURITIES" means any securities authenticated and delivered
under this Mortgage.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SECURITY REGISTER" AND "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"STATED INTEREST RATE" means a rate (whether fixed or
variable) at which an obligation by its terms is stated to bear
simple interest. Any calculation or other determination to be
made under this Mortgage by reference to the Stated Interest Rate
on a Security shall be made without regard to the effective
interest cost to the Company of such Security and without regard
to the Stated Interest Rate on, or the effective cost to the
Company of, any other indebtedness the Company's obligations in
respect of which are evidenced or secured in whole or in part by
such Security.
"STATED MATURITY", when used with respect to any Security or
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 or interest is stated to be due
and payable (without regard to any provisions for redemption,
prepayment, acceleration, purchase or extension).
"SUCCESSOR COMPANY" has the meaning set forth in Section
1201.
"SUPPLEMENTAL MORTGAGE", "SUPPLEMENTAL INDENTURE" or
"MORTGAGE SUPPLEMENTAL HERETO" means an instrument supplementing
or amending this Mortgage executed and delivered pursuant to
Article Thirteen.
"TRANCHE" means a group of Securities which (a) are of the
same series and (b) have identical terms except as to principal
amount, date of issuance, interest rate, payment terms and/or
maturity date.
"TRUSTEE" means the Person named as the "Trustee" in the
first paragraph of this Mortgage until a successor Trustee shall
have been appointed by the Company pursuant to Section 1010 or
otherwise have become such with respect to one or more series of
Securities pursuant to the applicable provisions of this Mortgage,
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 Securities
of any series shall mean the Trustee with respect to Securities of
that series.
"TRUST INDENTURE ACT" means, as of any time, the Trust
Indenture Act of 1939 as in effect at such time.
"UNITED STATES" means the United States of America, its
territories, its possessions and other areas subject to its
jurisdiction.
SECTION 102. 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 Mortgaged Property.
(b) When the aggregate amount of any Property Additions are
calculated for any purpose under the Mortgage, there shall be
deducted from the Cost or Fair Value to the Company thereof, as
the case may be (as of the date so calculated), an amount equal to
all related reserves (estimated, if necessary, as to particular
property) for depreciation, depletion, obsolescence or
amortization recorded on the books of the Company as of the date
so calculated in respect of such Property Additions which have not
theretofore been deducted from the Cost or Fair Value of Property
Additions theretofore so calculated.
(c) Except as otherwise provided in Section 1603, the term
"COST" with respect to Property Additions shall mean the sum of
(i) any cash delivered in payment therefor or for the acquisition
thereof, (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 upon such Property Additions outstanding at the time
of the acquisition thereof, (iv) the principal amount of any other
obligations incurred or assumed in connection with the payment for
such Property Additions or for the acquisition thereof and (v) any
other amounts which, in accordance with generally accepted
accounting principles, are properly charged or chargeable to the
plant or other property accounts of the Company with respect to
such Property Additions as part of the cost of construction or
acquisition thereof, including, but not limited to, any allowance
for funds used during construction or any similar or analogous
amount; provided, however, that, notwithstanding any other
provision of this Mortgage,
(i) with respect to Property Additions owned by a
successor corporation immediately prior to the time it shall have
become such by consolidation or merger or acquired by a successor
corporation in or as a result of a consolidation or merger
(excluding, in any case, Property Additions owned by the Company
immediately prior to such time), Cost shall mean the amount or
amounts at which such Property Additions are recorded in the plant
or other property accounts of such successor corporation, or the
predecessor corporation from which such Property Additions are
acquired, as the case may be, immediately prior to such
consolidation or merger;
(ii) with respect to Property Additions which 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
Mortgage provision is made for Cost or Fair Value, Cost with
respect to such Property Additions shall mean an amount equal to
the Fair Value to the Company thereof or, if greater, the
aggregate amount reflected in the Company's books of account with
respect thereto upon the acquisition thereof; and
(iii) in no event shall the Cost of Property
Additions be required to reflect any adjustment to the amount or
amounts at which such Property Additions are recorded in plant or
other property accounts due to the non-recoverability of
investment or otherwise.
If any Property Additions are shown by the Experts' Certificate
provided for in Section 401(b)(ii) 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 need not be reduced by any amount
in respect of any goodwill, going concern value, franchises,
contracts, operating agreements and other rights and/or intangible
property 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, going concern value rights and intangible property.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Mortgage, upon
any application or request by the Company to the Trustee to take
any action under any provision of this Mortgage, the Company shall
furnish to the Trustee an Officers' Certificate stating that in
the opinion of the Authorized Officers executing such Officers'
Certificate all conditions precedent, if any, provided for in this
Mortgage relating to the proposed action (including any covenants
compliance with which constitutes a condition precedent) have been
complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such
application or request as to which the furnishing of such
documents is specifically required by any provision of this
Mortgage relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Mortgage shall
include:
(a) a statement that each Person signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
Person, such condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
(a) Any Officers' Certificate may be based (without further
examination or investigation), insofar as it relates to or is
dependent upon legal matters, upon an opinion of, or
representations by, counsel, and, insofar as it relates to or is
dependent upon matters which are subject to verification by
Accountants, upon a certificate or opinion of, or representations
by, an Accountant, and insofar as it relates to or is dependent
upon matters which are required in this Mortgage to be covered by
a certificate or opinion of, or representations by, an Expert,
upon the certificate or opinion of, or representations by, an
Expert, unless, in any case, either such officer has actual
knowledge that the certificate or opinion or representations with
respect to the matters upon which such Officers' Certificate may
be based as aforesaid are erroneous.
Any Experts' Certificate may be based (without further
examination or investigation), insofar as it relates to or is
dependent upon legal matters, upon an opinion of, or
representations by, counsel, and insofar as it relates to or is
dependent upon factual matters, information with respect to which
is in the possession of the Company and which are not subject to
verification by Experts, upon a certificate or opinion of, or
representations by, an officer or officers of the Company, unless
such expert has actual knowledge that the certificate or opinion
or representations with respect to the matters upon which his
certificate or opinion may be based as aforesaid are erroneous.
Any certificate of an Accountant may be based (without
further examination or investigation), insofar as it relates to or
is dependent upon legal matters, upon an opinion of, or
representations by, counsel, and in so far as it relates to or is
dependent upon factual matters, information with respect to which
is in the possession of the Company and which are not subject to
verification by Accountants, upon a certificate of, or
representations by, an officer or officers of the Company, unless
such Accountant has actual knowledge that the certificate or
opinion or representations with respect to the matters upon which
his certificate or opinion may be based as aforesaid are
erroneous.
Any Opinion of Counsel may be based (without further
examination or investigation), insofar as it relates to or is
dependent upon factual matters, information with respect to which
is in the possession of the Company, upon a certificate of, or
representations by, an officer or officers of the Company, and,
insofar as it relates to or is dependent upon matters which are
subject to verification by Accountants upon a certificate or
opinion of, or representations by, an Accountant, and, insofar as
it relates to or is dependent upon matters required in this
Mortgage to be covered by a certificate or opinion of, or
representations by, an Expert, upon the certificate or opinion of,
or representations by, an Expert, unless such counsel has actual
knowledge that the certificate or opinion or representations with
respect to the matters upon which his opinion may be based as
aforesaid are erroneous. In addition, any Opinion of Counsel may
be based (without further examination or investigation), insofar
as it relates to or is dependent upon matters covered in an
Opinion of Counsel rendered by other counsel, upon such other
Opinion of Counsel, unless such counsel has actual knowledge that
the Opinion of Counsel rendered by such other counsel with respect
to the matters upon which his Opinion of Counsel may be based as
aforesaid are erroneous. Further, any Opinion of Counsel with
respect to the status of title to or the sufficiency of
descriptions of property, and/or the existence of Liens thereon,
and/or the recording or filing of documents, and/or any similar
matters, may be based (without further examination or
investigation) upon (i) title insurance policies or commitments
and reports, abstracts of title, lien search certificates and
other similar documents or (ii) certificates of, or
representations by, officers, employees, agents and/or other
representatives of the Company or (iii) any combination of the
documents referred to in (i) and (ii), unless, in any case, such
counsel has actual knowledge that the document or documents with
respect to the matters upon which his opinion may be based as
aforesaid 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
Officers' Certificate, certificate of an Accountant or Experts'
Certificate provided for herein, then such certificate may state
all such additional facts or matters as the signer of such Opinion
of Counsel may request.
(b) 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. Where (i) any Person is required to make, give
or execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments under this
Mortgage, or (ii) two or more Persons are each required to make,
give or execute any such application, request, consent,
certificate, statement, opinion or other instrument, any such
applications, requests, consents, certificates, statements,
opinions or other instruments may, but need not, be consolidated
and form one instrument.
(c) Whenever, subsequent to the receipt by the Trustee of
any Board Resolution, Officers' Certificate, Experts' Certificate,
Opinion of Counsel or other document or instrument, a clerical,
typographical or other inadvertent or unintentional error or
omission shall be discovered therein, a new document or instrument
may be substituted therefor in corrected form with the same force
and effect as if originally filed in the corrected form and,
irrespective of the date or dates of the actual execution and/or
delivery thereof, such substitute document or instrument shall be
deemed to have been executed and/or delivered as of the date or
dates required with respect to the document or instrument for
which it is substituted. Anything in this Mortgage to the
contrary notwithstanding, if any such corrective document or
instrument indicates that action has been taken by or at the
request of the Company which could not have been taken had the
original document or instrument not contained such error or
omission, the action so taken shall not be invalidated or
otherwise rendered ineffective but shall be and remain in full
force and effect, except to the extent that such action was a
result of willful misconduct or bad faith. Without limiting the
generality of the foregoing, any Securities issued under the
authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to
the benefits of this Mortgage equally and ratably with all other
Outstanding Securities, except as aforesaid.
SECTION 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, election, waiver or other action provided by this
Mortgage 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 Fourteen, 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 Security, shall be sufficient for any
purpose of this Mortgage and (subject to Section 1001) 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 1406.
(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 ownership, principal amount (except as otherwise
contemplated in clause (y) of the first proviso to the definition
of Outstanding) and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of a Holder shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made
upon such Security.
(e) Until such time as written instruments shall have been
delivered to the Trustee with respect to the requisite percentage
of principal amount of Securities for the action contemplated by
such instruments, any such instrument executed and delivered by or
on behalf of a Holder may be revoked with respect to any or all of
such Securities by written notice by such Holder or any subsequent
Holder, proven in the manner in which such instrument was proven.
(f) Securities of any series, or any Tranche thereof,
authenticated and delivered after any Act of Holders may, and
shall if required by the Trustee, bear a notation in form approved
by the Trustee as to any action taken by such Act of Holders. If
the Company shall so determine, new Securities of any series, or
any Tranche thereof, so modified as to conform, in the opinion of
the Trustee and the Company, to such action may be prepared and
executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series or
Tranche.
(g) If the Company shall solicit from Holders any request,
demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, 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 Securities have authorized
or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of the
record date.
SECTION 106. NOTICES, ETC. TO TRUSTEE OR COMPANY.
Except as otherwise provided herein, any request, demand,
authorization, direction, notice, consent, election, waiver or Act
of Holders or other document provided or permitted by this
Mortgage 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 in
writing and delivered personally to an officer or other
responsible employee of the addressee, or transmitted by facsimile
transmission or other direct written electronic means to such
telephone number or other electronic communications address set
forth for such party below or such other address as the parties
hereto shall from time to time designate, or delivered by
registered or certified mail or reputable overnight courier,
charges prepaid, to the applicable address set forth for such
party below or to such other address as either party hereto may
from time to time designate:
If to the Trustee, to:
Deutsche Bank Trust Company Americas
Trust Administration & Securities Services
60 Wall Street, 27th Floor
New York, New York 10005-2858
Attention: Global Debt Services
Telephone: (212) 250-4525
Telecopy: (212) 797-8614
If to the Company, to:
The Connecticut Light and Power Company
P.O. Box 270
Hartford, Connecticut 06141-0270
Attention: [_________]
Telephone: (860) [_________]
Telecopy: (860) [_________]
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 facsimile transmission or
other direct written electronic means, on the date of transmission
if transmitted during normal business hours and otherwise on the
next Business Day, and if transmitted by registered or certified
mail or reputable overnight courier, on the date of receipt.
SECTION 107. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this
Mortgage 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 Security Register, not later than the latest date,
and not earlier than the earliest date, if any, prescribed for the
giving of such Notice.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give
such notice to Holders by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a
sufficient notification for every purpose hereunder. In any case
where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with
respect to Holders.
Any notice required by this Mortgage 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 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Mortgage limits, qualifies or
conflicts with another provision hereof which is required or
deemed to be included in this Mortgage by, or is otherwise
governed by, any provision of the Trust Indenture Act, such other
provision shall control; and if any provision hereof otherwise
conflicts with the Trust Indenture Act, the Trust Indenture Act
shall control unless otherwise provided as contemplated by Section
301 with respect to any series of Securities.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings in this Mortgage and the
Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Mortgage by the Company
and Trustee shall bind their respective successors and assigns,
whether so expressed or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Mortgage or the Securities
shall be held to 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 112. BENEFITS OF MORTGAGE.
Nothing in this Mortgage or the Securities, express or
implied, shall give to any Person, other than the parties hereto,
their successors hereunder and the Holders of any Outstanding
Securities, any benefit or any legal or equitable right, remedy or
claim under this Mortgage.
SECTION 113. GOVERNING LAW.
This Mortgage and the Securities shall be governed by and
construed in accordance with the law of the State of Connecticut,
except to the extent that the Trust Indenture Act shall be
applicable and except to the extent that the laws of any other
state where the Company then owns Mortgaged Property shall govern
the Mortgage Lien and related provisions of the Mortgage with
respect to property in such state; provided however that the
rights and obligations of the Trustee shall be governed by the
laws of the state in which the Corporate Trust Office is located.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of
this Mortgage or of the Securities other than a provision in
Securities of any series, or any Tranche thereof, or in the
Mortgage supplemental hereto, Board Resolution or Officers'
Certificate which establishes the terms of the Securities of such
series 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, Redemption Date,
or 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 or Stated Maturity, as the case may be, to
such Business Day.
SECTION 115. INVESTMENT OF CASH HELD BY TRUSTEE.
Any cash held by the Trustee or any Paying Agent under any
provision of this Mortgage shall, except as otherwise provided in
Section 1606 or in Article Eight, at the request of the Company
evidenced by Company Order, be invested or reinvested in
Investment Securities designated by the Company (such Company
Order to contain a representation to the effect that the
securities designated therein constitute Investment Securities),
any interest on such Investment Securities shall be promptly paid
over to the Company as received free and clear of any Lien. 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 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 promptly pay over to the
Company an amount in cash equal to such excess, free and clear of
any Lien. In no event shall the Trustee be liable for any loss
incurred in connection with the sale of any Investment Security
pursuant to this Section.
Notwithstanding the foregoing, if an Event of Default shall
have occurred and be continuing, interest on Investment Securities
and any gain upon the sale thereof shall be held as part of the
Mortgaged Property until such Event of Default shall have been
cured or waived, whereupon such interest and gain shall be
promptly paid over to the Company free and clear of any Lien.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The definitive Securities of each series shall be in
substantially the form or forms thereof established in the
Mortgage supplemental hereto establishing such series or in a
Board Resolution establishing such series, or in an Officers'
Certificate pursuant to such a Supplemental Mortgage or Board
Resolution, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Mortgage, and may have such letters, numbers or
other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced
by their execution thereof. If the form or forms of Securities of
any series are established in a Board Resolution or in an
Officers' Certificate pursuant to a Supplemental Mortgage or a
Board Resolution, such Board Resolution and Officers' Certificate,
if any, shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
Unless otherwise specified as contemplated by Section 301,
the Securities of each series shall be issuable in registered form
without coupons. The definitive Securities shall be produced in
such manner as shall be determined by the officers executing such
Securities, as evidenced by their execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in
substantially the form set forth below:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Mortgage.
Deutsche Bank Trust Company Americas
f/k/a Bankers Trust Company,
as Trustee
By: _____________________________
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Mortgage is unlimited.
The Securities may be issued in one or more series. Subject
to the last paragraph of this Section, prior to the authentication
and delivery of Securities of any series there shall be
established by specification in a supplemental Mortgage or in a
Board Resolution or in an Officers' Certificate pursuant to a
supplemental Mortgage or a Board Resolution:
(a) the title of the Securities of such series (which shall
distinguish the Securities of such series from Securities of all
other series);
(b) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Mortgage (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Section
304, 305, 306, 506 or 1306 and except for any Securities which,
pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person or Persons (without specific identification)
to whom any interest on Securities of such series, or any Tranche
thereof, shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest;
(d) the date or dates on which the principal of the
Securities of such series or any Tranche thereof, is payable or any
formulary or other method or other means by which such date or dates
shall be determined, by reference to an index or other fact or event
ascertainable outside of this Mortgage or otherwise (without
regard to any provisions for redemption, prepayment, acceleration,
purchase or extension); and the right, if any, to extend the
Maturity of the Securities of such series, or any Tranche thereof,
and the duration of any such extension;
(e) the rate or rates at which the Securities of such
series, or any Tranche thereof, shall bear interest, if any (including
the rate or rates at which overdue principal shall bear interest after
Maturity if different from the rate or rates at which such
Securities shall bear interest prior to Maturity, and, if
applicable, the rate or rates at which overdue premium or interest
shall bear interest, if any), or any formulary or other method or
other means by which such rate or rates shall be determined by
reference to an index or other fact or event ascertainable outside
of this Mortgage or otherwise, the date or dates from which such
interest shall accrue; the Interest Payment Dates and the Regular
Record Dates, if any, for the interest payable on such Securities
on any Interest Payment Date; and the basis of computation of
interest, if other than as provided in Section 310; and the right,
if any, to extend the interest payment periods and the duration of
any such extension;
(f) the place or places at which and/or methods (if other
than as provided elsewhere in this Mortgage) by which (i) the principal
of and premium, if any, and interest, if any, on Securities of such
series, or any Tranche thereof, shall be payable, (ii)
registration of transfer of Securities of such series, or any
Tranche thereof, may be effected, (iii) exchanges of Securities of
such series, or any Tranche thereof, may be effected and (iv)
notices and demands to or upon the Company in respect of the
Securities of such series, or any Tranche thereof, and this
Mortgage may be served; the Security Registrar and any Paying
Agent or Agents for such series or Tranche; and, if such is the
case, that the principal of such Securities shall be payable
without the presentment or surrender thereof;
(g) the period or periods within which, or the date or dates
on which, the price or prices at which and the terms and conditions
upon which the Securities of such series, or any Tranche thereof,
may be redeemed, in whole or in part, at the option of the Company
and any restrictions on such redemptions; including but not
limited to a restriction on a partial redemption by the Company of
the Securities of any series, or any Tranche thereof, resulting in
delisting of such Securities from any national exchange;
(h) the obligation or obligations, if any, of the Company to
redeem or purchase or repay the Securities of such series, or any
Tranche thereof, pursuant to any sinking fund or other mandatory
redemption provisions or at the option of a Holder thereof and the
period or periods within which or the date or dates on which, the
price or prices at which and the terms and conditions upon which
such Securities shall be redeemed or purchased or repaid, in whole
or in part, pursuant to such obligation and applicable exceptions
to the requirements of Section 504 in the case of mandatory
redemption or redemption or repayment at the option of the Holder;
(i) the denominations in which Securities of such series,
or any Tranche thereof, shall be issuable if other than denominations
of $1,000 and any integral multiple thereof;
(j) if the principal of or premium, if any, or interest, if
any, on the Securities of such series, or any Tranche thereof, are to
be payable, at the election of the Company or a Holder thereof, in
a coin or currency other than that in which the Securities are
stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made and the
manner in which the amount of such coin or currency payable is to
be determined;
(k) the currency or currencies, including composite
currencies, in which payment of the principal of and premium, if any,
and interest, if any, on the Securities of such series, or any Tranche
thereof, shall be payable (if other than Dollars) and the manner
in which the equivalent of the principal amount thereof in Dollars
is to be determined for any purpose, including for the purpose of
determining the principal amount deemed to be Outstanding at any
time;
(l) if the principal of or premium, if any, or interest,
if any, on the Securities of such series, or any Tranche thereof, are
to be payable, or are to be payable at the election of the Company or
a Holder thereof, in securities or other property, the type and
amount of such securities or other property, or the formulary or
other method or other means 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;
(m) if the amount payable in respect of principal of or
premium, if any, or interest, if any, on the Securities of such series,
or any Tranche thereof, may be determined with reference to an index
or other fact or event ascertainable outside this Mortgage, the
manner in which such amounts shall be determined to the extent not
established pursuant to clause (e) of this paragraph;
(n) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of such series, or
any Tranche thereof, which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 902;
(o) any Events of Default, in addition to those specified in
Section 901, or any exceptions to those specified in Section 901,
with respect to the Securities of such series, and any covenants
of the Company for the benefit of the Holders of the Securities of
such series, or any Tranche thereof, in addition to those set
forth in Article Seven, or any exceptions to those set forth in
Article Seven;
(p) the terms, if any, pursuant to which the Securities of
such series, or any Tranche thereof, may be converted into or exchanged
for shares of capital stock or other securities of the Company or
any other Person;
(q) the obligations or instruments, if any, which shall be
considered to be Eligible Obligations in respect of the Securities
of such series, or any Tranche thereof, denominated in a currency
other than Dollars or in a composite currency, whether Eligible
Obligations include Investment Securities with respect to
Securities of such series, and any provisions for satisfaction and
discharge of Securities of any series, in addition to those set
forth in Article Eight, or any exceptions to those set forth in
Article Eight;
(r) if the Securities of such series, or any Tranche thereof,
are to be issued in global form, (i) any limitations on the rights of
the Holder or Holders of such Securities to transfer or exchange
the same or to obtain the registration of transfer thereof, (ii)
any limitations on the rights of the Holder or Holders thereof to
obtain certificates therefor in definitive form in lieu of global
form and (iii) any other matters incidental to such Securities;
(s) if the Securities of such series, or any Tranche
thereof, are to be issuable as bearer securities, any and all matters
incidental thereto which are not specifically addressed in a
supplemental Mortgage as contemplated by clause (g) of Section
1301;
(t) to the extent not established pursuant to clause (r) of
this paragraph, any limitations on the rights of the Holders of the
Securities of such Series, or any Tranche thereof, to transfer or
exchange such Securities or to obtain the registration of transfer
thereof; and if a service charge will be made for the registration
of transfer or exchange of Securities of such series, or any
Tranche thereof, the amount or terms thereof;
(u) any exceptions to Section 115, or variation in the
definition of Business Day, with respect to the Securities of such
series, or any Tranche thereof; and
(v) any other terms of the Securities of such series, or any
Tranche thereof, that the Company may elect to specify.
With respect to Securities of a series subject to a Periodic
Offering, the Mortgage supplemental hereto or the Board Resolution
which establishes such series, or the Officers' Certificate
pursuant to such supplemental Mortgage or Board Resolution, as the
case may be, may provide general terms or parameters for
Securities of such series and provide either that the specific
terms of Securities of such series, or any Tranche thereof, shall
be specified in a Company Order or that such terms shall be
determined by the Company or its agents in accordance with
procedures specified in a Company Order as contemplated in clause
(b) of Section 303.
Unless otherwise provided with respect to a series of
Securities as contemplated in clause (b) of this Section 301, the
aggregate principal amount of a series of Securities may be
increased and additional Securities of such series may be issued
up to the maximum aggregate principal amount authorized with
respect to such series as increased.
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, or any Tranche thereof, the
Securities of each series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities or any Tranche thereof, the
Securities shall be executed on behalf of the Company by an
Authorized Officer, and may have the corporate seal of the Company
affixed thereto or reproduced thereon attested by any other
Authorized Officer or by the Secretary or an Assistant Secretary
of the Company. The signature of any or all of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of execution Authorized Officers
or the Secretary or an Assistant Secretary 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 Securities or did not hold such offices at
the date of such Securities.
The Trustee shall authenticate and deliver Securities 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:
(a) the instrument or instruments establishing the form or
forms and terms of the Securities of such series, as provided in
Sections 201 and 301;
(b) a Company Order requesting the authentication and
delivery of such Securities and, to the extent that the terms of such
Securities shall not have been established in an Mortgage
supplemental hereto or in a Board Resolution, or in an Officers'
Certificate pursuant to a supplemental Mortgage or Board
Resolution, all as contemplated by Section 301, either (i)
establishing such terms or (ii) in the case of Securities 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, to the extent
acceptable to the Trustee, 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), in either case
in accordance with the instrument or instruments establishing the
terms of the Securities of such series delivered pursuant to
clause (a) above;
(c) any opinions, certificates, documents and instruments
required by Article Four;
(d) Securities of such series, each executed on behalf of
the Company by an Authorized Officer of the Company;
(e) an Officers' Certificate (i) which shall comply with the
requirements of Section 104 of this Mortgage and (ii) which states
that no Event of Default under this Mortgage has occurred or is
occurring;
(f) an Opinion of Counsel which shall comply with the
requirements of Section 104 of this Mortgage and that states that:
(i) the form or forms of such Securities have been duly
authorized by the Company and have been established in conformity
with the provisions of this Mortgage;
(ii) the terms of such Securities have been duly
authorized by the Company and have been established in conformity with
the provisions of this Mortgage; and
(iii) when such Securities shall have been 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, such Securities will have been duly issued
under this Mortgage, and will constitute valid and legally binding
obligations of the Company, entitled to the benefits provided by
this Mortgage, and enforceable in accordance with their terms,
subject, as to enforcement, to environmental "super lien" laws and
laws relating to or affecting generally the enforcement of
mortgagees' and other creditors' rights, including, without
limitation, bankruptcy, insolvency, reorganization, receivership,
moratorium and other laws affecting the rights and remedies of
creditors and mortgagees generally, general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and an implied covenant of good
faith, fair dealing and reasonableness.
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication and delivery of Securities of such
series and that in lieu of the opinions described in clauses (ii)
and (iii) above such Opinion of Counsel may, alternatively, state,
respectively,
(x) that, when the terms of such Securities 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
instrument or instruments delivered pursuant to clause (a) above,
such terms will have been duly authorized by the Company and will
have been established in conformity with the provisions of this
Mortgage; and
(y) that such Securities, when (1) executed by the Company,
(2) authenticated and delivered by the Trustee in accordance with
this Mortgage, (3) issued and delivered by the Company and (4)
paid for, all as contemplated by and in accordance with the
aforesaid Company Order or Orders, as the case may be, will have
been duly issued under this Mortgage and will constitute valid and
legally binding obligations of the Company, entitled to the
benefits provided by the Mortgage, and enforceable in accordance
with their terms, subject, as to enforcement, to laws relating to
or affecting generally the enforcement of mortgagees' and other
creditors' rights, including, without limitation, bankruptcy,
insolvency, reorganization, receivership, moratorium and other
laws affecting the rights and remedies of creditors and mortgagees
generally, general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at
law) and an implied covenant of good faith, fair dealing and
reasonableness.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the forms
and terms thereof and the legality, validity, binding effect and
enforceability thereof, and compliance of the authentication and
delivery thereof with the terms and conditions of this Mortgage,
upon the Opinion of Counsel and other documents delivered pursuant
to Sections 201 and 301 and this Section, as applicable, at or
prior to the time of the first authentication of Securities of
such series, unless and until such opinion or other documents have
been superseded or revoked or expire by their terms. In
connection with the authentication and delivery of Securities of a
series, pursuant to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to authenticate
and deliver such Securities do not violate any applicable law or
any applicable rule, regulation or order of any Governmental
Authority having jurisdiction over the Company.
If the forms or terms of the Securities of any series have
been established by or pursuant to a Board Resolution or an
Officers' Certificate as permitted by Sections 201 or 301, the
Trustee shall not be required to authenticate such Securities if
the issuance of such Securities pursuant to this Mortgage will
materially and adversely affect the Trustee's own rights, duties
or immunities under the Securities and this Mortgage or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Except as otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
each Security shall be dated the date of its authentication.
Except as otherwise specified as contemplated by Section 301
with respect to any series of Securities, or any Tranche thereof,
no Security shall be entitled to any benefit under this Mortgage
or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee or its agent by
manual signature of an authorized officer thereof, and such
certificate upon any Security shall be conclusive evidence, and
the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this
Mortgage. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder to the Company, or
any Person acting on its behalf, but shall never have been issued
and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with
Section 104 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the
Company, for all purposes of this Mortgage such Security shall be
deemed never to have been authenticated and delivered hereunder
and shall never be entitled to the benefits hereof.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, or any Tranche thereof, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as any
officer executing such Securities may determine, as evidenced by
such officer's execution of such Securities; provided, however,
that temporary Securities need not recite specific redemption,
sinking fund, conversion or exchange provisions.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, after the preparation of definitive Securities of such
series or Tranche, the temporary Securities of such series or
Tranche shall be exchangeable, without charge to the Holder
thereof, for definitive Securities of such series or Tranche upon
surrender of such temporary Securities at the office or agency of
the Company maintained pursuant to Section 702 in a Place of
Payment for such Securities. Upon such surrender of temporary
Securities for such exchange, the Company shall, except as
aforesaid, execute and the Trustee shall authenticate and deliver
in exchange therefor definitive Securities of the same series and
Tranche of authorized denominations and of like tenor and
aggregate principal amount.
Until exchanged in full as hereinabove provided, temporary
Securities shall in all respects be entitled to the same benefits
under this Mortgage as definitive Securities of the same series
and Tranche and of like tenor authenticated and delivered
hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept in each office designated
pursuant to Section 702, with respect to the Securities of each
series, a register (all registers kept in accordance with this
Section being collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities of such series, or any Tranche thereof, and the
registration of transfer thereof. The Company shall designate one
Person to maintain the Security Register for the Securities of
each series on a consolidated basis, and such Person is referred
to herein, with respect to such series, as the "Security
Registrar." Anything herein to the contrary notwithstanding, the
Company may designate one or more of its offices as an office in
which a register with respect to the Securities of one or more
series shall be maintained, and the Company may designate itself
the Security Registrar with respect to one or more of such series.
The Security Register shall be open for inspection by the Trustee
and the Company at all reasonable times.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, upon surrender for registration of transfer of any
Security of such series or Tranche at the office or agency of the
Company maintained pursuant to Section 702 in a Place of Payment
for such series or Tranche, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities
of the same series and Tranche, of authorized denominations and of
like tenor and aggregate principal amount.
Except as otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, any Security of such series or Tranche may be exchanged
at the option of the Holder for one or more new Securities of the
same series and Tranche, of authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the
Securities, which the Holder making the exchange is entitled to
receive.
All Securities delivered upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company,
evidencing the same obligation, and entitled to the same benefits
under this Mortgage, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Trustee or the Security Registrar) be duly endorsed or shall be
accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee or the Security
Registrar, as the case may be, duly executed by the Holder thereof
or his attorney duly authorized in writing.
Unless otherwise specified as contemplated by Section 301,
with respect to Securities of any series, or any Tranche thereof,
no service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant
to Section 304, 506 or 1306 not involving any transfer.
The Company shall not be required to execute or to provide
for the registration of transfer of or the exchange of (a)
Securities of any series, or any Tranche thereof, during a period
of 15 days immediately preceding the date notice is to be given
identifying the serial numbers of the Securities of such series or
Tranche called for redemption or (b) any Security so selected for
redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and
Tranche, and of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(a) evidence to their satisfaction of the ownership of and the
destruction, loss or theft of any Security and (b) such security
or indemnity as may be reasonably required by them to save each of
them and any agent of any of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the
same series and Tranche, and of like tenor and principal amount,
bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, in case any such mutilated,
destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and
expenses of the Trustee) in connection therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall
constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone other than the Holder
of such new Security, and any such new Security shall be entitled
to all the benefits of this Mortgage equally and proportionately
with any and all other Securities of such series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise specified as contemplated by Section 301
with respect to the Securities of any series, or any Tranche
thereof, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date
shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith
cease to be payable to the Holder on the related Regular Record
Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such
series (or their respective Predecessor Securities) are registered
at the close of business on a date (a "Special Record Date") for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than
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 Securities
of such series at the address of such Holder as it appears in the
Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date. No interest, other than said Defaulted
Interest, shall be payable to such holders with respect to any
such amounts so deposited by the Company with the Trustee.
(b) The Company may make payment of any Defaulted Interest
on the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Mortgage upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or
the Trustee may treat the Person in whose name such Security is
registered as the absolute owner of such Security for the purpose
of receiving payment of principal of and premium, if any, and
(subject to Sections 305 and 307) interest, if any, on such
Security and for all other purposes whatsoever, whether or not
such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other
than the Security Registrar, be delivered to the Security
Registrar and, if not theretofore canceled, shall be promptly
canceled by the Security Registrar. The Company may at any time
deliver to the Security Registrar for cancellation any Securities
previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever or which the Company
shall not have issued and sold, and all Securities so delivered
shall be promptly canceled by the Security Registrar. No
Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as
expressly permitted by this Mortgage. All canceled Securities
held by the Security Registrar shall be disposed of in accordance
with the customary practices of the Security Registrar at the time
in effect, and the Security Registrar shall not be required to
destroy any such certificates. The Security Registrar shall
promptly deliver a certificate of disposition to the Trustee and
the Company unless, by a Company Order, similarly delivered, the
Company shall direct that canceled Securities be returned to it.
The Security Registrar shall promptly deliver evidence of any
cancellation of a Security in accordance with this Section 309 to
the Trustee and the Company.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, or Tranche thereof, interest on the
Securities of each series shall be computed on the basis of a 360-
day year consisting of 12 30-day months, and with respect to any
period less than a full month, on the basis of the actual number
of days elapsed during such period. For example, the interest for
a period running from the 15th day of one month to the 15th day of
the next month would be calculated on the basis of one 30-day
month.
SECTION 311. PAYMENT TO BE IN PROPER CURRENCY.
In the case of any Security denominated in any currency other
than Dollars or in a composite currency (the "Required Currency"),
except as otherwise specified with respect to such Security as
contemplated by Section 301, the obligation of the Company to make
any payment of the principal thereof, or the premium or interest
thereon, shall not be discharged or satisfied by any tender by the
Company, or recovery by the Trustee, in any currency other than
the Required Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the full
amount of the Required Currency then due and payable. If any such
tender or recovery is in a currency other than the Required
Currency, the Trustee may take such actions as it considers
appropriate to exchange such currency for the Required Currency.
The costs and risks of any such exchange, including without
limitation the risks of delay and exchange rate fluctuation, shall
be borne by the Company, the Company shall remain fully liable for
any shortfall or delinquency in the full amount of Required
Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor except in the case of its negligence or
willful misconduct.
SECTION 312. EXTENSION OF INTEREST PAYMENT.
The Company shall have the right at any time, to extend
interest payment periods on all the Securities of any series
hereunder, if so specified as contemplated by Section 301 with
respect to such Securities and upon such terms as may be specified
as contemplated by Section 301 with respect to such Securities.
SECTION 313. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" or
"ISIN" or other similar numbers (if then generally in use), and,
if so, the Company, the Trustee or the Security Registrar may use
"CUSIP" or "ISIN" or such other numbers in notices or redemption
as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only the
other identification numbers printed on the Securities, in which
case none of the Company or, as the case may be, the Trustee or
the Security Registrar, or any agent of any of them, shall have
any liability in respect of any CUSIP or "ISIN" or other number
used on any such notice, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
ISSUANCE OF SECURITIES
SECTION 401. ISSUANCE OF SECURITIES.
(a) Securities of any one or more series may be
authenticated and delivered in any aggregate principal amount so long
as, after immediately giving effect thereto, to the concurrent
redemption or payment of Securities or Secured Debt and any other
transactions contemplated therewith, the aggregate principal amount of
all Securities and Secured Debt, in each case then Outstanding, will
not exceed 75% of the sum of (i) the then Cost or Fair Value,
whichever is less, of all Property Additions (after making any
deductions pursuant to Section 102(b)) and (ii) all Available Cash
then held by, or deposited with, the Trustee.
(b) Securities of any series shall be authenticated and
delivered by the Trustee upon receipt by the Trustee of:
(i) the documents with respect to the Securities of
such series specified in Section 303;
(ii) an Experts' Certificate dated as of a date not more
than 90 days prior to the first day of the month in which the Company
Order referring to it is delivered to the Trustee,
(1) setting forth the aggregate amount of Property
Additions then owned by the Company, such amount to be computed by
reference to the Company's financial statements, on a Dollar basis,
and stating the Cost of such Property Additions;
(2) stating that all such property reflected in
clause (1) above constitutes Property Additions;
(3) stating that such Property Additions are
desirable for use in the conduct of the business, or one of the
businesses, of the Company;
(4) stating what part, if any, of such Property
Additions includes property which had not been included in a previous
Experts' Certificate and 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 of
such Property Additions to the Company, as of the date of such
certificate, is more than $25,000 and more than 1% of the
aggregate principal amount of Securities then Outstanding;
(5) 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
Experts' Certificate pursuant to clause (iii) below;
(6) stating the lower of the Cost or the Fair
Value to the Company of such Property Additions;
(7) stating the aggregate principal amount of
Securities and the aggregate principal amount of Secured Debt, in each
case to be Outstanding immediately prior to the issuance of the
Securities to be then authenticated and delivered;
(8) stating the principal amount of Securities
to be then authenticated and delivered;
(9) stating that, immediately after giving effect
to the issuance of the Securities to be then authenticated and
delivered, to the concurrent redemption or payment of Securities or
Secured Debt and any other transactions contemplated therewith, the
aggregate principal amount of all Securities and Secured Debt, in each
case then Outstanding, will not exceed 75% of the sum of (i) the amount
set forth in clause (6) above, and (ii) all Available Cash;
(iii) in case any Property Additions are shown by
the Experts' Certificate provided for in clause (ii) above to include
property which had not been included in a previous Experts' Certificate
and 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 $25,000 or less than 1% of the
aggregate principal amount of Securities then Outstanding, an
Independent Experts' Certificate stating, in the judgment of the
signer, the Fair Value to the Company, as of the date of such
Independent Experts' Certificate, of (X) 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
Experts' Certificate provided for in clause (ii) above and (Y) in
case such Independent Experts' Certificate is being delivered in
connection with the authentication and delivery of Securities, any
property so used or operated which has been subjected to the Lien
of this Mortgage since the commencement of the then current
calendar year and as to which an Independent Experts' Certificate
has not previously been furnished to the Trustee;
(iv) in case any Property Additions are shown by the
Experts' Certificate provided for in clause (ii) above to have not been
included in a previous Experts' Certificate and to have been
acquired, made or constructed in whole or in part through the
delivery of securities or other property, an Experts' Certificate
stating, in the judgment of the signers, the fair market 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 that:
(1) this Mortgage constitutes, or, upon the
delivery of, and/or the filing and/or recording in the proper places
and manner of, the instruments of conveyance, assignment or transfer,
if any, specified in said opinion, will constitute, a direct first
mortgage lien, subject only to Permitted Liens, environmental
"super lien" laws and specified Prior Liens, upon the interest of
the Company in the Property Additions; provided, however, that on
and after the Second Effective Date, said opinion may also contain
an exception for all Prior Liens; and
(2) the Company has corporate authority to operate
such Property Additions; 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.
ARTICLE FIVE
REDEMPTION OF SECURITIES
SECTION 501. APPLICABILITY OF ARTICLE.
Securities of any series, or any Tranche thereof, which are
redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche) in accordance with this Article.
SECTION 502. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or an Officers' Certificate. The
Company shall, at least 40 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee in writing of such Redemption
Date and of the principal amount of such Securities to be
redeemed. In the case of any redemption of Securities (a) prior
to the expiration of any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Mortgage or
(b) pursuant to an election of the Company which is subject to a
condition specified in the terms of such Securities, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 503. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series, or any Tranche
thereof, are to be redeemed, the particular Securities to be
redeemed shall be selected by the Trustee from the Outstanding
Securities of such series or Tranche not previously called for
redemption, by such method as shall be provided for such
particular series or Tranche, or in the absence of any such
provision, by such method of random selection as the Trustee shall
deem fair and appropriate and which may, in any case, provide for
the selection for redemption of portions (equal to any authorized
denomination for Securities of such series or Tranche) of the
principal amount of Securities of such series or Tranche of a
denomination larger than the minimum authorized denomination for
Securities of such series or Tranche; provided, however, that if,
as indicated in an Officers' Certificate, the Company shall have
offered to purchase all or any principal amount of the Securities
then Outstanding of any series, or any Tranche thereof, and less
than all of such Securities as to which such offer was made shall
have been tendered to the Company for such purchase, the Trustee,
if so directed by Company Order, shall select for redemption all
or any principal amount of such Securities which have not been so
tendered.
The Trustee shall promptly notify the Company and the
Security Registrar in writing of the Securities selected for
redemption and, in the case of any Securities selected to be
redeemed in part, the principal amount thereof to be redeemed.
For all purposes of this Mortgage, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Securities redeemed or
to be redeemed only in part, to the portion of the principal
amount of such Securities which has been or is to be redeemed.
SECTION 504. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, notice of redemption shall be given
in the manner provided in Section 107 to the Holders of the
Securities to be redeemed not less than 30 days prior to the
Redemption Date.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, all notices of redemption shall
state:
(a) the Redemption Date,
(b) the Redemption Price (if known),
(c) if less than all the Securities of any series or Tranche
are to be redeemed, the identification of the particular Securities to
be redeemed and the portion of the principal amount of any
Security to be redeemed in part,
(d) 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 Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued
interest, if any, unless it shall have been specified as
contemplated by Section 301 with respect to such Securities that
such surrender shall not be required,
(f) that the redemption is for a sinking or other fund, if such
is the case,
(g) the CUSIP, ISIN or other similar numbers, if any, assigned to
such Securities; provided, however, that such notice may state
that no representation is made as to the correctness of CUSIP or
ISIN numbers, in which case none of the Company, the Trustee or
any agent of the Company or the Trustee shall have any liability
in respect of the use of any CUSIP or ISIN number or numbers on
such notices, and the redemption of such Securities shall not be
affected by any defect in or omission of such numbers, and
(h) such other matters as the Company shall deem desirable or
appropriate.
Unless otherwise specified with respect to any Securities in
accordance with Section 301, with respect to any notice of
redemption of Securities at the election of the Company, unless,
upon the giving of such notice, such Securities shall be deemed to
have been paid in accordance with Section 801, such notice may
state that such redemption shall be conditional upon the receipt
by the Paying Agent or Agents for such Securities, on or prior to
the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such
Securities and that if such money shall not have been so received
such notice shall be of no force or effect and the Company shall
not be required to redeem such Securities. In the event that such
notice of redemption contains such a condition and such money is
not so received, the redemption shall not be made and within a
reasonable time thereafter notice shall be given, in the manner in
which the notice of redemption was given, that such money was not
so received and such redemption was not required to be made. A
failure by the Company to provide such moneys or make provision
for the payment thereof shall not constitute an Event of Default
under this Mortgage and the Paying Agent or Agents for the
Securities otherwise to have been redeemed shall promptly return
to the Holders thereof any of such Securities which had been
surrendered for payment upon such redemption.
Notice of redemption of Securities 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 Security Registrar in
the name and at the expense of the Company. Notice of any
mandatory redemption of Securities shall be given by the Security
Registrar in the name and at the expense of the Company.
SECTION 505. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, and the
conditions, if any, set forth in such notice having been
satisfied, the Securities or portions thereof so to be redeemed
shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date
(unless, in the case of an unconditional notice of redemption, the
Company shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities or portions thereof, if
interest-bearing, shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with such notice,
such Security or portion thereof shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to
the Redemption Date; provided, however, that no such surrender
shall be a condition to such payment if so specified as
contemplated by Section 301 with respect to such Security; and
provided, further, that except as otherwise specified as
contemplated by Section 301 with respect to such Security, any
installment of interest on any Security the Stated Maturity of
which installment is on or prior to the Redemption Date shall be
payable to the Holder of such Security, or one or more Predecessor
Securities, registered as such at the close of business on the
related Regular Record Date according to the terms of such
Security and subject to the provisions of Sections 305 and 307.
SECTION 506. SECURITIES REDEEMED IN PART.
Upon the surrender of any Security which is to be redeemed
only in part 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), the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security,
without service charge, a new Security or Securities 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 Security so surrendered.
ARTICLE SIX
SINKING FUNDS
SECTION 601. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of the Securities of any series,
or any Tranche thereof, except as otherwise specified as
contemplated by Section 301 for Securities of such series or
Tranche.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series, or any Tranche thereof,
is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the
terms of Securities of any series, or any Tranche thereof, is
herein referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series, or any
Tranche thereof, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 602. Each sinking
fund payment shall be applied to the redemption of Securities of
the series or Tranche in respect of which it was made as provided
for by the terms of such Securities.
SECTION 602. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Company (a) may deliver to the Trustee Outstanding
Securities (other than any previously called for redemption) of a
series or Tranche in respect of which a mandatory sinking fund
payment is to be made and (b) may apply as a credit Securities of
such series or Tranche which have been redeemed either at the
election of the Company pursuant to the terms of such Securities,
at the election of the Holder thereof if applicable, or through
the application of permitted optional sinking fund payments
pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of such mandatory sinking fund
payment with respect to the Securities of such series; provided,
however, that no Securities shall be applied in satisfaction of a
mandatory sinking fund payment if such Securities shall have been
previously so applied. Securities so applied shall be received
and credited for such purpose by the Trustee at the Redemption
Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory
sinking fund payment shall be reduced accordingly.
SECTION 603. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 40 days, or such shorter period as the Trustee
shall agree to, prior to each sinking fund payment date for the
Securities of any series, or any Tranche thereof, the Company
shall deliver to the Trustee an Officers' Certificate specifying:
(a) the amount of the next succeeding mandatory sinking fund
payment for such series or Tranche;
(b) the amount, if any, of the optional sinking fund payment
to be made together with such mandatory sinking fund payment;
(c) the aggregate sinking fund payment; and
(d) the portion, if any, of such aggregate sinking fund payment
which is to be satisfied by the payment of cash;
(e) the portion, if any, of such aggregate sinking fund
payment which is to be satisfied by delivering and crediting Securities
of such series or Tranche pursuant to Section 602 and stating the
basis for such credit and that such Securities have not previously
been so credited, and the Company shall also deliver to the
Trustee any Securities to be so delivered.
If the Company shall not deliver such Officers' Certificate
and, to the extent applicable, all such Securities, the next
succeeding sinking fund payment for such series or Tranche shall
be made entirely in cash in the amount of the mandatory sinking
fund payment. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner
specified in Section 503 and cause notice of the redemption
thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 504. Such notice having
been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 505 and 506.
ARTICLE SEVEN
REPRESENTATIONS AND COVENANTS
SECTION 701. PAYMENT OF SECURITIES; LAWFUL POSSESSION.
(a) The Company shall pay the principal of and premium, if
any, and interest, if any, on the Securities of each series in
accordance with the terms of such Securities and this Mortgage.
(b) The Company is lawfully possessed of the Mortgaged Property
and has sufficient right and authority to mortgage and pledge the
Mortgaged Property, as provided in and by this Mortgage.
SECTION 702. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in each Place of Payment for the
Securities of each series, or any Tranche thereof, an office or
agency where payment of such Securities shall be made, where the
registration of transfer or exchange of such Securities may be
effected and where notices and demands to or upon the Company in
respect of such Securities and this Mortgage may be served. The
Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or
agency and prompt notice to the Holders of any such change in the
manner specified in Section 107. If at any time the Company shall
fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, then payment of
such Securities shall be made, registration of transfer or
exchange thereof may be effected and notices and demands in
respect of such Securities and this Mortgage may be served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent for all such purposes in any
such event.
The Company may also from time to time designate one or more
other offices or agencies with respect to the Securities of one or
more series, or any Tranche thereof, for any or all of the
foregoing purposes and may from time to time rescind such
designations; provided, however, that, unless otherwise specified
as contemplated by Section 301 with respect to the Securities of
such series or Tranche, no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an
office or agency for such purposes in each Place of Payment for
such Securities in accordance with the requirements set forth
above. The Company shall give prompt written notice to the
Trustee, and prompt notice to the Holders in the manner specified
in Section 107, of any such designation or rescission and of any
change in the location of any such other office or agency.
Anything herein to the contrary notwithstanding, any office
or agency required by this Section may be maintained at an office
of the Company or an Affiliate of the Company, in which event the
Company or such Affiliate shall perform all functions to be
performed at such office or agency.
SECTION 703. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to the Securities of any series, or any Tranche
thereof, it shall, on or before each due date of the principal of
and premium, if any, and interest, if any, on any of such
Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and
premium or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided. The
Company shall promptly notify the Trustee of any failure by the
Company (or any other obligor on such Securities) to make any
payment of principal of or premium, if any, or interest, if any,
on such Securities.
Whenever the Company shall have one or more Paying Agents for
the Securities of any series, or any Tranche thereof, it shall, on
or before each due date of the principal of and premium, if any,
and interest, if any, on such Securities, deposit with such Paying
Agents sums sufficient (without duplication) to pay the principal
and premium or interest so becoming due, such 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 any failure by it
so to act.
The Company shall cause each Paying Agent for the Securities
of any series, or any Tranche thereof, other than the Company or
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:
(a) hold all sums held by it for the payment of the
principal of and premium, if any, or interest, if any, on such
Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(b) give the Trustee notice of any failure by the Company
(or any other obligor upon such Securities) to make any payment of
principal of or premium, if any, or interest, if any, on such
Securities; and
(c) at any time during the continuance of any such failure,
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.
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 Eight; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest, if any, on any
Security and remaining unclaimed for two years after such
principal and premium, if any, or interest, if any, has become due
and payable shall to the extent permitted by law be paid to the
Company on Company Request, or, if then held by the Company, shall
be discharged from such trust; and, upon such payment or
discharge, the Holder of such Security shall, as an unsecured
general creditor and not as the Holder of an Outstanding Security,
look only to the Company for payment of the amount so due and
payable and remaining unpaid unless the applicable law provides
otherwise, 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 704. CORPORATE EXISTENCE.
Subject to the rights of the Company under Article Twelve,
the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence as
a corporation.
SECTION 705. ANNUAL OFFICERS' CERTIFICATE AS TO COMPLIANCE.
Not later than June 1 in each year, commencing [_________],
the Company shall deliver to the Trustee an Officers' Certificate
which need not comply with the requirements of Section 103,
executed by the principal executive officer, the principal
financial officer or the principal accounting officer of the
Company and by any other Authorized Officer, as to (i) such
officers' knowledge of the Company's compliance with all
conditions and covenants under this Mortgage, such compliance to
be determined without regard to any period of grace or requirement
of notice under this Mortgage, and making any other statements as
may be required by the Trust Indenture Act; and (ii) stating the
aggregate principal amount of Secured Debt outstanding as of March
31 in such year.
SECTION 706. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply
with any term, provision or condition set forth in (a) Section 702
or any additional covenant or restriction specified with respect
to the Securities of any series, or any Tranche thereof, as
contemplated by Section 301, if before the time for such
compliance the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all series and Tranches with
respect to which compliance with Section 702 or such additional
covenant or restriction is to be omitted, considered as one class,
shall, by Act of such Holders, either waive such compliance in
such instance or generally waive compliance with such term,
provision or condition and (b) Section 704 or Article Twelve if
before the time for such compliance the Holders of a majority in
principal amount of Securities Outstanding under this Mortgage
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 707. ISSUANCE OF SECURED DEBT
The Company shall not issue any Secured Debt unless, after
giving effect thereto, to the concurrent redemption or payment of
Securities or Secured Debt and any other transactions contemplated
thereby, the Company would be permitted by the provisions of
Section 401(a) to have authenticated and delivered at least $1.00
of additional Securities.
SECTION 708. SALE AND LEASEBACK
Nothing in this Mortgage is intended to prevent the Company
from entering into any Sale and Leaseback Transaction so long as
the Company otherwise complies with the requirements of this
Mortgage.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE
SECTION 801. SATISFACTION AND DISCHARGE OF SECURITIES.
Any Security or Securities (provided, however, that prior to
the Second Effective Date this Section shall be applicable only to
Securities issued after January 1, 2004), or any portion of the
principal amount thereof, shall be deemed to have been paid and no
longer Outstanding for all purposes of this Mortgage, 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 or any Paying Agent
(other than the Company), in trust:
(a) money in an amount which shall be sufficient, or
(b) in the case of a deposit made prior to the Maturity of
such Securities or portions thereof, Eligible Obligations, which shall
not contain provisions permitting the redemption or other
prepayment thereof at the option of the issuer thereof, the
principal of and the interest on which when due, without any
regard to reinvestment thereof, will provide moneys which,
together with the money, if any, deposited with or held by the
Trustee or such Paying Agent, shall be sufficient, or
(c) a combination of (a) or (b) which shall be sufficient
to pay when due the principal of and premium, if any, and interest, if
any, due and to become due on such Securities or portions thereof
on or prior to Maturity;
provided, however, that in the case of the provision for payment
or redemption of less than all the Securities of any series or
Tranche, such Securities or portions thereof shall have been
selected by the Trustee 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 and
such Paying Agent:
(x) if such deposit shall have been made prior to the
Maturity of such Securities, a Company Order stating that the
money and Eligible Obligations deposited in accordance with this
Section shall be held in trust, as provided in Section 803;
(y) if Eligible Obligations shall have been deposited, an
Opinion of Counsel to the effect that such obligations constitute
Eligible Obligations and do not contain provisions permitting the
redemption or other prepayment thereof at the option of the issuer
thereof, and a report of an independent public accountant of
nationally recognized standing, selected by the Company, to the
effect that the other requirements set forth in clause (b) and (c)
above have been satisfied; and
(z) if such deposit shall have been made prior to the
Maturity of such Securities, an Officers' Certificate stating the
Company's intention that, upon delivery of such Officers'
Certificate, its indebtedness in respect of such Securities or
portions thereof will have been satisfied and discharged as
contemplated in this Section.
Upon the deposit of money or Eligible Obligations, or both,
in accordance with this Section, together with the documents
required by clauses (x), (y) and (z) above, the Trustee shall,
upon receipt of a Company Request, acknowledge in writing that the
Security or Securities or portions thereof with respect to which
such deposit was made are deemed to have been paid for all
purposes of this Mortgage and that the entire indebtedness of the
Company in respect thereof has been satisfied and discharged as
contemplated in this Section. In the event that all of the
conditions set forth in the preceding paragraph shall have been
satisfied in respect of any Securities or portions thereof except
that, for any reason, the Officers' Certificate specified in
clause (z) shall not have been delivered, such Securities or
portions thereof shall nevertheless be deemed to have been paid
for all purposes of this Mortgage, and the Holders of such
Securities or portions thereof shall nevertheless be no longer
entitled to the benefits provided by this Mortgage or of any of
the covenants of the Company under Article Seven (except the
covenants contained in Sections 702 and 703) or any other
covenants made in respect of such Securities or portions thereof
as contemplated by Section 301 or Section 1301(b), but the
indebtedness of the Company in respect of such Securities or
portions thereof shall not be deemed to have been satisfied and
discharged prior to Maturity for any other purpose and the Holders
of such Securities or portions thereof shall continue to be
entitled to look to the Company for payment of the indebtedness
represented thereby; and, upon Company Request, the Trustee shall
acknowledge in writing that such Securities or portions thereof
are deemed to have been paid for all purposes of this Mortgage.
If payment at Stated Maturity of less than all of the
Securities of any series, or any Tranche thereof, is to be
provided for in the manner and with the effect provided in this
Section, the Trustee shall select such Securities, or portions of
principal amount thereof, in the manner specified by Section 503
for selection for redemption of less than all the Securities of a
series or Tranche.
In the event that Securities which shall be deemed to have
been paid for purposes of this Mortgage, and, if such is the case,
in respect of which the Company's indebtedness shall have been
satisfied and discharged, all as provided in this Section, do not
mature and are not to be redeemed within the 60-day period
commencing with the date of the deposit of moneys or Eligible
Obligations, as aforesaid, the Company shall, as promptly as
practicable, give a notice, in the same manner as a notice of
redemption with respect to such Securities, to the Holders of such
Securities to the effect that such deposit has been made and the
effect thereof.
Notwithstanding that any Securities shall be deemed to have
been paid for purposes of this Mortgage, as aforesaid, the
obligations of the Company and the Trustee in respect of such
Securities under Sections 304, 305, 306, 504, 702, 703, 1007 and
1015 and this Article shall survive.
The Company shall pay, and shall indemnify the Trustee or any
Paying Agent with which Eligible Obligations shall have been
deposited as provided in this Section against, any tax, fee or
other charge imposed on or assessed against such Eligible
Obligations or the principal or interest received in respect of
such Eligible Obligations, including, but not limited to, any such
tax payable by any entity deemed, for tax purposes, to have been
created as a result of such deposit.
Anything herein to the contrary notwithstanding, (a) if, at
any time after a Security would be deemed to have been paid for
purposes of this Mortgage, and, if such is the case, the Company's
indebtedness in respect thereof would be deemed to have been
satisfied and discharged, pursuant to this Section (without regard
to the provisions of this paragraph), the Trustee or any Paying
Agent, as the case may be, (i) 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, or (ii) is unable to apply any money in accordance
with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application,
such Security shall thereupon be deemed retroactively not to have
been paid and any satisfaction and discharge of the Company's
indebtedness in respect thereof shall retroactively be deemed not
to have been effected, and such Security shall be deemed to remain
Outstanding and (b) any satisfaction and discharge of the
Company's indebtedness in respect of any Security shall be subject
to the provisions of the last paragraph of Section 703.
SECTION 802. EFFECTIVE TIME; SATISFACTION AND DISCHARGE OF
MORTGAGE.
(a) Subsection (b) of this Section 802 shall be of no force
or effect until the Second Effective Date, but shall automatically
become and be in full force and effect on and after the Second
Effective Date.
(b) This Mortgage 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 such
instruments as the Company shall reasonably request to evidence
and acknowledge the satisfaction and discharge of this Mortgage,
when:
(i) no Securities remain Outstanding hereunder; and
(ii) the Company has paid or caused to be paid all other
sums payable hereunder by the Company;
provided, however, that if, in accordance with the last paragraph
of Section 801, any Security, previously deemed to have been paid
for purposes of this Mortgage, shall be deemed retroactively not
to have been so paid, this Mortgage shall thereupon be deemed
retroactively not to have been satisfied and discharged, as
aforesaid, and to remain in full force and effect, and the Company
shall execute and deliver such instruments as the Trustee shall
reasonably request to evidence and acknowledge the same.
Notwithstanding the satisfaction and discharge of this
Mortgage as aforesaid, the obligations of the Company and the
Trustee under Sections 304, 305, 306, 504, 702, 703, 1007 and 1015
and this Article shall survive.
Upon satisfaction and discharge of this Mortgage as provided
in this Section, the Trustee shall assign, transfer and turn over
to the Company, subject to the lien provided by Section 1007, any
and all money, securities and other property then held by the
Trustee for the benefit of the Holders of the Securities (other
than money and Eligible Obligations held by the Trustee pursuant
to Section 803) and shall execute and deliver to the Company such
instruments as, in the judgment of the Company, shall be
necessary, desirable or appropriate to effect or evidence the
satisfaction and discharge of this Mortgage.
SECTION 803. APPLICATION OF TRUST MONEY.
Neither the Eligible Obligations nor the money deposited
pursuant to Section 801, nor the principal or interest payments on
any such Eligible Obligations, shall be withdrawn or used for any
purpose other than, and shall be held in trust for, the payment of
the principal of and premium, if any, and interest, if any, on the
Securities or portions of principal amount thereof in respect of
which such deposit was made, all subject, however, to the
provisions of Section 703; provided, however, that so long as
there shall not have occurred and be continuing an Event of
Default, any cash received from such principal or interest
payments on such Eligible Obligations, if not then needed for such
purpose, shall, to the extent practicable and upon Company Request
and delivery to the Trustee of the documents referred to in clause
(y) in the first paragraph of Section 801, be invested in Eligible
Obligations of the type described in clause (b) in the first
paragraph of Section 801 maturing at such times and in such
amounts as shall be sufficient, together with any other moneys and
the proceeds of any other Eligible Obligations then held by the
Trustee, to pay when due the principal of and premium, if any, and
interest, if any, due and to become due on such Securities or
portions thereof on and prior to the Maturity thereof, and
interest earned from such reinvestment shall be paid over to the
Company as received, free and clear of any trust, lien or pledge
under this Mortgage (except the lien provided by Section 1007);
and provided, further, that, so long as there shall not have
occurred and be continuing an Event of Default, any moneys held in
accordance with this Section on the Maturity of all such
Securities in excess of the amount required to pay the principal
of and premium, if any, and interest, if any, then due on such
Securities shall be paid over to the Company free and clear of any
trust, lien or pledge under this Mortgage (except the lien
provided by Section 1007); and provided, further, that if an Event
of Default shall have occurred and be continuing, moneys to be
paid over to the Company pursuant to this Section shall be held
until such Event of Default shall have been waived or cured.
ARTICLE NINE
EVENTS OF DEFAULT; REMEDIES
SECTION 901. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities, means any one of the following events:
(a) Failure to pay any interest on any Security when it
becomes due and payable and continuance of such default for a period
of 90 days; provided, however, that no such default shall constitute an
"Event of Default" if the Company has made a valid extension of
the interest payment period with respect to the Securities of such
series, of which such Security is a part, if so provided as
contemplated by Section 301; or
(b) Failure to pay the principal of or premium, if any, on
any Security when it becomes due and payable; provided, however, that
no such default shall constitute an "Event of Default" if the
Company has made a valid extension of the Maturity of the
Securities of the series, of which such Security is a part, if so
provided as contemplated by Section 301; or
(c) Failure to perform or breach of, any covenant or
warranty of the Company in this Mortgage (other than a covenant or
warranty a default in the performance of which or breach of which is
elsewhere in this Section specifically addressed) and continuance
of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the
Trustee, or to the Company and the Trustee by the Holders of at
least 33% in aggregate principal amount of the Outstanding
Securities, 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 Securities not less than
the principal amount of Securities 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 Securities, 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 (1) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law
or (2) a decree or order adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition by one or
more Persons other than the Company seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State bankruptcy,
insolvency or similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar
official for the Company or for any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and any such decree or order for relief or any such other
decree or order shall have remained unstayed and in effect for a
period of 90 consecutive days; or
(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 the Company 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 the Company, or the filing
by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State
bankruptcy, insolvency, reorganization or similar law, or the
consent by the Company 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 the Company of an assignment for the benefit of
creditors, or the admission by the Company 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 of the
Company; or
(f) any other Event of Default with respect to Securities
of such series as shall have been specified in the terms thereof as
contemplated by Section 301(o).
SECTION 902. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
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 principal amount of the Outstanding Securities
may declare the principal amount (or, if any of the Securities of
such series are Discount Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof
as contemplated by Section 301) of all of the Securities 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 and
unpaid interest shall become immediately due and payable.
At any time after such a declaration of acceleration of the
maturity of the Securities 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
cured, and such declaration and its consequences shall, without
further act, be deemed to have been rescinded and annulled, if
(a) the Company shall have paid or deposited with the Trustee
a sum sufficient to pay
(i) all overdue interest, if any, on all Securities then
Outstanding;
(ii) the principal of and premium, if any, on any
Securities 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 Securities;
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Securities;
(iv) all amounts due to the Trustee under Section 1007;
and
(b) all Events of Default, other than the non-payment of the
principal of Securities of such series which shall have become due
solely by such declaration of acceleration, shall have been cured
or waived as provided in Section 913.
No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereon.
SECTION 903. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
If an Event of Default described in clause (a) or (b) of
Section 901 shall have occurred, the Company shall, upon demand of
the Trustee, pay to it, for the benefit of the Holders of the
Securities with respect to which such Event of Default shall have
occurred, the whole amount then due and payable on such Securities
for principal and premium, if any, and interest, if any, and, to
the extent permitted by law, interest on premium, if any, and on
any overdue principal and interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover any amounts
due to the Trustee under Section 1007.
If the Company shall fail to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the
collection of the sums so due and unpaid, may prosecute such
proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and
collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default shall have occurred and be continuing,
the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities 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 Mortgage
or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 904. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the 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,
(a) to file and prove a claim for the whole amount of
principal, premium, if any, and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the
Trustee (including any claim for amounts due to the Trustee under
Section 1007 and any claims of the Trustee as holder of Secured
Debt) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to
pay to the Trustee any amounts due it under Section 1007.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
SECTION 905. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Mortgage or the
Securities may be prosecuted and enforced by the Trustee, without
the possession of any of the Securities 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 906. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, to the extent permitted
by law, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal or premium,
if any, or interest, if any, upon presentation of the Securities
in respect of which or for the benefit of which such money shall
have been collected and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 1007;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities for principal of and premium, if any, and
interest, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal, premium, if any, and interest, if
any, respectively; 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 direct.
SECTION 907. LIMITATION ON SUITS.
No Holder shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Mortgage, 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 a majority in aggregate principal amount
of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request shall
have been given to the Trustee during such 60-day period by the
Holders of a majority in aggregate principal amount of the
Outstanding Securities; it being understood and intended that no
one or more of the Holders of any Securities shall have any right
in any manner whatever by virtue of, or by availing of, any
provision of this Mortgage to affect, disturb or prejudice the
rights of any other Holders or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any
right under this Mortgage, except in the manner herein provided
and for the equal and ratable benefit of all Holders.
SECTION 908. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Mortgage, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and premium,
if any, and (subject to Section 307) interest, if any, on such
Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, subject to Section 504,
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 909. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Mortgage 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, the 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 910. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 911. 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 912. CONTROL BY HOLDERS OF SECURITIES.
If an Event of Default shall have occurred and be continuing,
the Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee, with respect to such Securities; provided, however, that
(a) such direction shall not be in conflict with any rule
of law or with this Mortgage, and could not involve the Trustee in
personal liability in circumstances where indemnity would not, in
the Trustee's sole discretion, be adequate, and
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 913. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount
of the Outstanding Securities may on behalf of the Holders of all
the Securities waive any past default hereunder and its
consequences, except a default:
(a) in the payment of the principal of or premium, if any, or
interest, if any, on any Outstanding Security, or
(b) in respect of a covenant or provision hereof which under
Section 1302 cannot be modified or amended without the consent of
the Holder of each Outstanding Security of any series or Tranche
affected.
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 Mortgage; but no such
waiver shall extend to any subsequent or other default or impair
any right consequent thereon.
SECTION 914. UNDERTAKING FOR COSTS.
The Company and the Trustee agree, and each Holder by his
acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of
any right or remedy under this Mortgage, 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 Securities 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 Security on or after the Stated Maturity or Maturities
expressed in such Security (or in the case of redemption, on or
after the Redemption Date).
SECTION 915. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Mortgage; and the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 916. DEFAULTS UNDER PRIOR LIENS.
In addition to every other right and remedy provided herein,
the Trustee may (but shall not be obligated to) exercise any right
or remedy available to the Trustee in its capacity as owner and
holder of any Secured Debt which arises as a result of a default
or matured event of default under any Prior Lien, whether or not
an Event of Default shall then have occurred and be continuing.
SECTION 917. RECEIVER AND OTHER REMEDIES.
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 Mortgage, the Trustee
shall, to the extent permitted by law, be entitled, as against the
Company, to the appointment of a receiver of the Mortgaged
Property and subject to the rights, if any, of others to receive
collections from former, present or future customers of the rents,
issues, profits, revenues and other income thereof, and whether or
not any receiver is appointed, the Trustee shall be entitled to
retain possession and control of, and to collect and receive the
income from cash, securities and other personal property held by
the Trustee hereunder and to all other remedies available to
mortgagees and secured parties under the Uniform Commercial Code
or any other applicable law.
ARTICLE TEN
THE TRUSTEE
SECTION 1001. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) The Trustee shall have and be subject to all the duties
and responsibilities specified with respect to a Mortgage trustee in
the Trust Indenture Act and no implied covenants or obligations
shall be read into this Mortgage against the Trustee. For
purposes of Sections 315(a) and 315(c) of the Trust Indenture Act,
the term "default" is hereby defined as an Event of Default which
has occurred and is continuing.
(b) No provision of this Mortgage 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) Notwithstanding anything contained in this Mortgage to
the contrary, the duties and responsibilities of the Trustee under
this Mortgage shall be subject to the protections, exculpations
and limitations on liability afforded to a Mortgage trustee under
the provisions of the Trust Indenture Act. For the purposes of
Sections 315(b) and 315(d)(2) of the Trust Indenture Act, the term
"responsible officer" is hereby defined as a Responsible Officer.
(d) Whether or not therein expressly so provided, every provision
of this Mortgage 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 1002. NOTICE OF DEFAULTS.
The Trustee shall give notice of any default hereunder known
to the Trustee 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 901(c), no such
notice to Holders shall be given until at least 60 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.
SECTION 1003. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 1001 and to the
applicable provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully
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 Mortgage the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely
upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Mortgage at the request
or direction of any Holder pursuant to this Mortgage, 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;
(h) the Trustee shall not be charged with knowledge of any
default (as defined in Section 1002) or Event of Default unless
either (1) a Responsible Officer of the Trustee shall have actual
knowledge of such default or Event of Default or (2) written
notice of such default or Event of Default shall have been given
to the Trustee by the Company or any other obligor on such
Securities, or by any Holder of such Securities.
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder; and
(j) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Mortgage.
SECTION 1004. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities (except
the Trustee's certificates of authentication) shall be taken as
the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes responsibility for their correctness.
The Trustee makes no representations as to the value or condition
of the Mortgaged Property, the title of the Company to the
Mortgaged Property, the security afforded by the Lien of this
Mortgage, the validity or genuineness of any securities deposited
with the Trustee hereunder, or the validity or sufficiency of this
Mortgage or of the Securities. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof
or any money paid to the Company hereunder.
SECTION 1005. MAY HOLD SECURITIES.
Each of the Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company,
in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 1008 and 1013, may
otherwise deal with the Company with the same rights it would have
if it were not the Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 1006. 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 or
investment of any money received by it hereunder except as
expressly provided herein or otherwise agreed with, and for the
sole benefit of, the Company.
SECTION 1007. COMPENSATION AND REIMBURSEMENT.
The Company shall
(a) 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);
(b) 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 Mortgage
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except to the extent
that any such expense, disbursement or advance may be attributable
to the Trustee's negligence, willful misconduct or bad faith; and
(c) indemnify the Trustee for, and hold it harmless from
and against, any loss, liability or expense reasonably incurred by it
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or the performance
of its duties 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 except to the extent any such loss, liability
or expense may be attributable to its negligence, willful
misconduct or bad faith.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to
the Securities upon the Mortgaged Property and all property and
funds held or collected by the Trustee as such, other than
property and funds held in trust under Section 803 (except moneys
payable to the Company as provided in Section 803).
In addition and without prejudice to the rights provided to
the Trustee under any of the provisions of this Mortgage, when the
Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 901(d) or Section 901(e),
the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal
and State bankruptcy, insolvency or other similar law.
The Company's obligations under this Section 1007 and the
Lien referred to in this Section 1007 shall survive the
resignation or removal of the Trustee, the discharge of the
Company's obligations under Article Eight of this Mortgage and/or
the termination of this Mortgage.
"TRUSTEE" for purposes of this Section 1007 shall include any
predecessor Trustee; provided, however, that the negligence,
willful misconduct or bad faith of any Trustee hereunder shall not
affect the rights of any other Trustee hereunder.
SECTION 1008. 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. For
purposes of Section 310(b)(1) of the Trust Indenture Act and to
the extent permitted thereby, the Trustee, in its capacity as
trustee in respect of the Securities of any series, shall not be
deemed to have a conflicting interest arising from its capacity as
trustee in respect of the Securities of any other series issued
under this Mortgage. Nothing herein shall prevent the Company or
the Trustee from filing with the Commission an application of the
type referred to in clause (ii) of paragraph (1) or in the second
to last paragraph of Section 310(b) of the Trust Indenture Act.
SECTION 1009. 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 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,
State or District of Columbia authority, or
(b) if and to the extent permitted by the Commission by
rule, regulation or order upon application, a corporation or other
Person organized 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 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 and the Trust Indenture Act, it
shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 1010. 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
1011.
(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 1011 shall not have been
delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Trustee and the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 1008
after written request therefor by the Company or by any Holder who has
been a bona fide Holder for at least 6 months, or
(ii) the Trustee shall cease to be eligible under Section
1009 or Section 310(a) of the Trust Indenture Act 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 Board Resolutions may
remove the Trustee with respect to all Securities or (y) subject
to Section 914, any Holder who has been a bona fide Holder for at
least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause (other than as contemplated by clause (y) in
subsection (d) of this Section), the Company, by Board
Resolutions, shall promptly appoint a successor Trustee or
Trustees and shall comply with the applicable requirements of
Section 1011. 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 Outstanding Securities 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 1011,
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 1011,
any Holder who has been a bona fide Holder of a Security of such
series for at least 6 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) So long as no event which is, or after notice or lapse
of time, or both, would become, an Event of Default shall have
occurred and be continuing, and except with respect to a Trustee
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities pursuant to subsection (e) of this
Section, if the Company shall have delivered to the Trustee (i)
Board Resolutions appointing a successor Trustee, effective as of
a date specified therein, and (ii) an instrument of acceptance of
such appointment, effective as of such date, by such successor
Trustee in accordance with Section 1011, the Trustee shall be
deemed to have resigned as contemplated in subsection (b) of this
Section, the successor Trustee shall be deemed to have been
appointed by the Company pursuant to subsection (e) of this
Section and such appointment shall be deemed to have been accepted
as contemplated in Section 1011, all as of such date, and all
other provisions of this Section and Section 1011 shall be
applicable to such resignation, appointment and acceptance except
to the extent inconsistent with this subsection (f).
(g) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee
to all Holders of Securities in the manner provided in Section
107. Each notice shall include the name of the successor Trustee
and the address of its Corporate Trust Office.
SECTION 1011. 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,
subject nevertheless to its Lien provided for in Section 1007.
(b) Upon request of any such successor Trustee, the Company
shall execute any instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such 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 1012. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all
or substantially all the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by
the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 1013. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If the Trustee shall be or become a creditor of the Company
or any other obligor upon the Securities (other than by reason of
a relationship described in Section 311(b) of the Trust Indenture
Act), 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) of the Trust Indenture Act (a) the term "cash
transaction" shall have the meaning provided in Rule 11b-4 under
the Trust Indenture Act, and (b) the term "self-liquidating paper"
shall have the meaning provided in Rule 11b-6 under the Trust
Indenture Act.
SECTION 1014. CO-TRUSTEE AND SEPARATE TRUSTEES.
At any time or times, for the purpose of meeting the legal
requirements of any applicable jurisdiction, 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 33% in principal
amount of the Securities 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, or to act as separate trustee,
in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons,
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 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 power to make such appointment.
Should any written instrument or instruments from the Company
be required by any co-trustee or separate trustee 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.
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:
(a) the Securities 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;
(b) 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.
(c) 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;
(d) 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 the Trustee shall not be
personally liable by reason of any act or omission of any such co-
trustee or separate trustee; and
(e) any Act of Holders delivered to the Trustee shall be
deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 1015. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
with respect to the Securities of one or more series, or any
Tranche thereof, which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series or Tranche
issued upon original issuance, exchange, registration of transfer
or partial redemption thereof or pursuant to Section 506, and
Securities so authenticated shall be entitled to the benefits of
this Mortgage and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Wherever reference
is made in this Mortgage to the authentication and delivery of
Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under
the laws of the United States of America, any State or territory
thereof or the District of Columbia or the Commonwealth of Puerto
Rico, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $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.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of
any paper or any further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and 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 the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the
Company. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this
Section.
The provisions of Sections 308, 1004 and 1005 shall be
applicable to each Authenticating Agent.
If an appointment with respect to the Securities of one or
more series, or any Tranche thereof, shall be made pursuant to
this Section, the Securities of such series or Tranche may have
endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Mortgage.
Deutsche Bank Trust Company Americas,
f/k/a Bankers Trust Company, Trustee,
By______________________
As Authenticating Agent
By______________________
Authorized Officer
If all of the Securities of a series may not be originally
issued at one time, and if the Trustee does not have an office
capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have
Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Company in writing (which
writing need not comply with Section 103 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
Securities.
ARTICLE ELEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 1101. LISTS OF HOLDERS.
Semiannually, not later than June 1 and December 1 in each
year, commencing December 1, [____] 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; provided, however,
that no such list need be furnished so long as the Trustee shall
be the Security Registrar.
SECTION 1102. REPORTS BY TRUSTEE AND COMPANY.
Not later than November 1 in each year, commencing with the
year [_____], the Trustee shall transmit to the Holders, the
Commission and each securities exchange upon which any Securities
are listed, a report, dated as of the next preceding September 15,
with respect to any events and other matters described in Section
313(a) of the Trust Indenture Act, in such manner and to the
extent required by the Trust Indenture Act. The Trustee shall
transmit to the Holders, the Commission and each securities
exchange upon which any Securities are listed, and the Company
shall file with the Trustee (within 30 days after filing with the
Commission in the case of reports which pursuant to the Trust
Indenture Act must be filed with the Commission and furnished to
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. The
Company shall notify the Trustee of the listing of any Securities
on any securities exchange.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee's
receipt of such shall not constitute notice or constructive notice
of any information contained therein or determinable from
information contained therein, including the Company's compliance
with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
The Company shall file with the Trustee (within 30 days after
filing with the Commission in the case of reports that pursuant to
the Trust Indenture Act must be filed with the Commission and
furnished to 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.
ARTICLE TWELVE
CONSOLIDATION, MERGER, CONVEYANCE, OR OTHER TRANSFER
SECTION 1201. 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, as,
or substantially as, an entirety the Company's Electric Utility
Property to any Person, unless:
(a) 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, as or substantially as an
entirety such Electric Utility Property shall be a corporation
organized and existing under the laws of the United States, any
State or Territory thereof or the District of Columbia (such
corporation being hereinafter sometimes called the "Successor
Company") and shall execute and deliver to the Trustee an Mortgage
supplemental hereto, in form recordable and reasonably
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 Securities then
Outstanding, contains an express assumption by the Successor
Company of the due and punctual payment of the principal of and
premium, if any, and interest, if any, on all the Securities then
Outstanding and the performance and observance of every covenant
and condition of this Mortgage 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 Company, of the same tenor of the Granting Clauses
herein,
(A) confirming the Lien of this Mortgage on the
Mortgaged Property (as constituted immediately prior to the
time such transaction became effective) and subjecting to the
Lien of this Mortgage all property, real, personal and mixed,
thereafter acquired by the Successor Company 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 Company,
subjecting to the Lien of this Mortgage such property, real,
personal or mixed, in addition to the property described in
subclause (A) above, then owned or thereafter acquired by the
Successor Company as the Successor Company 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 Mortgage 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;
(b) in the case of a lease, such lease shall be made
expressly subject to termination at any time during the continuance of
an Event of Default, by (i) the Company or the Trustee and (ii) 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;
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each of which shall
state that such consolidation, merger, conveyance or other transfer or
lease, and such supplemental Mortgage, comply with this Article
and that all conditions precedent herein provided for relating to
such transaction have been complied with; and
(d) immediately after giving effect to such transaction (and
treating any Debt that becomes an obligation of the Successor
Company as a result of such transaction as having been incurred by
the Successor Company at the time of such transaction), no Event
of Default shall have occurred and be continuing.
As used in this Article and in Section 1610(d), the terms
"improvement", "extension" and "addition" shall be limited to (a)
with respect to real property subject to the Lien of this
Mortgage, any item of personal property which has been so affixed
or attached to such real property as to be regarded a part of such
real property under applicable law and (b) with respect to
personal property subject to the Lien of this Mortgage, any
improvement, extension or addition to such personal property which
(i) is made to maintain, renew, repair or improve the function of
such personal property and (ii) is physically installed in or
affixed to such personal property.
SECTION 1202. SUCCESSOR COMPANY SUBSTITUTED.
Upon any consolidation or merger or any conveyance or other
transfer of, as or substantially as an entirety the Company's
Electric Utility Property in accordance with Section 1201, the
Successor Company shall succeed to, and be substituted for, and
may exercise every power and right of, the Company under this
Mortgage with the same effect as if such Successor Company had
been named as the "Company" herein. Without limiting the
generality of the foregoing:
(a) all property of the Successor Company then subject to the
Lien of this Mortgage, of the character described in Section 102,
shall constitute Property Additions;
(b) the Successor Company may execute and deliver to the
Trustee, and thereupon the Trustee shall, subject to the provisions of
Article Four, authenticate and deliver, Securities meeting the
requirements of Article Four; and
(c) the Successor Company may, subject to the applicable
provisions of this Mortgage, use Property Additions for any other
purpose under the Mortgage.
All Securities so executed by the Successor Company, and
authenticated and delivered by the Trustee, shall in all respects
be entitled to the benefit of the Lien of this Mortgage equally
and ratably with all Securities executed, authenticated and
delivered prior to the time such consolidation, merger, conveyance
or other transfer became effective.
SECTION 1203. EXTENT OF LIEN HEREOF ON PROPERTY OF SUCCESSOR
COMPANY.
Unless, in the case of a consolidation, merger, conveyance or
other transfer contemplated by Section 1201, the Mortgage
supplemental hereto contemplated in Section 1201 or in Article
Thirteen expressly provides otherwise, neither this Mortgage nor
such supplemental Mortgage shall become or be, or be required to
become or be, a Lien upon any of the properties:
(a) owned by the Successor Company or any other party to such
transaction (other than the Company) immediately prior to the time
of effectiveness of such transaction or
(b) acquired by the Successor Company at or after the time of
effectiveness of such transaction, except, in either case,
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 thereof.
SECTION 1204. RELEASE OF COMPANY UPON CONVEYANCE OR OTHER
TRANSFER.
In the case of a conveyance or other transfer to any Person
or Persons as contemplated in Section 1201, upon the satisfaction
of all the conditions specified in Section 1201 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 Mortgage and on and under all Securities
then Outstanding (unless the Company shall have delivered to the
Trustee an instrument in which it shall waive such release and
discharge) and, upon request by the Company, the Trustee shall
acknowledge in writing that the Company has been so released and
discharged.
SECTION 1205. MERGER INTO COMPANY; EXTENT OF LIEN HEREOF.
(a) Nothing in this Mortgage 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, of any part of the
Company's Electric Utility Property which does not constitute the
entirety or substantially the entirety of its Electric Utility
Property.
(b) Unless, in the case of a consolidation or merger
described in subsection (a) of this Section, an Mortgage supplemental
hereto shall otherwise provide, this Mortgage 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 thereof.
SECTION 1206. TRANSFER OF LESS THAN SUBSTANTIALLY ALL.
This Article is not intended to limit the Company's
conveyances, transfers or leases of less than the entirety or
substantially the entirety of its Electric Utility Property.
ARTICLE THIRTEEN
SUPPLEMENTAL MORTGAGES
SECTION 1301. SUPPLEMENTAL MORTGAGES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the
Trustee, at any time and from time to time, may enter into one or
more Mortgages supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities all as provided in Article
Twelve; or
(b) to add one or more covenants of the Company or other
provisions for the benefit of the Holders of all or any series of
Securities, or any Tranche, thereof or to surrender any right or
power herein conferred upon the Company (and if such covenants are
to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely
for the benefit of such series); or
(c) to add any additional Events of Default with respect to
all or any series of Securities Outstanding hereunder (and if such
additional Events of Default are to be for the benefit of less
than all series of Securities, stating that such additional Events
of Default are expressly being included solely for the benefit of
such series); or
(d) to change or eliminate any provision of this Mortgage
or to add any new provision to this Mortgage; provided, however, that if
such change, elimination or addition shall adversely affect the
interests of the Holders of Securities of any series or Tranche
Outstanding on the date of such supplemental Mortgage in any
material respect, such change, elimination or addition shall
become effective with respect to such series or Tranche only
pursuant to the provisions of Section 1302 hereof or when no
Security of such series or Tranche remains Outstanding; or
(e) to provide additional collateral security for the
Securities of any series; or
(f) to establish the form or terms of Securities of any
series or Tranche as contemplated by Sections 201 and 301; or
(g) to provide for the authentication and delivery of bearer
Securities 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
(h) to evidence and provide for the acceptance of
appointment hereunder by a separate or successor Trustee with respect
to the Securities of one or more series and to add to or change any of
the provisions of this Mortgage as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
1011(b); or
(i) 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 Securities;
or
(j) to change any place or places where (1) the principal
of and premium, if any, and interest, if any, on all or any series of
Securities, or any Tranche thereof, shall be payable, (2) all or
any series of Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series of
Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon the Company in
respect of all or any series of Securities, or any Tranche
thereof, and this Mortgage may be served;
(k) to amend and restate this Mortgage, as originally
executed and delivered and as it may have been subsequently amended, in
its entirety, but with such additions, deletions and other changes as
shall not adversely affect the interests of the Holders of the
Securities in any material respect; or
(l) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other changes to the provisions
hereof or to add other provisions with respect to matters or
questions arising under this Mortgage, provided that such other
changes or additions shall not materially adversely affect the
interests of the Holders of Securities of any series or Tranche in
any material respect.
Without limiting the generality of the foregoing, if the
Trust Indenture Act as in effect at the First Effective Date or at
any time thereafter shall be amended and
(x) if any such amendment shall require one or more
changes to any provisions hereof or the inclusion herein of
any additional provisions, or shall by operation of law be
deemed to effect such changes or incorporate such provisions
by reference or otherwise, this Mortgage 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 Mortgage
supplemental hereto to evidence such amendment hereof; or
(y) if any such amendment shall permit one or more
changes to, or the elimination of, any provisions hereof
which, at the First Effective Date or at any time thereafter,
are required by the Trust Indenture Act to be contained
herein or are contained herein to reflect any provision of
the Trust Indenture Act as in effect at such date, this
Mortgage shall be deemed to have been amended to effect such
changes or elimination, and the Company and the Trustee may,
without the consent of any Holders, enter into an Mortgage
supplemental hereto to this Mortgage to effect such changes
or elimination or evidence such amendment.
SECTION 1302. SUPPLEMENTAL MORTGAGES WITH CONSENT OF HOLDERS.
Subject to the provisions of Section 1301, with the consent
of the Holders of not less than 66-2/3% in aggregate principal
amount of the Securities of all series then Outstanding under this
Mortgage, 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 a
Mortgage or Mortgages supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Mortgage or modifying in any manner
the rights of the Holders of Securities of any series under this
Mortgage; provided, however, that on and after the Second
Effective Date, any such Mortgage or Mortgages supplemental hereto
shall only require the consent of the Holders of not less than a
majority (rather than the Holders of not less than 66-2/3%) in
aggregate principal amount of the holders the Securities of all
series then Outstanding under this Mortgage; and provided,
further, that if there shall be Securities of more than one series
Outstanding hereunder and if a proposed Mortgage supplemental
hereto shall directly affect the rights of the Holders of
Securities of one or more, but less than all, of such series, then
the consent only of the Holders of not less than 66-2/3% (or, on
and after the Second Effective Date, not less than a majority) in
aggregate principal amount of the Outstanding Securities of all
series so directly affected, considered as one class, shall be
required; and provided, further, that if the Securities of any
series shall have been issued in more than one Tranche and if the
proposed supplemental Mortgage shall directly affect the rights of
the Holders of Securities of one or more, but less than all, of
such Tranches, then the consent only of the Holders of not less
than 66-2/3% (or, on and after the Second Effective Date, not less
than a majority) in aggregate principal amount of the Outstanding
Securities of all Tranches so directly affected, considered as one
class, shall be required; and provided, further, that no such
supplemental Mortgage shall, without the consent of the Holder of
each Outstanding Security of each series or Tranche so directly
affected,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security (other
than pursuant to the terms thereof), 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 Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 902,
or change the coin or currency (or other property), in which any
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date);
(b) except as contemplated by Section 1601(b), deprive such
Holder of the benefit of the security of the Lien of this
Mortgage; provided that, on and after the Second Effective Date,
such consent of the Holders of each Outstanding Security of each
series or Tranche so directly affected shall not be required with
respect to any Mortgage supplemental hereto that releases one or
more properties from the lien of the Mortgage if the lesser of the
aggregate Cost or aggregate Fair Value of all properties to be
released and theretofore released without the consent of the
Holders pursuant to this Section 1302(b) is not greater than 10%
of the lesser of the aggregate Cost or aggregate Fair Value of the
Mortgaged Property as of the end of the calendar year in which the
Second Effective Date occurs. Prior to executing any such
supplemental indenture, there shall be delivered to the Trustee
(x) an Officers' Certificate stating that, to the knowledge of the
signers, no Event of Default has occurred and is continuing and
(y) an Experts' Certificate stating, in the judgment of the
signers, the aggregate Fair Value of the property to be released
and theretofore released without the consent of the Holders
pursuant to this Section 1302(b) since the Second Effective Date
is not greater than 10% of the aggregate Fair Value of the
Mortgaged Property as of the end of the calendar year in which the
Second Effective Date occurs;
(c) reduce the percentage in principal amount of the
Outstanding Securities of any series or any Tranche thereof, the consent
of the Holders of which is required for any such supplemental
Mortgage, or the consent of the Holders of which is required for
any waiver of compliance with any provision of this Mortgage or of
any default hereunder and its consequences, or reduce the
requirements of Section 1404 for quorum or voting;
(d) modify any of the provisions of this Section, Section
706 or Section 913 with respect to the Securities of any series, or any
Tranche thereof, 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 Mortgage cannot be modified
or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause
shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and
concomitant changes in this Section, or the deletion of this
proviso, in accordance with the requirements of Sections 1011(b),
1014 and 1301(h); or
(e) modify the provisions of Section 1612 to permit
the Company to create Prior Liens or suffer Prior Liens to be created
on the Mortgaged Property prior to the time that it is permitted to do
so thereunder.
A supplemental Mortgage which (x) changes or eliminates any
covenant or other provision of this Mortgage 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,
Securities of one or more particular series, or one or more
Tranches thereof, or (y) modifies the rights of the Holders of
Securities of such series or Tranches with respect to such
covenant or other provision, shall be deemed not to affect the
rights under this Mortgage of the Holders of Securities of any
other series or Tranche.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed
supplemental Mortgage, but it shall be sufficient if such Act
shall approve the substance thereof.
Anything in this Mortgage to the contrary notwithstanding, if
the Officers' Certificate, supplemental Mortgage or Board
Resolution, as the case may be, establishing the Securities of any
series or Tranche shall provide that the Company may make certain
specified additions, changes or eliminations to or from the
Mortgage which shall be specified in such Officers' Certificate,
supplemental Mortgage or Board Resolution establishing such series
or Tranche, (a) the Holders of Securities of such series or
Tranche shall be deemed to have consented to a supplemental
Mortgage containing such additions, changes or eliminations to or
from the Mortgage which shall be specified in such Officers'
Certificate, supplemental Mortgage or Board Resolution
establishing such series or Tranche, (b) no Act of such Holders
shall be required to evidence such consent and (c) such consent
may be counted in the determination of whether or not the Holders
of the requisite principal amount of Securities shall have
consented to such supplemental Mortgage.
SECTION 1303. EXECUTION OF SUPPLEMENTAL MORTGAGES.
In executing, or accepting the additional trusts created by,
any supplemental Mortgage permitted by this Article or the
modifications thereby of the trusts created by this Mortgage, the
Trustee shall be entitled to receive, and (subject to Section
1001) shall be fully protected in relying upon, an Opinion of
Counsel and an Officers' Certificate stating that the execution of
such supplemental Mortgage is authorized or permitted by this
Mortgage and containing the statements required by Section 103.
The Trustee may, but shall not be obligated to, enter into any
such supplemental Mortgage which adversely affects the Trustee's
own rights, duties, immunities or liabilities under this Mortgage
or otherwise.
SECTION 1304. EFFECT OF SUPPLEMENTAL MORTGAGES.
Upon the execution of any supplemental Mortgage under this
Article this Mortgage shall be modified in accordance therewith,
and such supplemental Mortgage shall form a part of this Mortgage
for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound
thereby. Any supplemental Mortgage permitted by this Article may
restate this Mortgage in its entirety, and, upon the execution and
delivery thereof, any such restatement shall supersede this
Mortgage as theretofore in effect for all purposes.
SECTION 1305. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental Mortgage executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 1306. REFERENCE IN SECURITIES TO SUPPLEMENTAL MORTGAGES.
Securities of any series, or any Tranche thereof,
authenticated and delivered after the execution of any
supplemental Mortgage 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
Mortgage. If the Company shall so determine, new Securities of
any series, or any Tranche thereof, so modified as to conform, in
the opinion of the Trustee and the Company, to any such
supplemental Mortgage may be prepared and executed by the Company,
and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series or Tranche.
SECTION 1307. MODIFICATION WITHOUT SUPPLEMENTAL MORTGAGE.
To the extent, if any, that the terms of any particular
series of Securities shall have been established in or pursuant to
a Board Resolution or an Officers' Certificate pursuant to a
supplemental Mortgage or Board Resolution as contemplated by
Section 301, and not in an Mortgage supplemental hereto, additions
to, changes in or the elimination of any of such terms may be
effected by means of a supplemental Board Resolution or Officers'
Certificate pursuant to a Board Resolution or a supplemental
Mortgage and complying with the requirements of Section 104, as
the case may be, delivered to, and accepted by, the Trustee in
writing; provided, however, that such supplemental Board
Resolution or Officers' Certificate shall not be accepted by the
Trustee or otherwise be effective unless all conditions set forth
in this Mortgage which would be required to be satisfied if such
additions, changes or elimination were contained in a supplemental
Mortgage shall have been appropriately satisfied. Upon the
written acceptance thereof by the Trustee, any such supplemental
Board Resolution or Officers' Certificate shall be deemed to be
effective and constitute part of the Mortgage and a supplemental
Mortgage hereunder, including for purposes of Section 1614. Such
acceptance shall be conveyed by a written instrument signed by a
Responsible Officer of the Trustee.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS; ACTION WITHOUT MEETING
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of one or more, or all,
series, or any Tranche or Tranches thereof, may be called at any
time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Mortgage to be
made, given or taken by Holders of Securities of such series or
Tranches.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, for any purpose specified in Section 1401, to be
held at such time and at such place as the Trustee shall determine
with the approval of the Company. 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 107, not less
than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) If the Trustee shall have been requested to call a
meeting of the Holders of Securities of one or more, or all, series,
or any Tranche or Tranches thereof, by the Company or by the Holders of
33% in aggregate principal amount of all of such series and
Tranches, considered as one class, for any purpose specified in
Section 1302, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the
Trustee shall not have given the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed
to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series and Tranches
in the amount above specified, as the case may be, may determine
the time and the place in the city in which the Corporate Trust
Office is located, or in such other place as shall be determined
or approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
(c) Any meeting of Holders of Securities of one or more,
or all, series, or any Tranche or Tranches thereof, shall be valid
without notice if the Holders of all Outstanding Securities of such
series or 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 Securities 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 and the
Trustee.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of one or more, or all, series, or any Tranche or
Tranches thereof, a Person shall be (a) a Holder of one or more
Outstanding Securities of such series or Tranches, or (b) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series or
Tranches by such Holder or Holders. The only Persons who shall be
entitled to attend any meeting of Holders of Securities of any
series or Tranche shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its
counsel.
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which a meeting shall have been called as
hereinbefore provided, considered as one class, shall constitute a
quorum for a meeting of Holders of Securities of such series and
Tranches; provided, however, that if any action is to be taken at
such meeting which this Mortgage expressly provides may be taken
by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of
such series and Tranches, considered as one class, the Persons
entitled to vote such specified percentage in principal amount of
the Outstanding Securities of such series and Tranches, considered
as one class, shall constitute a quorum. In the absence of a
quorum within one hour of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders of
Securities of such series and Tranches, be dissolved. In any
other case the meeting may be adjourned for 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 1405(e), notice of the reconvening of any meeting
adjourned for more than 30 days shall be given as provided in
Section 1402(a) not less than ten days prior to the date on which
the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the
Outstanding Securities of such series and Tranches which shall
constitute a quorum.
Except as limited by Section 1302, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted only by the
affirmative vote of the Holders of a majority in aggregate
principal amount of the Outstanding Securities of the series and
Tranches with respect to which such meeting shall have been
called, considered as one class; provided, however, that, except
as so limited, any resolution with respect to any action which
this Mortgage expressly provides may be taken by the Holders of a
specified percentage, which is less than a majority, in principal
amount of the Outstanding Securities of such series and Tranches,
considered as one class, may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding
Securities of such series and Tranches, considered as one class.
Any resolution passed or decision taken at any meeting of
Holders of Securities duly held in accordance with this Section
shall be binding on all the Holders of Securities of the series
and Tranches with respect to which such meeting shall have been
held, whether or not present or represented at the meeting.
SECTION 1405. ATTENDANCE AT MEETINGS; DETERMINATION OF VOTING
RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Attendance at meetings of Holders of Securities 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 Securities with respect to which it was given unless and
until specifically revoked by the Holder or future Holder of such
Securities before being voted.
(b) Notwithstanding any other provisions of this Mortgage,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to
proof of the holding of such Securities and of the appointment of
proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the
manner specified in Section 105 and the appointment of any proxy
shall be proved in the manner specified in Section 105. 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 105 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
1402(b), in which case the Company or the Holders of Securities of
the series and Tranches calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and 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 Securities of all series and
Tranches represented in person or by proxy at the meeting,
considered as one class.
(d) At any meeting each Holder or proxy shall be entitled
to one vote for each $1,000 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(e) Any meeting duly called pursuant to Section 1402 at
which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series and Tranches represented at
the meeting, considered as one class; and the meeting may be held
as so adjourned without further notice.
SECTION 1406. 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
Securities, of the series and Tranches with respect to which the
meeting shall have been called, held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of
the meeting their verified written reports of all votes cast at
the meeting. A record, in duplicate, 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 1402
and, if applicable, Section 1404. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary
of the meeting and one such copy shall be delivered to the
Company, and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at
the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
SECTION 1407. 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 one or more written instruments as
provided in Section 105.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 1501. LIABILITY SOLELY CORPORATE.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest, if any, on any Securities or any
part thereof, or for any claim based thereon or otherwise in
respect thereof, or of the indebtedness represented thereby, or
upon any obligation, covenant or agreement under this Mortgage,
against any incorporator, shareholder, member, limited partner,
officer, manager or director, as such, past, present or future of
the Company or of any predecessor or successor of the Company
(either directly or through the Company or a predecessor or
successor of the Company), 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 Mortgage and all the Securities are solely
corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, shareholder,
member, limited partner, officer, manager or director, past,
present or future, of the Company or of any predecessor or
successor of the Company, either directly or indirectly through
the Company or any predecessor or successor of the Company,
because of the indebtedness hereby authorized or under or by
reason of any of the obligations, covenants or agreements
contained in this Mortgage or in any of the Securities or to be
implied herefrom or therefrom, and that any such personal
liability is hereby expressly waived and released as a condition
of, and as part of the consideration for, the execution of this
Mortgage and the issuance of the Securities.
ARTICLE SIXTEEN
POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY
SECTION 1601. QUIET ENJOYMENT; EXCEPTED PROPERTY AFTER SECOND
EFFECTIVE DATE.
(a) Unless one or more Events of Default shall have occurred
and be continuing, the Company shall be permitted to (i) possess,
use and enjoy the Mortgaged Property (except, to the extent not
herein otherwise provided, such cash and securities as are
expressly required to be deposited with the Trustee); (ii) receive
and use all tolls, rents, revenues, earnings, interest, dividends,
royalties, issues, income and profits thereof; (iii) purchase,
transmit, distribute, store, sell and otherwise deal with and use
electricity, gas, water, electric and gas appliances and other
products; (iv) use and consume stock in trade, materials and
supplies; (v) deal with choices in action (other than pledged
securities), leases and contracts and exercise, release or amend
the rights and powers conferred upon it thereby; and (vi) alter,
repair, maintain, replace, reconstruct, relocate, remove and
operate any of its buildings, plants, stations, structures,
transmission lines, distribution lines, pipe lines, conduits,
mains, machinery, equipment, tools, dams, reservoirs and other
real property and tangible personal property, except that none of
such real property or tangible personal property may be relocated
or removed so as to impair the lien of the Mortgage thereon unless
such property is sold, abandoned or otherwise disposed of as
permitted by this Section or by Section 1602 or released by the
Trustee.
(b) On and after the Second Effective Date, then, unless an
Event of Default shall have happened and be continuing, upon
application by the Company and receipt of an Officers' Certificate
dated the date of said application, stating that, to the knowledge
of the signers, no Event of Default has occurred and is
continuing, the Trustee shall execute and deliver to the Company
appropriate instruments releasing, to the extent not heretofore
released and to the extent hereinbelow provided, the interest, if
any, of the Trustee in all right, title and interest of the
Company then owned or thereafter acquired in and to the property
described in clause (B) of the definition of the term "Excepted
Property" set forth in Section 101, whereupon the definition of
the term "Excepted Property" set forth in such clause (B) shall
automatically become and be in full force and effect and the
definition of the term "Excepted Property" set forth in clause (A)
of such definition shall automatically cease to be of any further
force or effect.
SECTION 1602. 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
Mortgage, any machinery, equipment, apparatus, towers,
transformers, poles, lines, cables, conduits, ducts, conductors,
meters, regulators, holders, tanks, retorts, purifiers, odorizers,
scrubbers, compressors, valves, pumps, mains, pipes, service
pipes, fittings, connections, services, tools, implements, or any
other fixtures or personality, then subject to the Lien hereof,
which shall have become old, inadequate, obsolete, worn out,
unfit, unadapted, unserviceable, undesirable or unnecessary for
use in the operations of the Company upon replacing the same by,
or substituting for the same, similar or analogous property, or
other property performing a similar or analogous function or
otherwise obviating the need therefor, having a Fair Value to the
Company at least equal to that of the property sold or otherwise
disposed of and subject to the Lien hereof, subject to no Liens
prior hereto except Permitted Liens and any other Liens to which
the property sold or otherwise disposed of was subject;
(b) Cancel or make changes or alterations in or
substitutions for any and all easements, servitudes, rights-of-way
and similar rights and/or interests;
(c) Grant, free from the Lien of this Mortgage, easements,
ground leases or rights-of-way in, upon, over and/or across the property
or rights-of-way of the Company for the purpose of roads, pipe
lines, transmission lines, distribution lines, communication
lines, railways, removal or transportation of coal, lignite, gas,
oil or other minerals or timber, and other like purposes, or for
the joint or common use of real property, rights-of-way,
facilities and/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;
(d) Abandon any property, if in the opinion of the
Company (i) the abandonment of such property is desirable in the proper
conduct of the business and in the operation of the properties of
the Company or is otherwise in the best interests of the Company,
and (ii) the value and utility generally of all its properties as
an entirety and the security for the bonds will not thereby be
impaired;
(e) Sell, surrender, release, abandon or otherwise dispose
of, either with or without consideration (provided any consideration
received by the Company shall, subject to the provisions of
Section 1603, be paid over to the Trustee to be held by it as part
of the Mortgaged Property), any easements, rights-of-way, leases,
licenses, authority or permits over private property for towers,
poles, wires, cables, conduits, pipe lines or mains, or for
transmission line or distribution line purposes, if such towers,
poles, wires, cables, conduits, pipe lines or mains, or such
transmission or distribution lines, have theretofore been sold by
the Company or removed by the Company to other property or taken
by any municipality or other governmental subdivision by the
exercise of a power of eminent domain or similar right or power,
and if in the opinion of the Company the value and utility
generally of all its properties as an entirety and the security
for the bonds will not thereby be impaired; and
(f) Grant, free from the lien of this Mortgage, either
with or without consideration (provided any consideration received
by the Company shall, subject to the provisions of Section 1603, be paid
over to the Trustee to be held by it as part of the Mortgaged
Property), easements, rights-of-way, leases, licenses, authority
or permits, for fixed periods of time or in perpetuity, over or
with respect to any of the real property constituting part of the
Mortgaged Property, if in the opinion of the Company (i) the
granting of such easements, rights-of-way, leases, licenses,
authority or permits does not substantially impair the continued
use and enjoyment by the Company of the real property over or in
respect of which such easements, rights-of-way, leases, licenses,
authority or permits are granted for the purpose for which such
property is used by the Company, and (ii) the value and utility
generally of all its properties as an entirety and the security
for the bonds will not thereby be impaired.
SECTION 1603. RELEASE OF MORTGAGED PROPERTY.
Unless an Event of Default shall have occurred and be
continuing, the Company may obtain the release of any part of the
Mortgaged Property, or any interest therein, other than cash held
by the Trustee, and the Trustee shall release all its right, title
and interest in and to the same from the Lien hereof, upon receipt
by the Trustee of:
(a) A Company Order requesting the release of such property
and transmitting therewith a form of instrument or instruments to
effect such release;
(b) An Officers' Certificate stating that, to the knowledge
of the signers, no Event of Default has occurred and is continuing;
(c) An Experts' Certificate made and dated not more than 90
days prior to the first day of the month in which such Company Order is
delivered to the Trustee:
(i) Describing the property to be released;
(ii) Stating the Fair Value, in the judgment of the
signers, of the property to be released;
(iii) Stating the Cost of the property to be released
(or, if the Fair Value to the Company of such property at the time such
property was first included in an Experts' Certificate was less
than the Cost thereof, then such Fair Value, in lieu of Cost);
(iv) Stating that, in the judgment of the signers, such
release will not impair the security under this Mortgage in
contravention of the provisions hereof;
(v) Stating the aggregate principal amount of Securities
and the aggregate principal amount of Secured Debt Outstanding on
the date of such Experts' Certificate; and
(vi) Stating that, after giving effect to the
transactions contemplated thereby, including payment, from the proceeds
thereof, of any taxes and expenses incidental to any sale,
exchange, dedication or other disposition of the property to be
released, the Company would be permitted by the provisions of
Section 401(a) to have authenticated and delivered at least $1.00
of additional Securities;
(d) The amount in cash, if any, then required to be deposited
with the Trustee in order to permit the Company to meet the
requirement of clause (c)(vi) above; and
(e) An Opinion of Counsel to the effect that:
(i) this Mortgage constitutes, or, upon the delivery of,
and/or the filing and/or recording in the proper places and manner of,
the instruments of conveyance, assignment or transfer, if any,
specified in said opinion, will constitute, a direct first
mortgage lien, subject only to Permitted Liens, environmental
"super lien" laws and specified Prior Liens, upon the interest of
the Company in the Property Additions; provided, however, that on
and after the Second Effective Date, said opinion may also contain
an exception for all Prior Liens; and
(ii) the Company has corporate authority to operate such
Property Additions.
If (a) any property to be released from the Lien of this
Mortgage under any provision of this Article (other than Section
1607) is subject to a Lien prior to the Lien hereof and is to be
sold, exchanged, dedicated or otherwise disposed of subject to
such Prior Lien and (b) after such release, such Prior Lien will
not be a Lien on any property subject to the Lien hereof, then the
Fair Value of such property to be released shall be deemed, for
all purposes of this Mortgage, to be the value thereof
unencumbered by such Prior Lien less the principal amount of the
indebtedness secured by such Prior Lien.
Any cash deposited with the Trustee pursuant to the
provisions of this Section 1603 shall be held as part of the
Mortgaged Property and shall be withdrawn, released, used or
applied in the manner, to the extent and for the purposes, and
subject to the conditions, provided in Section 1606.
The right of the Company, under the provisions of Section
1302(b) permitting the release of certain property without the
consent of the Holders, shall be separate and apart from, and in
addition to, the rights of the Company under this Section and
Section 1605.
SECTION 1604. PRESERVATION OF LIEN.
The Company shall maintain and preserve the Lien of this
Mortgage so long as any Securities shall remain Outstanding,
subject, however, to the provisions of Article Thirteen and
Article Sixteen.
SECTION 1605. RELEASE OF MINOR PROPERTIES; EFFECTIVE TIME.
(a) Subsection (b) of this Section 1605 shall be of no force
or effect until the Second Effective Date, but shall automatically
become and be in full force and effect on and after the Second
Effective Date;
(b) Notwithstanding the provisions of Section 1603, unless
an Event of Default shall have occurred and be continuing, the
Company may obtain the release from the Lien hereof of any part of
the Mortgaged Property, or any interest therein, and the Trustee
shall whenever from time to time requested by the Company in a
Company Order transmitting therewith a form of instrument or
instruments to effect such release, and without requiring
compliance with any of the provisions of Section 1603, release
from the Lien hereof all the right, title and interest of the
Trustee in and to the same provided that the lesser of the
aggregate Cost or the aggregate Fair Value of the property to be
so released on any date in a given calendar year, together with
all other property theretofore released pursuant to this Section
1605 in such calendar year, shall not exceed the greater of (A)
$10,000,000 and (B) 3% of the sum of the aggregate principal
amount of all (i) Securities and (ii) Secured Debt then
Outstanding. Prior to the granting of any such release, there
shall be delivered to the Trustee (x) an Officers' Certificate
stating that, to the knowledge of the signers, no Event of Default
has occurred and is continuing and (y) an Experts' Certificate
stating, in the judgment of the signers, the Fair Value of the
property to be released, the aggregate Fair Value of all other
property theretofore released pursuant to this Section in such
calendar year, and that, in the judgment of the signers, the
release thereof will not impair the security under this Mortgage
in contravention of the provisions hereof.
SECTION 1606. WITHDRAWAL OR OTHER APPLICATION OF CASH.
Except as hereafter in this Section provided, unless an Event
of Default shall have occurred and be continuing, any Available
Cash held by the Trustee, and any other cash which is required to
be withdrawn, used or applied as provided in this Section,
(a) May be withdrawn from time to time by the Company upon
receipt by the Trustee of: (i) a Company Order requesting the
withdrawal, use or application of such cash and transmitting
appropriate instructions, (ii) an Officers' Certificate stating
that, to the knowledge of the signer, no Event of Default has
occurred or is continuing; (iii) an Experts' Certificate made and
dated not more than 90 days prior to the first day of the month in
which such Company Order is delivered to the Trustee stating the
aggregate principal amount of Securities and the aggregate
principal amount of Secured Debt, in each case Outstanding on the
date of such Experts' Certificate, and stating that, after giving
effect to the transactions contemplated thereby, (A) the Company
would be permitted by the provisions of Section 401(a) to have
authenticated and delivered at least $1.00 of additional
Securities or, (B) if Company cannot meet this requirement,
stating the lesser amount of such cash which could be so
withdrawn, used or applied by the Company and still enable the
Company to meet the requirements of subsection (A) of this clause
(a) of Section 1606, which lesser amount may be so withdrawn; and
(iv) an Opinion of Counsel to the effect that: (1) this Mortgage
constitutes, or, upon the delivery of, and/or the filing and/or
recording in the proper places and manner of, the instruments of
conveyance, assignment or transfer, if any, specified in said
opinion, will constitute, a direct first mortgage lien, subject
only to Permitted Liens, environmental "super lien" laws and
specified Prior Liens, upon the interest of the Company in the
Property Additions; provided, however, that on and after the
Second Effective Date, said opinion may also contain an exception
for all Prior Liens; and (2) the Company has corporate authority
to operate such Property Additions.
(b) May, upon the request of the Company, be used by the
Trustee for the purchase of Securities in the manner, at the time or
times, in the amount or amounts, at the price or prices and
otherwise as directed or approved by the Company, all subject to
the limitations hereafter in this Section set forth; or
(c) May, upon the request of the Company, be applied by the
Trustee to the payment (or provision therefor pursuant to Article
Eight) at Stated Maturity of any Securities or to the redemption
(or similar provision therefor) of any Securities which are, by
their 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, all subject to the limitations
hereafter in this Section set forth.
Notwithstanding the generality of clauses (b) and (c) above,
no cash to be applied pursuant to such clauses shall be applied to
the payment of an amount in excess of the principal amount of any
Securities to be purchased, paid or redeemed except to the extent
that the aggregate principal amount of all Securities theretofore,
and of all Securities then to be, purchased, paid or redeemed
pursuant to such clauses is not less than the aggregate cost for
principal of, premium, if any, and accrued interest, if any, on
and brokerage commissions, if any, with respect to, such
Securities.
SECTION 1607. 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 elect not to
obtain the release of such property pursuant to other provisions
of this Article, the Trustee shall, upon request of the Company
evidenced by a Company Order transmitting therewith a form of
instrument or instruments to effect such release, 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, (b) an Officers'
Certificate stating the amount of net proceeds received or to be
received for such property so taken or sold, and the amount so
stated shall be deemed to be the Fair Value of such property for
the purpose of any notice to the Holders of Securities, (c) an
Experts' Certificate stating the Cost thereof (or, if the Fair
Value to the Company of such portion of such property at the time
the same was first included in an Experts' Certificate was less
than the Cost thereof, then such Fair Value, as so certified, in
lieu of Cost) and (d) a deposit by the Company of an amount in
cash equal to the Cost or Fair Value stated in the Experts'
Certificate delivered pursuant to clause (c) above; provided,
however, that the amount required to be so deposited shall not
exceed the portion of the net proceeds received or to be received
for such property so taken or sold which is allocable on a pro-
rata or other reasonable basis to such property; and provided,
further, that no such deposit shall be required to be made
hereunder if the proceeds of such taking or sale shall, as
indicated in an Officers' Certificate delivered to the Trustee,
have been deposited with the trustee or other holder of a Prior
Lien. Any cash deposited with the Trustee under this Section may,
contemporaneously or thereafter, be withdrawn, used or applied in
the manner, to the extent and for the purposes, and subject to the
conditions, provided in Section 1606.
SECTION 1608. SECURED DEBT.
(a) The Company will cause all Secured Debt to be paid in
accordance with its terms at or before the maturity thereof, and
will duly and punctually perform all the conditions imposed upon
it by any Prior Lien, and will not permit any default under any
Prior Lien to occur or continue for the period of grace specified
therein.
(b) Upon the cancellation and discharge of any Prior Lien, or
upon the release in any other way of Secured Debt deposited with
the trustee or other holder of any other Prior Lien, the Company
will (subject to the requirements of any mortgage or other lien
securing such Secured Debt) cause any Secured Debt held by the
trustee or other holder of the Prior Lien so cancelled or
discharged or any Secured Debt so released in any other way to be
cancelled, provided that such Secured Debt may be deposited with
the trustee or other holder of some other Prior Lien (upon the
same property as that mortgaged or pledged to secure the Secured
Debt so deposited) if required by the terms thereof.
The principal of and interest on any such Secured Debt held
by the Trustee shall be paid to the Trustee as and when the same
become payable. The interest received by the Trustee on any such
obligations shall be deemed not to constitute cash and shall be
remitted to the Company; provided, however, that if an Event of
Default shall have occurred and be continuing, such proceeds shall
be held as part of the Mortgaged Property until such Event of
Default shall have been cured or waived.
If any Secured Debt shall be deposited with the Trustee, the
Trustee shall have and may exercise all the rights and powers of
any owner of such Secured Debt 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 have occurred and be continuing, in accordance with
a Company Order, and, during the continuance of an Event of
Default, in its own discretion.
Anything herein to the contrary notwithstanding, the Company
may irrevocably waive all rights with respect to any Secured Debt
held by the Trustee, and the proceeds of any such obligations, by
delivery to the Trustee of a Company Order:
(x) Specifying such obligations and stating that the Company
thereby waives all rights to the proceeds thereof pursuant to this
Section, and any other rights with respect thereto; and
(y) Directing that the principal of such obligations be
applied as provided in clause (c) in the first paragraph of
Section 1606, specifying the Securities to be paid or redeemed or
for the payment or redemption of which payment is to be made.
Following any such waiver, the interest on any such
obligations shall be applied to the payment of interest, if any,
on the Securities to be paid or redeemed or for the payment or
redemption of which provision is to be made, as specified in the
aforesaid Company Order, as and when such interest shall become
due from time to time, and any excess funds remaining from time to
time after such application shall be applied to the payment of
interest on any other Securities as and when the same shall become
due. Pending any such application, the interest on such
obligations shall be invested in Investment Securities as shall be
selected by the Company and specified in written instructions
delivered to the Trustee. The principal of any such obligations
shall be applied solely to the payment of principal of the
Securities to be paid or redeemed or for the payment or redemption
of which provision is to be made, as specified in the aforesaid
Company Order. Pending such application, the principal of such
obligations shall be invested in Eligible Obligations as shall be
selected by the Company and specified in written instructions
delivered to the Trustee. The obligation of the Company to pay
the principal of such Securities when the same shall become due at
maturity, shall be offset and reduced by the amount of the
proceeds of such obligations then held, and to be applied, by the
Trustee in accordance with this paragraph.
SECTION 1609. 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
ordered the Company to divest itself of, any Excepted Property or
any other property not subject to 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, disclaim or quitclaim such property upon receipt by
the Trustee of the following:
(a) A Company Order requesting such disclaimer or quitclaim
and transmitting therewith a form of instrument to effect such
disclaimer or quitclaim;
(b) An Officers' Certificate describing the property to be
disclaimed or quitclaimed; and
(c) 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 complying with
the requirements of Section 103 of this Mortgage.
SECTION 1610. MISCELLANEOUS.
(a) The Experts' Certificate as to the Fair Value of property
to be released from the Lien of this Mortgage in accordance with any
provision of this Article, and as to the nonimpairment, by reason
of such release, of the security under this Mortgage in
contravention of the provisions hereof, shall be made by an
Independent Expert 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
Mortgage, is 10% or more of the aggregate principal amount of all
Securities then Outstanding; but such Experts' Certificate shall
not be required to be made by an Independent Expert in the case of
any release of property if the Fair Value thereof, as set forth in
the certificates required by this Mortgage, is less than $25,000
or less than 1% of the aggregate principal amount of all
Securities then Outstanding. To the extent that the Fair Value of
any property to be released from the Lien of this Mortgage shall
be stated in an Independent Experts' Certificate, such Fair Value
shall not be required to be stated in any other Experts'
Certificate delivered in connection with such release.
(b) No release of property from the Lien of this Mortgage
effected in accordance with the provisions, and in compliance with
the conditions, set forth in this Article and in Sections 103 and
104 shall be deemed to impair the security of this Mortgage in
contravention of any provision hereof.
(c) 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
Mortgage, then such powers may be exercised by the Trustee in its
discretion notwithstanding that an Event of Default may have
occurred and be continuing.
(d) If the Company shall retain any interest in any property
released from the Lien of this Mortgage as provided in Section
1603 or 1605, this Mortgage shall not become or be, or be required
to become or be, a Lien upon such property or such interest
therein or any improvements, extensions or additions to such
property or renewals, replacements or substitutions of or for such
property or any part or parts thereof unless the Company shall
execute and deliver to the Trustee an Mortgage supplemental
hereto, in recordable form, containing a grant, conveyance,
transfer and mortgage thereof. As used in this subsection, the
terms "improvements", "extensions" and "additions" shall be
limited as set forth in Section 1201.
(e) 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.
(f) No purchaser or grantee of property purporting to have
been released hereunder shall be bound to ascertain the authority of
the Trustee to execute the instrument or instruments of release,
or to inquire as to any facts required by the provisions hereof
for the exercise of such 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.
SECTION 1611. 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, considered 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 portion of the Mortgaged Property
if such discontinuance is in the judgment of the Company desirable
in the conduct of its business; and provided, further, that
nothing in this Section shall prevent the Company from selling,
transferring or otherwise disposing of, or causing the sale,
transfer or other disposition of, any portion of the Mortgaged
Property in compliance with the other Articles of this Mortgage.
SECTION 1612. 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 shall observe and conform in all material
respects to all valid requirements of any Governmental Authority
relative to 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 voluntarily suffer any Lien to be
created upon the Mortgaged Property, or any part thereof, prior to
the Lien hereof, other than (a) Permitted Liens and Prior Liens,
(b) in the case of property hereafter acquired, Purchase Money
Liens and any other Liens existing or placed thereon at the time
of the acquisition thereof (including, but not limited to, the
Lien of any Prior Lien); provided, however, that prior to (but not
on or after) the Second Effective Date the Company shall not
create Prior Liens or suffer Prior Liens to be created on the
Mortgaged Property; provided further, however, that nothing in
this Section contained shall require the Company (i) 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, (ii) 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 penalties or interest which may
reasonably be anticipated from failure to pay the same shall be
given to the Trustee or (iii) to pay, discharge or make provisions
for any Liens existing on the Mortgaged Property at the First
Effective Date; and provided, further, that nothing in this
Section shall prohibit the issuance or other incurrence of
additional indebtedness, or the refunding of outstanding
indebtedness, secured by any Lien prior to the Lien hereof which
is permitted under this Section to continue to exist.
SECTION 1613. INSURANCE.
(a) The Company shall (i) keep or cause to be kept all the
property subject to the Lien of this Mortgage insured against loss
by fire, to the extent that property of similar character is
usually so insured by companies similarly situated and operating
like properties, to a reasonable amount, by reputable insurance
companies, the proceeds of such insurance (except as to any loss
of Excepted Property and except as to any particular loss less
than the greater of (A) $10,000,000 and (B) 3% of the aggregate
principal amount of all Securities and Secured Debt Outstanding on
the date of such particular loss) to be made payable, subject to
applicable law, to the Trustee as the interest of the Trustee may
appear, to the trustee of a Prior Lien, or to the trustee or other
holder of any other Lien prior hereto upon property subject to the
Lien hereof, if the terms thereof require such payment or (ii) in
lieu of or supplementing such insurance in whole or in part, adopt
some other method or plan of protection against loss by fire at
least equal in protection to the method or plan of protection
against loss by fire of companies similarly situated and operating
properties subject to similar fire hazards or properties on which
an equal primary fire insurance rate has been set by reputable
insurance companies; and if the Company shall adopt such other
method or plan of protection, it shall, subject to applicable law
(and except as to any loss of Excepted Property and except as to
any particular loss less than the greater of (x) $10,000,000 and
(y) 3% of the aggregate principal amount of all Securities and
Secured Debt Outstanding on the date of such particular loss) pay
to the Trustee on account of any loss covered by such method or
plan an amount in cash equal to the amount of such loss less any
amounts otherwise paid to the Trustee in respect of such loss or
paid to the trustee under a Prior Lien or to the trustee or other
holder of any other Lien prior hereto upon property subject to the
Lien hereof in respect of such loss if the terms thereof require
such payment. Any cash so required to be paid by the Company
pursuant to any such method or plan shall for the purposes of this
Mortgage be deemed to be proceeds of insurance. In case of the
adoption of such other method or plan of protection, the Company
shall furnish to the Trustee a certificate of an actuary or other
qualified person appointed by the Company with respect to the
adequacy of such method or plan.
Anything herein to the contrary notwithstanding, the Company
may have fire insurance policies with (i) a deductible provision
in a dollar amount per occurrence not exceeding the greater of (a)
$10,000,000 and (b) 3% of the aggregate principal amount of all
Securities and Secured Debt Outstanding on the date such policy
goes into effect, and/or (ii) co-insurance or self insurance
provisions with a dollar amount per occurrence not exceeding 30%
of the loss proceeds otherwise payable; provided, however, that
the dollar amount described in clause (i) above may be exceeded to
the extent such dollar amount per occurrence is below the
deductible amount in effect as to fire insurance (x) on property
of similar character insured by companies similarly situated and
operating like property or (y) on property as to which an equal
primary fire insurance rate has been set by reputable insurance
companies.
(b) All moneys paid to the Trustee by the Company in
accordance with this Section or received by the Trustee as proceeds of
any insurance, in either case on account of a loss on or with respect
to Mortgaged Property, shall, subject to the requirements of any
Prior Lien or other Lien prior hereto upon property subject to the
Lien hereof, be held by the Trustee and, subject as aforesaid,
shall be paid by it to the Company to reimburse the Company for an
equal amount expended or committed for expenditure in the
rebuilding, renewal and/or replacement of or substitution for the
property destroyed or damaged, upon receipt by the Trustee of:
(i) A Company Request requesting such payment,
(ii) An Experts' Certificate:
(A) Describing the property so damaged or
destroyed;
(B) Stating the Cost of such property (or, if
the Fair Value to the Company of such property was
first included in an Experts' Certificate was less
than the Cost thereof, then such Fair Value, as so
certified, in lieu of Cost) or, if such damage or
destruction shall have affected only a portion of
such property, stating the allocable portion of
such Cost or Fair Value;
(C) Stating the amounts so expended or
committed for expenditure in the rebuilding,
renewal, replacement of and/or substitution for
such property; and
(D) Stating the Fair Value to the Company of
such property as rebuilt or renewed or as to be
rebuilt or renewed and/or of the replacement or
substituted property, and if
(I) Within 6 months prior to the date of
acquisition thereof by the Company, such
property has been used or operated, by a
person or persons 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
(II) The Fair Value to the Company of
such property as set forth in such Experts'
Certificate is not less than $25,000 and not
less than 1% of the aggregate principal amount
of all Securities then Outstanding,
the Expert making the statement required by
this clause (D) shall be an Independent
Expert, and
(iii) an Opinion of Counsel stating that, in the
opinion of the signer, the property so rebuilt or renewed or to be
rebuilt or renewed, and/or the replacement property, is or will be
subject to the Lien hereof.
Any such moneys not so applied within 36 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, renewal,
replacement or substitution then in progress and uncompleted shall
not have been given to the Trustee by the Company within such 36
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 1606; provided,
however, that if the amount of such moneys shall exceed the amount
stated pursuant to clause (B) in the Experts' Certificate referred
to above, the amount of such excess shall not be subject to
Section 1606 and shall be remitted to or upon the order of the
Company upon the withdrawal, use or application of the balance of
such moneys pursuant to Section 1606.
(c) 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 payment
of moneys by the Trustee to the Company, there shall be paid to or
retained by the Trustee or paid to the Company, as the case may
be, only the net amount.
SECTION 1614. RECORDING, FILING, ETC.
The Company shall cause this Mortgage and all Mortgages and
instruments supplemental hereto (or notices, memoranda or
financing 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 and protect the
security of the Holders of the Securities and all rights of the
Trustee, and shall furnish to the Trustee:
(a) Promptly after the execution and delivery of this
Mortgage and of each Supplemental Mortgage, an Opinion of Counsel either
stating that in the opinion of such counsel this Mortgage or such
Supplemental Mortgage (or any other instrument, resolution,
certificate, notice, memorandum or financing statement in
connection therewith) has been properly recorded and filed, so as
to make effective 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. The Company shall be deemed to be in
compliance with this subsection (a) if (i) the Opinion of Counsel
herein required to be delivered to the Trustee shall state that
this Mortgage or such Supplemental Mortgage, (or any other
instrument, resolution, certificate notice, memorandum or
financing statement in connection therewith) has been received for
record or filing in each jurisdiction in which it is required to
be recorded or filed and that, in the opinion of such counsel (if
such is the case), such receipt for record or filing makes
effective the Lien intended to be created by this Mortgage or such
Supplemental Mortgage, and (ii) such opinion is delivered to the
Trustee within such time, following the date of such Supplemental
Mortgage, as shall be practicable having due regard to the number
and distance of the jurisdictions in which this Mortgage or such
Supplemental Mortgage (or such other instrument, resolution,
certificate, notice, memorandum or financing statement in
connection therewith) is required to be recorded or filed; and
(b) On or before December 1 of each year, beginning [_____],
an Opinion of Counsel stating either (i) that in the opinion of such
counsel such action has been taken, since the date of the most
recent Opinion of Counsel furnished pursuant to this subsection
(b) or the first Opinion of Counsel furnished pursuant to
subsection (a) of this Section, with respect to the recording,
filing, re-recording, and re-filing of this Mortgage and of each
Supplemental Mortgage (or any other instrument, resolution,
certificate, notice, memorandum or financing statement in
connection therewith), as is necessary to maintain the
effectiveness of the Lien hereof, and reciting such action, or
(ii) that in the opinion of such counsel no such action is
necessary to maintain the effectiveness of such Lien.
The Company shall execute and deliver such Supplemental
Mortgage or Mortgages and such further instruments and do such
further acts as may be necessary or proper to carry out the
purposes of this Mortgage and to make subject to the Lien hereof
any property hereafter acquired, made or constructed and 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 1615. EFFECTIVE TIME FOR CERTAIN PROVISIONS
All provisions hereof shall, unless otherwise specified
herein, or except as may be specified in the terms and conditions
of any series or Tranche of Securities (in which case such terms
and conditions of any such series or Tranche of Securities shall
be applicable to such series or Tranche of Securities), be of full
force and effect on and after the First Effective Date, except
that the provisions of (i) the expanded definitions of Excepted
Property and of Permitted Liens contained in Section 101, (ii)
Sections 401(b)(v)(1), 1603(e)(i) and 1606(a) permitting the
Opinion of Counsel to specify that the Mortgage may be subject to
Prior Liens, (iii) Section 801 to the extent that it applies to
Securities issued after January 1, 2004, (iv) Section 802(b), (v)
Section 1302 permitting supplemental indentures (a) modifying the
Mortgage with the consent of a majority in principal amount of all
Securities then Outstanding and (b) permitting the release from
the lien of this Mortgage of one or more properties having a value
of up to 10% of the lesser of the aggregate Cost or aggregate Fair
Value of the Mortgaged Property, (vi) Section 1601(b), (vii)
Section 1605(b), and (viii) Section 1612 permitting the creation
of Prior Liens on the Mortgaged Property shall, in each case, be
of no force and effect prior to the Second Effective Date but
shall automatically become of full force and effect on and after
the Second Effective Date, all in accordance with the provisions
of such Sections; and the definitions of Excepted Property and of
Permitted Liens and the provisions of Sections 401(b)(v)(1), 801,
802(b),1302, 1601(b), 1603(e)(i), 1605(b), 1606(a) and 1612 which
are specified to be in effect only prior to the Second Effective
Date shall automatically cease to be of any further force or
effect on and after the Second Effective Date.
* * * * * * * * * * * * * * * * * * * *
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.
(The testimonium clause, signatures and acknowledgments to
the original Indenture of Mortgage and Deed of Trust have been
omitted herein, but remain applicable hereto.)