Exhibit 4.4.1
WESTERN MASSACHUSETTS ELECTRIC COMPANY
to
OLD COLONY TRUST COMPANY,
Trustee
FIRST MORTGAGE INDENTURE AND DEED OF TRUST
Dated as of August 1, 1954
$11,000,000
initial issue
First Mortgage Bonds, Series A, 2.95%
due October 1, 1973.
WESTERN MASSACHUSETTS ELECTRIC COMPANY
INDENTURE
Dated as of August 1, 1954
TABLE OF CONTENTS
(Not part of the Indenture)
Page
Caption ............................................................ 1
Recitals ........................................................... 1
Form of Series A Fully Registered Bond ....................... 2
Form of Trustee's certificate of authentication .......... 6
Form of Transfer......................................... 7
Form of Series A Coupon Bond ................................. 7
Form of coupon .......................................... 12
Form of Trustee's certificate of authentication ......... 12
Form of registration .................................... 12
Form of Stamp Tax Legend ..................................... 13
Granting Clauses ................................................... 13
Recital of consideration ..................................... 13
Grant ........................................................ 14
Reservations and exceptions .................................. 16
Habendum ..................................................... 17
Declaration of trust ......................................... 17
Condition .................................................... 18
ARTICLE I.
Definitions
1.01 Explanatory preamble ......................................... 19
1.02 (1) "Indenture" ............................................. 19
(2) "herein", "hereof", etc.................................. 19
(3) "Supplemental Indenture", etc............................ 19
(4) "Company" ............................................... 20
(5) "Obligor" ............................................... 20
(6) "person" ................................................ 20
(7) "Corporation" ........................................... 20
(8) "Affiliate", "Control", etc. ............................ 20
(9) "Trustee" ............................................... 21
(10) "Responsible Officer", etc. ............................. 21
(11) "Bond", "Bondholder", etc. .............................. 21
(12) "Cancellation", "Cancelled" etc. ........................ 21
(13) "Outstanding ............................................ 22
(14) "excluding Company-owned Bonds" ......................... 22
(15) "Bondholders' Notice", "Bondholders' Request" ........... 23
(16) "Lien of this Indenture", "Lien hereof" ................. 23
(17) "Excepted Property" ..................................... 24
(18) "Permitted Encumbrances" ................................ 24
(19) "Directors' Resolution" ................................. 25
(20) "Officers' Certificate" ................................. 25
(21) "Engineer" .............................................. 25
(22) "Accountant" ............................................ 26
(23) "Engineer's Certificate", "Accountant's Certificate" .... 26
(24) "Independent" ........................................... 26
(25) "Independent Engineer's Certificate", "Independent
Accountant's Certificate" ........................... 26
(26) "Opinion of Counsel" .................................... 27
(27) "Evidence of Approval by Trustee" ....................... 27
(28) "Fundable Property" ..................................... 27
(29) "Cost" .................................................. 29
(30) "Fair Value" ............................................ 30
(31) "Property Additions" .................................... 31
(32) "Property Retirement" ................................... 31
(33) "Net Property Additions" ................................ 32
(34) "Made the Basis of Action or Credit hereunder" .......... 32
(35) "Earnings Certificate" .................................. 32
(36) "Commission Orders" ..................................... 34
(37) "Published Notice" ...................................... 35
1.03 Form of Corticate of Available Net Property Additions ........ 35
ARTICLE II.
Form, Execution, Registration, and Exchange of Bonds
2.01 General provisions ........................................... 38
2.02 Characteristics of Bonds ..................................... 39
2.03 Execution of Bonds and authentication of coupons ............. 40
2.04 Certification and delivery of Bonds .......................... 40
2.05 Temporary Bonds .............................................. 41
2.06 Registration, transfer, and exchange ......................... 42
2.07 Books for registration, transfer and exchange ................ 42
2.08 Registration of Coupon Bonds as to principal and transfer
of Fully Registered Bonds ............................... 42
2.09 Exchanges of Series A Bonds .................................. 43
2.10 Exchanges of Bonds of other series pursuant to Supplemental
Indenture................................................ 44
(a) Exchanges for Bonds of same or different series ......... 44
(b) Coupon Bonds exchanged for Fully Registered Bonds ....... 44
(c) Fully Registered Bonds exchanged for Coupon Bonds ....... 44
2.11 Charges on transfers or exchanges ............................ 45
2.12 Negotiability ................................................. 45
2.13 Mutilated, lost, stolen, or destroyed Bonds or coupons ....... 46
2.14 Status of Bonds held or acquired by Company .................. 47
ARTICLE III.
Issue of Bonds
3.01 Aggregate principal amount issuable and Outstanding
at any given time ....................................... 48
3.02 Issue of Series A Bonds ...................................... 48
3.03 Issue of Series B Bonds ...................................... 48
(a) Directors' resolution ................................... 49
(b) Stockholders' resolution if necessary .................... 49
(c) Supplemental Indenture if new series .................... 49
(d) Earnings Certificate .................................... 49
(e) Officers' Certificate ................................... 49
(f) Commission Orders ....................................... 50
(g) Opinion of Counsel ...................................... 50
3.04 Issue of Bond against retirement of Bonds .................... 50
(a) Directors' resolution .................................... 51
(b) Stockholders' resolution if necessary .................... 52
(c) Supplemental Indenture ................................... 52
(d) Officers' Certificate .................................... 52
(e) Commission Orders ......................................... 53
(f) Bonds to be surrendered .................................. 54
(g) Opinion of Counsel ....................................... 54
(h) Earnings Certificate if required ......................... 54
3.05 Issue of Bonds against cash .................................. 55
(a) Directors' resolution ................................... 55
(b) Stockholders' resolution if necessary ................... 55
(c) Supplemental Indenture .................................. 56
(d) Officers' Certificate ................................... 56
(e) Deposit of cash ......................................... 56
(f) Commission Orders ....................................... 56
(g) Earnings Certificate .................................... 56
(h) Opinion of Counsel ...................................... 56
3.06 Withdrawal of deposited cash ................................. 57
3.07 Application of deposited cash not withdrawn .................. 57
3.08 Issue of Bonds against 60% of Net Property Additions ......... 58
(a) Directors' resolutions ................................... 58
(b) Stockholders' resolution if necessary ................... 58
(c) Supplemental Indenture .................................. 59
(d) Officers' Certificate ................................... 59
(e) Certificate of available Net Property Additions ......... 59
(f) Accountant's Certificate ................................ 59
(g) Engineer's Certificate .................................. 60
(h) Commission Orders ....................................... 60
(i) Earnings Certificate .................................... 60
(j) Opinion of Counsel ...................................... 60
and Independent Engineers Certificate as to Fair Value to Company
of property used or operated by others, when required ... 61
3.09 Distinguishing features of various series .................... 62
ARTICLE IV.
Particular Covenants of the Company
4.01 Prompt payment of principal and interest; deposit in trust ... 62
4.02 No extension of time for payment of coupon or interest ....... 63
4.03 (a) Filing of vacancy in office of Trustee .................. 63
(b) Transfer offices to be maintained ....................... 64
(c) Paying agents ........................................... 64
(d) If Company acts as paying agent ......................... 65
(e) Payments to Trustee held in trust ....................... 65
(f) Payments to Trustee subject to 15.02 .................... 65
(g) Trustee appointed Registrar ............................. 65
4.04 Prompt payment of taxes and other charges and discharge of liens 65
4.05 Insurance of Mortgaged Property .............................. 66
4.06 Maintenance of Mortgaged Property ............................ 68
4.07 Conduct of Company's business ................................ 68
4.08 Corporate existence and authority to create and issue Bonds .. 69
4.09 Seisin, good right to convey, general warranty, recording,
after-required property ................................. 69
4.10 Against encumbrances and liens ............................... 71
4.11 Books and records ............................................ 71
4.12 Entries charging current earnings and crediting depreciation
reserve ................................................. 72
4.13 Compliance with conditions on merger, etc. ................... 72
4.15 No default to be suffered permitted .......................... 74
4.16 Advances by Trustee, etc. .................................... 74
4.17 Contents of Certificate of Available Net Property Additions ... 75
ARTICLE V.
Redemption of Bonds
5.01 General provision; redemption prices of Series A Bonds ........ 75
5.02 Notice of redemption ......................................... 76
5.03 Rescinding of election to redeem .............................. 77
5.04 Deposit of redemption price .................................. 78
5.05 Effect of notice and deposit ................................. 79
5.06 No Call for redemption if in default on Bonds Outstanding .... 80
5.07 Provisions for redemption and prepayment of Bonds of
future series ........................................... 80
ARTICLE VI.
Improvement Fund
6.01 Improvement Fund for Series A Bonds .......................... 80
6.02 Determination of amount to be paid into Improvement Fund ..... 81
(a) Form of Improvement Fund Application ................... 81
(b) Allocation of 60% of Net Property Additions ............. 82
(1) Directors' Resolution ............................... 82
(2) Supplemental Indenture .............................. 82
(3) Certificate of Available Net Property Additions ..... 82
(4) Accountant's Certificate ............................ 82
(5) Engineer's Certificate .............................. 82
(6) Opinion of Counsel .................................. 82
6.03 Application of cash to redemption by Trustee ................. 83
6.04 Sinking Fund Etc. for Bonds of other series .................. 84
ARTICLE VII.
Possession, Use, and Release of Mortgaged Property
7.01 Possession and use prior to default .......................... 84
7.02 Releases without consent of Trustee; application of proceeds 84
(a) abandonment of unserviceable parts of Mortgaged Property 85
(b) disposition of unserviceable poles, machinery, etc. ..... 85
(c) changes in contracts, etc. .............................. 85
(d) grant of easements and rights of way .................... 85
(e) leases of Mortgaged Property ............................ 86
(f) standing timber ......................................... 86
(h) indentures and agreements modifying or extinguishing
existing indentures and agreements .................. 86
7.03 Releases by Trustee on disposal of property .................. 86
(a) Directors' resolution ................................... 87
(b) Officers' Certificate ................................... 87
(c) Engineer's Certificate .................................. 88
(d) Consideration ........................................... 88
(e) Assignment of mortgages; or cash ........................ 89
(f) Supplemental Indenture, when required ................... 89
(g) Instrument of partial release ........................... 89
(h) Opinion of Counsel ...................................... 89
7.04 Releases by Trustee on disposal of real estate for cash ...... 90
(a) Officers' Certificate ................................... 91
(b) Engineer's Certificate .................................. 91
(c) Instrument of partial release ........................... 91
(d) Cash .................................................... 91
(e) Opinion of Counsel ...................................... 91
7.05 Taking by eminent domain, etc. ............................... 91
(a) Officers' Certificate ................................... 92
(b) Instrument of partial release ........................... 92
(c) Money ................................................... 92
(d) Supplemental Indenture, when required ................... 92
(e) Engineer's Certificate .................................. 92
(f) Opinion of Counsel ...................................... 93
7.06 Independent Engineer's Certificate as to Fair Value of property
released, when required ................................. 93
7.07 Release by Trustee of purchase money obligations on receipt of
value ................................................... 94
7.08 Disposition of moneys received by Trustee .................... 94
7.09 Sale of Excepted Property .................................... 94
(a) Officers' Certificate ................................... 94
(b) Instrument of partial release ........................... 94
(c) Opinion of Counsel ...................................... 94
7.10 Rights of purchasers of released property .................... 95
7.11 Sections 7.02, 7.03 and 7.04 not limitation of one another ... 95
7.12 Trustee may execute partial release though default has occurred 95
7.13 Rights of receiver, etc. ..................................... 95
ARTICLE VIII.
Disposition of Money in the Hands of the Trustee
8.01 General provisions relating to disposition of money deposited
for various purposes .................................... 96
8.02 Application of insurance moneys and cash received from sale of
Mortgaged Property, eminent domain, etc. ............... 96
8.03 Moneys deposited in 8.02 applied to
(a) redemption of Bonds ..................................... 97
(b) payment to Company against Net Property Additions ....... 98
(1) Directors' resolution ............................... 98
(2) Supplemental Indenture .............................. 98
(3) Officers' Certificate ............................... 98
(4) Certificate of Available Net Property Additions ..... 98
(5) Accountant's Certificate ............................ 98
(6) Engineer's Certificate...... ........................ 99
(7) Opinion of Counsel .................................. 99
(c) reimbursement to Company for taxes paid on profits from
sale of Mortgaged Property .......................... 99
(d) payment to Company for Bonds surrendered ................ 100
(e) payment of matured Bonds ................................ 100
(f) purchase of Bonds entitled to benefits of Sinking Fund,
etc. .................................................... 100
8.04 Moneys in excess of $250,000 after three years to be held for
redemption of Bonds; call for redemption ................ 101
8.05 Application of proceeds if all Mortgaged Property taken by
eminent domain .......................................... 102
8.06 Investment of moneys in hands of Trustee ..................... 102
ARTICLE IX.
Defaults and Remedies
9.01 Defaults; principal of Bonds may be declared due and payable . 103
9.02 Notice of default to Bondholders ............................. 106
9.03 Powers of Trustee on default ................................. 106
(1) entry on Mortgaged Property .............................. 106
(2) collection of purchase money obligations ................ 108
(3) sale of Mortgaged Property .............................. 108
(4) suit for foreclosure, etc. .............................. 109
9.04 Right to legal remedies; appointment of receiver ............. 109
9.05 Sale of Mortgaged Property as an entirety .................... 109
9.06 Notice of sale ............................................... 110
9.07 Rights of purchaser on sale .................................. 110
9.08 Conveyance by Trustee; power of attorney to Trustee;
confirmation by Company; Company forever barred;
receipt for purchase money .............................. 111
9.09 Application of purchase money ................................ 112
9.10 Principal accelerated on sale ................................ 113
9.11 Rights of Trustee to collect principal and interest of Bonds;
recovery of judgment; application of amount collected ... 113
9.12 Trustee's right to maintain suits to protect security ........ 116
9.13 Right of receiver or Bondholders to make payments for account
of Company .............................................. 116
9.14 Waiver of stays or extensions or redemption laws .............. 117
9.15 Waiver of service of process, etc. ........................... 117
9.16 Powers of majority in interest of Bondholders ................ 118
9.17 Powers of majority in interest of Bondholders of various series 118
9.18 Restrictions on right of Bondholders to enforce Indenture .... 119
9.19 Remedies not exclusive ....................................... 120
9.20 Delay not a waiver of rights; Trustee may act without
possession of Bonds ..................................... 120
9.21 Trustee represents all Bondholders ........................... 120
ARTICLE X.
Evidence of Rights of Bondholders and Ownership of Bonds
10.01 Execution of requests and evidence of bondholding ............. 121
ARTICLE XI.
Immunity of Incorporators, Stockholders, Officers and Directors
11.01 Waiver of personal liability ................................. 122
ARTICLE XII.
Bondholders' List and Reports by the Company and the Trustee
12.01 Information as to Bondholders to be furnished by Company ..... 123
12.02 (a) Preservation of information by Trustee .................. 123
(b) Information to be furnished to Bondholders .............. 124
12.03 Reports to be filed by Company with Trustee and Securities
and Exchange Commission; summaries to Bondholders ....... 125
12.04 Reports by Trustee to Bondholders ............................ 126
ARTICLE XIII.
Concerning the Trustee and Its Paying Agents
13.01 Qualification of Trustee ..................................... 128
13.02 Trustee's undertaking prior to and after default ............. 129
13.03 Trustee released from certain liabilities .................... 129
13.04 Recitals by Company, not Trustee ............................. 130
13.05 Trustee not personally liable in case of entry ............... 131
13.06 Reliance by Trustee on documents; right to consult counsel, etc.131
13.07 Trustee's responsibility for selection of independent experts;
Trustee not required to risk own funds .................. 131
13.08 Trustee or paying agent may own Bonds ........................ 132
13.09 Funds held in trust .......................................... 132
13.10 Trustee entitled to compensation ............................. 132
13.11 Prior right of Trustee to compensation and reimbursement ...... 136
13.12 Reliance on Officers' Certificates ........................... 135
13.13 Notices by Trustee ........................................... 136
13.14 Conflicting interest of Trustee .............................. 136
(a) Must eliminate such interest or resign .................. 136
(b) Notice to Bondholders of failure to remove conflicting
interests or resign ................................. 136
(c) Bondholders may require resignation ..................... 136
(d) Definition of conflicting interest ...................... 137
13.15 Trustee as creditor .......................................... 142
(a) Apportionment of preferential collection on debt arising
within four months prior to default; exceptions; applica-
tion on resignation ..................................... 142
(b) Situation excluded from apportionment requirement ....... 145
13.16 Resignation of Trustee ....................................... 146
13.17 Removal of Trustee ........................................... 147
13.18 Appointment of successor Trustee ............................. 147
13.19 Acceptance of trust by successor Trustee; conveyance to
successor Trustee ....................................... 149
13.20 Effect of merger or consolidation of Trustee ................. 149
13.21 Relationship of Trustee and Bondholder governed by
Massachusetts law ....................................... 150
13.22 Paying agents ................................................ 150
ARTICLE XIV.
Effects of Consolidation, Merger, Sale or Lease
14.01 Terms on which Company may consolidate, merge, sell or lease
Mortgaged Property ...................................... 151
14.02 Compliance with conditions precedent ......................... 154
14.03 Extent of Lien of Indenture on property of successor ......... 155
14.04 Rights of successor under Indenture .......................... 156
14.05 Stamping of Bonds issued by successor ........................ 157
ARTICLE XV.
Defeasance
15.01 Discharge of Indenture ....................................... 158
15.02 Disposition of money deposited with Trustee .................. 159
ARTICLE XVI.
Supplemental Indentures
16.01 Supplemental Indentures without consent of Bondholders;
purposes for which permitted ............................. 160
16.02 Supplemental Indentures amending Indenture; consent of
Bondholders required .................................... 162
16.03 Discretion of Trustee concerning acceptance of Supplemental
Indentures ............................................. 164
16.04 Supplemental Indentures become part of this Indenture; must
comply with Trust Indenture Act of 1939 ................. 164
ARTICLE XVII.
Miscellaneous
17.01 Indenture for benefit of parties and Bondholders solely....... 165
17.02 Required statement in certificates and opinions; basis of
certificates and opinions ............................... 165
17.03 Notices ...................................................... 166
17.04 Consent to undertaking for costs ............................. 166
17.06 Provisions required by Trust Indenture Act of 1939 control ... 167
17.06 Trust Indenture Act of 1939 means as Act existed on date
Indenture ............................................... 167
17.07 Parties include successors and assigns ....................... 167
17.08 Invalidity of any provision of Indenture shall not affect
other provisions ........................................ 167
17.09 Date of Indenture ............................................ 167
17.10 Cover, headings, etc. ........................................ 167
17.11 United States Internal Revenue stamp tax paid ................ 168
17.12 Original counterparts ........................................ 168
Testimonium ........................................................ 168
Signatures ......................................................... 169
Schedule A ........................................................ 183
Acknowledgements - Western Massachusetts Electric Company ......... 183
Old Colony Trust Company ....................... 184
Certificate of Votes ............................................... 185
THIS FIRST MORTGAGE INDENTURE AND DEED OF TRUST dated as of the first
day of August, 1954, made and entered into by and between WESTERN
MASSACHUSETTS ELECTRIC COMPANY, a corporation organized under the laws of
the Commonwealth of Massachusetts having principal places of business at
Greenfield and Turners Falls in the County of Franklin, Springfield in the
County of Hampden, Pittsfield in the County of Berkshire, and Boston in the
County of Suffolk, all in said Commonwealth, (hereinafter called the
Company) and OLD COLONY TRUST COMPANY, a corporation organized under the
laws of the Commonwealth of Massachusetts, and having its principal office
and usual place of business in said Boston, (hereinafter called the
Trustee).
WITNESSETH That:
WHEREAS the Company is authorized and empowered by law to borrow
money for its proper corporate purposes, to issue its bonds for money so
borrowed, and to secure the payment of said bonds by mortgage of its
franchises and property hereinafter described; and
WHEREAS the Company has deemed it necessary to borrow money for such
purposes and to that end, pursuant to votes or resolutions duly and legally
adopted by its Board of Directors, by its Executive Committee and by its
stockholder at meetings duly and regularly called and held for the purpose,
has duly authorized and directed the execution and delivery of this
Indenture under which Bonds to an amount limited only by the terms of this
Indenture and by law, may be issued and secured, the said Bonds so to be
issued being known generally as its First Mortgage Bonds (hereinafter
called the Bonds) to be issued in one or more series, the Bonds of each
series to be identical, so far as may be, in tenor, except that the Bonds
of any series may be in coupon form with coupons attached or may be
registerable as to principal only, or may be in fully registered form; to
mature on such dates; to bear interest at such rates; to be payable in such
currency; and to contain such other provisions required or permitted by
this Indenture as may be determined from time to time by the stockholder or
stockholders and/or the Board of Directors of the Company; and
WHEREAS the Company, at said meetings, has authorized an original
issue of Bonds under this Indenture limited in aggregate amount (except as
provided in 2.13 hereof) to eleven million dollars ($11,000,000), said
Bonds being originally issued in fully registered form, maturing on October
1, 1973, bearing interest from the date thereof at the rate of two and
ninety-five hundredths percentum (2.95%) per annum payable semi-annually,
and being known as its "First Mortgage Bonds, Series A, 2.95%, due October
1, 1973" (hereinafter called the 2.95% Bonds); and
WHEREAS the Department of Public Utilities of the Commonwealth of
Massachusetts has in due form of law authorized the issue of said 2.95%
Bonds hereunder in the aggregate principal amount of eleven million dollars
($11,000,000) by its Order dated July 29, 1954; and
WHEREAS the permanent form of said 2.95% Bonds, in fully registered
form without coupons, of the certificate of authentication thereof, of the
transfer thereof, and the permanent form of said 2.95% Bonds in coupon form
for which the said 2.95% Bonds in fully registered form are exchangeable as
hereinafter provided, and of the coupons thereon, of the certificate of
authentication thereof, of the transfer thereof, and the form of the stamp
tax legend to be affixed to said 2.95% Bonds in either form shall be
substantially in the following form; to wit:
Form of Fully Registered Bond
No. AR $...........
WESTERN MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, Series A, 2.95%, due October 1, 1973
FOB VALUE RECEIVED, WESTERN MASSACHUSETTS ELECTRIC COMPANY, a
corporation of the Commonwealth of Massachusetts, (hereinafter called the
Company) hereby promises to pay to , or registered
assigns, the sum of dollars ($ ), on the first day of
October, 1973, and semi-annually on the first days of April and October in
each year to pay interest on said sum at the rate of two and ninety-five
hundredths percentum (2.95%) per annum from the date hereof until the
Company's obligation with respect to said sum shall be discharged. Both
principal and interest shall be payable at the principal office in Boston
in the County of Suffolk and said Commonwealth of Old Colony Trust Company,
a corporation organized under the laws of said Commonwealth (hereinafter
with its successors, as defined in the Indenture mentioned below, generally
called the Trustee), or of such successors in such coin or currency of the
United States of America as at the time of payment is legal tender for
public and private debts.
This Bond is one of a series of Bonds known as the "First Mortgage
Bonds, Series A, 2.95%, due October 1, 1973" of the Company, being either
in the form of coupon Bonds registerable as to principal only or in fully
registered form, limited to eleven million dollars ($11,000,000) in
principal amount (except as provided by the terms of 2.13 of the Indenture
mentioned below), and issued under and secured by a First Mortgage
Indenture and Deed of Trust (hereinafter with all indentures stated to be
supplemental thereto to which the Trustee shall be a party, generally
called the Indenture) between the Company and said Old Colony Trust Company
dated as of August 1, 1954, an executed counterpart of which is on file at
the principal office of the Trustee, to which Indenture reference is hereby
made for a description of the nature and extent of the security, the rights
thereunder of the bearers or registered owners of Bonds issued and to be
issued thereunder, the rights, duties, and immunities thereunder of the
Trustee, the rights and obligations thereunder of the Company, and the
terms and conditions upon which said Bonds, and other and further Bonds of
other series, are issued and are to be issued.
The fully registered Bonds of this series in permanent form are
issuable in denominations of one thousand dollars ($1,000) and any multiple
thereof.
This Bond is transferable by the registered owner hereof in person or
by his duly authorized attorney at the principal office of the Trustee upon
surrender and cancellation thereof, and thereupon a new Bond or Bonds of
this series for a like principal amount will be issued in exchange, all as
provided in said Indenture. 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 owner
hereof at the principal office of the Trustee for coupon Bonds of this
series of an equal principal amount, upon transfer and surrender hereof to
the Trustee as hereinbefore provided, in the manner and on the terms
provided in said Indenture, and upon such transfer and surrender, coupon
Bonds of this series, with all coupons for interest unpaid hereon and none
others attached, will be issued in lieu hereof.
This Bond is also exchangeable at the option of the registered owner
hereof at the principal office of the Trustee for an equal principal amount
of fully registered Bonds of this series of other denominations, in the
manner and on the terms provided in said Indenture.
The Bonds of this series are subject to redemption prior to maturity
upon not less than thirty (30) days' prior notice, as a whole at any time,
or in part from time to time, at the option of the Company, in the manner
and with the effect provided in said Indenture, at the principal amount of
the Bonds so to be redeemed and interest accrued thereon to the date fixed
for redemption, together (unless redeemed in the twelve months' period
ending September 30, 1973) with a premium equal to the percentage of the
principal amount thereof hereinafter set forth:
If redeemed on or at any time prior to September 30, 1956, 2-1/2%
If redeemed thereafter and on or at any time prior to September 30, 1960,
2%
If redeemed thereafter and on or at any time prior to September 30, 1964,
1-1/2%
If redeemed thereafter and on or at any time prior to September 30, 1968,
1%
If redeemed thereafter and on or at any time prior to September 30, 1972,
1/2%
The Bonds of this series are also subject to redemption to the extent
provided in the Indenture by the operation of the Improvement Fund
provisions of said Indenture at the principal amount thereof and interest
accrued thereon to the date fixed for redemption.
Notice of redemption as aforesaid shall be given by publication at
least once in each of three (3) successive weeks, the first publication to
be at least thirty (30) days before the date set for redemption, in at
least two daily newspapers of general circulation printed in the English
language one of which shall be published in said Boston, and by mailing, at
least thirty (30) days prior to the date set for redemption, by registered
mail to the registered owners of all fully registered Bonds and to the
registered owners of all coupon Bonds registered as to principal, which
have been called for redemption, a copy of said notice (provided, however,
that if all of said Bonds shall be fully registered at any time not more
than forty-five (45) and not less than thirty (30) days prior to the date
set for redemption, notice by publication may be dispensed with).
If this Bond, or a part hereof, shall be called for redemption, or
provision for such call shall have been made, as provided in said
Indenture, and payment of the redemption price shall have been duly
provided for by the Company, interest shall cease to accrue hereon, or on
such called part, from and after the redemption date, the Company shall
from the time provided in said Indenture be under no further liability in
respect of the principal of, or premium, if any, or interest on, this Bond,
or such called part, and the registered owner hereof shall from and after
such time look for payment hereof solely to the money so provided.
The said Indenture contains provisions permitting the Company and the
Trustee with the consent of the bearers or registered owners of not less
than seventy percentum (70%) in principal amount of the Bonds at the time
outstanding, (except Bonds held by or for the benefit of the Company)
including, if more than one series of Bonds shall be at the time
outstanding, not less than seventy percentum (70%) in principal amount of
the Bonds except Bonds held by or for the benefit of the Company) of each
series affected differently from those of other series, to effect by
supplemental indenture modifications or alterations of said Indenture and
of the rights and obligations of the Company and of the bearers and
registered owners of the Bonds; but no such modification or alteration
shall be made which, without the written approval or consent of the
registered owner hereof, will extend the maturity hereof or reduce the rate
or extend the time for payment of interest hereon or reduce the amount of
the principal hereof or of any premium payable on the redemption hereof, or
which will reduce the percentage of the principal amount of Bonds required
for the adoption of the modifications or alterations as aforesaid, or
authorize the creation by the Company, except as expressly authorized by
the Indenture, of any mortgage, pledge or lien upon the property subjected
thereto ranking prior to or on an equality with the lien thereof.
If a default, as defined in said Indenture shall occur, the principal
of this Bond may become or be declared due and payable before maturity, in
the manner and with the effect provided in the Indenture; but any default
and the consequences thereof may be waived by certain percentages of the
bearers or registered owners of Bonds, all as provided in said Indenture.
No recourse shall be had for the payment of the principal of or the
interest on this Bond or for any claim based hereon or otherwise in respect
hereof or of the said Indenture against any incorporator, stockholder,
director, or officer, past, present, or future, as such, of the Company or
of any predecessor or successor corporation under any constitution,
statute, or rule of law, or by the enforcement of any assessment, penalty
or otherwise, all such liability being waived and released by the holder
hereof by the acceptance of this Bond.
This Bond shall take effect as a sealed instrument.
This Bond shall not become or be valid or obligatory until the
certificate of authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, WESTERN MASSACHUSETTS ELECTRIC COMPANY has caused
this Bond to be executed in its name and on its behalf and under its
corporate seal by its and , thereunto
duly authorized, as of the day of , 19
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By _______________________________
and
By _______________________________
Certificate of Authentication
This Bond is one of the First Mortgage Bonds, Series A, 2.95%, due
October 1, 1973, described and provided for in the within mentioned
Indenture.
OLD COLONY TRUST COMPANY, TRUSTEE
By _______________________________
Authorized Officer
Form for Transfer
FOR VALUE RECEIVE hereby sell, assign,
and transfer the within Bond to and hereby
irrevocably constitute and appoint attorney to
transfer said Bond on the books of the Company with full power of
substitution in the premises.
Dated this day of , 19
In presence of:
Form of Coupon Bond
No. AM $1,000
WESTERN MASSACHUSETTS ELECTRIC COMPANY
First Mortgage Bond, Series A, 2.95%, due October 1, 1973
FOR VALUE RECEIVED, WESTERN MASSACHUSETTS ELECTRIC COMPANY, a
corporation of the Commonwealth of Massachusetts, (hereinafter called the
Company) hereby promises to pay to the bearer, or, if this Bond be
registered as to principal otherwise than to bearer, then to the registered
owner hereof, the sum of one thousand dollars ($1,000) on the first day of
October, 1973, and semi-annually on the first days of April and October in
each year to pay interest on said sum at the rate of two and ninety-five
hundredths percentum (2.95%) per annum from the date hereof until the
Company obligation in respect of said sum shall be discharged, but until
maturity, only upon presentation and surrender of the annexed coupons as
they severally mature. Both principal and interest shall be payable at the
principal office in Boston in the County of Suffolk and said Commonwealth
of Old Colony Trust Company, a corporation organized under the laws of said
Commonwealth, (hereinafter with its successors, as defined in the Indenture
mentioned below, generally called the Trustee), or of such successors, in
such coin or currency of the United States of America as at the time of
payment is legal tender for public and private debts.
This Bond is one of a series of Bonds known as the "First Mortgage
Bonds, Series A, 2.95%, due October 1, 1973" of the Company, being either
in the form of coupon Bonds registerable as to principal only or in fully
registered form, limited to eleven million dollars ($11,000,000) in
principal amount (except as provided by the terms of 2.13 of the Indenture
mentioned below), and issued under and secured by a First Mortgage
Indenture and Deed of Trust (hereinafter, with all indentures stated to be
supplemental thereto to which the Trustee shall be a party, generally
called the Indenture) between the Company and said Old Colony Trust Company
dated as of August 1, 1954, an executed counterpart of which is on file at
the principal office of the Trustee, to which Indenture reference is hereby
made for a description of the nature and extent of the security, the rights
thereunder of the bearers or registered owners of Bonds issued and to be
issued thereunder and of the coupons appertaining thereto, the rights,
duties, and immunities thereunder of the Trustee, the rights and
obligations thereunder of the Company, and the terms and conditions upon
which said Bonds, and other and further Bonds of other series, are issued
and are to be issued.
The coupon Bonds of this series in permanent form are issuable in the
denomination of one thousand dollars ($1,000).
This Bond, singly or together with other coupon Bonds of this series,
may be exchanged at the option of the bearer or registered owner for fully
registered Bonds of this series of an equal principal amount, in the manner
and on the terms provided in said Indenture.
This Bond, except while registered as to principal, and the coupons
annexed hereto shall be transferable by delivery. The bearer hereof may
have the ownership of the principal of this Bond registered upon
presentation hereof for that purpose at the principal office of the
Trustee, such registration to be noted hereon. After such registration no
transfer hereof shall be valid unless made on the registration books at
said office by the registered owner in person or by his duly authorized
attorney and similarly noted hereon; but this Bond may be discharged from
registry by like transfer to bearer similarly registered and noted hereon,
and thereupon transferability by delivery shall be restored and this Bond
may again and from time to time be registered or transferred as before.
The coupons annexed hereto, whether or not this Bond be registered as to
principal, shall remain payable to bearer and shall continue to be
transferable by delivery. The Company and the Trustee may deem and treat
the bearer of this Bond, if it be not then registered as to principal, or,
if this Bond be registered as to principal as herein authorized, the person
in whose name the same is registered, as the absolute owner hereof and the
bearer of any coupon hereto appertaining as the absolute owner thereof,
whether or not this Bond or such coupon shall 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.
The Bonds of this series are subject to redemption prior to maturity
upon not less than thirty (30) days' prior notice, as a whole at any time,
or in part from time to time, at the option of the Company, in the manner
and with the effect provided in said Indenture, at the principal amount of
the Bonds so to be redeemed and interest accrued thereon to the date fixed
for redemption, together (unless redeemed in the twelve months' period
ending September 30, 1973) with a premium equal to the percentage of the
principal amount thereof hereinafter set forth:
If redeemed on or at any time prior to September 30, 1956, 2-1/2 %
If redeemed thereafter and on or at any time prior to September 30, 1960,
2%
If redeemed thereafter and on or at any time prior to September 30, 1964,
1-1/2%
If redeemed thereafter and on or at any time prior to September 30, 1968,
1%
Ii redeemed thereafter and on or at any time prior to September 30, 1972,
1/2%
The Bonds of this series are also subject to redemption to the extent
provided in the Indenture by the operation of the Improvement Fund
provisions of said Indenture at the principal amount thereof and interest
accrued thereon to the date fixed for redemption.
Notice of redemption as aforesaid shall be given by publication at
least once in each of three (3) successive weeks, the first publication to
be at least thirty (30) days before the date set for redemption, in at
least two daily newspapers of general circulation printed in the English
language one of which shall be published in said Boston, and by mailing, at
least thirty (30) days prior to the date set for redemption, by registered
mail, to the registered owners of all fully registered Bonds and to the
registered owners of all coupon Bonds registered as to principal, which
have been called for redemption, a copy of said notice (provided, however,
that if all of said Bonds shall be fully registered at any time not more
than forty-five (45) and not less than thirty (30) days prior to the date
set for redemption, notice by publication may be dispensed with).
If this Bond shall be called for redemption, or provision for such
call shall have been made, as provided in said Indenture, and payment of
the redemption price shall have been duly provided for by the Company,
interest shall cease to accrue hereon from and after the redemption date,
the coupons appertaining hereto thereafter maturing shall be void, the
Company shall from the time provided in said Indenture be under no further
liability in respect of the principal of, or premium, if any, or interest
on, this Bond and the bearer or registered owner hereof shall from and
after such time look for payment hereof solely to the money so provided.
The said Indenture contains provisions permitting the Company and the
Trustee with the consent of the bearers or registered owners of not less
than seventy percentum (70%) in principal amount of the Bonds at the time
outstanding, (except Bonds held by or for the benefit of the Company)
including if more than one series of Bonds shall be at the time
outstanding, not less than seventy percentum (70%) in principal amount of
the Bonds (except Bonds held by or for the benefit of the Company) of each
series affected differently from those of other series, to effect by
supplemental indenture modifications or alterations of said Indenture and
of the rights and obligations of the Company and of the bearers and
registered owners of the Bonds and coupons; but no such modification or
alteration shall be made which, without the written approval or consent of
the bearer or registered owner hereof, will extend the maturity hereof or
reduce the rate or extend the time for payment of interest hereon or reduce
the amount of the principal hereof or of any premium payable on the
redemption hereof, or which will reduce the percentage of the principal
amount of Bonds required for the adoption of the modifications or
alterations as aforesaid, or authorize the creation by the Company, except
as expressly authorized by the Indenture, of any mortgage, pledge or lien
upon the property subjected thereto ranking prior to or on an equality with
the lien thereof.
If a default as defined in said Indenture shall occur, the principal
of this Bond may become or be declared due and payable before maturity, in
the manner and with the effect provided in the Indenture; but an default
and the consequences thereof may be waived by certain percentages of the
bearers or registered owners of Bonds, all as provided in said Indenture.
No recourse shall be had for the payment of the principal of or the
interest on this Bond or for any claim based hereon or otherwise in respect
hereof or of the said Indenture against any incorporator, stockholder,
director, or officer, past, present, or future, as such, of the Company or
of any predecessor or successor corporation under any constitution,
statute, or rule of law, or by the enforcement of any assessment, penalty,
or otherwise, all such liability being waived and released by the holder
hereof by the acceptance of this Bond.
This Bond shall take effect as a sealed instrument.
Neither this Bond nor any of the annexed coupons shall become or be
valid or obligatory until the certificate of authentication hereon shall
have been signed by the Trustee.
IN WITNESS WHEREOF, WESTERN MASSACHUSETTS ELECTRIC COMPANY has caused
this Bond to be executed in its name and on its behalf, and under its
corporate seal by its and
, thereunto duly authorized, and the coupons
annexed thereto to bear the facsimile signature of its Treasurer, as of the
first day of August, 1954.
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By ___________________________________
and
By ___________________________________
Form of Coupon
On , 19 , WESTERN MASSACHUSETTS ELECTRIC COMPANY upon
surrender hereof, unless the Bond hereinafter mentioned shall have been
called for previous redemption and payment duly provided therefor, will pay
to the bearer, at the principal office in Boston, Massachusetts, of Old
Colony Trust Company or of any successor as Trustee under the Indenture
securing said Bond, and /100 dollars,
in any coin or currency of the United States of America which at the time
of such payment is legal tender for public and private debt, being
( ) months' interest on its First Mortgage Bond, Series A 2.95%, due
October 1, 1973, Numbered
Treasurer
Certificate of Authentication
This Bond is one of the First Mortgage Bonds, Series A, 2.95%, due
October 1, 1973, described and provided for in the within mentioned
Indenture.
OLD COLONY TRUST COMPANY, TRUSTEE
By _______________________________
Authorized Officer
Form for Registration
Notice: No writing below except by a duly authorized officer of the
Registrar.
_________________________________________________________________________
Date of Registration Name of Registered Owner Signature of Registrar
Form of Stamp Tax Legend
Any Federal Revenue Tax on the issue of this Bond has been paid by
affixing to an original counterpart of the Indenture under which it is
issued, and duly cancelling, the required stamps.
AND WHEREAS the Bonds of each series, other than the 2.95% Bonds, and
the coupons, if any, to be attached thereto are to be substantially in the
forms above set forth, with such modifications thereof and additions
thereto or eliminations therefrom authorized or permitted by this Indenture
as to any particular series as in the opinion of the stockholder or
stockholders and/or the Board of Directors and/or the Executive Committee
of the Company may at the time be necessary or proper by reason of the
terms on which the Bonds of any such series are issued; and
WHEREAS all requirements of law and of the Certificate of Incor-
poration as amended, and of the By-Laws of the Company, including all
requisite action on the part of directors and officers, and all things nec-
essary to make said 2.95% Bonds originally issued hereunder, when duly
executed by the Company and delivered, the valid, binding, and legal
obligations of the Company, and the covenants and stipulations herein
contained valid and binding obligations of the Company, have been done and
performed, and the execution and delivery hereof have been in all respects
duly authorized;
NOW, THEREFORE, THIS INDENTURE AND DEED OF TRUST WITNESSETH: In
consideration of the premises and of the mutual covenants herein contained
and of the purchase and acceptance by the bearers and registered owners
thereof of the Bonds at any time issued hereunder, and of one (1) dollar
duly paid to the Company by the Trustee and for other good and valuable
considerations, the receipt whereof at or before the ensealing and delivery
of these presents is hereby acknowledged, and in order to secure the
payment of the principal of and premium, if any, and interest on all Bonds
from time to time outstanding hereunder according to their tenor and
effect, and to secure the performance and observance of all the covenants
and conditions therein and herein contained, and to declare the terms and
conditions upon and subject to which the Bonds are to be issued and
secured, the Company has executed and delivered this Indenture, and has
granted, bargained, sold, conveyed, assigned, transferred, mortgaged, and
confirmed, and by these presents does grant, bargain, sell, convey, assign,
transfer, mortgage, and confirm unto Old Colony Trust Company as Trustee,
its successors in the trust hereof, and its and their assigns, all and
singular the franchised and properties hereinafter described in Clauses 1
to 4 inclusive (hereinafter called the Mortgaged Property), that is to say:
CLAUSE 1.
All the property, real, personal, or mixed, of every kind, character,
and description, which is described in Schedule A hereto attached and
hereby made a part of this Clause as fully as if set forth at length
herein.
CLAUSE 2.
Without in any way limiting, or derogating from the inclusiveness of
the description of the property described in Clause 1, or hereinafter
described in Clauses 3 and 4, all and singular the franchises and the
lands, real estate, interests and rights in land, rights of way, agreements
for rights of way, locations, leaseholds, grants, easements, servitudes,
rights pursuant to ordinances, rights in private ways, flowage and riparian
rights and rights of drainage, percolation, seepage, and erosion, licenses,
immunities, privileges, permits; dams, wings, retaining walls, canals,
gates, reservoirs, dam sites, power houses, power plants, water wheels,
engines, boilers, dynamos, generators, motors, pumps, valves, and other
structures, erections, apparatus and appurtenances for generating and
storing electrical energy; stations and substations, transmission lines,
towers, cables, wires, poles, fractional interests in poles, distribution
and supply lines, conduits, drains and systems, transformers, meters,
lamps, and apparatus and appurtenances for the distribution and sale of
electrical energy or steam; other appliances and apparatus and physical
property used or useful in the business of generating, storing,
transmitting or circulating and selling electric energy or steam; and
office building, shops, garages, laboratories, and the physical equipment
therein, which, in respect of all the foregoing, now are owned by the
Company; together with all and singular the tenements, hereditaments, and
appurtenances belonging or in any wise appertaining to the aforesaid
property or any part thereof; with the reversion and reversions, remainder
and remainders, and all tolls, earnings, revenues, rents, issues, profits
and other income thereof, and all the estate, right, title, interest, and
claim whatsoever at law as well as in equity, which the Company now has or
may hereafter acquire in and to the aforesaid property and every part and
parcel thereof.
The conveyance, transfer, and assignment of property described in
Clauses 1 and 2 hereof are made subject, however, (1) to the specific
liens, encumbrances, reservations, restrictions, conditions, limitations,
covenants, interests, and exceptions to the extent set forth or referred to
in Schedule A aforesaid and in the deeds, grants, and conveyances therein
described; (2) to Permitted Encumbrances; and (3) to any and all existing
leases or tenancies for camp sites, fishing, swimming, or hunting rights,
rights to cut wood, rights of way whether of necessity or by prescription
or otherwise, and other similar rights and privileges given, granted,
permitted, or acquiesced in by the Company in respect of any of said
property, no one of which leases, tenancies, rights, or privileges
substantially interferes with the use and enjoyment of said properties by
the Company for its general and ordinary business.
CLAUSE 3.
The franchise or franchises of the Company as that term is used in
Section 13 of Chapter 164 of the General Laws (Ter. Ed.) of the Com-
monwealth of Massachusetts, together with all the rights of the Company,
but subject to the obligations of the Company, relative to the erection,
maintenance, and operation of the Company's mains, conduits, poles, wires,
fixtures, and other apparatus in, over, under, or across public ways.
CLAUSE 4.
Any and all other franchises and property, real, personal, or mixed,
and wheresoever situated, in character and kind like or similar to the
property hereinbefore described in Clauses 2 and 3 which may be at any time
hereafter acquired by the Company (except as provided in 14.01 and 14.03 in
respect of property acquired by consolidation or merger), it being the
intention hereof that all such franchises and property acquired by the
Company (except as aforesaid) shall be as fully embraced within and subject
to the lien hereof as if such property were now owned by the Company and
were specifically described herein and conveyed hereby.
The conveyance, transfer, and assignment of the property acquired by
the Company after the execution hereof, pursuant to this Clause 4, is
subject to Permitted Encumbrances and to any mortgages, liens, or other
encumbrances thereon of the character described in 4.10 existing at the
time of the acquisition thereof by the Company and to any mortgages of such
character which may be placed thereon at the time of the acquisition
thereof to secure or to raise a part of the purchase price thereof and to
any renewals or extensions of such encumbrances or mortgages.
There is furthermore expressly excepted and excluded from the lien
and operation of this Indenture, and from the definition of Mortgaged
Property anything in Clauses 1 to 4, both inclusive, notwithstanding, the
following described property of the Company, whether owned at the time of
the execution hereof and otherwise hereby conveyed, transferred, and
assigned, or hereafter acquired by it:
A. All cash now and hereafter on hand and in banks, all present
and future contracts and other choses in action, bills, notes, and
accounts receivable, trade acceptances, claims for damage in tort, or
for breach of contract whether or not to the property hereby
conveyed, transferred, and assigned or intended to be; claims for
refunds of taxes of every sort and description; judgments obtained by
or in the name of the Company; and the interest of the Company in any
present or future funds or obligations comprised in any retirement or
pension plan to which the Company is or may be a party;
B. Office furniture, equipment and supplies, books, records,
documents, and papers now or hereafter belonging to the Company;
C. Vehicles of every sort and description now or hereafter
belonging to the Company, together with all equipment and supplies
necessary to the operation and maintenance thereof;
D. All present and future material and supplies, coal, oil,
fuel and other personal property which is consumable (otherwise than
by ordinary wear and tear) in the physical operation of the plants
and systems of the Company; and all present and future materials or
supplies used as components in the construction of electric utility
or steam plant and held in advance of use thereof for such purpose.
E. Goods, wares, merchandise, appliances, materials, and
supplies now or hereafter manufactured, produced, purchased, or
acquired by the Company for the purpose of sale, display or lease in
the ordinary conduct of its business;
F. Shares of stock, notes, debentures, bonds, or other certifi-
cates or evidences of indebtedness and other securities now or here-
after owned by the Company excepting however purchase money
obligations acquired pursuant to the provisions of 7.03;
G. All property, leasehold interests, permits, licenses, fran-
chises, and rights whether now owned or hereafter acquired by the
Company which are intended to be hereby conveyed, transferred, or
assigned and which may not legally be 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 hereof or which otherwise may not be,
or are not, hereby lawfully and/or effectively granted, conveyed,
mortgaged, transferred and assigned by the Company;
H. The last day of the term of each leasehold estate (oral or
written and/or any agreement therefor) now or hereafter enjoyed by
the Company whether falling within a general or a particular
description of property herein;
I. Any property which pursuant to the terms of Article XIV is
excepted from the lien hereof;
J. All small tools and equipment and machinery of portable
size.
TO HAVE AND TO HOLD all and singular the above described properties
unto the said Old Colony Trust Company as Trustee hereunder, its successors
in the trusts hereof, and its and their assigns, to its and their own use
forever.
BUT IN TRUST, NEVERTHELESS, upon the terms and trusts herein set
forth for the equal pro rata benefit, security, and protection of the
bearers or registered owners of the Bonds from time to time certified,
issued, and outstanding hereunder, without any discrimination, preference,
priority, or distinction of any Bond or coupon over any other Bond or
coupon by reason of series, priority in the time of issue, sale, or
negotiation thereof, or otherwise howsoever, except that the bearers of (1)
coupons for the payment of which money has been deposited with the Trustee,
and (2) coupons extended or transferred or pledged apart from the Bonds to
which they appertain, and the bearers and/or registered owners of (3) Bonds
which have been called for redemption or have otherwise become due and for
the payment of which money has been deposited with the Trustee, (4) Bonds
tenders for the sale of which to any Sinking Fund, Maintenance and Renewal
Fund, Improvement Fund, or any analogous fund established pursuant to any
Indenture Supplemental hereto have been accepted by the Trustee, (5) Bonds
and coupons held by or for the benefit of the Company, (6) Bonds or coupons
purportedly lost, destroyed, or stolen not held by a bona fide purchaser,
(7) Bonds and coupons entitled to particular security by reason of the
establishment for the benefit of the holders thereof of a sinking or other
fund in accordance with the provisions hereof, and (8) Bonds the holders of
which have consented to any alteration of the rights, powers, and
privileges pursuant to the terms of any supplemental indenture executed
pursuant to the terms of 16.02 hereof shall in each case be entitled to the
particular status, whether preferential or deferred, hereinafter and/or in
any such supplemental indentures set forth in respect of such particular
Bonds or coupons;
PROVIDED HOWEVER, and these presents are upon the condition that, if
the Company, its successors or assigns, shall pay or cause to be paid the
principal of and the premium, if any, and interest on the Bonds at the
times and in the manner stipulated therein and herein and shall keep,
perform, and observe all and singular the covenants and promises in said
Bonds and in this Indenture expressed to be kept, performed, and observed
by and on the part of the Company, then this Indenture and the estate and
rights hereby granted shall, pursuant to the provisions of Article XV
hereof, cease, determine, and be void; otherwise to be and remain in full
force and effect.
The Company hereby declares that it holds and will hold all property
described in the foregoing clauses G and H as specifically reserved and
excepted, upon the trusts herein set forth and as the Trustee (or any
purchaser thereof upon any sale thereof hereunder) shall for such purpose
direct from time to time, to the fullest extent permitted by law or in
equity, as fully as is the same could be and had been hereby granted,
conveyed, mortgaged, transferred and assigned to and vested in the Trustee.
AND IT IS HEREBY COVENANTED, DECLARED, AND AGREED by and between the
parties hereto that all Bonds and the coupons appertaining thereto are to
be issued, certified, delivered, and held and that the above described
property is to be held subject to the further covenants, conditions, uses,
and trusts hereinafter set forth, and the Company, for itself and its
successors and assigns, does hereby covenant and agree to and with the
Trustee and its successor or successors in such trust for the benefit of
those who shall hold said Bonds and Coupons or any of them as follows:
ARTICLE I.
Definitions
1.01. Unless the context requires some other meaning, the words
and terms defined in this Article I, and their equivalents, shall have the
following meanings whenever used in this Indenture, such definitions to be
equally applicable to both singular and plural forms. All other terms used
in this Indenture which are defined in the Trust Indenture Act of 1939 or
which are defined therein by reference to the Securities Act of 1933
(except as herein otherwise expressly provided) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities
Act as they were in force on the date of the execution of this Indenture.
Definitions of certain other words, terms, or phrases used in a particular
Section or in particular Sections hereof only, will be found in that
Section or in one of those Sections.
1.02.
(1) Indenture
The word "Indenture" shall include and mean not only this Indenture
as originally executed but also this Indenture as it may be from time to
time supplemented, modified, or amended by any Supplemental Indenture.
(2) Herein, hereof, etc.
The words "herein", "hereof", "hereunder", "hereby", "hereinbefore",
"hereinafter", and other words of similar import refer to this Indenture as
a whole and not to any particular Article, Section, or other subdivision
thereof.
(3) Supplemental Indenture
The terms "Supplemental Indenture", or "Indenture Supplemental
hereto" shall mean any indenture hereafter duly authorized and entered into
between the Company and the Trustee in accordance with the provisions of
this Indenture, and duly acknowledged by the officers of the Company
executing the same, in form proper for recording or filing.
(4) Company
The word "Company" shall mean the party of the first part hereto,
Western Massachusetts Electric Company, and also any successor corporation
which shall become such in the manner prescribed in Article XIV but subject
to the provisions of said Article XIV.
(5) Obligor
The word "Obligor", when used with respect to Bonds issued or
issuable under this Indenture shall mean every person who is liable
thereon.
(6) Person
The word "person" shall mean an individual, a corporation, a
partnership, an association, a joint stock company, a trust, an
unincorporated organization, or a government or any agency or political
subdivision thereof.
(7) Corporation
The word "Corporation" shall also include any voluntary association,
joint stock company, business trust or other similar organization including
in particular Western Massachusetts Companies, a voluntary association
organized under a declaration of trust, dated January 15, 1927, as amended.
(8) Affiliate, Control
The word "Affiliate" as used with respect to any person shall mean
any other person, who or which, directly or indirectly, controls or is
controlled by or is under common control with such person. The word
"Control" as used with respect to any person shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of
the management and policies of such person, whether through the ownership
of voting securities or by contract, or otherwise. The words and terms
"Affiliated", "Affiliation", "Controlling", "Controlled by", and "under
common Control with" shall have meanings correlative with the foregoing.
(9) Trustee
The word "Trustee" shall mean Old Colony Trust Company and also any
successor Trustee which shall become such in the manner prescribed in
Article XIII.
(10) Responsible Officer, Responsible Officers
The terms "Responsible Officer" or "Responsible Officers" when used
with respect to the Trustee shall mean and include the chairman and
vice-chairman of the board of directors, the president, every vice
president, the secretary, the secretary of the board of directors, the
treasurer, every assistant vice-president, every trust officer, the
cashier, and any other officer or assistant officer of the Trustee with
supervisory powers who customarily performs functions similar to those
performed by any of the foregoing individuals or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with a
particular subject.
(11) Bond, Bonds, Bondholder, Bondholders
The words "Bond" or "Bonds" shall include one or more, as the case
may be, coupon Bonds, fully registered Bonds and temporary Bonds and, to
the extent applicable, the coupons and claims for interest appertaining
thereto.
The words "Bondholder" or "Bondholders" and the words "holder" and
"holders" and other similar words or terms shall mean the bearer or bearers
of coupon Bonds not registered as to principal, or not so registered
otherwise than to bearer, the bearer or bearers of coupons and the
registered owners of Bonds at the time outstanding hereunder, subject,
however, to the extent applicable, to the provisions of 2.13 and 4.02.
The words "Registered Bond" or "Registered Bonds" shall mean one or
more coupon Bonds registered as to principal otherwise than to bearer and
one or more fully registered Bonds.
(12) Cancellation, Cancelled
The words "Cancellation", "Cancel" and "Cancelled", in respect of
Bonds or coupons, shall, at the option of the Trustee, include any cus-
tomary cremation approved by the Trustee, and any requirement of this
Indenture for the delivery of cancelled Bonds shall be satisfied by the
delivery of any customary cremation certificate so approved; any Bonds
which are cancelled shall be delivered to the Company unless the Company
shall in writing otherwise direct.
(13) Outstanding
The word "Outstanding" when used with reference to Bonds issued
hereunder shall mean all Bonds theretofore certified and delivered
hereunder, except
(a) Bonds theretofore paid or otherwise acquired by the Company
and surrendered to the Trustee for Cancellation; or
(b) Bonds for the purchase, payment or redemption of which the
necessary money shall have been deposited with, or shall then be held
by, the Trustee, and in the case of Bonds called for redemption, if,
and only if, notice of redemption shall have been duly given, or
irrevocable power of attorney to give such notice shall have been
delivered to the Trustee or other arrangements for so doing have been
made satisfactory to the Trustee; or
(c) Bonds surrendered to the Trustee by the holders thereof in
exchange for other Bonds of the same aggregate principal amount; or
(d) Bonds allegedly lost, stolen, or destroyed, and mutilated
Bonds surrendered to the Trustee in lieu of or in substitution for
which other Bonds shall have been issued hereunder, pursuant to 2.13.
(14) (excluding Company-owned Bonds)
The phrase "(excluding Company-owned Bonds)" occurring after or in
connection with the mention of "Bonds Outstanding" or "Outstanding Bonds"
shall be held to exclude therefrom in connection with the determination of
the percentage of the aggregate principal amount of Bonds Outstanding or of
the Bonds of a particular series Outstanding, Bonds owned by the Company,
or by any other Obligor upon the Bonds, or by any Affiliate of the Company
or of such other Obligor, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such action,
direction, concurrence, or consent, only Bonds which the Trustee knows are
so owned shall be so excluded. Bonds so owned which have been pledged in
good faith may be regarded as Outstanding, regardless of the above phrase,
if the pledgee shall establish to the satisfaction of the Trustee the
pledgee's right to act as aforesaid in respect of such Bonds and that the
pledgee is not an Affiliate of the Company or of any such other Obligor.
In case of a dispute as to such right, any decision by the Trustee taken
upon the advice of counsel shall be fall protection to the Trustee.
(15) Bondholders' Notice; Bondholders' Request
The term "Bondholders' Notice" shall mean a written notice and the
words "Bondholders' Request" shall mean a written request, in each case
filed with and satisfactory to the Trustee, from Bondholders (whose
ownership of Bonds shall, from time to time, if and when requested by the
Trustee, be established by proof satisfactory to the Trustee) of such part,
if any, of Bonds as may be specifically provided for in respect of a
particular matter by any of the provisions hereof, or, in respect of any
matter as to which no such specific provision is made herein, of not less
than:
(a) in respect of each such notice, ten per cent (10%) in prin-
cipal amount of all Bonds Outstanding (excluding Company-owned Bonds)
at the time of such notice, and
(b) in respect of each such request, twenty-five per cent (25%)
in principal amount of all Bonds Outstanding (excluding Company-owned
Bonds) at the time of such request,
setting forth to the satisfaction of the Trustee, in respect of each such
notice, particulars of any existing default and of the continuance thereof,
and of all, if any, other matters covered by such notice, and, in respect
of each such request, particulars of all matters covered by such request,
and in the latter case also specifying any action requested or
contemplated, under this Indenture, or any Bond, with respect to which such
request was filed.
(16) Lien of this Indenture, Lien hereof
The terms "Lien of this Indenture" and "Lien hereof" shall mean the
lien created by this Indenture (including the after-acquired property
clause hereof) and the lien created by any subsequent conveyance or
delivery to the Trustee or otherwise created, effectively constituting any
property a part of the security held by the Trustee upon the terms and
trust and subject to the covenants, conditions, and uses specified in the
Indenture.
(17) Excepted Property
The term "Excepted Property" shall mean property of the character
described as included in paragraphs A to J, both inclusive, of the
foregoing description of the property conveyed by these presents to the
Trustee.
(18) Permitted Encumbrances
The term "Permitted Encumbrances" shall mean, as of any particular
time, any of the following:
(a) the Lien of this Indenture upon the Mortgaged Property and
all liens and encumbrances thereon junior hereto;
(b) liens for taxes, assessments, or governmental charges not
then delinquent, on the Mortgaged Property, or any part of it, or, if
delinquent, in the course of contest in good faith;
(c) liens arising out of proceedings in court in course of con-
test in good faith;
(d) liens or charges, if any, incidental to current construction
or current operation;
(e) liens securing indebtedness neither payable by, nor assumed
or guaranteed by, the Company, nor on which it customarily pays
interest, existing either at the date of the execution of these
presents as to the Mortgaged Property, or, as to property thereafter
acquired, at the time of acquisition by the Company, upon real estate
or right in or relating to real estate acquired by the Company for
substation, transmission line, distribution line, or right of way
purposes;
(f) defects in title to rights of way for transmission and dis-
tribution lines over public or private property;
(g) easements, rights of way, licenses, restrictions,
exceptions, reservations, or other interests in or against any
property and/or rights of way of the Company created, reserved, or
existing for the purpose of public highways, private roads,
railroads, railroad sidetrack, transmission and distribution lines,
telegraph and telephone lines, and other like purposes which do not
materially impair the use of such property and/or rights of way for
the purposes for which such property and/or right of way are held by
the Company;
(h) zoning ordinances and other similar rights reserved to or
vested in any municipality, or official, commission, or board
thereof, or other public authority to control or regulate the
property of the Company provided that the use of such property by the
Company for the purposes for which it is held by the Company is not
materially interfered with thereby;
(i) rights reserved to or vested in the United States of America
or any state, municipality, or public authority by the terms of any
franchise, grant, license, or permit or by any provision of law to
take, purchase or recapture, or to designate a purchaser for, any of
the properties of the Company;
(j) rights reserved to or vested in the United States of America
or any state, municipality, or public authority to use, control or
regulate any property of the Company;
(k) any obligations or duties of the Company to the United
States of America or any state, municipality, or public authority
with respect to any franchise, grant, license, or permit.
(19) Directors' Resolution
The term "Directors' Resolution" shall mean a resolution of the Board
of Directors or of the Executive Committee of the Company filed with the
Trustee, certified by the Clerk or the Assistant Clerk of the Company to
have been duly adopted by said Board or Committee and to be in full force
and effect on the date of its certification.
(20) Officers' Certificate
The term "Officers' Certificate" shall mean a certificate or opinion
filed with the Trustee complying with the provisions of 17.02, signed by
the President or a Vice President and the Treasurer or an Assistant
Treasurer of the Company.
(21) Engineer
The word "Engineer" shall mean an individual who is an engineer,
appraiser, or other expert, or a co-partnership or a corporation engaged in
such business, who or which, unless required to be independent, may be
regularly employed by the Company.
(22) Accountant
The word "Accountant" shall mean any accountant or accounting firm,
who or which need not be certified, licensed, or public, and, unless
required to be independent, may be an officer or employee of the Company.
(23) Engineer's Certificate, Accountant's Certificate
The terms "Engineer's Certificate" and "Accountant's Certificate"
shall mean a certificate conforming to the requirements of 17.02 signed by
an Engineer or by an Accountant, as the case may be, appointed and paid by
the Company and approved by the Trustee in the exercise of reasonable care.
With respect to the Cost of Property Additions or of Property
Retirements included in any Accountant's Certificate which have been
included in a previous Accountant's Certificate, the Accountant making such
Certificate may rely upon the figures as to Cost contained in such previous
Certificate.
(24) Independent
The word "Independent" when applied to any engineer, appraiser,
accountant, or other expert shall mean a person who (1) is in fact
independent, (2) does not have any substantial interest, direct or
indirect, in the Company or in any other Obligor upon the Bonds or in any
Affiliate of the Company or of any such other Obligor, and (3) is not
connected with the Company or any such other Obligor or any Affiliate of
the Company or of any such other Obligor as an officer, employee, promoter,
underwriter, trustee, partner, director, or person performing similar
functions. The Trustee is entitled to require an Officers' Certificate,
satisfactory to it, as to the independence of any Engineer or Accountant.
(25) Independent Engineer's Certificate, Independent Accountant's
Certificate
The terms "Independent Engineer's Certificate" and "Independent
Accountant's Certificate" shall mean a certificate corresponding with an
Engineer's Certificate or an Accountant's Certificate, respectively, in all
respects except that the Engineer or the Accountant shall be Independent.
Each such Certificate shall state that the signer thereof has read the
definition of the word "Independent" herein and that the signer is
independent within the meaning of that definition.
Whenever the Company is required to furnish to the Trustee pursuant
hereto an Independent Engineer's Certificate or an Independent Accountant's
Certificate, the signer thereof must be appointed by the President or
Treasurer of the Company and approved by the Trustee in the exercise of
reasonable care.
(26) Opinion of Counsel
The term "Opinion of Counsel" shall mean a written opinion complying
with the provisions of 17.02 filed with the Trustee by counsel (who may be
counsel or of counsel to the Company) selected by the Company and approved
by the Trustee, or selected by the Trustee in the exercise of reasonable
care.
(27) Evidence of Approval by Trustee
The acceptance by the Trustee of any one of the foregoing Cer-
tificates or of an Opinion of Counsel shall be sufficient evidence that the
signer or signers have been approved by, or are satisfactory to, the
Trustee, as the case may be.
(28) Fundable Property
The term "Fundable Property" shall mean property of the character
hereinafter described, but excluding Excepted Property, which the Company
shall (1) acquire or construct after May 31, 1954 (including, if in process
of construction, any property in so far as actually constructed subsequent
to said May 31), (2) be entitled by its corporate powers, franchises, or
other legal rights to own, possess, operate and use in the ordinary conduct
of its business, and (3) have good and marketable title to, subject only to
Permitted Encumbrances, and subject to, or to be immediately made subject
to, the Lien of this Indenture; provided however that Fundable Property
shall also include, to the extent permitted by Article XIV hereof, property
otherwise complying with this definition of Fundable Property acquired and
held by the Company pursuant to any merger or consolidation permitted by
14.01; provided further that in case of property acquired or constructed in
connection with hydro-electric works for the maintenance and operation of
which the Company shall not have obtained a license under the Federal Power
Act or other similar legislation, the Company shall be deemed to have
complied with the requirements of clause (2) above in respect of such
property if an Opinion of Counsel shall be filed with the Trustee covering
such situation, in the manner specified in subparagraph (j) of 3.08 hereof;
and provided further that if any property at any time subject to the Lien
hereof shall be or shall have been retired from service subsequent to May
31, 1954, and shall consist solely of materials or supplies usable as
components in the construction of electric utility or steam plant, and the
Cost thereof (less any credit for salvage value actually received) shall
have been charged to the depreciation reserve, the reserve for
contributions to extensions, or the surplus account of the Company and such
property shall thereafter be put into service again and shall otherwise
comply with this definition of Fundable Property, it shall be held to be
Fundable Property even though originally acquired prior to said May 31,
1954.
Such property shall consist only of property (including additional or
partly completed construction work) used or planned to be used in the
business of operating the Company's electric utility and steam systems and
acquired or constructed by the Company and properly charged to its electric
utility and steam accounts (including work-in-progress accounts) in
accordance with any system of accounting required by law, or by regulatory
or other public authorities having jurisdiction, to be followed by the
Company or, in the absence of such requirement, in accordance with sound
accounting practice then current. Property held jointly with others shall
be includable in such property provided that only the right, title, and
interest of the Company therein shall be included in determining Cost or
Fair Value. Such property, however, shall not include
(i) leasehold interests, or any extensions, improvements, or
additions of or to any property in which the Company shall hold only
a leasehold interest unless the Company shall have the right under
the provisions of the agreement creating said leasehold interest to
remove such extensions, improvements, or additions on or prior to the
expiration of the term thereof;
(ii) real estate unless owned in fee simple or rights in real
estate unless owned in perpetuity;
(iii) going concern value or good will, as such.
No portion of any property shall be excluded by the requirements of
this subdivision for the reason that any other portion of such property
would be excluded by said requirements, but the exclusion of such other
portion shall be considered in determining the Cost or Fair Value of the
unexcluded portion.
(29) Cost
The word "Cost" shall mean
(a) as to any property owned by the Company on May 31, 1954 the
book value thereof on the books of the Company as of that date
without deducting therefrom applicable reserves for depreciation
and/or retirements as of that date;
(b) as to any property acquired or constructed after May 31,
1954, the sum of (i) any cash expenditures made or agreed to be made
by the Company therefor; (ii) the fair market value in cash (as of
the date of delivery) of any securities or other property delivered
by the Company as consideration therefor; (iii) whichever shall be
the lesser of (1) an amount equivalent to the principal amount of any
indebtedness (whether or not assumed by the Company) secured by prior
lien upon such property outstanding at the time of, or reserved by
the vendor or created by the Company, at the time of, the acquisition
of such property or (2) the aggregate amounts (exclusive of premium
or interest) expended by the Company to pay off said indebtedness or
to release the property from said lien; (iv) in respect of property
constructed by or for the Company, such allowances or charges for
interest during construction, taxes, engineering, legal expenses,
superintendence, casualty insurance, and other items during
construction as in the opinion of the signers of any Certificate
hereunder wherein the Cost of such property is required to be stated,
shall be proper under sound accounting practice then current in
respect of the particular property specified in such Certificate; (v)
general overhead expenses to the extent that they are properly
chargeable under sound accounting practice then current to the cost
of the property, whether acquired or constructed by the Company; and
(vi) the amount of any unsecured indebtedness (other than
indebtedness described under (iii) above) issued or assumed by the
Company as consideration for the acquisition or construction of such
property, provided however that in any case where property shall have
been acquired by the Company, without the payment of cash, property,
or securities or the issue, assumption, or payment of indebtedness,
no determination of Cost shall be required, and the word Cost shall
in any such case mean an amount equal to the Fair Value thereof at
the time of acquisition by the Company;
(c) as to any materials and supplies at any time subject to the
Lien hereof which shall have been or shall be retired from service by
the Company subsequent to May 31, 1954 and the Cost thereof (less any
credit for salvage value actually received) charged to the
depreciation reserve, the reserve for contributions to extensions or
the surplus account of the Company, and which shall subsequently be
put into service again, the Fair Value of such property at the time
when again put into service, or the value at which such property was
previously retired, whichever shall be lower.
(d) as to any property owned by a Corporation merging or
consolidating with the Company pursuant to the provisions of Article
XIV, the book value thereof less any reserve for depreciation
applicable thereto as recorded on the books of said Corporation at
the date of said merger or consolidation.
In determining Cost in cases in which property acquired consists
partly of Fundable Property and partly of other property or in cases in
which Cost is not allocated between various items of property, Cost may be
allocated to the various parts or items of property in any manner which the
signers of the Certificate in which the Cost of such parts or items is
required to be stated shall deem reasonable and in accordance with sound
accounting practice.
In the event that the Company shall acquire an electric utility
system or electric utility systems as a whole without the payment of
separate or distinct consideration for the acquisition of any rights or
intangible property acquired simultaneously therewith or as a part thereof,
the term Cost as applied to the Fundable Property so acquired may be held
to include such part of the total consideration paid therefor as shall be
both reasonable and proportionate, but shall be held to exclude any value
based on going concern value or good will.
(30) Fair Value
The term "Fair Value" of property shall mean the price which a
willing buyer thereof would pay to a willing seller at private sale, taking
into consideration its location, condition, and adaptability for the
purposes for which it is designed, but not exceeding the reproduction cost
new of such property less observed depreciation, which reproduction cost
may, for property under construction, include estimates for items during
construction described in clauses (iv) and (v) of subparagraph (b) of the
definition of Cost, but no other items of intangible value.
Unless otherwise expressly provided, the term "Fair Value" when
applied to Property Additions shall mean the Fair Value to the Company of
such Property Additions at the date of the acquisition thereof by the
Company and the term "Fair Value" in all other cases shall apply as of the
date of the Certificate to be furnished in respect thereof.
(31) Property Additions
The term "Property Additions" shall mean Fundable Property which is
to be Made the Basis for Action or Credit hereunder, and shall include
Fundable Property purchased, constructed, or otherwise acquired by the
Company to renew, replace, or to substitute for old, worn out, retired,
discontinued or abandoned property or property otherwise no longer used or
useful, the retirement of which has been charged against the depreciation
reserve, the reserve for contributions to extensions, or the surplus
account of the Company, but shall exclude any property made or constructed
by the Company in keeping or maintaining the Mortgaged Property in good
repair, working order and condition, the cost of which is not properly
chargeable to electric utility or steam plant account.
(32) Property Retirements
The term "Property Retirements" shall mean any of the property of the
Company of the character described in the final paragraph of the
description of Fundable Property, but excluding Excepted Property, which
shall have become worn out or become permanently unserviceable, or shall
have been lost, sold, destroyed, abandoned, surrendered on lapse of title,
or retired from service for any reason, or shall have permanently ceased to
be used or useful in the business of the Company, but in each case only to
the extent that the Cost (less any credit for salvage value actually
received) thereof has been previously charged to the depreciation reserve,
the reserve for contributions to extensions, or the surplus account of the
Company, subsequent to May 31, 1954, or in the event that such property
shall have been sold, to the extent that the Cost thereof, or any balance
of the Cost thereof, not charged as above provided, shall have been
credited to the plant and equipment (devoted to utility operation) account
of the Company, subsequent to May 31, 1954.
(33) Net Property Addition
The term "Net Property Additions" shall mean the total of all
Property Additions less the total of all Property Retirements.
(34) Made the Basis for Action or Credit hereunder
The phrase "Made the Basis for Action or Credit hereunder" shall mean
when applied to Property Additions, Property Retirements or Net Property
Additions, any thereof
(i) which have been made the basis for the withdrawal of moneys
from the hands of the Trustee;
(ii) which shall have been made the basis for any credit to the
Improvement Fund, or to a Sinking Fund, Maintenance and Renewal Fund,
Improvement Fund, or any analogous fund established in accordance
with the provisions of any Supplemental Indenture; or
(iii) which have been made the basis for the issue of additional
Bonds.
(35) Earnings Certificate
The term "Earnings Certificate" shall mean an Officers' Certificate
(which, unless one of the Officers signing the same is an Accountant, shall
also be signed by an Accountant) dated not more than thirty (30) days prior
to the date of the application to the Trustee to which the Earnings
Certificate shall pertain, setting forth in reasonable detail
(a) the net earnings available for interest, computed as here-
inafter provided, of the Company for a period of twelve (12) con-
secutive calendar months within the fifteen (15) calendar months
immediately preceding the first day of the month in which the said
application to the Trustee is made;
(b) the annual interest charges on (i) Bonds Outstanding at the
date of said Certificate, except Bonds for the payment, retirement,
or redemption of which Bonds to be issued pursuant to such
application are to be issued, (ii) Bonds proposed to be issued pur-
suant to such application and (iii) any obligations (whether or not
the payment of the principal or of the interest thereon is assumed by
the Company) secured by or proposed to be secured by any mortgage,
charge, encumbrance or lien upon the Mortgaged Property superior to
or on a parity with the Lien of this Indenture;
(c) that such net earnings available for interest are at least
twice the aggregate of the annual interest charges on all said
indebtedness; and
(d) that such net earnings available for interest have been
computed as provided in this Section.
The net earnings available for interest in any such twelve (12) month
period shall be computed on an accrual basis in accordance with sound
accounting practice then current by deducting from total operating revenues
for such period the total operating expenses for such period, including (a)
all taxes, other than Federal income taxes, excess profits taxes, and any
other taxes imposed on or measured by gross or net income or earnings or
undistributed earnings or income or surplus, (b) all charges on the
Company's books to expense or income to provide for depreciation (but
excluding charges to income for the amortization of plant and equipment
(devoted to utility operation) account or amounts transferred therefrom),
(c) charges for maintenance, and (d) interest, other than interest on any
Bonds, on obligations secured by any mortgage, charge, encumbrance or lien
upon the Mortgaged Property superior to or on a parity with the Lien
hereof, and on any debentures, notes or other evidences of indebtedness for
the payment, retirement or redemption of which, or in exchange for which,
Bonds to be issued pursuant to such application are to be issued, but
excluding, however, any charges or provision for the Improvement Fund or
for any Sinking Fund, Maintenance and Renewal Fund, Improvement Fund or
analogous fund established pursuant to the terms of any Supplemental
Indenture for the retirement of debt or for the amortization of any debt
discount and expense during said period, and also excluding any profits and
losses from the sale or other disposition of capital assets made in said
period.
If any property of the Company owned by it at the time of making any
Earnings Certificate shall consist of a plant or system which shall have
been acquired during or after any period for which net earnings are to be
computed, the actual net earnings or net losses of such property (computed
in the manner specified in the definition for the computation of the net
earnings of the Company, but eliminating all intercompany items, if any)
during such period, or such part of such period as shall have preceded the
acquisition thereof, to the extent that the same have not otherwise been
included, shall be treated as the net earnings or net losses of the Company
for the purposes of an Earnings Certificate. The net earnings or net losses
of any property of the Company consisting of a plant or system which shall
have been disposed of by the Company during or after any period for which
net earnings are to be computed shall not be treated as any part of the net
earnings of the Company for the purposes of an Earnings Certificate.
If the Company shall be consolidated or merged into another
Corporation, or if another Corporation shall be merged into the Company in
accordance with the provisions of Article XIV hereof at any time within
fifteen (15) months prior to the first day of a month in which an
application to the Trustee to which an Earnings Certificate shall pertain
shall be made, the said Earnings Certificate shall include as a part of the
net earnings of the Company the net earnings of the said other Corporation
for a period identical with the period for which the Company's net earnings
shall be determined, computed as hereinbefore in this subparagraph
provided, except that if said other Corporation shall have issued
indebtedness secured by a first or other mortgage pledge lien or
encumbrance upon its property and maturing more than twelve (12) months
from the date of the issue thereof which shall be Outstanding at the time
of the making of such Earnings Certificate, and which is not to be paid
retired or redeemed with the proceeds of, or exchanged for, the Bonds to be
issued pursuant to such application such indebtedness shall be considered
for the purpose of said Earnings Certificate as if it consisted of Bonds
issued hereunder, and thereafter in determining the net earnings of the
Corporation resulting from such merger or consolidation for the purposes of
any subsequent Earnings Certificate any such indebtedness shall likewise be
considered as if it consisted of Bonds issued hereunder.
(36) Commission Orders
The term "Commission Orders" shall mean duly and properly certified
copies (except in cases where until such copies can be made available it is
customary to accept temporarily telegrams or like informal written
evidences; and in any such cases duly and properly certified copies as soon
as available) delivered to the Trustee of all orders consents, permissions,
or authorizations issued by the Department of Public Utilities of
Massachusetts, or by the Securities and Exchange Commission, or by any
Board, Department or official succeeding in whole or in part to the duties
of either, or by any governmental agency which shall then have jurisdiction
over the issue, sale, or negotiation of any Bonds issuable hereunder,
ordering, consenting to, permitting or authorizing to the full extent
required by law the issue, sale, or negotiation of the particular Bonds in
respect of which said orders, consent, permissions, or authorizations are
legally necessary.
(37) Published Notice
The term "Published Notice" shall mean a notice given by publication
not less than once a week for not less than two (2) successive weeks (or
with such other frequency and duration, if any, as may be specifically
provided for in respect of a particular publication by any of the
provisions hereof) in at least two (2) daily newspapers printed in the
English language, published and of general circulation, one being in the
City of Boston, Massachusetts.
1.03 For the purpose of evidencing to the Trustee Net Property
Additions from time to time available as a basis for the withdrawal of
moneys from the hands of the Trustee pursuant to 3.06 or 8.03(b), the issue
of additional Bonds pursuant to 3.08, or as a basis for credit against the
annual Improvement Fund obligation payable under 6.01 or against any
obligation under any analogous fund or under any Sinking Fund established
by any Supplemental Indenture for the benefit of any Bonds issuable
hereunder, the Company shall file with the Trustee an Officers' Certificate
(hereinafter called Certificate of Available Net Property Additions)
conforming to the requirements of 17.02 substantially in the following
form:
WESTERN MASSACHUSETTS ELECTRIC COMPANY
To Old Colony Trust Company, Trustee
Under Indenture dated as of August 1, 1954.
Certificate No. of Available Net Property Additions
The undersigned, in conformity with the provisions of the above
described Indenture, hereby certify in connection with the application of
the Company dated , 19
[for the issue of additional
(here describe the issue of Bonds applied for) in the aggregate principal
amount of , pursuant to 3.08 thereof]
(or)
[for the withdrawal by the Company of cash in the sum of $
(here insert the amount of cash desired to be withdrawn) held by the
Trustee pursuant to 3.06 or 8.03(b) thereof] (omit inapplicable section)
(or)
[for credit in the amount of $ against the Improvement Fund
pursuant to 6.01 thereof (if credit be sought against the obligation of any
Sinking Fund, Maintenance and Renewal Fund, Improvement Fund or analogous
fund, the name of such fund should be substituted) payable by the Company
in the sum of $ on , 19 , pursuant to
section thereof] (omit whichever purpose is inapplicable) as
follows:
A. That the Cost or Fair Value, whichever is
less, of all Property Additions made by the Company
subsequent to May 31, 1954, and on or prior to
, 19 (here insert the terminal date specified in
the last previous Certificate of Available Net
Property Additions) is $____________________________
(Omit Item A in first Certificate)
B. That the Cost or Fair Value, whichever is
less, of all Property Additions made by the Company
subsequent to , 19 , (here insert in the
first Certificate May 31, 1954, and in each
subsequent Certificate the date inserted in the space
in Item A) and on or prior to , 19 ,
(here insert a date not more than 60 days prior to
the date of the application hereinbefore referred to)
is $_________________________________
C. Constituting the Cost or Fair Value,
whichever is less, of all Property Additions
$_____________________
(Item A plus Item B)
D. That the Cost of all Property Retirements
made by the Company after May 31, 1954, and on or
prior to , 19 , (here insert the date
inserted in the second space in Item B) is
$________________________
E. That the total of all Net Property Additions
heretofore made the basis for the withdrawal of money
from the hands of the Trustee pursuant to the
provisions of 3.06 or of 8.03(b), or the issue of
additional Bonds pursuant to 3.08, or irrevocably
allocated for credit against the Improvement Fund
pursuant to the provisions of 6.01, or (here insert
the name of any Sinking Fund, Maintenance and Renewal
Fund, Improvement Fund or analogous fund created by
Supplemental Indenture against the obligations of
which Net Property Additions have been heretofore
credited) is $____________________________
F. Leaving as Available Net Property Additions
$____________________________
(Item C less the total of Items D and E)
G. That the Available Net Property Additions
now made the basis for the application in connection
with which this Certificate is filed is $
____________________________________
(Office held)
____________________________________
(Office held)
Dated: , 19
ARTICLE II.
Form, Execution, Registration and Exchange of Bonds
2.01 At the option of the Company the Bonds issued hereunder may be
issued from time to time in any number of different series. All Bonds of
the same series shall be identical in tenor and effect, except for number
and for necessary or proper variations between temporary Bonds, coupon
Bonds, and fully registered Bonds, or Bonds of different denominations, and
in the case of Bonds of serial maturity, in date of maturity, rate of
interest, and price, terms, and conditions of redemption. The form of each
series shall be distinguished by such designation or descriptive title as
the Board of Directors or the Executive Committee of the Company may select
for such series and as may be approved by the Trustee and each Bond issued
hereunder shall bear upon the face thereof the designation or descriptive
title so selected for the series to which it belongs.
All coupon Bonds of the same series shall bear the same date. Each
fully registered Bond shall bear interest from its date and shall be dated
as of the interest payment date next preceding the date of issue, unless
issued on the date as of which the Bonds of that series were originally
issued, or on an interest payment date, in either of which cases it shall
bear interest from and shall be dated as of such date; provided however -
that if the Company shall be in default in the payment of interest on any
series of Bonds at the time of the issue or transfer of a fully registered
Bond of such series, such fully registered Bond if issued in exchange for a
coupon Bond or Bonds of the same series surrendered together with all
unpaid coupons appertaining thereto, shall be dated as of the date of the
commencement of the period for which such interest shall be in default.
Upon the issue of any fully registered Bond in permanent form the
Trustee may reserve unissued a coupon Bond or coupon Bonds of the same
series in an aggregate amount equal to the face of such fully registered
Bond and in such event shall endorse on such fully registered Bond the
number or numbers of the coupon Bond or Bonds so reserved, but, in lieu of
reserving coupon Bonds as in this Section above provided, the Trustee may
endorse on each such fully registered Bond a number or numbers such as
would have been endorsed thereon if coupon Bonds had been reserved against
each such Bond as hereinabove provided.
Coupon Bonds, other than the 2.95% Bonds and the coupons thereto
appertaining, shall be substantially in the form heretofore recited for the
2.95% Bonds in coupon form, with such omissions, variations, and insertions
as are permitted by this indenture, and the fully registered Bonds of any
such series shall follow the form of the coupon Bonds of that series with
only such changes as are necessitated by the change from a coupon Bond with
appurtenant coupons to a duly registered Bond of the same issue.
2.02 The permanent 2.95% Bonds shall be substantially in the forms
hereinbefore set forth, with such changes therein as shall be approved by
the Company and the Trustee, shall be designated as the First Mortgage
Bonds, Series A, 2.95%, due October 1, 1973, of the Company, shall be
issuable hereunder in the aggregate principal amount of eleven million
dollars ($11,000,000) and no more except as provided in 2.13 hereof, if in
coupon form shall be dated as of August 1, 1954, shall mature October 1,
1973, shall bear interest at the rate of two and ninety-five hundredths
percentum (2.95%) per annum from the date thereof to the date of payment,
payable semi-annually on the first days of April and October in each year
(the principal, premium, if any, and the interest thereon being payable in
coin or currency of the United States of America which at the time of
payment is legal tender for public and private debts), shall be issued in
coupon form registerable as to principal only, in the denomination of one
thousand dollars ($1,000) each, and in fully registered form in
denominations of one thousand dollars ($1,000) and any multiple thereof,
and shall be redeemable at the times and in the manner provided in Article
V and Article VI hereof.
The Bonds of every series other than the 2.95% Bonds shall be printed
in the English language and shall (1) bear such date, (2) be payable as to
both principal and interest in such coin or currency and at such time or
times (which shall include the right to issue serial Bonds) and at such
place or places, (3) bear interest at such rate, (4) be in such
denominations, (5) be in fully registered form or be coupon Bonds
registerable as to principal or not, (6) contain such provisions and con-
ditions, if any, with respect to exchangeability for Bonds of another
series, tax exemption, tax reimbursements redemption, sinking, amorti-
zation, improvement, renewal, maintenance, or other fund, or limitation of
the aggregate principal amount of Bonds of such series issuable, (7) be
entitled to be convertible at the option of the holders into other
securities so far as permitted by law, and (8) have such other charac-
teristics not in conflict with the terms hereof as the Board of Directors
or the Executive Committee of the Company shall determine with respect to
the Bonds of such series prior to the issue of any of the Bonds thereof.
The Bonds of any series may bear such legends or other variations in form
as may be required to comply with the rules of any stock exchange or to
conform to any usage or law.
The forms of Bonds of such other series and the applicable charac-
teristics referred to in (6), (7) and (8) in this Section shall be set
forth in the Supplemental Indenture authorizing the issue of said Bonds.
2.03 All Bonds from time to time issued hereunder shall be executed
in the name and on behalf of the Company, and under its corporate seal
impressed or imprinted thereon, by its President or a Vice President and
its Treasurer or an Assistant Treasurer or by such other form of execution
permitted by law as may be prescribed by a Directors' Resolution and shall
be expressed to take effect as sealed instruments. In case any officer of
the Company who shall have signed or sealed any Bond shall cease to be such
officer of the Company before the Bond so signed or sealed shall have been
actually delivered, such Bond, nevertheless, may be delivered and issued
with the same force and effect as though the person or persons who had
signed or sealed such Bond had not ceased to be an officer or officers of
the Company. Furthermore, any Bond may be signed and sealed on behalf of
the Company by such persons as at the actual date of the execution of such
Bond shall be the proper officers of the Company, although at the date of
such Bond such persons shall not have been officers of the Company. The
coupons to be attached to any coupon Bond shall be authenticated by the
facsimile signature of the present or any future Treasurer of the Company.
The Company may adopt and use for that purpose the facsimile signature of
any person who shall have been such Treasurer notwithstanding the fact that
he may not have been such Treasurer at the date of such Bond or that he may
have ceased to be such Treasurer at the time when such Bond shall be
actually delivered.
2.04 Bonds when executed shall be delivered to the Trustee for
certification by it; and the Trustee shall certify and deliver said Bonds
as in this Indenture provided and not otherwise. Before certifying and
delivering any coupon Bond, the Trustee shall detach and Cancel all coupons
thereto appertaining then matured representing installments of interest on
said Bond which have been paid or for which payments shall have been
provided, except that coupon Bonds issued upon exchanges shall bear such
coupons as may be necessary in order that no gain or loss of interest shall
result from any exchange of a fully registered or temporary Bond for a
coupon Bond or the exchange or substitution of a new Bond for a Bond
mutilated or purportedly lost, destroyed, or stolen.
No Bond and no coupon thereto appertaining shall be or become valid
or obligatory for any purpose or entitled to any benefit under this
Indenture until the Trustee's certification thereupon shall have been
signed by the Trustee, and such certification by the Trustee upon any Bond
shall be conclusive evidence that such Bond has been duly certified and
delivered hereunder and is valid, obligatory, and entitled to the benefit
of this Indenture.
2.05 Until Bonds in permanent form are ready for delivery, there may
be issued, certified and delivered, in lieu thereof and subject to the same
provisions, limitations, and conditions, one or more Bonds of any series
authorized to be issued under this Indenture in temporary form, which may
be typewritten, printed, or lithographed, may be of any authorized
denomination or denominations satisfactory to the Company and approved by
the Trustee, and otherwise shall be substantially of the tenor of the Bonds
of such series, with or without one or more coupons, in fully registered
form or in coupon form, and with or without provision for the registration
thereof as to principal, and with or without a recital of specific
redemption prices, and with such other omissions and with such other
insertions and variations as the officers executing such Bonds may
determine. The temporary Bonds shall be entitled to the security and
benefit of this Indenture to the same extent as permanent Bonds of the same
series and maturity certified and delivered hereunder. The Company shall
without unreasonable delay, at its own expense, prepare, execute and
deliver to the Trustee, and thereupon the Trustee, upon presentation and
surrender of the temporary Bonds with all unmatured coupons, if any,
appertaining thereto, shall certify and deliver in exchange therefor,
engraved or lithographed or printed permanent Bonds of the same series and
for the same aggregate principal amount. Temporary Bonds so surrendered for
exchange shall be considered as having been surrendered for Cancellation.
Upon such exchange, which the Company shall make at its own expense and
without making any charge therefor, the Trustee shall forthwith Cancel the
surrendered temporary Bonds.
2.06 The Trustee is hereby authorized by the Company to certify all
Bonds issued hereunder by the Company which are presented to it for
certification by the Company. The Trustee is also hereby appointed
Registrar of the Company and hereby authorized and empowered to register
all Bonds in fully registered form issued by the Company, and the transfers
thereof, to certify new Bonds in fully registered form issued by the
Company pursuant to such transfers, to register, transfer, and discharge
from registry the principal of all coupon Bonds issued hereunder presented
to it by the bearers or registered owners thereof, for such register,
transfer, or discharge, and to make exchanges of Bonds of any one series of
any denomination for an equal principal amount of Bonds of the same series
of any other denomination, of fully registered Bonds for coupon Bonds of
the same series, of coupon Bonds for fully registered Bonds of the same
series, of temporary Bonds for permanent Bonds of the same series, and of
mutilated Bonds and/or coupons for Bonds or coupons issued in substitution
therefor.
2.07 The Company shall keep at the principal office of the Registrar,
and at such other offices or agencies of the Trustee or of the Company as
may be specified in the Bonds of any series, or in any Supplemental
Indenture securing them, books for the registration, and transfer, and for
the exchange of fully registered Bonds, and for the registration, transfer,
and discharge from registry, and for the exchange of coupon Bonds issued
hereunder.
The Company shall also keep at any other office or agency of the
Trustee or of the Company required to be maintained for such purpose in
order to comply with the regulations of any stock exchange on which the
Bonds may at any time be listed, like books to the extent necessary to
comply with such regulations.
2.08 The bearer of any coupon Bond issued hereunder which is
expressed to be registerable as to principal may have the ownership thereof
registered as to principal at the principal office of the Trustee (or at
such other agency as may be provided in respect of a particular series) and
such registration shall be noted on the Bond. After such registration no
transfer of said Bond shall be valid unless made at said office or agency
by the registered owner in person or by his duly authorized attorney and
similarly noted on the Bond; but such Bond may be discharged from
registration by being in like manner transferred to bearer, and thereupon
transferability by delivery shall be restored, but such Bond may again and
from time to time be registered or transferred as before. Such
registration, however, shall not affect the negotiability of the coupons,
but every such coupon shall continue to be transferable by delivery merely,
and shall remain payable to bearer, and payment thereof to bearer shall
fully discharge the Company in respect of the interest therein mentioned,
whether or not the Bond be registered as to principal.
The registered owner of any fully registered Bond issued hereunder
may transfer the ownership of said Bond at the principal office of the
Trustee (or at such other agency as may be provided in respect of a
particular series) by surrendering said Bond for transfer accompanied by a
written instrument of transfer signed by him or his duly authorized
attorney, all in form satisfactory to the Trustee or to such agent, and
thereupon the Company shall issue and the Trustee shall certify and
register a new fully registered Bond or new fully registered Bonds of the
same series and maturity date as the Bond or Bonds surrendered and in the
same aggregate principal amount in the name or names designated by the
transferor. The fully registered Bond or Bonds so surrendered shall be
considered as having been surrendered for Cancellation and shall be
forthwith Cancelled by the Trustee.
2.09 The 2.95% Bonds in fully registered form may be exchanged at the
principal office of the Trustee for a like aggregate principal amount of
2.95% Bonds in fully registered form of other denominations and, upon
surrender to the Trustee for exchange of one or more of such 2.95% Bonds,
the Company shall execute and the Trustee shall certify and shall deliver
in exchange therefor a like aggregate principal amount of such 2.95% Bonds
of other denominations. Bonds so surrendered for exchange shall be
considered as having been surrendered for Cancellation and shall be
forthwith Cancelled by the Trustee.
The 2.95% Bonds in fully registered form may also be exchanged for
2.95% Bonds in coupon form of a like aggregate principal amount, and upon
surrender at the principal office of the Trustee of any such Bond or Bonds
accompanied by a written instrument of transfer signed by the registered
owner thereof or by his duly authorized attorney, in form satisfactory to
the Trustee, the Company shall issue and the Trustee shall certify (unless
coupon Bonds previously certified shall be available) and deliver in
exchange therefor 2.95% Bonds in coupon form in a like aggregate principal
amount, with such coupons annexed thereto as may be necessary in order that
no gain or loss of interest shall result from such exchange.
The 2.95% Bonds in coupon form may be exchanged for 2.95% Bonds in
fully registered form of a like aggregate principal amount, and upon
surrender at the principal office of the Trustee of any such Bond or Bonds
with all unpaid coupons appertaining thereto, the Company shall issue and
the Trustee shall certify and deliver in exchange therefor one or more
fully registered 2.95% Bonds in a like aggregate principal amount in the
name or names designated by the holder of the coupon Bond or Bonds so
surrendered.
2.10 If and to the extent that the Company by a Supplemental
Indenture shall so provide, either at the time of the creation of any
series of Bonds other than the 2.95% Bonds, or at any time thereafter
(a) Bonds of any series other than the 2.95% Bonds may, at the
option of the holders thereof and upon surrender thereof to the
Trustee, or otherwise as in said Supplemental Indenture provided, be
exchanged for Bonds of the same or of a different series and
maturity, of the same aggregate principal amount, but of different
authorized denomination or denominations;
(b) Coupon Bonds of any series other than the 2.95% Bonds may,
at the option of the holder thereof and upon the surrender thereof to
the Trustee or otherwise as in said Supplemental Indenture provided,
be exchanged for fully registered Bonds without coupons of the same
or of a different series and maturity, of the same aggregate
principal amount, and of the same or of a different authorized
denomination or denominations; and
(c) Fully registered Bonds without coupons of any series other
than the 2.95% Bonds may, at the option of the registered owners
thereof and upon the surrender thereof to the Trustee or otherwise as
in said Supplemental Indenture provided, be exchanged for coupon
Bonds of the same or of a different series and maturity, of the same
or of a different authorized denomination or denominations.
All Bonds and coupons so surrendered shall be considered as having
been surrendered for Cancellation, shall be forthwith Cancelled by the
Trustee.
2.11 For any exchange of Bonds, including the 2.95% Bonds, for Bonds
of another denomination or of coupon Bonds for fully registered Bonds, or
of fully registered Bonds for coupon Bonds, or for any transfer of a fully
registered Bond, the Company, at its option, may require the payment of a
sum sufficient to reimburse it for any stamp tax or other governmental
charge incident thereto, and, in addition thereto, a further sum not
exceeding two dollars ($2) for each new Bond, if any, issued upon such
exchange or transfer. No charge except for taxes or governmental charges
shall be made against the holder for the registration or transfer of coupon
Bonds.
2.12 The Bonds shall be treated as negotiable, subject to the pro-
visions for registration and transfer therein and in this Indenture con-
tained, and the coupon Bonds, except while registered as to principal
otherwise than to bearer, shall pass by delivery; registration of any
coupon Bond as to principal shall not affect the negotiability of its
coupons, which shall remain payable to bearer, be treated as negotiable,
and pass by delivery whether or not the Bond to which any coupon appertains
is registered. The Company, the Trustee and any paying agent may deem and
treat the bearer of any coupon Bond, or of any temporary Bond with or
without coupons, which shall not at the time be registered as to principal,
and the bearer of any coupon for interest appertaining to any Bond, whether
or not such Bond shall be registered, as the absolute owner of said Bond or
coupon, as the case may be, for the purpose of receiving payment thereof or
on account thereof and for all other purposes whatsoever, whether or not
such Bond or coupon shall be overdue, and neither the Company nor the
Trustee, nor any paying agent shall be affected by any notice to the
contrary.
As to all coupon Bonds registered as to principal and all fully reg-
istered Bonds, temporary or permanent, the person in whose name the same
shall be registered shall be deemed and treated as the absolute owner
thereof for all purposes of this Indenture, and payment of or on account of
the principal of such Bond if it be a coupon Bond registered as to
principal and of the principal and interest if it be a fully registered
Bond, shall be made only to or upon the order, in writing of such
registered owner thereof and all such payments so made to any such reg-
istered owner or upon his order shall be valid and effectual to satisfy and
discharge the liability of the Company upon such Bond to the extent of the
sum or sums so paid, and neither the Company nor the Trustee shall be
affected by any notice to the contrary.
2.13 In case any Bond, with the coupons, if any, belonging thereto,
or any coupon shall become mutilated or be lost, stolen, or destroyed, then
upon the surrender to the Trustee for exchange and Cancellation of such
mutilated Bond, together with all unmatured coupons appertaining thereto,
or of any such mutilated coupon, or upon the receipt of evidence
satisfactory to the Company and the Trustee of the loss, theft, or
destruction of such Bond and its coupons, if any, or of such coupon, and of
the ownership and authenticity thereof, and upon receipt also of indemnity
(naming as obligees both the Company and the Trustee) in a sum and with a
surety company thereon deemed satisfactory by the Company and the Trustee,
the Company, in its discretion, may execute and the Trustee shall certify
and deliver a new Bond of the same series, denomination, and maturity date,
in exchange for, and upon Cancellation of the mutilated Bond and its
coupons (if any), or, in lieu of the Bond and its coupons (if any) so lost,
stolen, or destroyed, or if a coupon or coupons only have been mutilated or
have been lost, stolen, or destroyed, the Company, in its discretion, may
execute and the Trustee shall certify and deliver in exchange for and upon
surrender and Cancellation of the Bond to which such coupon or coupons
appertain and of all coupons appertaining thereto not lost, stolen, or
destroyed, a new Bond of the same series, denomination, and maturity with
coupons appurtenant thereto of the same maturities as the coupons
surrendered and the coupons lost, stolen, or destroyed, or, if any such
mutilated, lost, stolen, or destroyed Bond or any of its coupons or such
mutilated, lost, stolen or destroyed coupon shall have matured or shall be
about to mature, instead of issuing a substitute Bond or of issuing a
substitute Bond with such matured coupons attached, the Company with the
consent of the Trustee may pay the same and in such event, to the extent
that it shall pay coupons appertaining to any Bond so mutilated or so
purportedly lost, stolen, or destroyed, the Trustee shall cut off and
Cancel the corresponding coupons on the substituted Bond before delivering
the same.
Any such Bonds and coupons issued pursuant to this Section in
substitution for Bonds or coupons purportedly lost, stolen, or destroyed
shall constitute original additional contractual obligations of the Company
whether or not the Bonds and coupons purportedly lost, stolen, or destroyed
be at any time enforceable by anyone and shall (subject to the provisions
of 2.14 and 4.02) be equally and ratably entitled to the benefits of this
Indenture with all other Bonds and coupons issued hereunder. The Company
and the Trustee, in their discretion, may place upon any such substituted
Bond a distinguishing mark or a legend, but such mark or legend shall in no
wise affect the validity of such substituted Bond. The Company may, at its
option, require the payment of a sum sufficient to reimburse it for any
stamp tax or other governmental charge and any expense incurred by the
Company or the Trustee in connection with the issue of any such substituted
Bond and also a further sum not exceeding two dollars ($2) for each such
substituted Bond.
All Bonds are held and owned upon the express condition that the
foregoing provisions are exclusive in respect of the replacement of muti-
lated, lost, stolen, or destroyed Bonds and shall preclude any and all
other rights and remedies, any law or statute now existing or hereafter
enacted to the contrary notwithstanding.
2.14 Bonds pledged by the Company, upon being released from pledge,
or Bonds purchased or otherwise acquired by the Company may be sold,
pledged, or otherwise disposed of before maturity by the Company prior to
the occurrence of an event of default hereunder without reexecution or
recertification, but the benefit of this Indenture shall be suspended in
respect of Bonds, coupons, or claims for interest while held by or for the
benefit of the Company. Subject to the provisions of 2.12 hereof, Bonds and
coupons and claims for interest transferred by or from the Company while in
default in the payment of principal or interest, or premium, if any, or any
Sinking Fund, Maintenance and Renewal, Improvement or other analogous fund
instalment hereunder, so long as such default shall continue, shall not be
deemed Outstanding under the Indenture in connection with (a) any com-
putation of percentages of Bonds outstanding hereunder for the purpose of
any action by Bondholders, or (b) any provision for the enforcement of any
rights or remedies hereunder or under the Bonds, or (c) any distribution of
proceeds or payment of the purchase price upon any sale hereunder, or upon
any other such enforcement, except after the prior payment in full of all
Bonds and coupons and claims for interest not so held or transferred,
provided, however, that for the purpose of determining whether the Trustee
shall be protected in relying on any direction or consent of Bondholders
only Bonds which the Trustee knows to be so held or to have been so
transferred shall be so deemed not to be Outstanding.
ARTICLE III.
Issue of Bonds
3.01 The aggregate principal amount of Bonds which may be issued by
the Company under this Indenture and may be Outstanding at any one time
shall not, in any event, exceed the amount at the time permitted by law,
but otherwise, except as in 3.02 and 3.03 provided, is unlimited; provided
however that the aggregate principal amount of Bonds, or the aggregate
principal amount of Bonds of any one series, which may be issued hereunder
may, at any time at the election of the Company as evidenced by a
Supplemental Indenture, be limited to such definite aggregate principal
amount as may be specified in such Supplemental Indenture.
3.02 First Mortgage Bonds, Series A, 2.95%, due October 1, 1973,
limited in aggregate principal amount to eleven million dollars
($11,000,000) and in denominations authorized hereunder may forthwith upon
the execution and delivery of this Indenture be executed by the Company and
delivered to the Trustee for certification, and thereupon may be certified
by the Trustee, and delivered to or upon the written order of the Treasurer
or an Assistant Treasurer of the Company without the necessity of awaiting
the filing or recording hereof.
3.03 Bonds, when authorized by a Supplemental Indenture, of one or
more series, other than the series constituting the 2.95% Bonds, (in this
Article III called Series B Bonds) may from time to time be executed by the
Company and shall be delivered to the Trustee for certification and
thereupon shall be certified by the Trustee and delivered to or upon the
written order of the Treasurer or an Assistant Treasurer of the Company to
an aggregate principal amount not exceeding twenty-one million dollars
($21,000,000), less the total of the aggregate principal amount of Series B
Bonds theretofore certified and delivered upon original issue. Series B
Bonds shall be certified and delivered by the Trustee only after the
Trustee has received the following:
(a) a Directors' Resolution determining the series of the said
Bonds and, if a new series, distinguishing the same by descriptive
title pursuant to 2.01, establishing in respect thereof the
applicable characteristics described in 2.02, authorizing the
execution of the Bonds and of the Supplemental Indenture securing
them, in form satisfactory to the Trustee, and the issue of said
Bonds, and also requesting the certification and the delivery of the
said Bonds by the Trustee all in the principal amount therein
specified, but not exceeding the maximum amount which may be issued
by the Company and certified and delivered by the Trustee under the
provisions of this Section;
(b) Unless in the Opinion of Counsel described in subparagraph
(g) of this Section it is stated that no vote or resolution of the
stockholders of the Company is required in order that the issue and
sale or other disposition of said Series B Bonds shall be legal, a
certified copy of a vote by the stockholder or by the stockholders
holding the requisite number of shares of the Company taken at a
meeting duly called and held, authorizing the said Directors'
Resolution and said request, and the execution, certification and
delivery of said Bonds, and the execution and delivery of said
Supplemental Indenture;
(c) said Supplemental Indenture duly executed by the Company and
by the Trustee, in as many counterparts as the Trustee shall require;
(d) an Earnings Certificate;
(e) an Officers' Certificate stating
(1) that to the best knowledge and belief of such officers
the Company is not in default in the performance and observance
of any of the terms, covenants, and conditions of this In-
denture;
(2) that all conditions precedent provided for herein (in-
cluding any covenants hereof compliance with which constitutes a
condition precedent) have been complied with; and
(3) the aggregate principal amount of Series B Bonds
theretofore certified and delivered upon original issue;
(f) Commission Orders to the extent required by law; and
(g) an Opinion of Counsel to the effect that all corporate
action prerequisite to or necessary for the authorization, execution,
issue, certification, sale or other disposition, and delivery of the
said Bonds, and the execution and delivery of the Supplemental
Indenture, has been duly and properly taken, or, if no action by
stockholders is necessary therefor, stating such fact; that the
Commission Orders furnished to the Trustee are proper and legal, and
order, consent to, permit and authorize to the full extent required
by law the issue, sale, or negotiation of the said Bonds (or that no,
or no other, Commission Orders are required by law); that all
conditions hereof precedent to the issue of such Bonds (including any
covenants hereof compliance with which constitutes a condition
precedent) have been complied with; that said Bonds when delivered by
the Company will be in all respect valid and enforceable obligations
of the Company in accordance with their terms and entitled to the
benefit and security of this Indenture; that the aggregate principal
amount of Series B Bonds (as previously limited in this Section) then
to be issued under this Section does not exceed the aggregate
principal amount then issuable under this Section; and that upon the
issue of said Bonds, the aggregate principal amount of Bonds issued
hereunder and then Outstanding will not exceed the amount permissible
hereunder and permissible by law; and that all recording and filing
in respect of said Supplemental Indenture necessary for the security
of any or all of said Bonds has been or will be completed.
3.04 Bonds, when authorized by a Supplemental Indenture, of one or
more series, other than the series constituting the 2.95% Bonds and in
addition thereto and to the Series B Bonds, may from time to time be
executed by the Company and shall be delivered to the Trustee for
certification and thereupon shall be certified and delivered by the Trustee
to or upon the written order of the Treasurer or an Assistant Treasurer of
the Company in an aggregate principal amount equal to the aggregate
principal amount of any Bonds which hare been paid, retired, redeemed,
Cancelled, surrendered to the Trustee or to the Company for Cancellation,
or for the payment or redemption of which moneys in the necessary amount
shall have been deposited with or shall then be held by the Trustee (with
irrevocable direction and authorization satisfactory to the Trustee so to
apply the same, and as regards Bonds to be redeemed, either with proof
satisfactory to the Trustee that notice of redemption has been duly given
or with irrevocable power of attorney to the Trustee to give such notice);
provided however that, unless all 2.95% Bonds and all Bonds of any other
series issued prior to the issue of the Bonds then to be issued under this
Section shall have ceased to be Outstanding hereunder, no Bonds shall be
issuable under the provisions of this Section in respect of Bonds which
have been or are contemporaneously to be paid, retired, redeemed,
Cancelled, or surrendered to the Trustee for Cancellation (a) by the use of
moneys received by the Trustee as or from the proceeds of any part of the
Mortgaged Property sold, taken by eminent domain, or otherwise disposed of,
or as the proceeds of any policies of insurance upon the Mortgaged
Property, or by the use of any other moneys held by the Trustee as
described in 8.02, (b) by the use of moneys deposited with the Trustee upon
the issue of Bonds pursuant to the provisions of 3.05, (c) in lieu of the
payment to the Trustee of moneys pursuant to the terms of any Sinking Fund,
Maintenance and Renewal Fund, Improvement Fund, or any analogous fund
established by a Supplemental Indenture then in force, or (d) by the use by
the Trustee of moneys paid to it pursuant to the terms of any such fund,
unless, in either case, the provisions establishing such fund shall
expressly permit the issue of Bonds under this Section in respect of Bonds
paid, retired, redeemed, Cancelled, or surrendered for Cancellation as a
part of the operation of such fund.
Bonds issuable under this Section shall be certified and delivered by
the Trustee only after the Trustee has received the following:
(a) a Directors' Resolution determining the series of the Bonds,
and, if a new series, distinguishing said series by descriptive title
pursuant to 2.01, and establishing in respect thereof the applicable
characteristics enumerated in 2.02, authorizing the execution of the
Bonds and of a Supplemental Indenture securing them, in form
satisfactory to the Trustee and the issue of the said Bonds, and also
requesting the certification and the delivery of the said Bonds by
the Trustee, in such aggregate principal amount as the Board of
Directors or the Executive Committee shall determine, but not
exceeding the maximum amount which may be issued by the Company and
certified and delivered by the Trustee under the provisions of this
Section;
(b) unless in the opinion of Counsel described in subparagraph
(g) of this Section it is stated that no vote or resolution of the
stockholders of the Company is required in order that the issue and
sale or other disposition of said Bonds shall be legal, a certified
copy of a vote by the stockholder or by the stockholders holding the
requisite number of shares of the Company taken at a meeting duly
called and held, authorizing the said Directors' Resolution and said
request and the execution, certification and delivery of said Bonds
and the execution and delivery of said Supplemental Indenture;
(c) said Supplemental Indenture duly executed by the Company and
by the Trustee, in as many counterparts as the Trustee shall require;
(d) an Officers' Certificate stating
(1) that to the best knowledge and belief of such officers
the Company is not in default in the performance and observance
of any of the terms, covenants, and conditions of this
Indenture;
(2) that all Bonds theretofore issued under this Indenture
have been paid, retired, redeemed, or Cancelled, or surrendered
to the Trustee for Cancellation, or concurrently with the cer-
tification and delivery of the requested Bonds will be surren-
dered to the Trustee for Cancellation, or that moneys in the
necessary amount for the payment or redemption of all Bonds not
so paid, retired, redeemed, or surrendered have been deposited
with, or shall then be held by the Trustee (with irrevocable
directions and authorization satisfactory to the Trustee to
apply the same to such payment or redemption, and as regards
Bonds to be redeemed, either with proof satisfactory to the
Trustee that notice of redemption has already been duly given or
with irrevocable power of attorney to the Trustee to give such
notice); or
that Bonds theretofore issued under this Indenture of a
specific aggregate principal amount (not less than the aggregate
principal amount of Bonds then to be issued under this Section)
have been or will be paid, retired, redeemed, or Cancelled, or
surrendered to the Trustee for Cancellation and that money in
the amount necessary therefor is then held by the Trustee or
will be deposited with it prior to or concurrently with the
certification and delivery of the Bonds so requested (with
irrevocable authorization satisfactory to the Trustee so to
apply the same to such payment or redemption, and as regards
Bonds to be redeemed, either with proof satisfactory to the
Trustee that notice of redemption has been duly given, or with
irrevocable power of attorney to the Trustee to give such
notice), and that no part of said Bonds theretofore issued has
been or will be paid, retired, redeemed, or Cancelled, or
surrendered to the Trustee for Cancellation, either by the use
of moneys received by the Trustee as or from the proceeds of any
part of the Mortgaged Property sold, taken by eminent domain, or
otherwise disposed of, or as the proceeds of any policies of
insurance upon the Mortgaged Property, or by the use of any
other moneys held by the Trustee as described in 8.02, or by the
use of moneys deposited with the Trustee upon the issue of Bonds
pursuant to the provisions of 3.05, or (unless one or more Sink-
ing, Maintenance and Renewal, Improvement, or analogous funds
created by Supplemental Indenture then in force permit the issue
of Bonds under this Section in respect of Bonds paid, retired,
redeemed, Cancelled or surrendered for Cancellation as a part of
the operation of any such fund) in lieu of the payment to the
Trustee of moneys pursuant to the terms of any such fund, or by
the use by the Trustee of moneys paid to it pursuant to the
terms of any such fund provided however that in the event that a
Sinking Fund, Maintenance and Renewal Fund, Improvement Fund or
other analogous fund created by a Supplemental Indenture then in
effect may in respect of such fund relax the foregoing pro-
visions, they may be modified to the extent necessary to comply
with the terms of such Supplemental Indenture;
(3) that all conditions precedent provided for herein
(including any covenants hereof compliance with which consti-
tutes a condition precedent) have been complied with;
(e) Commission Orders to the extent required by law;
(f) all Bonds previously issued, surrender of which is to be
made contemporaneously with the issue by the Company and the
certification and delivery by the Trustee of the Bonds to be issued
under this Section, together with all unmatured coupons thereto ap-
pertaining, and all cash necessary to pay the principal and interest
or the redemption price of all Bonds previously issued, the payment
or redemption of which, respectively, is made the basis for the issue
of the Bonds so requested;
(g) an Opinion of Counsel to the effect that all corporate
action prerequisite or necessary for the authorization, execution,
issue, certification, sale or other disposition, and delivery of the
said Bonds, and the execution and delivery of the Supplemental Inden-
ture, have been duly and properly taken, or, if no action by stock-
holders is necessary therefor, stating such fact; that the payment,
retirement, redemption, Cancellation, or surrender for Cancellation
of Bonds previously issued, as set forth in the Officers' Certificate
hereinbefore in this Section described, constitute a basis for the
issue of the aggregate principal amount of said Bonds then to be
issued under this Section; that the Commission Orders furnished to
the Trustee are proper and legal, and order, consent to, permit and
authorize to the full extent required by law the issue, sale, or
negotiation of the said Bonds (or that no, or no other, Commission
Orders are required by law); that all conditions hereof precedent to
the issue of such Bonds (including any covenants compliance with
which constitutes a condition precedent) have been complied with;
that said Bonds when delivered by the Company will be in all respects
valid and enforceable obligations of the Company in accordance with
their terms and entitled to the benefit and security of this
Indenture; that the aggregate principal amount of said Bonds then to
be issued under this Section does not exceed the aggregate principal
amount then issuable under this Section; that upon the issue of said
Bonds the aggregate principal amount of Bonds issued hereunder and
then Outstanding will not exceed the amount permissible hereunder and
permissible by law; and that all recording and filing in respect of
said Supplemental Indenture necessary for the security of any or all
of said Bonds has been or will be completed; and
(h) in the event that the total annual interest requirements of
the Bonds then to be issued under this section exceeds the total
annual interest requirements on the Bonds in respect of the payment,
retirement, redemption, Cancellation or surrender to the Trustee for
Cancellation of which said Bonds are then to be issued, an Earnings
Certificate.
All Bonds paid, retired, redeemed, or otherwise acquired which form
the basis for the issue of Bonds pursuant to this Section shall be
delivered to the Trustee for Cancellation and Cancelled by it.
3.05 Bonds, when authorized by a Supplemental Indenture, of one or
more series, other than the series constituting the 2.95% Bonds and in
addition thereto and to the Series B Bonds, may from time to time be
executed by the Company and delivered to the Trustee for certification and
thereupon shall be certified and delivered by the Trustee to or upon the
written order of the Treasurer or an Assistant Treasurer of the Company in
any aggregate principal amount permissible hereunder and permissible by law
which shall be equal to the amount of cash paid to the Trustee in exchange
therefor.
Bonds issuable under this Section shall be certified and delivered by
the Trustee only after the Trustee has received the following:
(a) a Directors' Resolution determining the series of the Bonds,
and, if a new series, distinguishing said series by descriptive
title, pursuant to 2.01, and establishing in respect thereof the
characteristics enumerated in 2.02, authorizing the execution of the
Bonds and of a Supplemental Indenture securing them, in form
satisfactory to the Trustee, and the issue of the said Bonds, and
also requesting the certification and delivery of the said Bonds in
such aggregate principal amount as the Board of Directors or the
Executive Committee shall determine, but not exceeding the maximum
amount which may be issued by the Company and certified and delivered
by the Trustee under the provisions of this Section;
(b) unless in the Opinion of Counsel described in subparagraph
(h) of this Section it is stated that no vote or resolution of the
stockholders of the Company is required in order that the issue and
sale or other disposition of said Bonds shall be legal, a certified
copy of a vote by the stockholder or by the stockholders holding the
requisite number of shares of the Company taken at a meeting duly
called and held, authorizing the said Directors' Resolution and said
request, and the execution, certification and delivery of said Bonds
and the execution and delivery of said Supplemental Indenture;
(c) said Supplemental Indenture duly executed by the Company and
by the Trustee, in as many counterparts as the Trustee shall require;
(d) an Officers' Certificate stating
(1) that to the best knowledge and belief of such officers the
Company is not in default in the performance and observance of any
of the terms, covenants, and conditions of the Indenture; and
(2) that all conditions precedent provided for herein
(including any covenants hereof compliance with which con-
stitutes a condition precedent) have been complied with;
(e) a sum of cash equal to the aggregate principal amount of the
Bonds the issue of which is requested pursuant to the terms of this
Section;
(f) Commission Orders to the extent required by law;
(g) an Earnings Certificate; and
(h) an Opinion of Counsel to the effect that all corporate
action prerequisite or necessary for the authorization, execution,
issue, certification, sale or other disposition, and delivery of the
said Bonds, and the execution and delivery of the Supplemental
Indenture, has been duly and properly taken, or, if no action by
stockholders is necessary therefor, stating such fact; that the Com-
mission Orders furnished to the Trustee are proper and legal, and
order, consent to, permit and authorize to the full extent required
by law the issue, sale, or negotiation of the said Bonds (or that no,
or no other, Commission Orders are required by law); that all
conditions hereof precedent to the issue of such Bonds (including any
covenants hereof compliance with which constitutes a condition
precedent) have been complied with; that said Bonds when delivered by
the Company will be in all respects valid and enforceable obligations
of the Company in accordance with their terms and entitled to the
benefit and security of this Indenture; that upon the issue of said
Bonds, the aggregate principal amount of Bonds issued hereunder and
then Outstanding will not exceed the amount permissible hereunder and
permissible by law; and that all recording and filing in respect of
said Supplemental Indenture necessary for the security of any or all
of said Bonds has been or will be completed.
3.06 All cash paid to the Trustee pursuant to the provisions of 3.05
shall, so long as held by it, be held as part of the Mortgaged Property but
whenever the Company shall become entitled to certification and delivery of
Bonds against Available Net Property Additions pursuant to the provisions
of 3.08, the Trustee, upon the application of the Company and upon compli-
ance by the Company with all requirements of said 3.08 (except as
hereinafter in this Section provided, and with such additions, omissions,
and variations as may be appropriate by reason of the fact that application
is being made for the withdrawal of cash and not for the certification and
delivery of Bonds) necessary to obtain certification and delivery of Bonds
under that Section, shall pay over, in lieu of the Bonds to which the
Company would be otherwise entitled to receive pursuant to that Section, an
amount of said cash equal to the aggregate principal amount of said Bonds,
or if the Trustee shall then hold less than such amount of cash, the
greatest amount which will leave in its hands less than one thousand
(1,000) dollars thereof. Any withdrawal of an amount of cash under this
Section shall be in lieu of the right of the Company to the certification
and delivery of Bonds under 3.08 in an equal aggregate principal amount,
but shall not otherwise affect the right to the certification and delivery
of Bonds to which it might otherwise be entitled under the provisions of
that Section.
The Company shall not be required to furnish in connection with the
withdrawal of the cash held by the Trustee pursuant to this Section, so
much of the Directors' Resolution, Officers' Certificate, or Opinion of
Counsel described in 3.08 as shall relate to the authorization,
certification, or issue of Bonds, or any certificate relating to action by
stockholders or any Commission Orders unless required by law, or an
Earnings Certificate.
3.07 Any sums deposited with the Trustee under the provisions of 3.05
in respect of which no application under the provisions of 3.06 shall have
been made within three (3) years of the date of the deposit thereof, or in
respect of which the Company shall at any time have notified the Trustee in
writing that it will make no application under that Section, may be applied
by the Company at any time to the discharge of the entire indebtedness on
all Bonds Outstanding hereunder pursuant to the provisions of 15.01(A) and
if not so applied shall be used and applied by the Trustee to the
redemption of Bonds of the series in respect of the issue of which it was
so deposited, pursuant to the provisions of the Supplemental Indenture
applicable thereto. Bonds so redeemed shall not thereafter be made the
basis for the issue of Bonds or the withdrawal of cash under any provisions
of the Indenture.
3.08 Bonds, when authorized by a Supplemental Indenture, of one or
more series, other than the series constituting the 2.95% Bonds and in
addition thereto and to the Series B Bonds, may from time to time be
executed by the Company and shall be delivered to the Trustee for
certification and thereupon shall be certified and delivered by the Trustee
to or upon the written order of the Treasurer or an Assistant Treasurer of
the Company in the aggregate principal amount requested by the Company, but
not in excess of sixty percentum (60%) of Available Net Property Additions
set forth in Item G of the Certificate of Available Net Property Additions
filed, as hereinafter in this Section provided, in connection with such
request for the issue of additional Bonds under this Section.
Bonds issuable under this Section shall be certified and delivered by
the Trustee only after the Trustee has received the following:
(a) a Directors' Resolution determining the series of the Bonds,
and, if a new series, distinguishing said series by descriptive title
pursuant to 2.01 and establishing in respect thereof the applicable
characteristics enumerated in 2.02, authorizing the execution of the
Bonds and the Supplemental Indenture securing them, in form
satisfactory to the Trustee, and the issue of said Bonds, which
Supplemental Indenture shall also convey, transfer and/or assign to
the Trustee all Fundable Property not previously so conveyed,
transferred and/or assigned, and also requesting the certification
and the delivery by the Trustee of the said Bonds, in such aggregate
principal amount as the Board of Directors or the Executive Committee
shall determine, but not exceeding the maximum amount which may be
issued by the Company and certified and delivered by the Trustee
under the provisions of this Section;
(b) unless in the Opinion of Counsel described in subparagraph
(j) of this Section it is stated that no vote or resolution of the
stockholders of the Company is required in order that the issue and
sale or other disposition of said Bonds shall be legal, a certified
copy of a vote by the stockholder or by the stockholders holding the
requisite number of shares of the Company taken at a meeting duly
called and held, authorizing the said Directors' Resolution and said
request, and the execution certification and delivery of said Bonds
and the execution and delivery of said Supplemental Indenture;
(c) said Supplemental Indenture duly executed by the Company and
by the Trustee, in as many counterparts as the Trustee shall require;
(d) an Officers' Certificate stating
(1) that to the best knowledge and belief of such officers
the Company is not in default in the performance and observance
of any of the terms, covenants, and conditions of the Indenture;
and
(2) that all conditions precedent provided herein (including
any covenants hereof compliance with which constitutes a
condition precedent) have been complied with; and
(3) the aggregate principal amount of all Bonds then
issuable under this Section;
(e) a Certificate of Available Net Property Additions;
(f) an Accountant's Certificate to the effect that the said
Certificate of Available Net Property Additions accurately states the
figures in prior Certificates which are reflected therein; stating
the Cost of all Property Additions referred to in Item B of the said
Certificate and that the Cost thereof has been compiled in said
Certificate in accordance with the definition of Cost contained
herein; that said Property Additions have not theretofore been Made
the Basis for Action or Credit hereunder; stating that the Property
Retirements referred to in Item D of said Certificate include all
Property Retirements required to be reflected on the books of the
Company pursuant to the provisions hereof and that all Property
Retirements so included are such within the definition thereof
contained herein, and that the Cost thereof has been compiled in said
Certificate in accordance with said definition of Cost; in the event
that any securities or other property have been included in the Cost
of any Property additions includable in said Accountant's Certifi-
cate, brief describing said securities or said other property and
stating the date of delivery or transfer thereof; in the event that
any of said Property Additions when required were subject to a prior
lien or were subjected thereto at the time of acquisition, stating
that such prior lien has been discharged, the principal amount of the
indebtedness secured thereby on the date of its acquisition by the
Company, the aggregate amounts (exclusive of premium or interest)
expended by the Company in discharge of said indebtedness or release
of said Property Additions from said lien, and the date or dates when
the indebtedness was paid and said lien released; in the event that
any of said Property Additions were acquired by the issue or
assumption by the Company of any unsecured indebtedness, the amount
thereof at the time of the signing of said Certificate; and in the
event that any of said Property Additions were acquired without the
payment of cash, property, or securities, or the issue, assumption,
or payment of indebtedness, describing in reasonable detail any such
Property Additions and the manner in and the time as of which the
Fair Value thereof was determined; and in the event that said
Property Additions include any electrical utility system or systems,
stating the extent to which Cost includes any part of the Cost of any
rights and intangible property and whether, in his opinion, any
included item is reasonable and proportionate, and, if not, the
extent of the inclusion which is either disproportionate or
unreasonable, and further stating that Cost does not include any
value based on going concern value or good will;
(g) an Engineer's Certificate describing in reasonable detail
all Property Additions referred to in Item B of the aforesaid Cer-
tificate of Available Net Property Additions and stating that all
said Property Additions are Fundable Property within the definition
thereof contained herein and are desirable for use in the proper
conduct of the business of the Company; stating the Fair Value of
said Property Additions and that the Fair Value thereof has been
determined in accordance with the definition of Fair Value contained
herein;
(h) Commission Orders to the extent required by law;
(i) an Earnings Certificate; and
(j) an Opinion of Counsel to the effect that all corporate
action prerequisite or necessary for the authorization, execution,
issue, sale or other disposition, and delivery of the Bonds, and the
execution and delivery of the Supplemental Indenture, has been duly
and properly taken, or, if no action by stockholders is necessary
therefor, stating such fact; that the Property Additions described in
Item B of the Certificate of Available Net Property Additions are
Fundable Property within the definition thereof contained herein;
that in case any such Property Additions shall be acquired or con-
structed in connection with any hydro-electric works, for the main-
tenance and operation of which the Company has not obtained a license
under the Federal Power Act, or other similar legislation, and no
proceedings shall then have been instituted by any governmental
authority having jurisdiction to require the Company either to apply
for such a license or to remove such hydro-electric works, it shall
be a sufficient compliance with the requirement of this subparagraph
(j) as to the Company's power and right to operate under the Federal
Power Act, or similar legislation, for such Opinion of Counsel to
state the circumstances as to such situation and that in his opinion
based thereon either there is no reasonable ground for believing that
such a license upon reasonable terms would not be issued, whenever
application therefor should be made, or there is no legal necessity
for obtaining such a license; that the Commission Orders furnished
to the Trustee are proper and legal, and order, consent to, permit
and authorize to the full extent required by law the issue, sale, or
negotiation of the said Bonds (or that no, or no other, Commission
Orders are required by law); that all conditions hereof precedent to
the issue of said Bonds (including any covenants hereof compliance
with which constitutes a condition precedent) have been complied
with; that said Bonds when delivered by the Company will be in all
respects valid and enforceable obligations of the Company in
accordance with their terms and entitled to the benefit and security
of this Indenture; that the aggregate principal amount of said Bonds
then to be issued under this Section does not exceed the aggregate
principal amount then issuable under this Section; and that upon the
issue of said Bonds the aggregate principal amount of Bonds issued
hereunder and then Outstanding will not exceed the amount permissible
hereunder and permissible by law; and that all recording and filing
in respect of said Supplemental Indenture necessary for the security
of any and all of said Bonds has been or will be completed.
If the Property Additions shall include any property which, within
six (6) months prior to the date of acquisition thereof by the Company, 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 if the Fair Value to the Company of such property is
not less than twenty-five thousand dollars ($25,000) and not less than one
(1) percentum of the aggregate principal amount of the Bonds then
Outstanding hereunder, the Company shall also file an Independent
Engineer's Certificate stating the Fair Value to the Company of such
property and of any other such property so used or operated which, since
the commencement of the then calendar year, has been subjected to the Lien
of this Indenture as the basis for the certification and delivery of Bonds,
the withdrawal of cash constituting a part of the trust estate, or the
release of property subject to the Lien of this Indenture, and as to which
an Independent Engineer's Certificate has not previously been furnished.
3.09 Bonds issued pursuant to 3.03, 3.04, 3.05 or 3.08 may be issued
in whole or in part as a single separate series, or in several series, each
such series bearing such alphabetical designation as will distinguish it
from all other series issued hereunder, and Bond issued under 3.03 may be
issued in whole or in part with and as a part of and under the same
designation as that of any other series of Bonds, other than the 2.95%
Bonds, issued contemporaneously therewith or prior thereto.
ARTICLE IV.
Particular Covenants of the Company
The Company hereby covenants and agrees with the Trustee and with the
respective bearers and owners of the Bonds issued hereunder as follows:
4.01 That the Company will duly and punctually pay the principal of,
and interest on, and premium, if any, upon, all the Bonds at any time
issued hereunder, according to the terms thereof; that the interest on all
coupon Bonds shall until the maturity of such Bonds be payable only upon
presentation and surrender of the several coupons for such interest as they
respectively mature. The interest on fully registered Bonds shall be paid
to or upon the order of the registered owners thereof. Except as provided
in 2.13, the principal of each Bond shall be payable only upon the
presentation and surrender of the Bond. The Company prior to each date on
which the principal of and any premium or interest on any of the Bonds
shall become due and payable, whether at the date of maturity thereof, by
call for redemption, by declaration, or otherwise, will deposit or cause to
be deposited with the Trustee (with arrangements for transfers of such
deposits between the Trustee and any paying agent, if a paying agent shall
be hereafter appointed) the full amount necessary to make such payment.
When and as paid in full, all Bonds and all coupons shall be surrendered to
and Cancelled by the Trustee and thereafter delivered to the Company upon
its written request.
Except as otherwise provided in 15.02, moneys deposited with the
Trustee or with any paying agent appointed pursuant to the terms of any
Supplemental Indenture for the purpose of paying the principal of or
interest (or premium, if any) on any Bonds issued under this Indenture
shall constitute a trust fund for such purpose and for no other purpose
whatever, subject to the provisions of 13.09.
4.02 That so long as Bonds duly issued hereunder shall remain
Outstanding and unpaid, the Company will not directly or indirectly extend
or consent to the extension of the time for the payment of any coupon or
claim for interest of or upon any Bond, and will not, directly or
indirectly, become a party to any such extension or approve any arrangement
therefor, either by purchasing or refunding or in any manner keeping alive
any such interest coupon or claim for interest or otherwise; that in case
the payment of any such interest coupon or claim for interest shall be so
extended or kept alive by, or with or without, the consent of the Company,
or in case any such coupon or claim for interest shall in any way at or
after maturity have been transferred or pledged, separate or apart from the
Bond to which it relates, then, anything in this Indenture contained to the
contrary notwithstanding, any such interest coupon or claim for interest so
extended or kept alive or so transferred or pledged shall not be entitled,
in case of a default hereunder, to any benefit of or under this Indenture
except after the prior payment in full of the principal of the Bonds
Outstanding hereunder and of all coupons and claims for interest not so
transferred, pledged, kept alive, or extended.
4.03
(a) That whenever necessary to avoid or fill a vacancy in the
office of the Trustee, the Company will, in the manner provided in
13.18 hereof, appoint a Trustee so that there shall at all times be a
Trustee hereunder, which shall at all times be a bank or trust
company having its principal office and place of business in the City
of Boston, Massachusetts, if there be such bank or trust company
willing and able to accept the trust upon reasonable or customary
terms, and which shall at all times be a corporation organized and
doing business under the laws of the United States or any State or
Territory or of the District of Columbia with a combined capital and
surplus of at least five million (5,000,000) dollars and authorized
under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, Territorial, or
District of Columbia authority.
(b) That the Company will register, transfer, and/or exchange at
the principal office of the Trustee, (and at such other offices or
agencies of the Trustee or the Company as may be specified in the
Bonds and in any Supplemental Indenture securing them, or as may
hereafter be established or maintained in order to comply with any
requirements to that end contained in any regulations of any stock
exchange on which the Bonds issued hereunder may hereafter be listed
on application of the Company) any 2.95% Bonds (and any Bonds of any
other series issued hereunder and entitled by the provisions thereof
or hereof to registration, transfer, and/or exchange, at said office
or said offices) when presented for that purpose pursuant to the
provisions of said 2.95% Bonds (or said Bonds of any other series)
and of this Indenture; and that the Company will maintain any such
office or agency, at which any such Bonds may be presented for
registration, transfer, and/or exchange, and at which such Bonds and
the coupons or claims for interest appertaining thereto may be
presented for payment and at which notices or demands in respect of
said Bonds, coupons, or claims for interest may be served pursuant to
any provision therefor contained in any of said Bonds or in this
Indenture; and that the Company will file with the Trustee notice in
writing of the location, and of any change in location, of any such
office or agency; and that in case the Company having once
established any such office or agency shall fail to maintain the
same, or shall fail to give notice of the location or change of the
location thereof, then presentation and demand may be made and
notices may be served at the office of the Trustee.
(c) That if the Company shall appoint a paying agent other than
the Trustee, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which it shall agree, subject to the
provisions of this Section, (1) that such paying agent shall hold in
trust for the benefit of the Bondholders entitled thereto, or the
Trustee, all sums held by such paying agent for the payment of the
principal of or interest on the Bonds (and premium, if any) and
(2) that such paying agent shall give the Trustee notice of any
default by the Company or any other Obligor on the Bonds in the
making of any deposit with it for the payment of the principal of or
interest (and premium, if any) on the Bonds, and of any default in
the making of such payment. While the Trustee shall be a paying
agent the Trustee shall hold in trust, as provided in 4.01, for the
benefit of the Bondholders entitled thereto all sums held by it as
such paying agent for the payment of the principal of or interest on
the Bonds.
(d) That if the Company shall act as its own paying agent, it
will, on or before each due date of each instalment of principal of
or interest on the Bonds set aside and segregate and hold in trust
for the benefit of the Bondholders entitled thereto or for the
Trustee a sum sufficient to pay such principal or interest so
becoming due on the Bonds (and premium, if any) and will notify the
Trustee of such action or of any failure to take such action.
(e) Anything in this Section to the contrary notwithstanding,
the Company may at any time, for the purpose of obtaining a release
or satisfaction of this Indenture or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by it or any
paying agent as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
(f) Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is
subject to the provisions of 15.02.
(g) That for the purpose of registering, transferring, and/or
exchanging Bonds the Company will maintain Old Colony Trust Company
or its successor as Trustee hereunder as Registrar of the Bonds
issued hereunder.
4.04 That the Company will duly pay and discharge, or cause to be
paid and discharged, as the same shall become due and payable all taxes,
water rates, assessments, and governmental and other charges lawfully
levied, imposed, or assessed upon the Mortgaged Property or any part
thereof or upon or measured by the franchises, business, or income of the
Company, and will duly observe, and conform to all valid requirements of
any governmental authority relative to any part of the Mortgaged Property,
and will not suffer any mechanics', laborers', statutory, or other lien to
be hereafter created upon any part thereof now owned or hereafter acquired,
or the income therefrom, prior to the Lien hereof, except Permitted
Encumbrances; provided however that the acquisition and ownership by the
Company of property hereafter acquired subject to mortgage or other lien,
whether existing at the time of acquisition or contemporaneously created to
secure a part of the purchase price thereof to the extent permitted by
4.10, or the refunding or extension thereof, shall not be deemed a viola-
tion of the foregoing covenant, but no such property shall be Made the
Basis for Action or Credit hereunder unless the mortgage or other lien to
which it shall have been subject has theretofore been or is
contemporaneously discharged; and provided further that nothing in this
Section contained shall require the Company to pay, acquire, or make
provision for any tax assessment, lien, or charge so long as the Company in
good faith and by appropriate legal proceedings shall contest the validity
thereof, unless thereby any of the Mortgaged Property will be lost or
forfeited.
That the Company will duly and punctually perform all the conditions
and obligations imposed on it by the terms of any lien upon its property
acquired after the date of execution of these presents, and will not permit
any default in any such obligation if thereby the protection afforded by
this Section be materially impaired or endangered.
4.05 That the Company will keep or cause to be kept all the Mortgaged
Property of a character usually insured by companies similarly situated
insured against loss or damage by fire and against such other risks as such
property is usually insured against and in such amounts as such property is
usually insured for by companies similarly situated, either by means of
policies issued by reputable insurance companies, or, at the Company's
election, with respect to all or any part of the property by means of an
adequate insurance fund set aside and maintained by it out of its own
earnings, or, in conjunction with other companies through an insurance
fund, trust, or other agreement (the adequacy of such insurance fund,
trust, or other agreement to be evidenced by a certificate, to be filed
with the Trustee, of an actuary or other person selected by the Board of
Directors or the Executive Committee of the Company and satisfactory to the
Trustee in the exercise of reasonable care), the loss if any, except to the
person or property of others, and except as to Excepted Property, and
except any loss less than twenty-five thousand (25,000) dollars, to be made
payable to the Trustee as the interest of the Trustee may appear and to be
paid to the Trustee and to be held by it and applied as hereinafter in
8.02, 8.03 and 8.04 hereof provided. As soon as practicable after the
execution of these presents, but not later than December 31, 1954, and
thereafter once in each year, and at any other time upon the written
request of the Trustee, the Company will furnish to the Trustee an
Officers' Certificate to the effect that the Company has complied with the
terms and conditions of this Section, and with the terms and conditions of
all insurance policies, and containing a detailed statement of the
insurance then in effect upon the property of the Company on a date therein
specified (which date shall be within thirty (30) days of the filing of
such Certificate), and, except in respect of property insured by means of
an insurance fund, trust, or other agreement as permitted by this Section,
showing the numbers of the policies of insurance in effect, the names of
the issuing companies, the amounts and expiration dates of such policies,
and the property covered by such policies; and in case any of the property
shall at the time be insured by means of an insurance fund, trust, or other
agreement, as permitted by this Section, the Company shall at the time of
furnishing each such Certificate also furnish to the Trustee a further
Officers' Certificate with respect to the adequacy of such insurance fund,
trust, or other agreement. The Trustee shall, subject to the provisions of
13.02 and 13.03, be entitled to accept any such Officers' Certificate or
further Officers' Certificate, if required, as satisfactory evidence of
compliance by the Company with the provisions of this Section, and shall,
subject to the provisions of 13.02 and 13.03, be under no duty with respect
to any such Certificate or further Certificate except to exhibit the same
to any Bondholder upon request.
If any part of the Mortgaged Property hereafter acquired shall be
subject to a prior lien, purchase money mortgage, or other encumbrance, the
Company may include in any policy of insurance the interest of the holder
of said prior lien, mortgage, or other encumbrance or may provide for his
interest in any such insurance fund, trust, or other agreement, but such
fact and the details of the rights of such holder in said policies or under
such insurance fund, trust, or other agreement shall be set forth in each
Officers' Certificate filed with the Trustee as in this Section heretofore
provided, and in the event that a check for the amount of any loss covered
by insurance on any property subject to such lien, mortgage or other
encumbrance shall be drawn by an insurer payable to the order, among
others, of the Trustee and the holder of such lien, mortgage, or encum-
brance, the Trustee shall endorse said check, without recourse, and deliver
the same, so endorsed, to such holder.
Upon request of the Trustee, the Company shall deliver to it any
policies of insurance upon the Mortgaged Property. If the proceeds of any
insurance on account of any one loss do not exceed the sum of twenty-five
thousand (25,000) dollars, such proceeds, if coming into the hands of the
Trustee, shall be paid by it forthwith to the Company and the Trustee shall
not be obligated to see to the application thereof. In case of any loss
covered by any policy of insurance, any adjustment thereof and settlement
which may be agreed upon by the Company and the insurer or insurers shall
be accepted by the Trustee.
4.06 That the Company, irrespective of any obligation undertaken in
Article VI hereof, will at all times maintain, preserve, and keep its
Mortgaged Property as an operating system or systems in good repair,
working order, and condition, and will from time to time make all needful
and proper repairs, replacements, and renewals thereto and thereof.
Nothing in this Section contained shall be held to prevent the Company from
permanently discontinuing the operation of or reducing the capacity of any
of its plants or properties or any part thereof if, in the judgment of the
Board of Directors or the Executive Committee of the Company, any such
action is necessary or desirable in the conduct of the business of the
Company, or, if the Company is ordered so to do by regulatory authority
having jurisdiction over the Company, or, if the Company intends to sell or
dispose of the same, and within a reasonable time shall endeavor to
effectuate such sale; nor shall anything in this Section contained be
construed to prevent the Company from taking such action with respect to
the use of its plants, works, and properties as is proper under the circum-
stances, including the cessation of or omission to exercise rights,
permits, licenses, privileges, or franchises which, in the judgment of the
Company, can no longer be properly exercised or availed of.
4.07 That the Company will, except only as interrupted by causes
beyond its control or except upon compliance with the provisions of
Article XIV, continually conduct and carry on its usual business in an
efficient and proper manner.
4.08 That the Company is duly organized and existing under the laws
of the Commonwealth of Massachusetts and is duly authorized by law to
create and issue the Bonds from time to time issued hereunder and to
execute the Indenture, and that all corporate action on its part for the
creation and issue of the 2.95% Bonds, as herein provided, and for the
execution and delivery of this Indenture has been taken; and that, subject
to the provisions of Article XIV, it will at all times do or cause to be
done all things necessary to maintain its corporate existence and to
preserve and keep in full force and effect all its rights, permits,
licenses, privileges, and franchises, except such as can, in the judgment
of the Company, no longer be properly exercised or availed of.
4.09 That, except as to after-acquired property, the Company is
lawfully seized and possessed of the Mortgaged Property, that it has good
and marketable title thereto; that it has good right and lawful authority
to mortgage the same, as provided in and by this Indenture, free from all
liens and encumbrances except those specified, described or referred to in
the description contained in the granting clauses hereof and in Schedule A;
that it will forever warrant and defend the title to the Mortgaged
Property, including all property at any time intended to be included
therein under the provisions of Clause 4 of the granting clauses of this
Indenture, and every part thereof, to the Trustee, its successors and
assigns, against all claims and demands whatsoever, except such liens and
encumbrances as are specified described or referred to in the granting
clauses hereof or in Schedule A or are otherwise permitted under any of the
provisions hereof; provided that nothing in this Indenture contained shall
prevent the Company from hereafter acquiring any property subject to a
prior lien or purchase money mortgage or other encumbrance of the character
described in 4.10.
That the Company will cause this Indenture and all Supplemental
Indentures to be at all times properly recorded and filed and rerecorded
and refiled in such manner and in such places as may be required by law and
will do such other acts as may be necessary in order fully to preserve and
protect the security of the Bondholders and the rights of the Trustee and
to establish and maintain the superior lien hereof upon the Mortgaged
Property, subject however to the provisos and exceptions in this Section
before set forth and to the provisions of 4.10 and of Article XIV.
That the Company will, upon reasonable request by the Trustee,
execute and deliver such Supplemental Indentures and other instruments and
do such further acts as may be necessary or proper to carry out more
effectually the purposes of this Indenture, especially to subject to the
Lien hereof any property now owned or hereafter acquired by it which it is
herein provided shall be subject to the Lien hereof, and to transfer to any
new trustee the estates, powers, instruments, and funds held in trust
hereunder.
That the Company will furnish to the Trustee:
(a) Promptly after the execution and delivery of this Indenture
and of each Supplemental Indenture or other instrument granting or
confirming to the Trustee title to any of the Mortgaged Property an
Opinion of Counsel either stating that in the opinion of such counsel
this Indenture or such Supplemental Indenture or other instrument has
been properly recorded and filed so as to make effective the Lien
intended to be created 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. It shall be a compliance
with this sub-section (a) if (i) such Opinion of Counsel shall state
that this Indenture or such Supplemental Indenture or other
instrument 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 Indenture or such Supplemental Indenture or other
instrument, and (ii) such Opinion of Counsel is delivered to the
Trustee within such time, following the date of the execution and
delivery of this Indenture, or such Supplemental Indenture or other
instrument, as shall be practicable, having due regard to the number
and distance of the jurisdictions in which this Indenture or such
Supplemental Indenture or other instrument is required to be recorded
or filed;
(b) At least annually after the execution and delivery of this
Indenture, an Opinion of Counsel either stating that in the opinion
of such counsel such action has been taken with respect to the re-
cording, filing, re-recording, and refiling of this Indenture and of
each Supplemental Indenture or other instrument granting or con-
firming to the Trustee title to any of the Mortgaged Property as is
necessary to maintain the Lien thereof, and reciting the details of
such action, or stating that in the opinion of such counsel no such
action is necessary to maintain such Lien. Such opinion shall be
delivered to the Trustee within three (3) months after each
anniversary of the execution and delivery of this Indenture.
4.10 That the Company will not create or suffer any other mortgage,
charge, encumbrance, or lien, of any kind, superior to or on a parity with
the Lien of this Indenture upon any of the Mortgaged Property whether now
owned or hereafter acquired, excepting only those specified, described, or
referred to in the description contained in the granting clauses hereof and
in Schedule A, and, in respect of Mortgaged Property hereafter acquired,
excepting also mortgages or other encumbrances or liens on any part or
portion thereof (including renewals and extensions thereof) whether
existing at the time of the acquisition of such part or portion (and
whether or not the obligations secured thereby are assumed in connection
with such acquisition) or created contemporaneously to secure or to raise a
part of the purchase price thereof, provided however that the total of all
obligations secured by any such mortgage, encumbrance, or lien upon such
part or portion shall not exceed sixty (60) per centum of the Cost thereof
or of the Fair Value thereof, whichever is less, and provided further that
an Earnings Certificate dated not more than sixty (60) days prior to the
acquisition of such part or portion shall be delivered to the Trustee
contemporaneously with said acquisition.
4.11 That the Company will keep proper books of account and records
to which the Trustee or its duly authorized representatives may have access
at all reasonable times; will not charge to its property plant, and
equipment accounts any expenditures which are properly chargeable to
maintenance or repairs or to any other expense account in accordance with
any system of accounting required by law, or by any regulatory or other
public authorities having jurisdiction, to be followed by the Company, or,
in the absence of such requirement, in accordance with sound accounting
practice then current; will promptly charge to the depreciation reserve,
the reserve for contributions to extensions, and/or the surplus account of
the Company all property which has become worn out or become permanently
unserviceable, or has been lost, sold, destroyed, abandoned, surrendered on
lapse of title, or retired from service for any reason, or has permanently
ceased to be used or useful in the business of the Company, except that
property which has been abandoned consequent upon an act of God or other
unavoidable casualty may be retired over a period in accordance with orders
or decrees of any regulatory authority having jurisdiction over the
Company; and will furnish to the Trustee, as soon as practicable after the
close of each fiscal year and in any event not later than one hundred and
twenty (120) days thereafter, an income statement, analysis of surplus and
balance sheet of the Company, for such year, all in such detail as the
Trustee shall require, which shall be certified by an Independent
Accountant, who shall be a certified or public Accountant, and will give to
the Trustee full information pertinent to any provision thereof.
4.12 That the Company in each fiscal year will make entries on its
books charging to current earnings and crediting to depreciation reserve an
amount not less than two and one-tenth percentum (2.1%) of the average of
the beginning and ending balances for such year of the total plant and
equipment (devoted to utility operation) account of the Company, exclusive
of land, flowage rights, rights of way, water rights, and other like
undepreciable real estate and rights in real estate, and of unfinished
construction.
4.13 That the Company will not, except in accordance with the
provisions of Article XIV hereof, sell, convey, transfer, or lease the
Mortgaged Property as a whole or substantially as a whole and no other
person shall, by consolidation, merger, grant lease, or otherwise, be
vested with the title thereto as a whole or substantially as a whole,
except upon compliance with the conditions prescribed in said Article XIV
and the Company will not dispose of any part of the Mortgaged Property not
in the hands of the Trustee except in accordance with the provisions of
Article VII hereof; provided however that nothing contained in this Section
shall prevent the Company from selling, exchanging, or disposing of the
Mortgaged Property in conformity with the provisions of said Article VII or
from demolishing, abandoning dismantling, discontinuing, or retiring parts
of the Mortgaged Property if such action shall seem to the Company to be in
its best interests.
4.14 That so long as any of the 2.95% Bonds shall be Outstanding, the
Company will not on or after August 1, 1954, declare or pay a dividend upon
its capital stock (other than a dividend payable in shares of its capital
stock) or make any other distribution on any shares of its capital stock,
or purchase any shares of its capital stock in an amount or amounts
exceeding the Dividend Fund hereinafter described, as constituted at the
time of the declaration or payment of such dividend or distribution or at
the time of such purchase.
The Dividend Fund shall be computed by adding to
(a) the sum of $2,639,760.58
(b) the net earnings of the Company, determined as hereinafter
defined, for the period, considered as a unit, from January 1, 1954,
to the close of that quarter which last precedes the date of the
declaration of any such proposed dividend or distribution, or date of
such purchase;
and by subtracting from the total thereof
(c) the aggregate amounts theretofore paid out or declared or
agreed to be paid out during said period in respect of such
dividends, distributions, or purchases.
For the purposes of this Section, the net earnings of the Company for
any such period shall be computed on an accrual basis in accordance with
sound accounting practice then current by deducting from the total revenues
for such period the total operating expenses and other proper charges to
income for such period, including (without in any respect limiting the
generality of the foregoing) all taxes, interest on all outstanding
indebtedness, amortization of debt discount and expense, amortization of
all other deferred charges properly subject to amortization, all charges on
the Company's books to expense or income to provide for depreciation and
all charges for maintenance, but excluding any provision for the
Improvement Fund or any Sinking or similar funds for the retirement of debt
and any profits and losses from the sale or other disposition of capital
assets made in said period; provided however that
(1) the charge to earnings and credit to depreciation reserve
for said period shall comply with the provisions of 4.12 hereof,
except that for any period less than a year the charge for such
period shall be apportioned, at a rate which shall not be less than
the annual rate required by 4.12 hereof, on the balance of the depre-
ciable property as described in said Section owned by the Company at
the beginning of said year; and
(2) net earnings shall be adjusted by debits, or credits thereto
which are offset by adjustments of the hydro-equalization reserve of
the Company and, except for said adjustments, net earnings shall not
reflect as revenues or as a deduction from revenues any adjustment
made during such period (whether made through surplus or income
accounts) properly attributable to operations prior to January 1,
1954.
In the event that the Company shall merge or consolidate with any
other corporation or corporations pursuant to Article XIV, the Dividend
Fund shall not be increased or diminished by the surplus or deficit of such
other corporation or corporations or by its or their earnings, dividends,
distributions, or purchases prior to the date of such merger.
4.15 That the Company will not issue or permit to be issued any Bonds
hereunder in any manner other than in accordance with the provisions of
this Indenture, and will not suffer or permit any default to occur under
this Indenture, but will faithfully observe and perform all the conditions,
covenants, and requirements of this Indenture and of the Bonds issued
hereunder; and that on or before July 1, 1955, and on or before July 1 in
each calendar year thereafter, or on or before such other day in each
calendar year as the Company and the Trustee may from time to time agree
upon it will deliver to the Trustee an Officers' Certificate in respect of
compliance or non-compliance by the Company with the covenants contained in
sections 4.01, 4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15, 4.17, 6.01 and 8.03 (a), (b), (c) and (d).
4.16 That if the Company shall fail to perform any of the covenant
contained in sections 4.04, 4.05, and 4.06, the Trustee, or any receiver or
trustee appointed hereunder pursuant to the laws of the United States
relating to bankruptcy, may (but subject to 13.02 and 13.03 hereof shall
not be required to) make advances to perform the same in behalf of the
Company; and the Company hereby agrees to repay all sums so advanced on
demand, with interest at the rate of four (4) percentum per annum after
demand, and all sums so advanced, with interest as aforesaid, shall be
secured hereby in priority to the indebtedness evidenced by said Bonds and
coupons; but no such advance shall be deemed to relieve the Company from
any default hereunder.
4.17 That in every Certificate of Available Net Property Additions
filed with the Trustee for any purpose under this Indenture, all Property
Additions, and all Property Retirements, the Cost or Fair Value of which is
included in any such Certificate will comply with the definition herein of
Property Additions and Property Retirements, respectively; that the Cost
and Fair Value of all such Property Additions and the Cost of all such
Property Retirements will be compiled in accordance with the definitions
herein of Cost and Fair Value respectively; that no property which is not
Fundable Property will be included in Item A or Item B of any such
Certificate; and that no Property Additions which have once been Made the
Basis for Action or Credit hereunder will thereafter be Made the Basis for
Action or Credit hereunder, provided however that property at any time
subject to the Lien hereof consisting solely of materials or supplies
usable as components in the construction of electric utility or steam
plant, and which has once been Made the Basis for Action or Credit
hereunder may again be Made the Basis for subsequent Action or Credit
hereunder when restored to service if it shall in the meantime have been
retired from service and the Cost thereof (less any credit for salvage
value actually received) shall then have been charged to the depreciation
reserve, the reserve for contributions to extensions, or to the surplus
account of the Company and such charge shall have been reflected in Item D
of any Certificate of Available Net Property Additions filed with the
Trustee pursuant to the provisions of 3.06, 3.08, 6.02(b) or 8.03(b).
ARTICLE V.
Redemption of Bonds
5.01 Subject to the provisions of 5.06, all or any part of any series
of the Bonds Outstanding hereunder or any part of the principal amount of
any such fully registered Bond constituting one thousand dollars ($1,000)
or a multiple thereof may, at the election of the Company to be exercised
by resolution of its Board of Directors or of its Executive Committee, be
called for redemption and prepayment at any time, or from time to time,
upon not less than thirty (30) days' prior Notice, at a redemption price in
respect of each Bond or part thereof so called for redemption set forth in
said Bond and in respect of the Bonds of any series other than the 2.95%
Bonds in the Supplemental Indenture securing such Bonds. In respect of the
2.95% Bonds the redemption price shall consist of the principal amount
thereof or if less than the principal amount of a fully registered Bond
shall be called then the principal amount so called, together with interest
accrued thereon to the date filed for redemption, and (unless redeemed in
the twelve months' period ending September 30, 1973) with a premium equal
to the percentage of said principal amount hereinafter set forth:
If redeemed on or at any time prior to September 30, 1956, 2-1/2%
If redeemed thereafter and on or at any time prior to September 30, 1960,
2%
If redeemed thereafter and on or at any time prior to September 30, 1964,
1-1/2% If redeemed thereafter and on or at any time prior to September 30,
1968, 1%
If redeemed thereafter and on or at any time prior to September 30, 1972,
1/2%
5.02 Unless otherwise specifically provided in a Supplemental
Indenture relating to a subsequent series of Bonds issued hereunder, the
prior notice of the call for redemption of any Bonds issued hereunder shall
consist of a Published Notice published not less than once a week in each
of three successive weeks, the first publication to be at least thirty (30)
days before the date set for redemption, and by mailing, at least thirty
(30) days prior to the date set for redemption, by registered mail, postage
prepaid, to the registered owners of all fully registered Bonds and to the
registered owners of all coupon Bonds registered as to principal which have
been called for redemption, a copy of said notice, provided however that if
at any time not more than forty-five (45) and not less than thirty (30)
days prior to the date set for redemption the entire issue of 2.95% Bonds
then Outstanding shall be in fully registered form, notice by publication
as aforesaid may be dispensed with. Unless all the said 2.95% Bonds then
Outstanding shall be in fully registered form, failure by the Company to
give such notice by mail, as aforesaid, shall not invalidate or affect the
validity of the redemption proceedings. The notice aforesaid shall state
the redemption price, the date set for redemption, the place of payment
(which shall be the principal office of the Trustee and shall include any
paying agent if the Company shall appoint one or more paying agents
pursuant to the provisions of 4.03), and, in case of the redemption of a
part only of any series of Bonds including said 2.95% Bonds, the numbers of
the particular Bonds so called for redemption and payment, and if less than
the whole principal amount of any fully registered Bond shall be so
redeemed, the number of each fully registered Bond so called only in part,
and the portion of the principal amount thereof so called, and in such last
event stating also that, upon presentation of each such fully registered
Bond for redemption, there will be issued in lieu of the unredeemed portion
of the principal amount thereof one or more Bonds of the series so-called
for redemption in coupon or in fully registered form, for an aggregate
principal amount equal to such unredeemed portion. Said notice shall also
state that if the redemption price of all Bonds, or parts thereof, called
for redemption shall be duly provided by the Company, from and after the
redemption date interest shall cease to accrue thereon, coupons, if any,
appertaining thereto thereafter maturing shall be void, and the bearers or
registered owners thereof shall look for payment thereof solely to the
money so provided by the Company. If the Company shall have provided for
immediate prepayment pursuant to the provisions of 5.05, the notice shall
also state the full terms of such right of prepayment. In case of the
redemption of less than all the Bonds of any series, including the 2.95%
Bonds, the Company shall, at least fifteen (15) days prior to the date upon
which the notice is first required to be given, notify the Trustee in
writing of the aggregate principal amount of said Bonds to be redeemed and
furnish to it an Officers' Certificate pursuant to the provisions of 5.06,
and thereupon the Trustee shall draw by lot, in such manner as it shall
deem proper, the Bonds (or the portion of a fully registered Bond) to be so
redeemed and shall, within seven (7) days after receiving such notice from
the Company, notify the Company in writing of the numbers so drawn (and in
the case of the partial redemption of a fully registered Bond the amount to
be redeemed), and the Company shall insert such numbers and such amounts,
if any, in the notice, provided however that in respect of a partial
redemption of the 2.95% Bonds such determination of the particular Bond or
Bonds to be redeemed may be made in accordance with the provisions of any
agreement, satisfactory to the Trustee, to which the registered holders of
all the 2.95% Bonds then Outstanding are parties.
5.03 Any election of the Company to redeem the Bonds of any series,
including the 2.95% Bonds, may be rescinded by the Company at any time
prior to the first publication of the said notice or the mailing thereof to
the holders of Bonds, either fully registered or registered as to principal
only.
5.04 At least three (3) days prior to the date set for redemption and
payment of any Bonds, the Company shall deposit with the Trustee, in coin
or currency of the United States of America which at the time of such
deposit shall be legal tender for the payment of public and private debts,
a sum of money which, together with so much of any moneys then held by the
Trustee as a part of the Mortgaged Property under 8.02 as may be available
hereunder for such redemption and as the Company may desire to apply to the
redemption of said Bonds, shall be sufficient to redeem all the Bonds so
called for payment at the redemption price thereof. If the Company shall
deposit and/or apply such sum of money, and if notice as provided in 5.02
or in any Supplemental Indenture shall have been duly given, then on and
after the date set for redemption Bonds so called shall be paid by the
Trustee (or in the event that the Company shall have appointed one or more
paying agents pursuant to the provisions of 4.03 by any such paying agent,
and the Trustee shall make necessary arrangements for transfer of funds so
that each paying agent shall be enabled to make payment) upon presentation
and surrender of such Bonds with all unmatured coupons, if any,
appertaining thereto attached, and if any such Bonds be in fully registered
form or be registered as to principal, accompanied by instruments of
assignment in form satisfactory to the Trustee (or to any paying agent
making the payment) duly executed by the registered owner or by his duly
authorized attorney and in the event that less than the entire principal
amount of any fully registered Bond shall be called for redemption, the
Company shall issue and the Trustee shall certify and deliver one or more
Bonds of the same series in coupon or in fully registered form for an
aggregate principal amount equal to the uncalled and unpaid remainder of
the principal amount of each such fully registered Bond so presented and
surrendered for partial redemption; provided however that at the request of
the Company the Trustee may prepay Bonds so called for redemption on such
terms as the Company may determine by resolution of its Board of Directors
or Executive Committee. All Bonds redeemed and paid as aforesaid shall be
forthwith Cancelled by the Trustee.
The money so deposited with the Trustee and so much of the moneys
held by the Trustee as a part of the Mortgaged Property under 8.02 as shall
be applied by the Company to the payment of the redemption price of Bonds
called for redemption shall be held by the Trustee, subject to the
provisions of 13.09, from and after the date when notice by publication
shall first have been given, or if the Trustee shall have been given
irrevocable power of attorney to give such notice by publication pursuant
to the provisions of 5.05, then from the moment of the delivery of said
power of attorney to the Trustee, in trust for the exclusive benefit of the
bearers and registered owners of the Bonds so called or to be called for
redemption.
5.05 Upon deposit of the redemption price of the 2.95% Bonds as
aforesaid or of the redemption price of Bonds of any other series made
pursuant hereto and if notice as provided in 5.02 or in any Supplemental
Indenture shall have been duly given, said Bonds shall no longer be
entitled to the benefit and security of this Indenture, and from and after
the date set for redemption all Bonds, or parts thereof, so called for
redemption shall cease to bear interest, the coupons, if any, appertaining
thereto thereafter maturing shall be void, the Company shall be under no
further liability in respect of the principal of, or premium, if any, or
interest on, said Bonds, or the called parts thereof, and the bearers or
registered owners thereof shall look for payment of their Bonds, or the
called parts thereof, solely to the money on deposit with the Trustee,
provided however that if there shall have been deposited with the Trustee
all sums necessary to redeem and pay all Bonds Outstanding irrespective of
series, or all Bonds Outstanding of any one or more series but not of all
series Outstanding, in either case at the full redemption price or prices
current at a future date for redemption and payment therefor set by
resolution of the Board of Directors or the Executive Committee of the
Company, and if all other sums due or to become due to the Trustee shall
have been paid or duly provided for to its satisfaction, and if the Trustee
shall have been duly and legally given irrevocable power or powers of
attorney in form satisfactory to the Trustee to call all said Bonds
Outstanding, or all said Bonds Outstanding of any one or more series, as
the case may be, in full conformity with any and all provisions hereof
relating to call and redemption, and if said resolution shall provide that
the bearers and registered owners of the Bonds to be redeemed may receive
payment of the redemption price, including accrued interest to the
redemption date, from and after the moment when all said sums have been
deposited and said power or powers of attorney have been delivered to the
Trustee, then from said moment the Company shall be under no further
liability in respect of said Bonds or the Bonds of said series as the case
may be, said Bonds or the Bonds of said series, as the case may be, shall
no longer be entitled to the security and benefit of this Indenture, and
the bearers or registered owners thereof shall look for payment of their
Bonds solely to the money so on deposit with the Trustee and in no event to
the Company, but said Bonds or the Bonds of said series shall still bear
interest to the date set for redemption, and only coupons, if any, apper-
taining thereto maturing after said redemption date shall be void.
5.06 The Company covenants with the Trustee and with the respective
bearers and registered owners of the Bonds issued and to be issued
hereunder that it will not call for redemption less than all the Bonds
Outstanding hereunder if it shall then be in default in the payment of the
principal of or interest on any Bonds Outstanding hereunder, or in the
performance of the covenants contained in 6.01, or in covenants of like
character or imposing a Sinking Fund obligation or the obligation of a
Maintenance and Renewal Fund or Improvement Fund or any analogous fund
established pursuant to a Supplemental Indenture for the benefit of Bonds
issued hereunder of a series other than the 2.95% Bonds. An Officers'
Certificate to the effect that no one of such defaults then exists shall be
filed with the Trustee as provided in 5.02.
5.07 The Company may, in connection with the authorization and issue
of any series of Bonds hereunder other than the 2.95% Bonds, provide for
the redemption and prepayment of the Bonds of any such series at such
premiums, on such notice, and on such other terms and conditions as the
Company may, subject to the terms hereof, determine, subject to the
provisions of 5.06 and 5.06 and to the approval of the Trustee in respect
of any and all provisions relating to moneys in its hands.
ARTICLE VI.
Improvement Fund
6.01 The Company covenants that so long as any 2.95% Bonds are
Outstanding hereunder it will on the first day of November, 1954, and on
the first day of November in each calendar year thereafter pay to the
Trustee the sum of one hundred and ten thousand dollars ($110,000), as an
Improvement Fund to be held and applied by the Trustee pursuant to the
terms of 6.03; provided however, that the Company may, at its option,
irrevocably allocate, upon filing the application and other documents
described in 6.02, Net Property Additions towards the satisfaction of the
obligation aforesaid in an amount equal to sixty percentum (60%) of the
Available Net Property Additions as set forth in Item G of the Certificate
of Available Net Property Additions filed in connection with said
application.
6.02 For the purpose of determining the amount of money, if any, to
be paid to the Trustee pursuant to the provisions of 6.01, the Company
shall file with the Trustee on or before each said first day of November
the following:
(a) an application consisting of an Officers' Certificate
conforming to the requirements of 17.02 substantially in the
following form:
WESTERN MASSACHUSETTS ELECTRIC COMPANY
To Old Colony Trust Company, Trustee
under Indenture dated as of August 1, 1954.
Improvement Fund Application
filed November , 19
In conformity with the provisions of Article VI of the above de-
scribed Indenture providing for an annual Improvement Fund in the amount of
$110,000 for the benefit of the holders or registered owners of the First
Mortgage Bonds, Series A, 2.95%, due October 1, 1973, of the aforesaid
Company issued under the aforesaid Indenture, we hereby certify that the
sum of $110,000 is due at this time from the Company to you as Trustee as
aforesaid on account of said Improvement Fund obligation now due and
payable.
(If irrevocable allocation of Net Property Additions is in full
satisfaction of the Improvement Fund obligation then current, the
following should be used)
Application is hereby made irrevocably to allocate in the amount of
$183,333.34 the Available Net Property Additions set forth in Item G of the
accompanying Certificate of Available Net Property Additions in full
satisfaction of said obligation.
(If in partial satisfaction, the following should be used)
Application is hereby made irrevocably to allocate Net Property
Additions shown in the accompanying Certificate of Available Net Property
Additions, in partial satisfaction of said obligation, by application of an
amount equal to sixty percentum (60%) of the Available Net Property
Additions set forth in Item G of said Certificate, the balance of $
being transmitted herewith in cash in full satisfaction of said obligation.
(If there is no allocation of Net Property Additions the follow-
ing should be used)
The sum of $110,000 is transmitted herewith in cash in full satis-
faction of said obligation.
__________________________________
Office held
__________________________________
Office held
(b) if irrevocable allocation of any Net Property Additions be
made
(1) a Directors Resolution authorizing the execution of a
Supplemental Indenture in form satisfactory to the Trustee
conveying, transferring and/or assigning to the Trustee all
Fundable Property not previously so conveyed, transferred and/or
assigned;
(2) said Supplemental Indenture duly executed by the Com-
pany, and if necessary by the Trustee, in as many counterparts
as the Trustee shall require;
(3) a Certificate of Available Net Property Additions;
(4) an Accountant's Certificate similar, except for
necessary variations, to the Accountant's Certificate described
in subparagraph (f) of 3.08;
(5) an Engineer's Certificate similar, except for necessary
variations, to the Engineer's Certificate described in
subparagraph (g) of 3.08;
(6) an Opinion of Counsel to the effect that the amount of
the Improvement Fund obligation then due is correctly stated in
said application, and that the documents described in this
Section and/or the sum of money paid to the Trustee pursuant to
this Section fully satisfy the liability of the Company upon the
Improvement Fund obligation then due and if any Fundable
Property be conveyed, assigned, and/or transferred to the
Trustee, that all corporate action prerequisite or necessary for
the execution and delivery of the Supplemental Indenture has
been taken; that the Property Additions described in Item B of
said Certificate are Fundable Property within the definition
thereof contained herein; and that all recording and filing in
respect of said Supplemental Indenture necessary for the
security of any and all Bonds has been or will be completed.
The Company shall also pay to the Trustee with the documents
aforesaid the sum of money, if any, set forth in the said
application.
6.03 If at the close of the first day of November, 1954, and of the
first day of November in any calendar year thereafter, there shall be in
the hands of the Trustee any cash paid to the Trustee pursuant to the
provisions of 6.02, in the aggregate amount of five thousand dollars
($5,000) or more, said cash shall be set aside by the Trustee for the call
and redemption of 2.95% Bonds then Outstanding and the Trustee, on behalf
of and in the name of the Company and at the Company's expense, shall call
for redemption on or prior to the next succeeding thirty-first day of
December, at a redemption price in respect of each Bond so called for
redemption consisting of the principal amount thereof and interest accrued
thereon to the date fixed for redemption, 2.95% Bonds to a principal amount
sufficient (exclusive of accrued interest) to exhaust as nearly as may be
the cash so set aside. Notice to bearers or registered owners of the 2.95%
Bonds called for redemption under this Section shall be given in the manner
provided in 5.02 hereof and such 2.95% Bonds shall be presented for
payment, and paid, in the manner provided in 5.04 hereof; the particular
2.95% Bonds to be redeemed shall unless they shall include all the 2.95%
Bonds then Outstanding, be chosen by lot as provided in 5.02; provided
however that the determination of the particular 2.95% Bond or Bonds to be
redeemed may be made in accordance with the provisions of any agreement,
satisfactory to the Trustee, to which the registered holders of all the
2.95% Bonds then Outstanding are parties; and the provisions of 5.05 hereof
shall be applicable to the redemption of such 2.95% Bonds and all matters
related thereto.
The Company shall reimburse the Trustee, forthwith upon its request,
for all sums paid or to be paid out as interest upon 2.95% Bonds redeemed
pursuant to the provisions of this Section.
6.04 The Company may, in connection with the authorization and issue
of any series of Bonds hereunder other than the 2.95% Bonds, establish for
the benefit of such other series of Bonds any Sinking Fund, Maintenance and
Renewal Fund, Improvement Fund, or analogous fund, with such terms and
conditions in respect of the amount, character, and description thereof as
the Company may, subject to the terms hereof, determine, subject however to
the approval of the Trustee in respect of any and all provisions relating
to money in its hands.
ARTICLE VII.
Possession, Use, and Release of Mortgaged Property
7.01 Unless and until one or more of the events of default specified
in 9.01 shall have occurred and the Trustee shall have taken action
authorized in such case by Article IX hereof, and after any such event of
default so occurring shall have been cured or waived pursuant to the
provisions of said Article IX, then, until the re-occurrence of an event of
default and the taking of said action by the Trustee consequent thereon the
Company shall be suffered and permitted to possess, use, and enjoy the
Mortgaged Property (other than any money, choses in action, or other
personal property deposited with or required to be deposited with the
Trustee under any provision hereof) and to operate its plants and
transmission and distribution systems with the franchises, rights, and
privileges appertaining thereto, and to receive and use the rents,
revenues, issues, earnings, income, products, and profits thereof, in-
cluding interest or dividends on or other income from purchase money or
other obligations, stocks, or other securities held by the Trustee, with
power in the ordinary course of business freely and without let or
hindrance on the part of the Trustee or of the Bondholders to alter,
repair, add to, and change the location of any of its plants, buildings,
works, structures, transmission and distribution systems, or any part or
portion thereof, and the appliances appertaining to or used in connection
therewith, and to replace or renew any of its equipment, machinery, or
other property, whether any of the same shall now be constructed or owned
or shall be hereafter constructed or acquired by the Company.
7.02 Unless and until one or more of the events of default specified
in 9.01 shall have occurred and the Trustee shall have taken action
authorized in such case by Article IX hereof, and after any such event of
default so occurring shall have been cured or waived pursuant to the
provisions of said Article IX, then, until the re-occurrence of any event
of default and the taking of said action by the Trustee consequent thereon,
the Company may at any time and from time to time without any release,
consent, or other action by the Trustee
(a) in the ordinary course of business demolish, dismantle, tear
down, or abandon any part of the Mortgaged Property which has become
old, worn out, unserviceable, undesirable, or unnecessary for use in
the conduct of the Company's business;
(b) sell, exchange, or otherwise dispose of, free from the lien
of this Indenture, any poles, fractional interests in poles,
machinery, equipment, apparatus, tools, or other tangible property,
subject to the Lien of this Indenture, which shall have become old,
worn out, unserviceable, undesirable, or unnecessary for use in the
conduct of the Company's business, provided that the Company shall
within a reasonable time thereafter replace the same with, or sub-
stitute for the same, new poles, fractional interests in poles,
machinery, equipment, apparatus, tools, or other tangible property,
not necessarily of the same character, or located in the same place
or physical position, but of a value at least equal to that of the
property so sold, exchanged, or disposed of, which shall, without
further action by the Company or the Trustee, be and become subject
to the Lien hereof;
(c) cancel, surrender, terminate, release, abandon, or make
changes, amendments, or alterations in, or substitutions for, any and
all contracts, leases, easements or rights of way, grants, locations,
permits, licenses, franchises, consents, agreements concerning
fractional interests in any poles in which the Company has or shall
have such interest, or similar rights; provided that such action is
necessary, desirable, or advisable in the conduct of the business of
the Company;
(d) grant or convey easements or rights of way or of passage
over, on, or in respect of any part of the Mortgaged Property, in-
cluding the right to grant fractional interests in any poles of the
Company and the right to the joint use with the Company of such
interests by the grantee, provided that such grant or conveyance will
not materially impair the usefulness of such part or any other part
of the Mortgaged Property in the conduct of the business of the
Company;
(e) lease any of the Mortgaged Property which shall be, in the
opinion of the Company as evidenced by a Directors' Resolution,
neither essential nor desirable for the operation of any of the
Mortgaged Property, and such lease may provide that it shall remain
in force and effect even after the happening of an event of default
hereunder, and if it so provides and also provides against any
anticipation of rental payments, it shall have such force and effect;
(f) cut and sell, and license others to, and remove standing
timber of any sort upon any land forming part of the Mortgaged
Property.
(g) make and enter into such indentures and agreements as the
Company shall consider necessary, desirable, or advisable in the
conduct of its business, in modification or extinguishment of
existing indentures and agreements with other parties under which
such other parties now have the right to draw and use water from the
canal of the Company at Turners Falls in the Town of Montague;
In the event that as a result of action taken by the Company under
subsection (b) of this Section any Fundable Property shall be acquired by
the Company, it shall be subject to the Lien of this Indenture and if the
Trustee shall so request in writing, shall be forthwith conveyed,
transferred, or assigned to the Trustee in the manner substantially similar
except for necessary variations to that provided in sub-paragraphs (1), (2)
and (6) of 6.02(b).
7.03 Unless and until one or more of the events of default specified
in 9.01 shall have occurred and the Trustee shall have taken action
authorized in such case by Article IX hereof, and after any such event of
default so occurring shall have been cured or waived pursuant to the
provisions of said Article IX, then, until the re-occurrence of an event of
default and the taking of said action by the Trustee consequent thereon,
the Company shall have the right at any time and from time to time to sell
or exchange any part of the Mortgaged Property. The consideration received
for such part of the Mortgaged Property so sold or exchanged may be (i)
cash and/or (ii) an obligation or obligations secured by a closed purchase
money mortgage on such property provided that such obligation or
obligations shall not exceed sixty (60) per centum of the Cost or Fair
Value, whichever is less, of the property so sold or exchanged (established
as in subsection (c) of this Section provided) and provided further that
the total principal amount payable on all such obligations when added to
the aggregate principal amount then payable on all other obligations
secured by purchase money mortgages held by the Trustee shall not exceed
twenty (20) per centum of the aggregate principal amount of Bonds issued
hereunder and then Outstanding and/or (iii) Fundable Property. The Trustee
shall release any such part of the Mortgaged Property so sold or exchanged
only on receipt of
(a) a Directors' Resolution requesting such release, identifying
the property to be released and describing the consideration to be
received therefor;
(b) an Officers' Certificate dated not more than ten (10) days
prior to the delivery to the Trustee of the Directors' Resolution
stating
(1) that to the best of the knowledge and belief of such
officers the Company is not in default in the performance and
observance of any of the terms, covenants, and conditions of the
Indenture;
(2) that all conditions precedent provided herein (includ-
ing any covenants compliance with which constitutes a condition
precedent) have been complied with;
(3) that the sale or exchange of such property is desirable
in the conduct of the business of the Company;
(4) that the Company has sold or exchanged, or contracted
to sell or exchange, the property so to be released, the con-
sideration to be received therefor, and, if such consideration
shall be in part an obligation or obligations secured by a
purchase money mortgage or purchase money mortgages or in whole
or in part Fundable Property, describing such consideration in
detail;
(5) if such consideration shall be in part an obligation or
obligations secured by a purchase money mortgage or purchase
money mortgages the aggregate principal amount then payable on
all other obligations then secured by purchase money mortgages
held by the Trustee and the aggregate principal amount of Bonds
issued hereunder and then Outstanding;
(c) an Engineer's Certificate (accompanied with such Independent
Engineer's Certificate as may be required pursuant to 7.06 hereof in
respect of property to be sold or exchanged and/or to the last
paragraph of 3.08 hereof in respect of any Fundable Property to be
received under this Section) dated not earlier than sixty (60) days
prior to the date of delivery of such Officers' Certificate stating
the Fair Value of the property to be sold or exchanged, that the
release of such property from the Lien hereof will not impair the
security under this Indenture in contravention of the provisions
hereof; in case the property to be sold or exchanged shall be subject
to a prior lien at the time of sale or exchange, stating the actual
value of the obligation or obligations secured by such prior lien; in
case the consideration to be received shall consist of an obligation
or obligations secured by a purchase money mortgage or purchase money
mortgages, stating that the actual value of the said obligation or
obligations does not exceed sixty per centum (60%) of the Cost or
Fair Value, whichever is less, of the property so sold or exchanged
and that the total of such actual value plus the other considerations
received for such property so sold or exchanged is at least equal to
the Fair Value thereof; and in case the consideration to be received
shall consist in whole or in part of Fundable Property, stating that
such Fundable Property complies with the definition of Fundable
Property contained herein, that the Fair Value to the Company of such
Fundable Property plus the other consideration, if any, received is
at least equal to the Fair Value of the property so sold or exchanged
and stating the Fair Value to the Company of any Fundable Property
forming said consideration or a part thereof;
(d) a sum of money which shall be equal to the Fair Value of the
property so sold or exchanged after deducting therefrom the actual
value of any prior lien existing thereon at the time of sale or
exchange, the actual value of every obligation secured by a purchase
money mortgage or mortgages received as part consideration therefor
and/or the Fair Value to the Company of any Fundable Property
received as part consideration therefor, in all cases as set forth in
the foregoing Engineer's Certificate, and also all necessary out of
pocket expenses incurred in connection with said sale or exchange;
(e) an assignment or transfer to the Trustee, in form satis-
factory to it, of every obligation secured by any purchase money
mortgage or mortgages which shall form part of the consideration for
the sale of any such property so sold or exchanged, and a like
assignment of any such mortgage; provided however that the Company
may at its option retain any such obligation so secured, and said
mortgage or mortgages and substitute therefor cash in an amount equal
to the full principal amount thereof;
(f) if Fundable Property be received as consideration or as part
consideration for any of said property so sold or exchanged, a
Supplemental Indenture conveying, transferring, or assigning such
Fundable Property to the Trustee as a part of the Mortgaged Property,
accompanied by a Directors' Resolution authorizing the execution and
delivery thereof to the Trustee;
(g) an instrument of partial release of the property so sold or
exchanged, or agreed to be so sold or exchanged, for execution by the
Trustee, in form satisfactory to it,
(h) an Opinion of Counsel to the effect that the Certificates,
instruments, or other documents and cash which have been or are
therewith delivered to the Trustee conform to and comply with the
requirements of the Indenture and constitute sufficient authority
hereunder to the Trustee to execute the instrument of partial
release, and that the said instrument, itself, is in proper form and
will adequately release the property so sold or exchanged by the
Company; in the event that an obligation or obligations secured by
any purchase money mortgage or mortgages shall form part of the
consideration for the property so released, that the total principal
amount payable thereon when added to the aggregate principal amount
then payable on all other obligations secured by purchase money
mortgages then held by the Trustee does not exceed twenty (20) per
centum of the aggregate principal amount of Bonds issued thereunder
and then Outstanding, that the said obligation or obligations and the
assignment or transfer thereof are valid, and are properly and
legally secured by such mortgage or mortgages, that the assignment or
transfer thereof to the Trustee is valid and that such mortgage or
mortgages constitute a direct lien on the property so sold or
exchanged, subject to no lien prior thereto except such as shall have
existed thereon as liens prior to the Lien hereof immediately before
the release of the said property, describing any such liens, if any,
and the effect thereof upon the said obligation or obligations
assigned to the Trustee, and stating that all recording and filing in
respect of said mortgage or mortgages and the assignment or transfer
thereof necessary for the security of any or all of said Bonds has
been or will be completed; and, in case the Trustee is requested to
release any such rights as are described in Clause 3 of the granting
clauses of these presents, that such release will not impair the
right of the Company to operate any remaining portion of the
Mortgaged Property; and, in case Fundable Property shall be received
as consideration for the exchange of said property, stating that the
property so received complies with the definition of Fundable
Property herein, that all corporate action prerequisite or necessary
for the execution and delivery of the Supplemental Indenture
granting, transferring, or assigning to the Trustee said property so
received has been duly and properly taken, that the said Supplemental
Indenture is adequate and complete to grant, transfer, or assign said
property to the Trustee as part of the Mortgaged Property, that all
conditions precedent to the release by the Trustee of the property so
sold or exchanged, or agreed so to be, have been complied with, and
that all recording and filing in respect of said Supplemental
Indenture necessary for the security of any or all of said Bonds has
been or will be completed.
7.04 Unless and until one or more of the events of default specified
in 9.01 shall have occurred and the Trustee shall have taken action
authorized in such case by Article IX hereof, and after any such event of
default so occurring shall have been cured or waived pursuant to the
provisions of said Article IX, then, until the re-occurrence of an event of
default and the taking of said action by the Trustee consequent thereon,
the Company shall have the right at any time and from time to time to sell
and dispose of for cash real estate forming part of the Mortgaged Property
of a Fair Value not in excess in the aggregate of one hundred thousand
(100,000) dollars in any one calendar year, the sale of which is desirable
in the conduct of the business of the Company. The Trustee shall release
any such part of the Mortgaged Property so sold only on receipt of
(a) an Officers' Certificate requesting the release of any real
estate comprised in the Mortgaged Property, describing the same in
reasonable detail, stating the Fair Value thereof and of each other
parcel of real estate forming part of the Mortgaged Property
previously released pursuant to the provisions of this Section during
the then current calendar year, the total thereof, and that such
total does not exceed one hundred thousand (100,000) dollars;
(b) an Engineer's Certificate, (accompanied with such Inde-
pendent Engineer's Certificate as may be required pursuant to 7.06
hereof) dated not earlier than sixty (60) days prior to the date of
delivery of such Officers' Certificate, stating the Fair Value of the
property requested to be released in said Officers' Certificate, and
that the sale thereof is desirable in the conduct of the business of
the Company and will not impair the security under this Indenture in
contravention of the provisions hereof;
(c) an instrument of partial release of the property so sold or
agreed to be so sold for execution by the Trustee, in form satis-
factory to it;
(d) a sum of cash equal to the Fair Value of the said property;
(e) an Opinion of Counsel that the Certificates, instruments,
and cash which have been or are therewith delivered to the Trustee
conform to and comply with the requirements of this Indenture and
constitute sufficient authority hereunder to the Trustee to execute
the instrument of partial release, and that said instrument is in
proper form and will adequately release the property so sold by the
Company.
7.05 Should any of the Mortgaged Property be taken by exercise of the
power of eminent domain, or should any governmental or public body, agency,
authority, or instrumentality exercise at any time any right, power, or
authority which it may have to purchase or to designate a purchaser for any
part of the Mortgaged Property, or should the Board of Directors of the
Company determine upon a sale or conveyance in lieu of or in reasonable
anticipation of any such taking or exercise, the Trustee shall release the
property so taken or sold upon being furnished with
(a) an Officers' Certificate describing in reasonable detail the
property so taken or sold and stating the amount and character of the
compensation therefor or proceeds therefrom and the method or manner
by or in which the property has been taken or sold and that such
taking or sale has been in conformity with the provisions of this
Section and, if a sale, was for the best interests of the Company
under the circumstances;
(b) an instrument of partial release of the property so taken or
sold for execution by the Trustee, in form satisfactory to it;
(c) a sum of money equal to the amount of the compensation paid
for the property if taken, or, the proceeds of the sale thereof if
sold, to the extent that the compensation paid for the property, if
taken, or, the proceeds of the sale thereof, if sold, shall consist
of cash, together with any amount paid to the Company in connection
with the taking or sale as severance damages to other Mortgaged
Property not so taken, after deducting the net adjustments incurred
in connection with said taking or said sale, which shall be
established to be such to the satisfaction of the Trustee; provided
however that unless a Directors' Resolution shall otherwise provide,
the amount to be deposited with the Trustee shall not exceed the
redemption price then current for redemption at the option of the
Company of all Bonds then Outstanding hereunder;
(d) to the extent that the compensation received for the prop-
erty, if taken, shall consist of rights of way or of other rights in
land, a Supplemental Indenture in form satisfactory to the Trustee
conveying, transferring, and/or assigning to the Trustee the rights
of way or the rights in land so conveyed, transferred, and/or
assigned to the Company;
(e) an Engineer's Certificate (accompanied with such Independent
Engineer's Certificate as may be required pursuant to 7.06 hereof),
dated not earlier than sixty (60) days prior to the date of the
delivery of such Officer's Certificate, stating the Fair Value of the
property taken or sold, and if rights of way or other rights in land
be conveyed, transferred, and/or assigned to the Trustee by a
Supplemental Indenture as a part of the compensation for the property
taken, if it be taken, briefly describing the same and stating also
the Fair Value of such rights of way or other rights in land and that
the Fair Value thereof has been determined pursuant to the definition
herein of Fair Value;
(f) an Opinion of Counsel to the effect that the property has
been taken in pursuance of and in accordance with the power of
eminent domain or similar right or power or sold to, or to a pur-
chaser designated by, a governmental or public body, agency,
authority, or instrumentality having the right to exercise such power
or similar right, in lieu of or in reasonable anticipation of the
exercise by it of such power or right; that all corporate action
requisite or necessary for the execution of the Supplemental In-
denture has been properly taken; that the Certificates, instruments
of partial release, amounts or proceeds, and/or the Supplemental
Indenture, if any, which have been or are therewith delivered to the
Trustee, conform to and/or comply with the requirements of the
Indenture and constitute sufficient authority hereunder to the
Trustee to execute the instrument of partial release; that the said
instrument, itself, is in proper form and will adequately release the
property so taken or sold; and that all recording and filing in
respect of said Supplemental Indenture necessary for the security of
any and all of said Bonds has been or will be completed.
7.06 If the Fair Value of any property to be sold or exchanged
pursuant to the provisions of 7.03, 7.04 and 7.05 hereof and of all other
property released from the Lien of this Indenture since the commencement of
the then current calendar year, as set forth in the Certificates required
pursuant to this Article VII, is ten percentum (10%) or more of the
aggregate principal amount of the Bonds then Outstanding hereunder, unless
the Fair Value of the property to be released, as set forth in the
Engineer's Certificate required to be filed with the Trustee in accordance
with the provisions of this Article VII, is less than twenty-five thousand
dollars ($25,000) or less than one percentum (1%) of the aggregate
principal amount of Bonds at the time Outstanding, the Engineer's
Certificate shall be accompanied by an Independent Engineer's Certificate
dated not earlier than sixty (60) days prior to the date of delivery of
such Certificate, stating (i) the Fair Value, in the opinion of the signer,
of the property to be released and (ii) that in the opinion of the signer
such release will not impair the security under this Indenture in
contravention of the provisions hereof.
7.07 Any purchase money obligation received by the Trustee pursuant
to the provisions of 7.03 may be released to the Company upon payment by
the Company to the Trustee of the actual value thereof less any payments on
the principal thereof received by the Trustee. All sums of money received
by the Trustee in respect of the principal of any such obligation shall be
held and disposed of by the Trustee as provided in 7.08, and any sum of
money received by the Trustee in respect of the interest thereon shall,
unless an event of default as specified in 9.01 shall have occurred and
shall be continuing, be paid forthwith to the Company. The Trustee may
take any action which in its judgment may be desirable or necessary for the
collection of any such obligation or for the enforcement of the security
therefor.
7.08 Any sums of money received by the Trustee pursuant to the terms
of 7.03, 7.04, 7.05, or 7.07 shall be held, paid out, or applied by it
pursuant to the provisions of Article VIII hereof.
7.09 In case the Company proposes to sell or has sold any Excepted
Property or any property which the Company is entitled to sell or dispose
of pursuant to the provisions of 7.02 and the purchaser thereof shall
request the Company to furnish an instrument in the form of a partial
release by the Trustee releasing any claim to or interest in such property
which the Trustee might have hereunder, then the Trustee shall execute such
instrument upon receipt of
(a) an Officers' Certificate requesting such release, describing
such property, and stating that such property is either Excepted
Property or property which the Company is entitled to sell or dispose
of pursuant to the provisions of 7.02, and that the purchaser thereof
has requested such partial release by the Trustee;
(b) such instrument of partial release for execution by the
Trustee, in form satisfactory to it; and
(c) an Opinion of Counsel to the effect that such property is
Excepted Property or property which the Company is entitled to sell
or dispose of pursuant to the provisions of 7.02, that said property
may be properly sold or disposed of by the Company in conformity with
the terms hereof, and that all conditions precedent provided herein
(including any covenants compliance with which constitutes a
condition precedent) have been complied with; and that the instrument
of partial release is in all respects proper for the purposes of this
Section, and in form proper for execution by the Trustee.
7.10 No purchaser in good faith of any property purporting to be
released hereunder shall be bound to ascertain the authority of the Trustee
to execute the instrument of partial release thereof or to inquire as to
the existence of any conditions 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 VII to be sold, exchanged, or
otherwise disposed of by the Company be under any obligation to ascertain
or inquire into the authority of the Company to make any such sale,
exchange, or other disposition or to look to the application of the
purchase money.
7.11 The provisions of 7.02, 7.03, and 7.04 shall not be construed as
being in limitation of one another but as separate and distinct methods of
releasing, selling, or otherwise disposing of Mortgaged Property.
7.12 The Trustee, subject to the provisions of 13.02 and 13.03, may
in its absolute discretion (but shall not be bound to) execute any
instrument of partial release pursuant to the provisions of 7.02, 7.03,
7.04, 7.05 and 7.09 notwithstanding the fact that an event of default as
specified in 9.01 shall have occurred and shall be continuing.
7.13 In case a receiver or a trustee of the Company or of all or a
substantial part of the Mortgaged Property or business of the Company shall
be lawfully appointed, all acts or requests which the Company may do or
make under the foregoing provisions of this Article VII or under the
provisions of Article VIII hereof may be done or made by such receiver or
trustee with the consent of the Trustee, which may, subject to the
provisions of 13.02 and 13.03, give or withhold such consent as it may in
its discretion determine. In case the Trustee shall be in possession of
the Mortgaged Property pursuant to any of the provisions hereof, the
Trustee may, subject as aforesaid, without any action or request by the
Company, or any receiver or trustee, take any action authorized by any
provision of this Indenture to be taken by the Company alone, by the
Company and the Trustee, or by the Trustee, or by the Trustee at the
request of the Company.
ARTICLE VIII.
Disposition of Money in the Hands of the Trustee
8.01 Moneys deposited with the Trustee in exchange for Bonds issued
pursuant to 3.05 shall be held and disposed of as provided in 3.06 and
3.07; moneys deposited with the Trustee for payment of principal of or
interest on Bonds issued hereunder shall be held and disposed of as
provided in 4.01; moneys deposited with the Trustee for the redemption of
Bonds issued hereunder, moneys deposited with the Trustee in fulfillment of
the Company's obligation in respect of the Improvement Fund pursuant to
6.01, and moneys held by the Trustee as a part of the Mortgaged Property
under 8.02 and applied by the Company to the redemption of Bonds shall be
held and disposed of as provided in 5.04; and moneys deposited with the
Trustee in fulfillment of any Sinking Fund, Maintenance and Renewal Fund,
Improvement Fund or analogous obligation established pursuant to the terms
of a Supplemental Indenture shall be held and disposed of as provided in
said Supplemental Indenture.
8.02 Insurance moneys paid to the Trustee on account of policies made
payable to the Trustee pursuant to 4.05, all moneys received from the sale
of any part of the Mortgaged Property pursuant to 7.03, and 7.04, any
moneys received by the Trustee as compensation for property taken by
exercise of the power of eminent domain pursuant to 7.05, and any moneys
received by the Trustee either from the Company, or in payment of the
principal of any purchase money obligation held by the Trustee, pursuant to
7.07 and any other moneys received by the Trustee, other than moneys the
disposition of which is elsewhere herein specifically provided for, shall
be held by the Trustee as part of the Mortgaged Property and all or any
part of said money at the request and election of the Company may be
withdrawn from, and/or shall be applied by, the Trustee from time to time
as provided in 8.03, 8.04 and 8.05, provided, however, that in the event of
a taking by the exercise of the power of eminent domain or of a sale as
permitted by 7.05, in either case of all or substantially all of the
Mortgaged Property, any award paid for the property taken or the proceeds
of said sale and any amount paid in connection therewith as severance
damages, shall, whether or not interest on any Bonds then Outstanding
hereunder shall be due and unpaid and whether or not any of the events of
default specified in 9.01 shall have occurred, be applied by the Trustee to
the retirement of Bonds issued hereunder and then Outstanding pursuant to
the provisions of 8.05, and if the money received by the Trustee as such
award or such proceeds and as such severance damages, if any, together with
other moneys then in the hands of the Trustee and available for the purpose
is not sufficient to effect the retirement of all the Bonds then
Outstanding, it shall be applied to the retirement of Bonds as aforesaid
only upon the deposit by the Company with the Trustee (and the Company
covenants to make such deposit) of an amount sufficient, together with such
moneys, so to effect the retirement of all Bonds then Outstanding.
8.03 Subject to the provisions of 8.02, and, unless and until one or
more of the events of default specified in 9.01 shall have occurred and the
Trustee shall have taken action authorized in such case by Article IX
hereof, and after any such event of default so occurring shall have been
cured or waived pursuant to the provisions of said Article IX then, until
the re-occurrence of an event of default and the taking of said action
consequent thereon, the Trustee shall apply any or all of the moneys
described in 8.02 then in its possession as follows:
(a) Upon receipt by the Trustee of a Directors' Resolution to
the effect that the Company has called for redemption in accordance
with 5.01 or with any Supplemental Indenture executed in pursuance of
the provisions of 5.07 all or any part of the Bonds of any series
Outstanding, and stating the principal amount of Bonds so called for
redemption, the amount of money necessary to redeem said principal
amount of Bonds at the redemption price thereof, the amount of money
deposited or to be deposited to pay the interest accrued to the date
of redemption on all Bonds called for redemption and the additional
money, if any, necessary for such redemption and requesting that the
Trustee apply from the moneys of the character described in 8.02 then
in its hands a sum which together with such amount so deposited or to
be so deposited shall be sufficient to redeem at such total
redemption price the Bonds so called for redemption, (but in no event
in excess of such moneys then in its hands) the Trustee shall, from
and after the deposit of such amount, apply the sum so requested to
such redemption pursuant to the provisions of 5.04, or to the
provisions of said Supplemental Indenture, as the case may be, and
the sum so applied shall thereafter be held and disposed of by the
Trustee as an integral part of the amount so deposited as provided in
said Section or in said Supplemental Indenture as the case may be
provided however that the Trustee may not make such application if the
Company shall then be in default in the payment of the principal of or
interest on any Bonds then Outstanding hereunder or in the performance of
the covenants contained in 6.01 or in covenants of like character or
imposing a Sinking Fund obligation or the obligation of a Maintenance and
Renewal Fund or Improvement Fund or any analogous fund established pursuant
to a Supplemental Indenture for the benefit of Bonds issued hereunder of a
series other than the 2.96% Bonds unless all Bonds then Outstanding
hereunder are to be redeemed.
(b) Upon receipt by the Trustee of
(1) a Directors' Resolution to the effect that the Company
has determined irrevocably to allocate Net Property Additions as
a basis for the withdrawal from the hands of the Trustee of
moneys of the character described in 8.02, and authorizing the
execution of a Supplemental Indenture, in form satisfactory to
the Trustee, conveying, transferring and/or assigning to the
Trustee all Fundable Property not previously so conveyed,
transferred and/or assigned;
(2) said Supplemental Indenture duly executed by the
Company and if necessary by the Trustee, in as many counterparts
as the Trustee shall require;
(3) an Officers' Certificate stating
(i) that to the best of the knowledge and belief of
such officers the Company is not in default in the perform-
ance and observance of any of the terms, covenants, and
conditions of the Indenture;
(ii) that all conditions precedent provided herein (in-
cluding any covenants hereof compliance with which con-
stitutes a condition precedent) have been complied with;
(4) a Certificate of Available Net Property Additions;
(5) an Accountant's Certificate similar, except for neces-
sary variations, to the Accountant's Certificate described in
subparagraph (f) 3.08;
(6) an Engineer's Certificate (accompanied with such
Independent Engineer's Certificate as may be required pursuant
to the last paragraph of 3.08 hereof with respect to Property
Additions) similar, except for necessary variations, to the
Engineer's Certificate described in subparagraph (g) of 3.08;
(7) an Opinion of Counsel to the effect that all corporate
action prerequisite or necessary for the execution and delivery
of the Supplemental Indenture has been taken; that the Property
Additions described in Item B of the said Certificate of
Available Net Property Additions are Fundable Property within
the definition thereof contained herein; and that all recording
and filing in respect of said Supplemental Indenture necessary
for the security of any and all Bonds has been or will be
completed;
the Trustee shall pay over to the Company a sum of money (but in no event
in excess of the moneys then held by it of the character described in 8.02)
equal to one hundred per centum (100%) of the Available Net Property
Additions set forth in Item G of said Certificate of Available Net Property
Additions;
(c) Upon receipt by the Trustee of an Officers' Certificate to
the effect that the Company has paid a specified amount of Federal
and/or State taxes based on profits derived from the sale or other
disposition of Mortgaged Property released from the Lien of this
Indenture pursuant to the provisions of Article VII hereof, and
requesting the payment to it of such amount, and stating that no part
thereof has been theretofore reimbursed to the Company out of moneys
in the hands of the Trustee, and stating in addition
(1) that to the best of the knowledge and belief of such
officers the Company is not in default in the performance and
observance of any of the terms, covenants, and conditions of the
Indenture; and
(2) that all conditions precedent provided herein
(including any covenants hereof compliance with which
constitutes a condition precedent) have been complied with;
the Trustee shall pay over to the Company the sum of money so requested
provided that such sum shall not exceed the moneys then held by it of the
character described in 8.02;
(d) Upon receipt by the Trustee of Bonds issued hereunder
surrendered by the Company, together with all unmatured coupons
appurtenant thereto, for Cancellation by the Trustee, and of an
Officers' Certificate containing the statements set forth in clauses
(1) and (2) of subparagraph (c) of this Section, the Trustee shall
pay over to the Company from moneys held by it of the character
described in 8.02 a sum of money (not in excess of such moneys then
held by it) equal to the principal amount of Bonds so surrendered to
it by the Company for Cancellation;
(e) Upon receipt by the Trustee of an Officers' Certificate
requesting the Trustee to apply a sum of money of the character
described in 8.02, then held by the Trustee, to the payment at matu-
rity of any Bonds issued hereunder, the Trustee shall, if said Bonds
to be paid are the only Bonds then Outstanding hereunder, apply
whatever such moneys the Company shall request to be so applied (not
in excess of such moneys then held by it) to such payment, but if
said Bonds to be paid are not the only Bonds then Outstanding
hereunder, the Trustee shall make such application only if the
Officers' Certificate shall in addition contain the statements set
forth in clauses (1) and (2) of subparagraph (c) of this Section;
(f) Upon receipt by the Trustee of an Officers' Certificate
requesting that the Trustee apply a sum of money of the character
described in 8.02, then held by the Trustee, to the purchase of Bonds
issued hereunder and then currently entitled to the benefit of any
Sinking Fund, Maintenance and Renewal Fund, Improvement Fund or
analogous fund established pursuant to the terms of a Supplemental
Indenture securing such Bonds, at prices not in excess of the then
current redemption price established by such Supplemental Indenture
for redemption of Bonds through the operation of such fund or of such
lesser price as the Certificate shall specify, either in the open
market or pursuant to tenders invited in pursuance of the provisions
of said Supplemental Indenture, as the Company shall direct by said
Certificate and containing the statements set forth in clauses (1)
and (2) of subparagraph (c) of this Section, the Trustee shall apply
so much of said sum as can be applied pursuant to such request to
such purchases, (but not in excess of such money then in its hands)
provided however that the receipt by the Trustee of a Directors'
Resolution or Officers' Certificate pursuant to subparagraphs (a),
(b), (c), or (e) of this Section shall be held to be a withdrawal and
cancellation of any request theretofore made to the Trustee under
this subparagraph (f) to the extent that such request shall not have
then been complied with or completed.
Bonds surrendered to the Trustee pursuant to subparagraph (d) or
purchased by the Trustee pursuant to subparagraph (f) of this Section shall
be treated as paid for all purposes hereof, shall be Cancelled by the
Trustee and no Bond shall ever be issued in the place of any such Bond.
8.04 Any moneys paid out by the Trustee in accordance with the
provisions of 8.03 shall be held to have been paid from or out of money
then longest in its hands. Any moneys of the character described in 8.02
which shall remain in the hands of the Trustee for a period in excess of
three (3) years shall, if such amount shall exceed the sum of two hundred
fifty thousand (250,000) dollars, be applied by the Trustee (if the Company
shall not be in default in the payment of the principal of or interest on
any Bonds Outstanding hereunder, or in the performance of the covenants
contained in 6.01 or in covenants of like character securing Bonds issued
hereunder belonging to a series other than the 2.95% Bonds or the
satisfaction of the requirements of any Sinking Fund, Maintenance and
Renewal Fund, Improvement Fund or analogous fund established by a
Supplemental Indenture securing Bonds issued hereunder) to the redemption
at the regular redemption price then current for the redemption at the
option of the Company of Bonds of that series then Outstanding which shall
first mature, provided however that if the Company shall have filed with
the Trustee prior to the first publication of call for redemption a written
plan for the definite expenditure of such moneys for Fundable Property, or
an Officers' Certificate stating that the expenditure of such moneys has
been prevented or delayed by acts of God, strikes, civil disturbances, or
restrictions imposed by reason of a state of war and requesting in either
case an extension of time, the Trustee may postpone the call for redemption
for such period as it may deem proper.
Call for redemption shall be made in the manner provided in 5.02
unless in respect of Bonds of any series other than the 2.95% Bonds a
different manner shall have been provided in the Supplemental Indenture
securing such Bonds, and the Trustee shall pay, Cancel, and deliver Bonds
and hold and apply the money for the payment thereof substantially in the
manner provided in 5.04, unless a different manner shall have been provided
in the Supplemental Indenture securing the Bonds of a series other than the
2.95% Bonds. The provisions of 5.05 shall control the rights of the
holders of the Bonds so called for redemption unless different provisions
in a Supplemental Indenture securing a series of Bonds other than the 2.95%
Bonds shall control the rights of the holders of such Bonds.
8.05 In the event of a taking by the exercise of the power of eminent
domain or of a sale as permitted by 7.05, in either case of all or
substantially all of the Mortgaged Property, and of the deposit with the
Trustee pursuant to 8.02 of sums sufficient together with moneys in the
hands of the Trustee and available for the purpose to effect the retirement
of all the Bonds then Outstanding, the Trustee, whether or not interest on
any Bonds then Outstanding shall be due and unpaid and whether or not any
of the events of default specified in 9.01 shall have occurred, shall as
soon as reasonably possible call for the redemption at the lowest
redemption price then current applicable to each series of Bonds so called,
all the Bonds then Outstanding for payment. The provisions of 8.04 shall
control the call for redemption, payment, and Cancellation of Bonds,
delivery of Cancelled Bonds, and the rights of the holders of Bonds called
for redemption hereunder.
8.06 Any cash of the character described in 8.02 while held by the
Trustee (prior to any application thereof pursuant to either 8.03 or 8.04)
shall upon receipt of a Directors' Resolution requesting such action be
invested or reinvested by the Trustee to the extent permitted by law in any
bonds or other obligations of the United States of America designated in
said Directors' Resolution. Until one or more of the events of default
specified in 9.01 shall have occurred, any interest on such bonds or other
obligations which may be received by the Trustee shall be forthwith paid to
the Company, except that if any of such bonds or other obligations shall
have been purchased by the Trustee at an amount in excess of the principal
amount thereof, all interest received upon such bonds or other obligations
shall be retained by the Trustee until the amount of such interest so
received and retained shall be equal to the amount of such excess thus paid
by the Trustee. Such bonds or other obligations shall be held by the
Trustee as a part of the Mortgaged Property. Any or all of such bonds or
other obligations so held by the Trustee shall upon receipt of a Directors'
Resolution requesting such action, or without the receipt of any such
Directors' Resolution whenever the Trustee in its discretion shall deem
such action advisable, be sold by the Trustee, but the Trustee shall be
under no obligation to make any such sale unless requested by the Company.
The proceeds of any such sale shall be held by the Trustee as a part of the
Mortgaged Property and shall be considered as being of the character
described in 8.02. In case the net proceeds (excluding any interest
received by the Company and including any interest received and retained by
the Trustee) realized upon any sale shall amount to less than the amount
paid by the Trustee in or on account of the purchase of the bonds or
obligations so sold, the Trustee shall within five (5) days after such sale
notify the Company in writing thereof and within five (5) days thereafter
the Company shall pay to the Trustee the amount of the difference between
the amount so paid by the Trustee and such net proceeds and the amount so
paid shall be held by the Trustee in like manner and subject to the same
rights and obligations as the proceeds realized upon such sale. However,
in case such net proceeds shall amount to more than the amount so paid by
the Trustee, the Trustee shall within five (5) days of such sale pay to the
Company the difference between such net proceeds and such amount so paid up
to but not exceeding the total amount of interest on such bonds or
obligations so sold received and retained by the Trustee.
The Trustee shall not be held responsible for any diminution in the
value of any bonds or other obligations of the United States of America in
which cash of the character described in 8.02 shall be invested, or for any
realized loss arising from any sale or other disposition thereof.
ARTICLE IX.
Defaults and Remedies
9.01 If any one or more of the following events (herein generally
termed, singly, an event of default, and as regards any two or more, or all
collectively, events of default) shall occur, namely
(1) if default shall be made in the payment of any installment
of interest on any of the Bonds, when and as the same shall become
due and payable, as therein and herein expressed, and such default
shall continue for a period of thirty (30) days; or
(2) if default shall be made in the payment of the principal of
or any premium on any of the Bonds, when and as the same shall become
due and payable, whether at maturity, by call for redemption, by
declaration, or otherwise; or
(3) If default shall be made in the payment of any Improvement
Fund installment or in the payment of any installment payable in
respect of any Sinking Fund, Maintenance and Renewal Fund,
Improvement Fund, or analogous fund established pursuant to the terms
of any Supplemental Indenture, when and as the same shall become due
and payable, as herein or therein expressed, and such default shall
continue for a period of sixty (60) days; or
(4) if default shall be made by the Company in the performance
or observance of any other covenant, agreement, or condition on its
part to be performed or observed as expressed in the Indenture or in
the Bonds, and such default shall continue for a period of sixty (60)
days after written notice delivered to the Company by the Trustee, or
to the Company and the Trustee by the holders of not less than
twenty-five per cent (25%) in principal amount of the Bonds then
Outstanding (excluding Company-owned Bonds), or forthwith upon such
notice and without lapse of time if the Company shall waive the same
in writing; or
(5) if the Company shall be dissolved, or shall lose its charter
by forfeiture or otherwise, or shall admit in writing its inability
to pay its debts generally as they become due, or shall make a
general assignment for the benefit of creditors, or shall file a
voluntary petition in bankruptcy or under the corporate
reorganization provisions of the National Bankruptcy Act (as now or
hereafter amended), or an answer admitting the material allegations
of a petition filed against the Company under such provisions, or
shall, by voluntary petition, answer, or consent, seek relief under
the provisions of any other now existing or future bankruptcy or
other law providing for the reorganization, dissolution, liquidation,
or winding up of corporations on the ground of insolvency; or
(6) if an order, judgment, or decree shall be entered by any
court of competent jurisdiction without the consent of the Company,
adjudicating the Company to be a bankrupt or insolvent, or appointing
a trustee or receiver of the Company or of the whole or any
substantial part of the Mortgaged Property, and such adjudication
shall not have been vacated or set aside, or the trustee or the
receiver so appointed shall not have been removed or discharged, as
the case may be, within sixty (60) days thereafter; or if the Company
shall consent to a petition or application for its adjudication as
bankrupt or insolvent, or for the appointment of a trustee or
receiver of itself or the whole or any substantial part of the
Mortgaged Property; or
(7) if a petition against the Company in proceedings under the
corporate reorganization provisions of the National Bankruptcy Act
(as now or hereafter amended) shall be approved by any court of
competent jurisdiction and such approval shall not be withdrawn and
the proceedings dismissed within sixty (60) days thereafter; or, if
under the provisions of any other now existing or future bankruptcy
or other law providing for the reorganization, dissolution,
liquidation, or winding up of corporations on the ground of
insolvency, any court of competent jurisdiction shall assume
jurisdiction, custody, or control of the Company, or of the whole or
any substantial part of the Mortgaged Property, and such
jurisdiction, custody, or control shall not be relinquished or
terminated within sixty (60) days thereafter;
then, if and so long as any such default shall continue to exist, the
Trustee by notice in writing given to the Company, or the holders of not
less than twenty-five per cent (25%) in principal amount of the Bonds then
Outstanding (excluding Company-owned Bonds) by notice in writing to the
Company and to the Trustee, may declare the principal of all the Bonds then
Outstanding, if not already due and payable, to be immediately due and
payable together with all accrued and unpaid interest thereon, and upon any
such declaration, the same shall become and be immediately due and payable,
anything in this Indenture or in any of the Bonds contained to the contrary
notwithstanding.
This provision is subject to the condition that if, at any time after
the principal shall have been so declared due and payable and before any
sale of the Mortgaged Property shall have been made, all arrears of
interest upon all the Bonds (with interest at the rate specified therein on
any overdue installment of interest, so far as the same may be legally
enforceable) and the expenses of the Trustee, its agents or attorneys shall
either be paid by the Company or be collected and paid out of the Mortgaged
Property, and all defaults as aforesaid (other than the payment of
principal which has been declared due and payable) shall have been cured or
secured or adequately provided for to the satisfaction of the Trustee,
then, and in every such case, the Trustee may, and upon request of the
holders of not less than a majority of the Bonds then Outstanding
(excluding Company-owned Bonds) shall, waive such default and its
consequences and rescind such declaration; but no such waiver shall extend
to or affect any subsequent default or impair or exhaust any right or power
consequent thereon. In the event of such waiver and rescission, the
Mortgaged Property if in the hands of the Trustee or of a receiver
appointed hereunder, shall be returned to the Company.
9.02 The Trustee shall give to the Bondholders, in the manner and to
the extent provided in subsection (G) of 12.04 hereof, notice of all
defaults known to the Trustee, within ninety (90) days after the occurrence
thereof, unless such defaults shall have been cured or waived before the
giving of such notice (the word "defaults" for the purposes of this Section
being hereby defined to be the events of default specified in 9.01 hereof
without waiting for the expiration of any period of grace); provided that,
except in the case of default in the payment of the principal of or
interest on any of the Bonds, or in the payment of any Improvement Fund
installment, or in the payment of any installment payable in respect of any
Maintenance and Renewal Fund, Improvement Fund or analogous fund
established pursuant to the terms of any Supplemental Indenture, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers, of the Trustee in good faith
determine that the withholding of such notice is in the interest of the
Bondholders.
9.03 In case one or more of the events of default enumerated in 9.01
shall exist, then and in each and every such case the Trustee, personally
or by its attorneys or agents, is hereby authorized and empowered, whether
or not the principal of the Bonds shall have matured or been declared due,
to exercise any one or more of the following remedies, and to do or cause
to be done any or all of the following acts and things, namely:
(1) The Trustee, by its agents or attorneys, may (provided such
action shall not at the time be in violation of any laws applicable
to the Company or its properties) enter into and upon and take
possession of any or all of the Mortgaged Property and each and every
part thereof (and the books, papers, and accounts of the Company),
and may exclude the Company, its successors or assigns, its or their
agents, servants, and employees wholly therefrom, and have, hold,
use, operate, manage, and control the same and each and every part
thereof and, in the name of the Company or otherwise as the Trustee
shall deem best, conduct the business thereof and exercise the
franchises pertaining thereto and all the rights and powers of the
Company, and from time to time, maintain, restore, insure, and keep
insured the properties, plants, equipment, and apparatus provided or
required for use in connection with such business and likewise, from
time to time, make all such necessary or proper repairs, renewals,
and replacements, and all such useful alterations, additions,
betterments, and improvements as to the Trustee may seem judicious,
and collect and receive all tolls, earnings, revenues, rents, issues,
profits, and other income of the same and of every part thereof, and
pay therefrom all proper costs and expenses of operation and all
expenses incurred hereunder and all other proper outlays herein
authorized, and all payments which may be made for taxes and
assessments and for such other liens prior hereto and charges upon
the Mortgaged Property or any part thereof as the Trustee may deem it
wise to pay, and the just and reasonable compensation for the
services of the Trustee and for the services of such attorneys,
agents, and assistants as it may in the exercise of its discretion
employ for any of the purposes aforesaid, and shall apply the rest
and residue of such moneys received by it as follows:
(a) In case the principal of none of the Bonds shall have
become due, to the payment of the interest in default, in the
order of the maturity of the installments of such interest, with
interest, so far as the same may be legally enforceable, on the
overdue installments thereof at the same rates, respectively, as
were borne by the Bonds on which such interest shall be in
default, such payments to be made ratably to the parties en-
titled thereto without discrimination or preference, subject,
however, to the provisions of 2.14 and 4.02.
(b) In case the principal of any, but not all, of the
Bonds, shall have become due, first to the payment of the
interest in default, in the order of the maturity of the
installments thereof, with interest, so far as the same may be
legally enforceable, on the overdue installments thereof at the
same rates, respectively, as were borne by the Bonds on which
such interest shall be in default, and next to the payment of
the principal of all Bonds then due, with interest on the
overdue principal at the rates specified in the respective
Bonds, such payments to be made ratably to the parties entitled
thereto without discrimination or preference, subject, however,
to the provisions of 2.14 and 4.02.
(c) In case the principal of all of the Bonds shall have
become due, by declaration or otherwise, then as provided in
Paragraph Second of 9.09, but subject to the condition set forth
in the proviso at the close of said Section.
In case all payments provided for in paragraphs (a) and (b)
above and payment of whatever may be payable for any other purpose
required by any provisions of this Indenture shall have been paid in
full, and no sale shall have been made as hereinafter provided, and
all other defaults under this Indenture made good, the Trustee shall
restore the possession of the Mortgaged Property (other than any cash
and/or purchase money obligations required to be deposited with the
Trustee) to the Company or whosoever shall be entitled thereto; the
same right of entry to exist upon any subsequent event of default
however.
(2) The Trustee may, with or without entry, collect or enforce
the collection of all interest and principal payable in respect of
any purchase money obligation which may at the time be held by the
Trustee hereunder. Any sums so collected or received by the Trustee
shall be held and applied by the Trustee in like manner as is
provided in the foregoing subdivision (1) of this Section in respect
of tolls, earnings, revenues, rents, issues, profits, and other
income collected or received by the Trustee from or on account of the
Mortgaged Property.
(3) The Trustee may (if such action shall at the time be
authorized by law), with or without entry, sell, subject to the prior
liens, if any, then existing thereon or free from such of said liens
as the Trustee in its discretion may elect to discharge, to the
highest and best bidder, all and singular the Mortgaged Property and
the right, title, interest, claim, and demand of the Company therein
and thereto, and the right of redemption thereof, at public auction,
at such times and places and upon such conditions as to upset or
reserve bids or prices and as to terms of payment and other terms of
sale as the Trustee may fix and briefly specify in the notice of sale
to be given as hereinafter provided, or as may be required by law,
including power and authority to the Trustee to rescind or vary any
contract of sale that may be entered into and to resell under the
powers herein conferred.
(4) The Trustee may proceed to protect and enforce its rights
and the rights of the Bondholders under this Indenture by a suit or
suits in equity or at law, whether for the specific performance of
any covenant or agreement contained in this Indenture, or in aid of
the execution of any power granted in this Indenture, or for the
foreclosure of this Indenture, or for the enforcement of any other
appropriate legal or equitable remedy as the Trustee being advised by
counsel, shall, subject to the provisions of 13.02 and 13.03, deem
most effectual to protect and enforce any of the rights aforesaid.
9.04 Upon filing a bill in equity or upon other commencement of
judicial proceedings by the Trustee to enforce any right under this
Indenture, the Trustee shall be entitled to exercise any and all other
rights and powers herein conferred and provided to be exercised by the
Trustee upon the occurrence of an event of default as defined in 9.01; and,
as a matter of right, without notice or demand and without regard to the
adequacy of the security for the Bonds, the Trustee shall be entitled to
the appointment of a receiver of the Mortgaged Property, and of the tolls,
earnings, revenues, rents, issues, profits, and other income thereof, with
all such powers as the court or courts making such appointment shall
confer; but notwithstanding the appointment of any receiver, the Trustee
shall be entitled to retain possession and control of, and to collect and
receive the income from, any moneys or purchase money obligations which may
at the time be held by it hereunder.
9.05 In the event of any such sale, whether made under the power of
sale herein conferred, or under or by virtue of judicial proceedings, the
whole of the Mortgaged Property shall be sold in one parcel as an entirety,
including the franchises and business of the Company and the right to use
its corporate name, unless such sale as an entirety is, in the judgment of
the Trustee, impracticable by reason of some statute or other reason, or
unless the holders of a majority in principal amount of the Bonds then
Outstanding (excluding Company-owned Bonds) shall file with the Trustee a
Bondholders' Request from the holders of not less than the majority of such
Bonds to cause the Mortgaged Property to be sold in parcels, in which case,
unless prevented by statute or some other cause, the sale shall be made in
such parcels and in such order as may be specified in such Request. The
Company for itself and all persons and corporations hereafter claiming
from, through, or under it or who may at any time hereafter become holders
of liens junior to the Lien of this Indenture, hereby expressly waives and
releases all right to have the Mortgaged Property marshalled upon any
foreclosure or other enforcement hereof, and the Trustee, or any court in
which the foreclosure of this Indenture or administration of the trusts
hereby created is sought, shall have the right as aforesaid to sell the
Mortgaged Property as a whole in a single parcel.
9.06 Notice of any sale pursuant to the provisions of this Indenture
shall state the time and place when and where the same is to be held, shall
contain a brief description of the property to be sold, and shall briefly
state the terms of sale, and shall be sufficient if given by Published
Notice once a week for four successive weeks prior to such sale, the first
publication to be not less than thirty (30) days prior to such sale, and in
such other manner as may be required by law. The Trustee may adjourn from
time to time any such sale by announcement at the time and place appointed
for such sale, or for such adjourned sale or sales; and without further
notice or publication (unless otherwise required by law) it may make such
sale at the time and place to which the same shall be so adjourned or
readjourned.
9.07 Upon any sale, as aforesaid, whether made under the power of
sale hereby conferred or under or by virtue of judicial proceedings, any
Bondholders or the Trustee may bid for and purchase the property offered
for sale, or any part thereof, and upon compliance with the terms of sale,
may hold and dispose of such property in their own or its own absolute
right, without further accountability; and any purchaser at any such sale,
for the purpose of making settlement or payment for the property purchased,
shall be entitled to use and apply any Bonds then Outstanding, and any
matured and unpaid coupons appertaining thereto or claims for interest
thereon, by presenting the same so that there may be credited, as paid
thereon, the sums payable out of the net proceeds of such sale to the
holder of such Bonds and coupons or claims as his ratable share of such net
proceeds after allowing for the proportions of the total purchase price
required to be paid in cash for the cost and expenses of the sale,
compensation, and other charges; and thereupon such purchaser shall be
credited on account of such purchase price payable by him with that portion
of such net proceeds which shall be applicable to the payment of, and which
shall have been credited upon, the Bonds and coupons and claims so
presented. The provisions of this Section are subject to the provisions of
2.14 and 4.02.
9.08 Upon the completion of any sale or sales under or by virtue of
this Indenture, the Trustee shall execute and deliver to the accepted
purchaser or purchasers a good and sufficient deed or deeds of conveyance,
sale, and transfer of all the property sold; and the Trustee, or its
successor for the time being, is hereby irrevocably appointed the true and
lawful attorney of the Company, its successors or assigns, in its or their
name or names and stead, to make all necessary deeds, conveyances,
assignments, and transfers of the property thus sold; and for that purpose
it may execute all necessary deeds and instruments of assignment and
transfer, and may substitute one or more persons with like power, the
Company for itself, its successors or assigns, hereby ratifying and
confirming all that its said attorney, or such substitute or substitutes,
shall lawfully do by virtue hereof. Nevertheless, if so requested by the
Trustee, the Company shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such purchaser or purchasers
all such instruments as may be necessary or in the judgment of the Trustee
proper for the purpose and as may be designated in any such request.
Any such sale or sales made under or by virtue of this Indenture,
whether under the power of sale herein granted or by virtue of judicial
proceedings, shall, to the extent permitted by law, operate to divest all
right, title, interest, claim, and demand whatsoever, either at law or in
equity, of the Company, in and to the property so sold, and shall be a
perpetual bar, both at law and in equity, against the Company, its
successors and assigns, and against any and all persons claiming or who may
claim the property sold, or any part thereof, from, through, or under the
Company, or its successors and assigns.
The receipt of the Trustee, or of the court officer conducting any
such sale, for the purchase money paid at or under any such sale, shall be
a full and sufficient discharge to any purchaser of any property sold as
aforesaid; and no purchaser, or his representatives, grantees, or assigns,
after paying such purchase money and receiving such receipt, shall be bound
to see to the application of such purchase money upon or for any trust or
purpose of this Indenture, or in any manner whatsoever be answerable for
any loss, misapplication, or non-application of any such purchase money or
any part thereof, or be bound to inquire as to the authorization,
necessity, expediency, or regularity of any such sale.
9.09 The purchase money, proceeds, and avails of any sale, whether
made under the power of sale herein granted or pursuant to judicial
proceedings, together with any such sums which then may be held by the
Trustee under any provision of this Indenture as part of the Mortgaged
Property, shall be applied in the following order:
First. To or towards the payment of the costs and expenses of
such sale and reasonable compensation of the Trustee, its agents,
attorneys, and counsel, and of all necessary or proper expenses,
liabilities, and advances made or incurred by the Trustee, without
negligence or bad faith, under this Indenture or in executing any
power or trust hereunder, and to the payment of all taxes, assess-
ments, or liens superior to the Lien of this Indenture, except any
taxes, assessments, or other superior liens subject to which such
sale shall have been made.
Second. To the payment of the whole amount due and unpaid at
the time of distribution upon the Bonds then Outstanding for
principal and any premium which shall have become payable on any
Bonds theretofore called for redemption, and interest, with interest,
so far as the same may be legally enforceable, on overdue principal
and overdue installments of interest at the same rates, respectively,
as were borne by the respective Bonds, and, in case such proceeds
shall be insufficient to pay in full the whole amount so due and
unpaid upon the Bonds, then to the payment of such principal (but not
including any premium) and interest, without preference or priority
of principal over interest, or of interest over principal, or of any
installment of interest over any other installment of interest, or of
the Bonds of any series over the Bonds of any other series, ratably
to the aggregate of such principal and unpaid interest, subject,
however, to the provisions of 2.14 and 4.02, and any balance then
remaining to the payment ratably of any such premiums. Such payments
shall be made on the date fixed therefor by the Trustee upon
presentation of the several Bonds and coupons and stamping such
payment thereon, if partly paid, and upon surrender and cancellation
thereof, if fully paid; and
Third. To the payment of the surplus, if any, to the Company,
its successors or assigns, or to whosoever may be lawfully entitled
to receive the same, or as a court of competent jurisdiction may
direct;
provided, however, that if at the time of any such application by the
Trustee any Bonds shall be Outstanding, and if the Trustee shall have in
its hands Sinking Fund, Maintenance and Renewal Fund, Improvement Fund, or
analogous fund moneys for the benefit of any particular series of Bonds
then Outstanding hereunder, such moneys shall be added to the amount or
amounts otherwise distributable pursuant to Paragraph Second hereof to the
holders of the Bonds of such particular series, (but not to an amount such
that said holders shall receive a sum in excess of the whole amount due and
unpaid at the time of distribution upon Bonds held by them) and shall be
divided ratably among them, subject however, to the provisions of 2.14 and
4.02.
9.10 In case of any sale of the Mortgaged Property, or any part
thereof, under this Article IX, whether made under the power of sale herein
granted, or by virtue of judicial proceedings, the principal of and accrued
interest on all the Bonds then Outstanding, if not already due, shall
immediately become due and payable, anything in the Bonds or in this
Indenture to the contrary not withstanding.
9.11 The Company covenants that
(1) in case it shall fail to pay interest on any Bond for a
period of thirty (30) days after such interest shall have become
due and payable; or
(2) in case it shall fail to pay the principal or premium,
if any, of any Bond when and as the same shall become due and
payable, whether by the terms thereof or otherwise as herein
provided,
then, and upon demand of the Trustee, the Company will pay to the Trustee
at its office, for the benefit of the holders of the Bonds and coupons then
Outstanding, the whole amount then due and unpaid thereon, for principal,
premium, or interest, as the case may be, with interest at the rate
specified in such Bonds upon the overdue principal and the overdue
installments of interest, so far as the same may be legally enforceable,
and, in case the Company shall fail to pay the same forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled to recover judgment against the Company for the whole
amount of such principal, premium, and interest remaining unpaid.
The Trustee shall be entitled and empowered either in its own name
and as trustee of an express trust, or as attorney-in-fact for the bearers
or registered owners of the Bonds and coupons, or in any one or more such
capacities, to make and file such proofs of debt, amendments to proofs of
debt, claims, petitions, or other documents as may be necessary or
advisable in order to have the claims of the bearers or registered owners
of the Bonds and coupons allowed in any equity receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization, or other proceeding
involving any distribution of the assets of the Company or any other
Obligor upon the Bonds to its creditors, or in any judicial proceedings
relative to the Company or such other Obligor, its creditors, or its
property.
The Trustee is hereby irrevocably appointed (and the successive
bearers or registered owners of the Bonds and coupons issued hereunder, by
taking and holding the same, shall be conclusively deemed to have so
appointed the Trustee) the true and lawful attorney-in-fact of the
respective bearers and registered owners of the Bonds and coupons issued
hereunder, with authority to make and file in any judicial proceeding,
either in the respective names of the bearers and registered owners of the
Bonds and/or coupons, or on behalf of all the bearers and registered owners
of the Bonds and/or coupons as a class (subject to deduction from any such
claim of the amounts of any claims filed by any of the bearers and
registered owners of the Bonds and/or coupons themselves), any proof of
debt, amendment to proof of debt, claim, petition, or other document; to
receive payment of any sums becoming distributable on account thereof; and
to execute any other papers and documents and to do and perform any and all
such acts and things as may be necessary or advisable in the opinion of the
Trustee in order to have the respective claims of the bearers and
registered owners of the Bonds and/or coupons against the Company or any
other Obligor upon the Bonds allowed in any equity receivership,
insolvency, bankruptcy, liquidation, or other proceedings to which the
Company or any such other Obligor shall be a party or which relates to the
Company or any such other Obligor, or to the creditors or property of the
Company or any such other Obligor. The Trustee shall have full power of
substitution and delegation in respect of any such powers.
Nothing herein shall be deemed, however, to give power to the Trustee
to vote the claims of the holders of the Bonds or coupons in any such
proceedings, or to accept or consent to any plan of reorganization,
readjustment, arrangement, or composition or other like plan, or by other
action of any character in any such proceeding to waive or change any right
of any holder of the Bonds or coupons.
The Trustee shall be entitled to recover judgment or make or file
proof of debt as aforesaid either before or after or during the pendency of
any proceedings for the enforcement of the Lien of this Indenture, and the
right of the Trustee to recover such judgment or make such proof of debt
shall not be affected by any entry or sale hereunder or by the exercise of
any other right, power, or remedy for the enforcement of the provisions of
this Indenture or the foreclosure of the Lien hereof. In case of a sale of
the Mortgaged Property and of the application of the proceeds of sale to
the payment of the Bonds, the Trustee, in its own name and as trustee of an
express trust, shall be entitled to enforce payment of, and to receive, all
amounts then remaining due and unpaid upon any and all of the Bonds and
coupons then Outstanding, for the benefit of the holders thereof, and shall
be entitled to recover judgment or make or file proof of debt for any
portion of the same remaining unpaid, with interest as aforesaid. No
recovery of any such judgment by the Trustee or any attachment or levy of
execution under any such judgment upon the Mortgaged Property or any part
thereof, or upon any other property, nor any such proof of debt, shall in
any manner or to any extent affect the Lien of this Indenture upon the
Mortgaged Property or any part thereof or any lien, rights, powers, or
remedies of the Trustee hereunder or of the holders of the Bonds; but such
Lien, lien, rights, powers, and remedies shall continue unimpaired as
before.
All moneys collected by the Trustee under this Section shall be
applied as follows:
First. To the payment of the costs and expenses of the pro-
ceedings resulting in the collection of such moneys, the reasonable
compensation of the Trustee, its agents, attorneys, and counsel and
of necessary or proper expenses, liabilities, and advances made or
incurred by the Trustee, without negligence or bad faith, under this
Indenture or in executing any trust or power hereunder; and
Second. To the payment of the amounts then due and unpaid upon
the Bonds for principal, premium (if any) and interest in respect
whereof such moneys shall have been collected, ratably and without
any preference or priority of any kind (except as provided in 2.14
and 4.02) according to the amounts due and payable upon such Bonds
and for interest, respectively, to the date filed by the Trustee for
the distribution of such moneys, upon presentation of the several
Bonds and coupons, if any, and stamping such payment thereon, if
partly paid, and upon surrender and cancellation thereof, if fully
paid.
9.12 The Trustee shall have power to institute and to maintain such
suits and proceedings as the Trustee being advised by counsel may deem
necessary or expedient to prevent any impairment of the security hereunder
by any acts of the Company which are in violation of this Indenture or are
unlawful, or as the Trustee being advised by counsel may deem necessary or
expedient to preserve or protect its interest and the interests of the
Bondholders in respect of the Mortgaged Property, and in respect of the
tolls, earnings, revenues, rents, issues, profits and other income arising
therefrom, including the power to institute and to maintain suits or
proceedings to restrain the enforcement of, or compliance with, or the
observance of, any legislative, municipal, or other governmental enactment,
rule, or order that may be unconstitutional or otherwise invalid, if the
enforcement of, compliance with, or observance of, such enactment, rule, or
order would impair the security hereunder or be prejudicial to the
interests of the Bondholders or of the Trustee.
9.13 Upon failure of the Company so to do, either any receiver
appointed hereunder, or the holders of not less than twenty-five percent
(25%) in principal amount of the Bonds then Outstanding (excluding
Company-owned Bonds) may make any payment (other than of the principal or
interest in respect of the Bonds and/or sums due pursuant to the
Improvement Fund, or to the terms of any Sinking Fund, Maintenance and
Renewal Fund, Improvement Fund or any analogous fund if any, in respect of
the Bonds) which the Company by any provision of this Indenture agrees to
make or cause to be made, and the Company covenants and agrees that it will
forthwith repay to such receiver or to the Bondholders all moneys which
such receiver or the Bondholders shall so pay, and will pay interest
thereon from the date of such payment by such receiver or the Bondholders
until the repayment thereof at the current rate for time loans; and until
so paid, such advances shall be secured by a lien under and by virtue of
this Indenture upon the Mortgaged Property, in preference to the Bonds and
coupons issued hereunder. No such payment by any such receiver or by the
Bond holders shall be deemed to relieve the Company from the consequence of
any default hereunder.
9.14 In case of a default on its part, neither the Company nor any
one claiming from, through, or under it shall or will take advantage of any
appraisement, valuation, stay, extension, or redemption laws now or
hereafter in force in any locality where any property subject to the Lien
hereof may be situated, in order to prevent or hinder the enforcement or
foreclosure of this Indenture, or the absolute sale of the Mortgaged
Property, or the final and absolute putting into possession thereof,
immediately after such sale, of the purchaser or purchasers thereat, and
the Company, for itself and all who may claim through or under it, hereby
waives the benefit of all such laws, and the Company covenants it will not
hinder, delay, or impede the execution of any power herein granted or
delegated to the Trustee, or which the Trustee may otherwise have, but that
the Company will suffer and permit the execution of every such power, as
though no such law or laws had been made or enacted.
9.15 The Company, for itself, its successors and assigns, hereby
expressly covenants to and with the Trustee that, at and immediately upon
the commencement of any action, suit, or other legal proceeding by the
Trustee (1) to obtain possession of the Mortgaged Property, or any part
thereof, the Company, its successors and assigns, shall and will,
severally, waiving the issuance and service of process, enter its or their
voluntary appearance in such action, suit, or proceeding, and consent to
the entry of a judgment for the recovery and possession of the Mortgaged
Property and every part thereof; (2) for the foreclosure of the Lien of
this Indenture, the Company, its successors and assigns, shall and will,
severally, waiving the issuance and service of process, enter its or their
voluntary appearance in such action, suit, or proceeding and consent to the
appointment of a receiver of the Mortgaged Property and the tolls,
earnings, revenues, rents, issues, profits, and other income thereof for
the sole benefit of the holders of the Bonds; and (3) pursuant to the
provisions hereof, to obtain judgment for the principal of or interest on
any of the Bonds or for both, or to obtain a judgment or decree of any
other nature in aid of the enforcement of the Bonds or coupons or any of
them, or of this Indenture, the Company, its successors or assigns, shall
and will, severally, waiving the issuance and service of process, enter its
or their voluntary appearance in such action, suit, or proceeding and
consent to the entry of a judgment for such principal and/or interest, with
interest on overdue principal and installments of interest, so far as the
same may be legally enforceable, and for the lawful costs and expenses and
compensation of the Trustee and its agents and attorneys and for such other
relief as the Trustee may be entitled to under the provisions hereof.
9.16 In the event of default, anything in this Indenture to the
contrary notwithstanding, the holders of not less than a majority in
aggregate principal amount of the Bonds then Outstanding (excluding
Company-owned Bonds) shall, upon filing with the Trustee a Bondholders'
Notice and a Bondholders' Request from the holders of such majority of such
Bonds, have the right (1) to require the Trustee to proceed to enforce the
Lien of this Indenture, either by suit or suits at law or in equity for the
enforcement of the payment of the Bonds then Outstanding hereunder and for
the foreclosure of this Indenture and for the sale of the Mortgaged
Property under the judgment or decree of a court of competent jurisdiction,
or at the election of the Trustee by exercise of its powers with respect to
entry or sale, and (2) to direct and control the time, method, and place of
conducting any and all proceedings hereby authorized for any sale of the
Mortgaged Property, or any adjournment thereof, or for the foreclosure of
this Indenture, or for the appointment of a receiver, or any other action
or proceeding hereunder instituted by the Trustee, provided, however, that
such direction shall not be otherwise than in accordance with the
provisions of law and this Indenture, and the Trustee shall not be
responsible to anyone for any action taken or omitted by it in good faith
pursuant to any such direction; and, provided further, that, subject to the
provisions of 13.02 and 13.03, the Trustee shall have the right to decline
to follow any such requirement or direction if it shall be advised by
counsel that the action or proceeding so directed may not be lawfully taken
or if the Trustee in good faith shall by Responsible Officers determine
that the action or proceeding so directed would involve it in personal
liability or be unjustifiably prejudicial to the non-assenting Bondholders,
or that it will not be sufficiently indemnified for any expenditures in any
action or proceeding so directed.
9.17 In so far as not contrary to any Bondholders' Notice and
Bondholders' Request pursuant to 9.16, but notwithstanding anything else in
this Indenture to the contrary, in case more than one series of Bonds be
Outstanding hereunder and an event of default shall have happened because
of any default in the payment of the principal of, or of the interest on,
or of any Sinking Fund, Maintenance and Renewal Fund, Improvement Fund, or
analogous fund installment in respect of, the Bonds of any one or more of
such series and not in respect of the Bonds of one or more of the other
series, and such event of default shall be subsisting, then whatever action
in this article it is provided may or shall be taken upon the happening of
such an event of default (continuing or subsisting as in this Indenture
provided) by or upon the request of the holders of a specified percentage
in principal amount of Bonds then Outstanding (excluding Company-owned
Bonds), may or shall be taken, in respect of the Bonds then Outstanding of
the series as to which such default shall have been made, by or upon the
request of the holders of a majority in principal amount of the Bonds then
Outstanding (excluding Company-owned Bonds) of the series as to which such
default shall have been made.
9.18 No holder of any Bond, or of any coupon or claim for interest
thereto appertaining, shall have the right to institute any suit, action,
or proceeding at law or in equity for the foreclosure of this Indenture or
for the execution of any trust or power hereof or for the appointment of a
receiver or for the enforcement of any other remedy hereunder unless there
shall previously have been filed with the Trustee a Bondholders' Notice and
a Bondholders' Request pertaining to enforcement of this Indenture by the
Trustee and unless there shall have been offered to the Trustee security
and indemnity satisfactory to it against the costs, expenses, and
liabilities to be incurred pursuant to such Notice and Request without
negligence or bad faith and unless the Trustee shall have failed to act
after a reasonable period, not exceeding sixty (60) days after receipt of
such Notice and Request, and such Notice and Request are hereby declared to
be conditions precedent to any such action or proceedings, all to the end
that the rights of the Trustee and the equal and ratable rights of every
holder of the Bonds shall be protected and multiplicity of suits shall be
avoided. Notwithstanding any other provisions hereof, the right of any
Bondholder to receive payment of the principal of and interest on any of
his Bonds on or after the respective due dates expressed in the Bonds and
coupons, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such holder; provided, however, that no Bondholder may institute
any such suit if and to the extent that the institution or prosecution
thereof or the entry of judgment herein would, under applicable law, result
in the surrender, impairment, waiver, or loss of the Lien of this Indenture
on any property subject to such Lien.
For the enforcement of the foregoing provisions of this Section and
for the protection of their rights hereunder, each and every holder of
Bonds, and the Trustee, shall be entitled to such relief as can be given
either at law or in equity.
9.19 Except as herein expressly provided to the contrary, no remedy
herein conferred upon or reserved to the Trustee or to the holders of the
Bonds is intended to be exclusive of any other remedy, but each and every
such remedy shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing at law or in equity or
by statute; and the employment of any remedy hereunder or otherwise shall
not prevent the concurrent employment of any other appropriate remedy or
remedies.
9.20 No delay or omission of the Trustee or of any holder of Bonds to
exercise any right or power upon the happening of any event of default (as
defined in 9.01) shall impair any such right or power or shall be construed
to be a waiver thereof or an acquiescence therein, nor shall the action of
the Trustee, or of the Bondholders, in case of any event of default and the
subsequent waiver thereof, affect or impair the rights of the Trustee, or
of such holders, in respect of any subsequent event of default on the part
of the Company or impair any right resulting therefrom; and every right,
power, and remedy given by this article to the Trustee, or to the
Bondholders, respectively, may, subject to the provisions of 9.18, be
exercised from time to time and as often as may be deemed expedient by the
Trustee, or by the Bondholders.
All rights of action under this Indenture (including the making and
filing of proofs of debt, and taking any action necessary or advisable in
order to have the claims of bearers and registered owners of Bonds allowed
in any proceedings) may be enforced by the Trustee without the possession
of any of the Bonds or coupons or the production thereof on the trial or
other proceedings, and any such suit or proceedings instituted by the
Trustee shall be brought in its name.
9.21 In any proceeding in law or equity brought by the Trustee
(including also any proceeding involving the interpretation of any
provision of this Indenture to which the Trustee shall be a party), the
Trustee shall be held to represent all the holders of Bonds and coupons
secured by this Indenture, and it shall not be necessary to make such
holders parties to any such proceeding.
ARTICLE X.
Evidence of Rights of Bondholders and Ownership of Bonds
10.01 Any Request, Notice, declaration, or other instrument, which
this Indenture may require or permit to be signed and executed by the
Bondholders, may be in any number of concurrent instruments of similar
tenor, and may be signed or executed by such Bondholders in person or by
attorney appointed in writing. Proof of the execution of any such Request
or other instrument, or of a writing appointing any such attorney, or of
the holding by any person of the Bonds or coupons appertaining thereto, may
be accepted by the Company or by the Trustee, as sufficient for any purpose
of this Indenture if made in the following manner:
(a) The fact and date of the execution by any person of such
Request or other instrument or writing may be proved by the cer-
tificate under his official seal of any notary public, or other
officer authorized to take acknowledgments of deeds to be recorded in
the jurisdiction wherein he purports to act, that the person signing
such Request or other instrument acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution;
(b) The amount of Bonds transferable by delivery held by any
person executing such Request or other instrument as a Bondholder,
and the series and serial numbers thereof held by such person and the
date of his holding the same, may be proven by a certificate executed
by any trust company, bank, banker, or other depositary wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such person
had on deposit with such depositary the Bonds described in such
certificate, and such holding may be deemed by the Trustee and the
Company to continue until written notice to the contrary is served
upon the Trustee. The Company and the Trustee may nevertheless in
their separate discretion require further proof in cases where they
deem further proof desirable. The ownership of registered Bonds
(whether fully registered, or registered as to principal only) shall
be proved by the registry books.
Any Request, Notice, consent or vote of the holder of any Bond shall
bind all future holders of the same Bond or any Bond or Bonds issued in
lieu thereof, in respect of anything done or suffered by the Company or by
the Trustee in pursuance thereof or in reliance thereon.
ARTICLE XI.
Immunity of Incorporators, Stockholders, Officers and Directors
11.01 No recourse under or upon any obligation, covenant, or
agreement contained in this Indenture, or in any Bond or coupon hereby
secured, for the payment of the principal of, premium, if any, or interest
on, any of the Bonds hereby secured, or for any claim based thereon, or
otherwise in any manner in respect thereof, shall be had against any
incorporator, stockholder, subscriber to capital stock, officer, or
director, as such, former, present, or future, of the Company, or of any
successor corporation, either directly, or indirectly through the Company
or any predecessor or successor corporation or the Trustee by the
enforcement of any assessment or by any legal or equitable proceeding by
virtue of any constitution, statute, or otherwise (including without
limiting the generality of the foregoing, any proceeding to enforce any
claimed liability of stockholders of the Company, based upon any theory
that the Company was acting as the agent or instrumentality of the stock-
holders); it being expressly agreed and understood that this Indenture, and
the obligations hereby secured, are solely corporate obligations, and that
no personal liability whatever shall attach to, or be incurred by, the
incorporators, stockholders, subscribers to capital stock, officers, or
directors, as such, of the Company, or of any successor corporation, or any
of them, on account of the indebtedness hereby authorized, or under or by
reason of any of the obligations, covenants, or agreements contained in
this Indenture or in any of the Bonds or coupons hereby secured, or implied
therefrom, and that any and all such personal liability of every name and
nature, and any and all such rights and claims against every such
incorporator, stockholder, subscriber to capital stock, officer, or
director, as such, whether arising at common law or in equity, or created
by constitution, statute, contract of subscription, or otherwise, are
expressly released and waived as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of the
Bonds and interest obligations secured hereby.
ARTICLE XII.
Bondholders' Lists and Reports by the Company and the Trustee
12.01 The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee not less than forty-five (45) nor more
than sixty (60) days after each interest payment date on Bonds of each
series from time to time Outstanding, and at such other times as the
Trustee may request in writing, a list in such form as the Trustee may
reasonably require containing all the information in the possession or
control of the Company or of any of its paying agents other than the
Trustee, as to the names and addresses of the holders of Bonds of the
series on which interest was payable not less than forty-five (45) nor more
than sixty (60) days prior to such filing obtained since the date as of
which the next previous list, if any, relating to Bonds of that series was
furnished. Any such list may be dated as of a date not more than fifteen
(15) days prior to the time such information is furnished or caused to be
furnished, and need not include information received after such date.
12.02
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses
of the holders of Bonds (1) contained in the most recent list
furnished to it as provided in 12.01, (2) received by it in the
capacity of paying agent hereunder if and when acting in such
capacity, and (3) filed with it within the two (2) preceding years
pursuant to the provisions of paragraph (2) of subsection (c) of
12.04. The Trustee may (1) destroy any list furnished to it as
provided in 12.01 upon receipt of a new list so furnished;
(2) destroy any information received by it as paying agent for any
series of Bonds upon delivering to itself as Trustee, not earlier
than forty-five (45) days after an interest payment date of the Bonds
of such series, a list containing the names and addresses of the
holders of Bonds obtained from such information since the delivery of
the next previous list, if any, with respect to such series;
(3) destroy any list delivered to itself as Trustee which was
compiled from information received by it as such paying agent upon
the receipt of a new list so delivered with respect to the same
series; and (4) destroy any information received by it pursuant to
the provisions of paragraph (2) of subsection (c) of 12.04, but not
until two (2) years after such information has been filed with it.
(b) In case three or more holders of Bonds (hereinafter in this
subsection referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such
applicant has owned one or more Bonds for a period of at least six
(6) months preceding the date of such application, and such
application states that the applicants desire to communicate with
other holders of Bonds with respect to their rights under this
Indenture or under the Bonds, and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five (5) business days after
the receipt of such application, at its election either
(1) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section; or
(2) inform such applicants as to the approximate number of
holders of Bonds whose names and addresses appear in the infor-
mation preserved at the time by the Trustee, in accordance with
the provisions of subsection (a) of this Section, and as to the
approximate cost of mailing to such Bondholders the form of
proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Bondholder whose name and address appear in
the information preserved at the time by the Trustee in accordance
with the provisions of subsection (a) of this Section, a copy of the
form of proxy or other communication which is specified in such
request, with reasonable promptness after a tender to the Trustee of
the material to be mailed and of payment or provision for the payment
of the reasonable expenses of mailing, unless within five (5) days
after such tender the Trustee shall mail to such applicants and file
with the Securities and Exchange Commission, together with a copy of
the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the
best interests of the holders of Bonds, or would be in violation of
applicable law. Such written statement shall specify the basis of
such opinion. If said Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or
if, after the entry of an order sustaining one or more of such
objections, said Commission shall find, after notice and opportunity
for a hearing, that all objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of
such material to all such Bondholders with reasonable promptness
after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to
such applicants respecting their application.
(c) The Trustee shall not be held accountable by reason of the
mailing of any material pursuant to any request made under subsection
(b) of this Section or the disclosure of any information as to the
names and addresses of the holders of Bonds in accordance with the
provisions of said subsection (b), regardless of the source from
which such information was derived.
12.03 The Company covenants and agrees
(1) to file with the Trustee, within fifteen (15) days after the
Company is required to file the same with the Securities and Exchange
Commission, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of
the foregoing as such Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with
such Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required
to file information, documents, or reports pursuant to either of such
Sections, then to file with the Trustee and the Securities and
Exchange Commission, in accordance with such rules and regulations as
may be prescribed from time to time by said Commission, such of the
supplementary and periodic information, documents, and reports which
may be required pursuant to Section 13 of the Securities Exchange Act
of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time by such
rules and regulations;
(2) to file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed
from time to time by said Commission, such additional information,
documents, and reports with respect to compliance by the Company with
the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations; and
(3) to transmit to the holders of Bonds in the manner and to the
extent provided in subsection (c) of 12.04 with respect to reports
pursuant to subsection (a) of 12.04, such summaries of any
information, documents, and reports required to be filed by the
Company pursuant to subsections (1) and (2) of this Section as may be
required by the rules and regulations prescribed from time to time by
the Securities and Exchange Commission.
12.04
(a) The Trustee shall transmit within sixty (60) days after
May 15 in each year beginning with the year 1955, to the Bondholders
as hereinafter in this Section provided, a brief report dated as of
such May 15 with respect to
(1) its eligibility and qualifications under 4.03(a), 13.01
and 13.14 or in lieu thereof, if to the best of its knowledge
the Trustee has continued to be eligible and qualified under
such Sections, a written statement to such effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee as such which remain unpaid
on the date of such report, and for the reimbursement of which
the Trustee claims or may claim a lien or charge prior to that
of the Bonds on the Mortgaged Property or on property or funds
held or collected by it as Trustee, except that the Trustee
shall not be required (but may elect) to state such advances if
such advances so remaining unpaid aggregate not more than
one-half of one percentum (1/2%) of the principal amount of the
Bonds outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of all
other indebtedness owing by the Company or any other Obligor on
the Bonds to the Trustee in its individual capacity on the date
of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon
a creditor relationship arising in any manner described in
subparagraphs (2), (3), (4) or (6) of subsection (b) of 13.15;
(4) the property and funds physically in the possession of
the Trustee, as such, or of a depositary for the Trustee, on the
date of such report;
(5) any release, or release and substitution, of property
subject to the lien of this Indenture (and the consideration
therefor, if any) which it has not previously reported;
provided, however, that to the extent that the aggregate value
as shown by the release papers of any or all of such released
properties does not exceed an amount equal to one percentum (1%)
of the aggregate principal amount of Bonds then outstanding, the
report need only indicate the number of such releases, the total
value of property released as shown by the release papers, the
aggregate amount of cash and obligations secured by purchase
money mortgages received and the aggregate value of property
received in substitution therefor as shown by the release
papers;
(6) any additional issue of Bonds which it has not
previously reported; and
(7) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously
reported and which in its opinion materially affect the Bonds or
the Mortgaged Property, except action in respect of a default
notice of which has been or is to be withheld by it in
accordance with the provisions of 9.02.
(b) The Trustee shall transmit to the Bondholders as hereinafter
provided, within ninety (90) days after the making of any release,
release and substitution, or advance as hereinafter specified, a
brief report with respect to
(1) the release, or release and substitution of property
subject to the Lien of this Indenture (and the consideration
therefor, if any) unless the Fair Value of such property, as set
forth in the certificates or opinions required by 7.03, 7.04, or
7.05, is less than ten percentum (10%) of the principal amount
of Bonds outstanding at the time of such release, or release and
substitution; and
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee, as such, since the date of
the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if no such report has yet
been so transmitted, since the date of execution of this
Indenture), for the reimbursement of which the Trustee claims or
may claim a lien or charge prior to that of the Bonds on the
Mortgaged Property or on property or funds held or collected by
it as Trustee, and which it has not previously reported pursuant
to this paragraph, except that the Trustee shall not be required
(but may elect) to report such advances if such advances
remaining unpaid at any time aggregate not more than ten
percentum (10%) of the principal amount of Bonds outstanding at
such time.
(c) Reports pursuant to this Section shall be transmitted by
mail
(1) to all registered holders of Bonds, as the names and
addresses of such holders appear upon the registration books of
the Company;
(2) to such holders of Bonds as have, within two (2) years
preceding such transmission, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to subsection
(b) of this Section, to each Bondholder whose name and address
is preserved at the time by the Trustee as provided in
subsection (a) of 12.02.
(d) At the time of the transmission to the Bondholders of any
report pursuant to this Section, a copy of such report shall be filed
by the Trustee with each securities exchange upon which the Bonds are
listed, and also with the Securities and Exchange Commission and with
the Company. The Company covenants that it will immediately notify
the Trustee of the name and address of each securities exchange upon
which the Bonds of any series shall be listed.
(e) For the purposes of this Section all Bonds which have been
certified and delivered and not returned to the Trustee and Cancelled
shall be deemed to be Outstanding.
ARTICLE XIII.
Concerning the Trustee and Its Paying Agents
13.01 The Trustee shall at all times be a bank or trust company
eligible under 4.03(a) and having a combined capital and surplus of at
least five million dollars ($5,000,000). If the Trustee publishes reports
of condition at least annually, pursuant to law or to the requirements of
any supervising or examining authority referred to in 4.03(a), then for the
purposes of this Section the combined capital and surplus of the Trustee
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. No bond shall be required of
the Trustee unless ordered by a court having jurisdiction and for cause
shown.
13.02 The Trustee hereby accepts the trust hereby created. The
Trustee undertakes, prior to an event of default as defined in 9.01 and
after all events of default which may have occurred shall have ceased to be
continuing or shall have been waived, to perform such duties and only such
duties as are specifically set forth in this Indenture, and after and
during the continuance of such an event of default which shall not have
been waived, to exercise such of the rights and powers vested in it by this
Indenture and to use the same degree of care and skill in their exercise as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
For the purposes of this 13.02 and of 13.03, a default shall be
deemed to have ceased to be continuing when the act or omission or other
event giving rise to such default shall have been cured, remedied or
terminated. If a default is waived as provided in 9.01 such default shall
be deemed to have been cured.
The Trustee, upon receipt of evidence furnished to it by or on behalf
of the Company pursuant to any provision of this Indenture, shall examine
the same to determine whether or not such evidence conforms to the
requirements of this Indenture.
13.03 No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that
(a) prior to the occurrence of an event of default hereunder and
after all events of default which may have occurred shall have ceased
to be continuing or shall have been waived the Trustee shall not be
liable except for the performance of such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee, but the duties
and obligations of the Trustee, prior to the occurrence of an event
of default and after all events of default which may have occurred
shall have ceased to be continuing or shall have been waived, shall
be determined solely by the express provisions of this Indenture;
(b) prior to the occurrence of an event of default hereunder and
after all events of default which may have occurred shall have ceased
to be continuing or shall have been waived, and in the absence of bad
faith on the part of the Trustee, the Trustee may conclusively rely
as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions conforming to the
requirements of this Indenture; but in the case of any such
certificate or opinion which by any provision hereof is specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not it conforms to
the requirements of this Indenture;
(c) the Trustee shall not be personally liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be personally liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority in aggregate principal amount of the Bonds at the time
Outstanding (excluding Company-owned Bonds) relating to the time,
method, and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred
upon the Trustee under this Indenture.
13.04 The recitals of fact contained herein and in the Bonds
(other than the Trustee's certification) shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
value of the Mortgaged Property or any part thereof, or as to the title of
the Company thereto, or as to the validity or adequacy of the security
afforded thereby and by this Indenture, or as to the validity of this
Indenture or of the Bonds or coupons issued hereunder. The Trustee shall
be under no responsibility or duty with respect to the making, executing,
acknowledging, recording, or filing hereof, or of any Supplemental
Indenture as a mortgage or conveyance of real or personal property, or the
transfer of any property acquired by the Company after the date of the
recording of these presents, or with respect to the disposition by the
Company of any Bonds certified and delivered hereunder or the application
of the proceeds thereof or the applications of any moneys paid to the
Company under any of the provisions hereof.
13.05 Subject to the provisions of 13.02 and 13.03 the Trustee
shall not be personally liable in case of entry by it upon the Mortgaged
Property for debts contracted or liability or damages incurred in the
management or operation of said property.
13.06 To the extent permitted by 13.02 and 13.03:
(1) The Trustee may rely and shall be protected in acting upon
any resolution, certificate, opinion, notice, request, consent,
order, appraisal, report, Bond, or other paper or document believed
by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) The Trustee may consult with counsel, who may be of counsel
to the Company, and the opinion of such counsel shall be fall and
complete authorization and protection in respect of any action taken
or suffered by it hereunder in good faith and in accordance with the
opinion of such counsel; and
(3) The Trustee shall not be liable for any action taken by it
in good faith and believed by it to be authorized or within the
discretion or power conferred upon it by this Indenture.
13.07 The Trustee shall not be under any responsibility for the
selection, appointment, or approval of any engineer, accountant, or other
expert for any of the purposes expressed in this Indenture, except that
nothing in this Section contained shall relieve the Trustee of its
obligation to exercise reasonable care with respect to the selection,
appointment, or approval of independent experts who may furnish opinions or
certificates to the Trustee pursuant to any provision of this Indenture.
Nothing contained in this Section shall be deemed to modify the
obligation of the Trustee to exercise after the occurrence of an event of
default the rights and powers vested in it by this Indenture with the
degree of care and skill specified in 13.02.
None of the provisions in this Indenture contained shall require the
Trustee to advance or expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or liability is not
reasonably assured to it by the security afforded to it by the terms of
this Indenture.
13.08 Subject to the provisions of 13.14 and 13.15 the Trustee or
any paying agent in its individual or any other capacity may become the
owner or pledgee of Bonds or coupons with the same rights it would have if
it were not Trustee or paying agent.
13.09 Subject to the provisions of 15.02, all moneys received by
the Trustee, whether as Trustee or paying agent, shall, until used or
applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to
the extent required by law and all such moneys, other than those described
in 8.01, shall be held by the Trustee, until so used or applied, as a part
of the Mortgaged Property. The Trustee may allow and credit to the Company
interest on any moneys received by it hereunder at such rate, if any, as
may be agreed upon with the Company from time to time and as may be
permitted by law. After compliance with any applicable legal requirement,
the Trustee may deposit all or any part of such moneys (including moneys
described in 8.01) on a certificate of deposit or otherwise to its credit
as Trustee hereunder, in its own banking department, or in any bank or
trust company approved by the Trustee having a capital, surplus, and un-
divided profits of not less than five million (5,000,000) dollars, or the
Trustee, after such compliance, may so deposit such moneys, together with
moneys of like nature held by it under other indentures or trust
instruments, to its credit as trustee of all moneys deposited in each such
account, respectively.
13.10 The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
for all services rendered by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
hereunder of the Trustee, which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust, and the Company will reimburse the Trustee for all advances made by
the Trustee and will pay to the Trustee from time to time its expenses and
disbursements, including the reasonable compensation and the expenses and
disbursements of its counsel and of all persons not regularly in its
employ, incurred without negligence or bad faith. The Company also
covenants to indemnify the Trustee for, and to hold it harmless against,
any loss, liability, or expense incurred without negligence or bad faith on
the part of the Trustee, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending against any claim of liability in the premises. The
Company further covenants and agrees to pay interest to the Trustee at the
rate of four percentum (4%) per annum upon all amounts paid, advanced, or
disbursed by the Trustee for which it is entitled to reimbursement or
indemnity as herein provided. The obligations of the Company to the
Trustee under this Section shall constitute additional indebtedness secured
hereby. For the performance of the obligations of the Company under this
Section, the Trustee shall have (in addition to any other rights under this
Indenture) a lien prior to the Bonds on the Mortgaged Property, including
all property or funds held or collected by the Trustee, as such, except
funds held in trust for the benefit of the holders of particular Bonds or
coupons.
In order to further assure the Trustee that it will be compensated,
reimbursed, and indemnified as provided in this Section and that the prior
lien provided for in this Section upon the trust estate to secure the
payment of such compensation, reimbursement, and indemnity will be enforced
for the benefit of the Trustee, all parties to this Indenture agree, and
each holder or owner of any Bond by his acceptance thereof shall be deemed
to have agreed that in the event of
(1) the adjudication of the Company as a bankrupt by any court
of competent jurisdiction,
(2) the filing of any petition seeking the reorganization of the
Company under the Federal Bankruptcy Laws or any other applicable law
or statute of the United States of America or of any State thereof,
(3) the appointment of one or more trustees or receivers of all
or substantially all the property of the Company,
(4) the filing of any bill to foreclose this Indenture,
(5) the filing by the Company of a petition to take advantage of
any insolvency act, or
(6) the institution of any other proceeding wherein it shall
become necessary or desirable to file or present claims against the
Company,
the Trustee may file from time to time in any such proceeding or
proceedings one or more claims, supplemental claims, and amended claims as
a secured creditor for its reasonable compensation for all services
rendered by it (including services rendered during the course of any such
proceeding or proceedings) and for reimbursement for all advances,
expenses, and disbursements (including the reasonable compensation and the
expenses and disbursements of its counsel and of all persons not regularly
in its employ) made or incurred by it in the execution of the trusts hereby
created and in the exercise and performance of any of the powers and duties
herein of the Trustee, and for any and all amounts to which the Trustee is
entitled as indemnity as provided in this Section; and the Trustee and its
counsel and agents may file in any such proceeding or proceedings
applications or petitions for compensation for such services rendered, for
reimbursement for such advances, expenses, and disbursements, and for such
indemnity. The claim or claims of the Trustee filed in any such proceeding
or proceedings shall be reduced by the amount of compensation for services,
reimbursement for advances, expenses, and disbursements, and indemnity paid
to it following final allowance to it and to its counsel and agents by the
court in any such proceeding as an expense of administration or in
connection with a plan of reorganization or readjustment. To the extent
that compensation, reimbursement, and indemnity are denied to the Trustee
or to its counsel or other agents because of not being rendered or incurred
in connection with the Administration of an estate in a proceeding or in
connection with a plan of reorganization or readjustment, approved as
required by law, because such services were not rendered in the interests
of and with benefit to the estate of the Company as a whole but in the
interests of and with benefit to the holders of the Bonds, in the execution
of the trusts hereby created or in the exercise and performance of any of
the powers and duties hereunder of the Trustee or because of any other
reason, the court may to the extent permitted by law allow such claim, as
supplemented and amended, in any such proceeding or proceedings and for the
purposes of any plan of reorganization or readjustment of the Company's
obligations, classify the Trustee as a secured creditor of a class separate
and distinct from that of other creditors and of a class having priority
and precedence over the class in which the holders of Bonds are placed by
reason of having a lien, prior and superior to that of the holders of the
Bonds, upon the trust estate, including all property or funds held or
collected by the Trustee as such. The amount of the claim or claims of the
Trustee for service rendered and for advances, expenses, and disbursements,
including the reasonable compensation and the expenses and disbursements of
its counsel and of all persons not regularly in its employ which are not
allowed and paid in any such proceeding, but for which the Trustee is
entitled to the allowance of a secured claim as herein provided, may be
fixed by the court or judge in any such proceeding or proceedings to the
extent that such court or judge has or exercises jurisdiction over the
amount of any such claim or claims.
13.11 If, and to the extent that the Trustee and its counsel and
other persons not regularly in its employ do not receive compensation for
services rendered, reimbursement of its or their advances, expenses, and
disbursements, or indemnity, as herein provided, as the result of
allowances made in any reorganization, bankruptcy, receivership,
liquidation, or other proceeding or by any plan of reorganization or
readjustment of obligations of the Company, the Trustee shall be entitled,
to the extent permitted by law in priority to the holders of the Bonds, to
receive any distributions of any securities, dividends, or other
disbursements which would otherwise be made to the holders of Bonds in any
such proceeding or proceedings and the Trustee is hereby constituted and
appointed, irrevocably, the attorney in fact for the holders of the Bonds
and each of them to collect and receive, in their name, place, and stead,
such distributions, dividends, or other disbursements, to deduct therefrom
the amounts due to the Trustee, its counsel, and other persons not
regularly in its employ on account of services rendered, advances,
expenses, and disbursements made or incurred, or indemnity, and to pay and
distribute the balance, pro rata, except as provided in 2.14 and 4.02
hereof to the holders of the Bonds. The Trustee shall have a lien upon any
securities or other considerations to which the holders of Bonds may become
entitled pursuant to any such plan of reorganization or readjustment of
obligations, or in any such proceeding or proceedings; and the court or
judge in any such proceeding or proceedings may determine the terms and
conditions under which any such lien shall exist and be enforced.
13.12 Whenever in the administration of the trusts of this In-
denture, prior to the occurrence of an event of default hereunder and after
all events of default which may have occurred shall have ceased to be
continuing or shall have been waived, the Trustee shall deem it necessary
or desirable that a matter be proved or established prior to taking or
suffering any action hereunder, each matter (unless other evidence in
respect thereof be herein specifically prescribed) may to the extent
permitted by 13.02 and 13.03 hereof be deemed to be conclusively proved and
established by an Officers' Certificate and such Certificate shall be full
warrant to the Trustee for any action taken or suffered by it under the
provisions of this Indenture upon the faith thereof.
13.13 Whenever it is provided in this Indenture that the Trustee
shall take any action upon the happening of a specified event or upon the
fulfillment of any condition or upon the request of the Company or of
Bondholders, the Trustee in taking such action shall have full power to
give any and all notices and to do any and all acts and things incidental
to such action.
13.14
(a) If the Trustee has or acquires any conflicting interest, as
defined by subsection (d) of this Section, the Trustee shall within
ninety (90) days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign by
giving written notice to the Company, but such resignation shall not
become effective until the appointment of a successor trustee and
such successor's acceptance of such appointment. The Company
covenants to take prompt steps to have a successor appointed in the
manner hereinafter provided in 13.18. Upon giving such notice of
resignation, the resigning Trustee shall give Published Notice
thereof, once in each of three (3) successive calendar weeks, in each
case on any business day of the week. If the resigning Trustee fails
to give such Published Notice within ten (10) days after giving
written notice of its resignation to the Company, the Company shall
give such Published Notice.
(b) In the event that the Trustee shall fail to comply with the
provisions of the preceding subsection (a) of this Section, it shall
within ten (10) days after the expiration of such ninety (90) day
period transmit notice of such failure to the Bondholders, in the
manner and to the extent provided in subsection (c) of 12.04 with
respect to reports pursuant to subsection (a) of 12.04.
(c) Subject to the provisions of 17.04 any Bondholder who has
been a bona fide holder of a Bond or Bonds for at least six (6)
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor if the Trustee fails,
after written request therefor by such holder, to comply with the
provisions of subsection (a) of this Section.
(d) For the purposes of this Section, the Trustee shall be
deemed to have a conflicting interest if
(1) the Trustee is trustee under another indenture under
which any other securities, or certificates of interest or
participation in any other securities, of the Company, are
outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Bonds
issued under this Indenture; provided that there shall be
excluded from the operation of this paragraph any other
indenture or indentures under which other securities, or
certificates of interest or participation in other securities,
of the Company are outstanding, if the Company pursuant to
Section 310(b) of the Trust Indenture Act of 1939, shall have
sustained the burden of proving, on application to the Securi-
ties and Exchange Commission and after opportunity for hearing
thereon, that the trusteeship under this Indenture and such
other indenture is not so likely to involve a material conflict
of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from
acting as such under one of such indentures;
(2) the Trustee or any of its directors or executive
officers is an Obligor upon the Bonds or an underwriter for the
Company;
(3) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or
indirect common control with the Company or an underwriter for
the Company;
(4) the Trustee or any of its directors or executive
officers is a director, officer, partner, employee, appointee,
or representative of the Company, or of an underwriter (other
than the Trustee itself) for the Company, who is currently
engaged in the business of underwriting, except that (A) one
individual may be a director and/or an executive officer of the
Trustee and a director and/or an executive officer of the
Company, but may not be at the same time an executive officer of
both the Trustee and the Company; (B) if and so long as the
number of directors of the Trustee in office is more than nine
(9), one additional individual may be a director and/or an
executive officer of the Trustee and a director of the Company;
and (C) the Trustee may be designated by the Company, or by any
underwriter for the Company, to act in the capacity of transfer
agent, registrar, custodian, paying agent, fiscal agent, escrow
agent or depositary or in any other similar capacity, or subject
to the provisions of paragraph (1) of this subsection (d), to
act as trustee, whether under an indenture or otherwise;
(5) ten percentum (10%) or more of the voting securities of
the Trustee is beneficially owned either by the Company or by
any director, partner, or executive officer thereof, or twenty
percentum (20%) or more of such voting securities is
beneficially owned, collectively, by any two or more of such
persons; or ten percentum (10%) or more of the voting securities
of the Trustee is beneficially owned either by an underwriter
for the Company or by any director, partner, or executive
officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as in
this subsection (d) defined, (A) five percentum (5%) or more of
the voting securities, or ten percentum (10%) or more of any
other class of security, of the Company, not including the Bonds
issued under this Indenture and securities issued under any
other indenture under which the Trustee is also trustee, or
(B) ten percentum (10%) or more of any class of security of an
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as in
this subsection (d) defined, five percentum (5%) or more of the
voting securities of any Person who, to the knowledge of the
Trustee, owns ten percentum (10%) or more of the voting
securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as in
this subsection (d) defined, ten percentum (10%) or more of any
class of security of any Person who, to the knowledge of the
Trustee, owns fifty percentum (50%) or more of the voting
securities of the Company; or
(9) the Trustee owns, on May 15 in any calendar year in the
capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other
similar capacity, an aggregate of twenty-five percentum (25%) or
more of the voting securities, or of any class of security, of
any Person, the beneficial ownership of a specified percentage
of which would have constituted a conflicting interest under
paragraphs (6), (7) or (8) of this subsection (d). As to any
such securities of which the Trustee acquired ownership through
becoming executor, administrator, or testamentary trustee of an
estate which included them, the provisions of the preceding
sentence shall not apply for a period of two (2) years from the
date of such acquisition, to the extent that such securities
included in such estate do not exceed twenty-five percentum
(25%) of such voting securities or twenty-five percentum (25) of
any such class of security. Promptly after May 15, in each
calendar year, the Trustee shall make a check of its holdings of
such securities in any of the above-mentioned capacities as of
May 15. If the Company fails to make payment in full of
principal or interest upon the Bonds when and as the same become
due and payable, and such failure continues for thirty (30) days
thereafter, the Trustee shall make a prompt check of its
holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such thirty day
period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such securities so held by the
Trustee, with sole or joint control of such securities vested in
it, shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for the
purposes of paragraphs (6), (7) and (8) of this subsection (d)
The specifications of percentages in paragraphs (5) to (9), in-
clusive, of this subsection (d) shall not be construed as indicating
that the ownership of such percentages of the securities of a person
is or is not necessary or sufficient to constitute direct or indirect
control for the purpose of paragraph (3) or (7) of this
subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this
subsection (d) only, (A) the terms "security" and "securities" shall
include only such securities as are generally known as corporate
securities, but shall not include any note or other evidence of
indebtedness issued to evidence an obligation to repay moneys lent to
a person by one or more banks, trust companies, or banking firms, or
any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in
default when a default in payment of principal shall have continued
for thirty (30) days or more and shall not have been cured; and (C)
the Trustee shall not be deemed to be the owner or holder of (i) any
security which it holds as collateral security (as trustee or
otherwise) for an obligation which is not in default as above
defined, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii)
any security which it holds as agent for collection, or as custodian,
escrow agent, or depositary, or in any similar representative
capacity.
The percentages of voting securities and other securities
specified in this subsection (d) shall be calculated in accordance
with the following provisions:
(a) A specified percentage of the voting securities of the
Trustee, the Company or any other Person referred to in this Section
(each of whom is referred to as a "person" in this paragraph and in
the following paragraph) means such amount of the outstanding voting
securities of such person as entitles the holder or holders thereof
to cast such specified percentage of the aggregate votes which the
holders of all the outstanding voting securities of such person as
entitles to cast in the direction or management of the affairs of
such person.
(b) specified percentage of a class of securities of a person
means such percentage of the aggregate amount of securities of the
class outstanding
(c) The term "amount", when used in regard to securities, means
the principal amount if relating to evidences of indebtedness, the
number of shares if relating to capital shares, and the number of
units, if relating to any other kind of security.
(d) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be
deemed outstanding within the meaning of this definition:
(1) Securities of an issuer held in a sinking fund relating
to securities of the issuer of the same class;
(2) Securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as
to principal or interest or otherwise;
(3) Securities pledged by the issuer thereof as security
for an obligation of the issuer not in default as to principal
or interest or otherwise;
(4) Securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(e) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all
of which are issued under a single indenture, differences in the
interest rates or maturity dates of various series thereof shall not
be deemed sufficient to constitute such series different classes, and
provided further, that, in the case of unsecured evidences of
indebtedness, differences in the interest rates or maturity dates
thereof shall not be deemed sufficient to constitute them securities
of different classes, whether or not they are issued under a single
indenture.
For the purposes of this Section, the term "voting security" means
any security presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security issued
under or pursuant to any trust, agreement, or arrangement whereby a trustee
or trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person; the term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization
whether incorporated or unincorporated; the term "executive officer" means
the president, every vice president, every trust officer, the cashier, the
secretary, and the treasurer of a corporation, and any individual
customarily performing similar functions with respect to any organization
whether incorporated or unincorporated, but shall not include the chairman
of the board of directors; the term "underwriter" when used with reference
to the Company means every person who, within three (3) years prior to the
time as of which the determination is made, has purchased from the Company
with a view to, or has sold for the Company in connection with, the
distribution of any security of the Company outstanding at such time, or
has participated or has had a direct or indirect participation in any such
undertaking, or has participated or has had a participation in the direct
or indirect underwriting of any such undertaking, but such term shall not
include a person whose interest was limited to a commission from an
underwriter or dealer not in excess of the usual and customary
distributors' or sellers' commission; and the term "the Company" shall
include any Obligor upon the Bonds.
13.15 (a) Subject to the provisions of subsection (b) of this
Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within four (4) months
prior to a default (as defined in the last paragraph of this subsection),
or subsequent to such a default, then, unless and until such default shall
be cured, the Trustee shall set apart and hold in a special account for the
benefit of the Trustee individually, the Bondholders, and the holders of
other indenture securities (as defined in the last paragraph of this
subsection)
(1) an amount equal to any and all reductions in the amount due
and owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such four months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection (a), or from
the exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against
the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim
as such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such four
(4) months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its or his own account (i) payments made on
account of any such claim by any person (other than the Company) who
is liable thereon, and (ii) the proceeds of the bona fide sale of any
such claim by the Trustee to a third person, and (iii) distributions
made in cash, securities, or other Property in respect of claims
filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Bankruptcy Act or
applicable State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such four (4) months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such four (4) months' period and such property was
received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that
at the time such property was so received the Trustee had no
reasonable cause to believe that a default as defined in the last
paragraph of this subsection (a) would occur within four (4) months;
or
(D) to receive payment on any claim referred to in paragraph (B)
or (C) of this subsection (a) against the release of any property
held as security for such claim as provided in paragraph (B) or (C),
as the case may be, of this subsection (a), to the extent of the fair
value of such property.
For the purposes of paragraphs (B), (C) and (D) of this subsection
(a), property substituted after the beginning of such four (4) months'
period for property held as security at the time of such substitution
shall, to the extent of the fair value of the property released, have the
same status as the property released, and, to the extent that any claim
referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Bondholders, and the holders of other indenture
securities in such manner that the Trustee, the Bondholders, and the
holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Bankruptcy Act or applicable State law, the same percentage
of their respective claims, figured before crediting to the claim of the
Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee, the Bondholders, and the holders of other
indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Bankruptcy Act or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds
and property so held in such special account. As used in this paragraph,
with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Bankruptcy Act or
applicable State law, whether such distribution is made in cash,
securities, or other property, but shall not include any such distribution
with respect to the secured portion, if any, of such claim. The court in
which such bankruptcy, receivership, or proceeding for reorganization is
pending shall have jurisdiction (i) to apportion between the Trustee, the
Bondholders, and the holders of other indenture securities, in accordance
with the provisions of this paragraph, the funds and property held in such
special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distri-
butions to be made to the Trustee, the Bondholders, and the holders of
other indenture securities, with respect to their respective claims, in
which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as
security for any such claim, or to make a specific allocation of such
distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
If the Trustee shall have resigned or been removed after the be-
ginning of such four (4) months' period, it shall be subject to the pro-
visions of this subsection as though such resignation or removal had not
occurred. If the Trustee has resigned or been removed prior to the
beginning of such four (4) months' period, it shall be subject to the
provisions of this subsection (a) if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if the Trustee had con-
tinued as trustee, occurred after the beginning of such four (4)
months' period; and
(ii) such receipt of property or reduction of claim occurred
within four (4) months after such resignation or removal.
As used in this Section, the term "default" means any failure to make
payment in full of the principal of or interest upon the Bonds or upon the
other indenture securities when and as such principal or interest becomes
due and payable; and the term "other indenture securities" means securities
upon which the Company is an obligor (as defined in the Trust Indenture Act
of 1939) outstanding under any other indenture (a) under which the Trustee
is also trustee, (b) which contains provisions substantially similar to the
provisions of this subsection (a), and (c) under which a default exists at
the time of the apportionment of the funds and property held in said
special account.
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture for the purpose of
preserving the property subject to the Lien of this Indenture or of
discharging tax liens or other prior liens or encumbrances on the
Mortgaged Property, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Bondholders as provided in subsections (a), (b) and (c) of 12.04
hereof with respect to advances by the Trustee as such;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in the last para-
graph of this subsection (b);
(5) the ownership of stock or of other securities of a corpora-
tion organized under the provisions of Section 25 (a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor
of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances, or obligations which fall
within the classification of self-liquidating paper as defined in the
last paragraph of this subsection (b).
As used in this 13.15, the term "security" shall have the meaning
assigned to such terms in the Securities Act of 1933, as amended and in
force on the date of the execution-of this Indenture; the term "cash
transaction" shall mean any transaction in which full payment for goods or
securities sold is made within seven (7) days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and the term "self-liquidating paper"
shall mean any draft, bill of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the purpose of
financing the purchase, processing, manufacture, shipment, storage or sale
of goods, wares, or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares, or
merchandise or the receivables or proceeds arising from the sale of the
goods, wares, or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; the term "Trustee" shall include the Trustee and
any separate trustee or co-trustee hereafter appointed; and the term "the
Company" shall include any Obligor upon the Bonds.
13.16 The Trustee may at any time resign and be discharged of the
trusts hereby created by giving written notice to the Company specifying
the day upon which such resignation shall take effect and thereafter giving
Published Notice thereof, once in each of three (3) successive calendar
weeks, in each case on any business day of the week, and such resignation
shall take effect upon the day specified in such Notice unless previously a
successor trustee shall have been appointed by the Bondholders or the
Company in the manner hereinafter provided in 13.18, and in such event such
resignation shall take effect immediately on the appointment of such
successor trustee. This Section shall not be applicable to resignations
pursuant to 13.14.
13.17 The Trustee may be removed at any time by an instrument or
concurrent instruments in writing filed with the Trustee and signed and
acknowledged by the holders of a majority in aggregate principal amount of
the Bonds then Outstanding (excluding Company-owned Bonds) or by their
attorneys in fact duly authorized.
In case at any time the Trustee shall cease to be eligible in ac-
cordance with the provisions of 4.03(a) and 13.01, then the Trustee shall
resign immediately in the manner and with the effect specified in 13.16;
and in the event that the Trustee does not resign immediately in such case,
then it may be removed forthwith by an instrument or concurrent instruments
in writing filed with the Trustee and either (a) signed by the President or
a Vice President of the Company with its corporate seal attested by a Clerk
or an Assistant Clerk of the Company or (b) signed and acknowledged by the
holders of a majority in aggregate principal amount of the Bonds then
Outstanding (excluding Company-owned Bonds) or by their attorneys in fact
duly authorized.
13.18 In case at any time the Trustee shall resign or shall be
removed (unless the Trustee shall be removed as provided in subsection (a)
of 13.14 in which event the vacancy shall be filed as provided in said
subsection) or shall become incapable of acting or shall be adjudged a
bankrupt or insolvent, or if a receiver of the Trustee or of its property
shall be appointed, or if any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation, or liquidation, a vacancy shall be deemed to
exist in the office of Trustee, and a successor or successors may be
appointed by the holders of a majority in aggregate principal amount of the
Bonds then Outstanding hereunder (excluding Company-owned Bonds), by an
instrument or concurrent instruments in writing signed and acknowledged by
such Bondholders or by their attorneys in fact duly authorized, and
delivered to such new Trustee, notification thereof being given to the
Company and the retiring Trustee; provided, nevertheless, that until a new
Trustee shall be appointed by the Bondholders as aforesaid, the Company, by
instrument executed by order of its Board of Directors and duly
acknowledged by its President or a Vice President, may appoint a Trustee to
fill such vacancy until a new Trustee shall be appointed by the Bondholders
as herein authorized. The Company shall publish notice of any such
appointment made by it in the manner provided in 13.16. Any new Trustee
appointed by the Company shall, immediately and without further act, be
superseded by a Trustee appointed by the Bondholders, as above provided, if
such appointment by the Bondholders be made prior to the expiration of one
year after the first publication of notice of the appointment of the new
Trustee by the Company. The Company shall cause notice of any such
appointment made by the Bondholders to be published in the manner provided
in 13.16.
If in a proper case no appointment of a successor Trustee shall be
made pursuant to the foregoing provisions of this Section within six (6)
months after a vacancy shall have occurred in the office of Trustee, the
holder of any Bond Outstanding hereunder or any retiring Trustee may apply
to any court of competent jurisdiction to appoint a successor Trustee.
Said court may thereupon after such notice, if any, as such court may deem
proper and prescribe, appoint a successor Trustee.
If the Trustee resigns because of a conflicting interest as provided
in subsection (a) of 13.14 and a successor has not been appointed by the
Company or the Bondholders or, if appointed, has not accepted the
appointment within thirty (30) days after the date of such resignation, the
resigning Trustee may apply to any court of competent jurisdiction for the
appointment of a successor Trustee, and appointment may be made by such
court pursuant to the procedure set forth in the preceding paragraph of
this Section.
Any Trustee appointed under the provisions of this Section in
succession to a Trustee shall be a bank or trust company eligible under
4.03(a) and 13.01 and not disqualified under 13.14.
Any Trustee which has resigned or been removed shall nevertheless
retain the lien upon the Mortgaged Property, including all property or
funds held or collected by the Trustee as such (except funds held in trust
for the benefit or particular Bonds or coupons), to secure the amounts due
to such Trustee as compensation, reimbursement, expenses and indemnity
afforded to it by 13.10 and shall retain the rights afforded to it by
13.11.
13.19 Any successor trustee appointed hereunder shall execute,
acknowledge, and deliver to its predecessor trustee, and also to the
Company, an instrument accepting such appointment hereunder, and thereupon
such successor trustee, without any further act, deed, or conveyance shall
become fully vested with all the estates, properties, rights, powers,
trusts, duties, and obligations of its predecessor in trust hereunder, with
like effect as if originally named as trustee herein; but the trustee
ceasing to act shall nevertheless, on the written request of the Company,
or of the successor trustee, or of the holders of ten percentum (10%) in
aggregate principal amount of the Bonds then Outstanding hereunder,
execute, acknowledge, and deliver such instruments of conveyance and
further assurance and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in such successor
trustee all the right, title, and interest of the trustee to which it
succeeds, in and to the Mortgaged Property and such rights, powers, trusts,
duties, and obligations, and the trustee ceasing to act shall also, upon
like request, pay over, assign, and deliver to the successor trustee any
money or other property which may then be in its possession subject to the
Lien of this Indenture, including any purchase money mortgage or other like
indebtedness which may then be in its possession provided always that the
Trustee ceasing to act shall retain its prior lien upon the Mortgaged
Property until compensated, reimbursed or indemnified as herein provided.
Should any deed, conveyance, or instrument in writing from the Company be
required by the new trustee for more fully and certainly vesting in and
confirming to such new trustee such estates, properties, rights, powers,
trusts, duties, and obligations, any and all such deeds, conveyances, and
instruments in writing shall, on request, be executed, acknowledged, and
delivered by the Company.
13.20 Any corporation into which the Trustee may be merged or with
which it may be consolidated or any corporation resulting from any merger
or consolidation to which the Trustee shall be a party or any corporation
to which substantially all the business and assets of the Trustee may be
transferred, provided such corporation shall be eligible under the
provisions of 4.03(a) and 13.01 hereof and qualified under 13.14 hereof,
shall be the successor Trustee under this Indenture, without the execution
or filing of any paper or the performance of any further act on the part of
any other parties hereto, anything herein to the contrary notwithstanding.
In case any of the Bonds contemplated to be issued hereunder shall have
been certified but not delivered, any such successor to the Trustee may,
subject to the same terms and conditions as though such successor had
itself certified such Bonds, adopt the certification of the original
Trustee or of any successor to it as trustee hereunder, and deliver the
said Bonds so certified; and in case any of such Bonds shall not have been
certified, any successor to the Trustee may certify such Bonds either in
the name of any predecessor hereunder or in the name of the successor
Trustee, and in all such cases such certificate shall have the full force
which it is anywhere in said Bonds or in this Indenture provided that the
certificate of the Trustee shall have; provided, however, that the right to
certify Bonds in the name of the original Trustee shall apply only to its
successor or successors by merger or consolidation or sale as aforesaid.
13.21 The duties, liabilities, rights, privileges, and immunities
of the Trustee in relation to the holders of the Bonds shall be governed
exclusively by the laws of the Commonwealth of Massachusetts.
13.22 Each office, agency, corporation, or firm specified in or on
any of the Bonds or in any Directors' Resolution as a place of paying the
principal thereof, or the interest thereon, is included in the term "paying
agents" for all purposes hereof. If any of the paying agents, as above
defined, shall be dissolved, or cease to carry on business, or if any of
the paying agents shall resign hereunder by writing filed with the Trustee,
or if the Company shall remove any paying agent by a Directors' Resolution
filed with the Trustee and with the paying agent so removed, or if a
receiver of any paying agent be appointed or its property or affairs be
taken over by any public officer or officers, or if it be adjudged bankrupt
or insolvent, or if a vacancy for any cause occur at any time in the office
of any paying agent, then all the rights and duties conferred upon such
paying agent by this Indenture or by any Directors' Resolution shall be
exercised by the Trustee, and in such case, subject to the provisions of
13.02 and 13.03, the Trustee shall incur no liability for any action taken
by it in such capacity save for loss or damage resulting from its
negligence or wilful default; provided, however, that in lieu of such
exercise of rights and powers by the Trustee, in each or any such case the
Company may, by a Directors' Resolution, appoint some other person or
persons, natural or corporate, as successor to, and with all the rights and
powers of, such predecessor paying agent.
Each of the paying agents, in respect of all moneys paid to or held
by each hereunder or under the Bonds, shall be subject to the trusts
specified in 4.03 (c) hereof.
ARTICLE XIV.
Effect of Consolidation, Merger, Sale, or Lease
14.01 Nothing contained in this Indenture or in any Bond issued or
to be issued hereunder shall prevent any consolidation with the Company, or
merger into the Company, of any other Corporation, or any consolidation
with or merger by the Company into any other Corporation having corporate
powers to carry on the business then being carried on by the Company, or
the sale or lease (subject to the continuing Lien of this Indenture and to
all the provisions hereof) of all or substantially all of the Mortgaged
Property as an entirety to any Corporation lawfully entitled to acquire or
lease and operate the same, or prevent successive similar consolidations,
mergers, sales, and leases to which the Company or any other such
Corporation shall be a party, provided, however, that
A. any such merger or consolidation shall be consummated only
in conformity with the following conditions precedent thereto:
(1) that if any property owned by the Corporation to be
consolidated with the Company or merged into it or into which
the Company shall be merged (in this Article XIV called the
other Corporation) shall after such merger or consolidation be
subject to one or more mortgages or liens which shall be prior
to the Lien hereof and which shall secure any indebtedness not
then called for redemption and payment (and deposit actually and
irrevocably made of the entire redemption price), (a) then the
aggregate principal amount of all such indebtedness shall not
exceed sixty percentum (60%) of the Cost or Fair Value,
whichever is less, of said property, and (b) the net earnings
of said other Corporation, computed as provided in subparagraph
35 of 1.02 hereof, (excluding the final paragraph thereof)
during a period of twelve (12) consecutive calendar months
ending within ninety (90) days next preceding the date of such
consolidation or merger shall have been a sum at least equal to
twice the annual interest on said indebtedness, and
(2) that if the Corporation resulting from any such merger
or consolidation (herein in this Article XIV called the
successor corporation) shall have outstanding at the time of
such merger or consolidation any indebtedness not then called
for redemption and payment (and deposit actually and irrevocably
made of the entire redemption price) or proposes to issue in
connection with such consolidation or merger any indebtedness in
either case secured by a mortgage, lien, or pledge on its
property, whether or not any of said property shall have been
previously owned by the Company, said successor corporation
shall have made effective provision to establish as prior and
superior to the mortgage, lien, or pledge securing the said
indebtedness the Lien hereof upon the Mortgaged Property owned
by the Company immediately prior to said merger or consolidation
and upon all property thereafter to be acquired by the successor
corporation (other than property of the character described
herein under the definition of Excepted Property) or the
franchises necessary for the operation thereof, which, if
acquired by the Company, would constitute betterment,
extensions, improvements, additions, repairs, renewals,
replacements, substitutions, and alterations of or to the
Mortgaged Property as constituted immediately prior to said
merger or consolidation, and, if the Trustee shall so require,
shall in addition have made effective provision that the lien of
said mortgage or pledge upon the property of said successor
corporation of the character described herein under the
definition of Excepted Property shall in no wise be superior to
the Lien hereof on any such property;
B. any such merger or consolidation and any such sale shall be
consummated only if the successor corporation or the purchaser, as
the case may be, shall also covenant with the Trustee in a
Supplemental Indenture, in form satisfactory to the Trustee, to be
duly recorded and filed either prior to or substantially
simultaneously with any such merger, consolidation or sale in all
registries or other offices where this Indenture is then recorded
and/or filed
(1) that such consolidation, merger, or sale shall be on
such terms as in no respect to impair the rights or powers of
the Trustee or of the Bondholders or the Lien hereof upon the
Mortgaged Property owned by the Company immediately prior to
said merger, consolidation, or sale, or upon any property
thereafter to be acquired by the successor corporation or the
purchaser, as the case may be, (other than property of the
character described herein under the definition of Excepted
Property), or the franchises necessary for the operation
thereof, which, if acquired by the Company, would constitute
betterment, extensions, improvements, additions, repairs,
renewals, replacements, substitutions, and alterations of or to
the Mortgaged Property as constituted immediately prior to said
merger, consolidation, or sale; and
(2) to assume the due and punctual payment of the principal
of and interest on all the Bonds then Outstanding hereunder
according to their tenor and the due and punctual performance of
all the covenants hereof to be kept or performed by the Company;
and
(3) fully to preserve and protect the franchises of the
Company so far as they relate to the Mortgaged Property im-
mediately prior to said merger, consolidation, or sale, subject
however to the provisions of 7.02(c);
and any such Supplemental Indenture shall also contain:
(a) a grant confirming the Lien hereof upon the
Mortgaged Property owned by the Company immediately prior to
said merger, consolidation or sale, and upon all property
thereafter to be acquired by the successor corporation or
the purchaser, as the case may be, (other than property of
the character described herein under the definition of
Excepted Property), or the franchises necessary for the
operation thereof, which would constitute betterment,
extensions, improvements, additions, repairs, renewals,
replacements, substitutions, and alterations of or to the
Mortgaged Property so owned, and
(b) a covenant to keep the Mortgaged Property so owned
and all said after acquired property and the earnings,
income, and profits therefrom so segregated as to be capable
of identification;
C. any such lease shall be consummated only if at the time of
the execution of said lease no event of default hereunder shall have
occurred or if, having occurred, shall not then be continuing, and
only if the lessee shall furnish to the Trustee an indenture, in form
satisfactory to the Trustee, to be duly recorded and filed in all
registries or other offices where this Indenture is then recorded
and/or filed, containing covenants substantially identical with those
described in subparagraphs B(2) and B(3) of this Section (except that
the lessee shall not be obliged to covenant to perform any covenant
hereof or hereunder after the expiration date of such lease) and a
further covenant that such lease shall be made expressly subject, at
any time after default shall be made in said covenants or after the
occurrence of an event of default hereunder, to immediate termination
either by the Company or by the Trustee, or by the purchaser of the
Mortgaged Property or any substantial part thereof at any sale
thereof made hereunder, whether such sale be made under the power of
sale hereby conferred or under judicial proceedings.
14.02 The Company shall furnish or cause to be furnished to the
Trustee prior to the consummation of any such consolidation, merger, sale
or lease, as the case may be, (1) in order to establish that the conditions
precedent set forth in subparagraph A of 14.01 have been fully complied
with (a) an Independent Accountant's Certificate setting forth the net
earnings, during a period of twelve (12) consecutive calendar months ending
as required by (1) of said subparagraph A, of the Corporation to be
consolidated with the Company or merged into it or into which the Company
shall be merged or consolidated, stating that said net earnings have been
computed in accordance with the provisions of (1) of said subparagraph, and
that they are at least equal to twice the annual interest upon all the
indebtedness of said Corporation secured by mortgages or liens of the
character therein referred to; and (b) an Independent Engineer's
Certificate stating that the aggregate principal amount of the indebtedness
secured by mortgages or liens of the character described in (1) of said
subparagraph A of said other Corporation does not exceed sixty per centum
(60%) of the said Cost or Fair Value, whichever is less, of the property
securing said indebtedness; (2) in order to establish the non-occurrence or
non-continuance of an event of default as provided in subparagraph C of
14.01, an Officers' Certificate to that effect; and, (3) in order to
establish the performance of all other pertinent requirements set forth in
14.01 and the fulfillment of the conditions contained in 14.03, an Opinion
of Counsel to the effect that all such pertinent requirements have been
fully met and complied with and subject to the provisions of 13.02 and
13.03 such Opinion of Counsel shall protect the Trustee in approving or
consenting to any such consolidation, merger, sale or lease. The
Independent Engineer's Certificate shall also describe in reasonable detail
the property of said other Corporation of the character defined in the
second paragraph of the definition of Fundable Property and state the Cost
thereof or the Fair Value thereof as of the date of said merger,
consolidation or sale, whichever is less, and that said Cost or Fair Value
has been determined in accordance with the definitions of said terms.
14.03 No such consolidation, merger, or sale, and no indenture
made requisite by the pertinent requirements of 14.01 shall, in the absence
of an express grant by the successor corporation or purchaser, subject to
the Lien hereof any of the properties of the character described in
Clause 2 of the granting clauses hereof or any of the franchises of any
such successor corporation or purchaser, except those acquired by it from
the Company and except further any property thereafter acquired by it
(other than property of the character described herein under the definition
of Excepted Property), or the franchises necessary for the operation
thereof, which would have constituted betterment, extensions, improvements,
additions, repairs, renewals, replacements, substitutions, or alterations
of or to the Mortgaged Property so acquired as constituted immediately
prior to such consolidation, merger or sale; provided however that
notwithstanding any such consolidation, merger or sale, this Indenture
shall constitute a lien on all the Mortgaged Property as so constituted and
on the above described after-acquired property, and on any other property
acquired from the Company of the character described herein under the
definition of Excepted Property if the Trustee shall so require pursuant to
the provisions of subparagraph A (2) of 14.01 and on any other property
which, pursuant to the terms of 14.04, shall be Made the Basis for Action
or Credit hereunder by such successor corporation or purchaser, or which
shall consist of repairs or additions to or replacements or restorations of
any part of said Mortgaged Property or said after-acquired property made by
the application of the proceeds of insurance thereon not paid to the
Trustee, or which shall consist of machinery, equipment, apparatus, or
other tangible property substituted for any old, worn out, unserviceable,
undesirable, or unnecessary property previously a part of said Mortgaged
Property, or said after-acquired property pursuant to the provisions of
7.02(b).
14.04 In case the Company, pursuant to 14.01 and 14.02, shall be
consolidated with or merged into any other Corporation or shall sell,
subject to the Lien hereof, the Mortgaged Property as aforesaid, the
Successor Corporation, or the purchaser, as the case may be, upon
compliance with the applicable provisions of 14.01, shall succeed to and be
substituted for the Company with the same effect as if it had been named
herein as the mortgagor company, and shall have and may exercise under this
Indenture the same powers and rights as those of the Company hereunder, and
without prejudice to the generality of the foregoing, such successor
corporation or purchaser may thereafter
A. issue Bonds hereunder in accordance with the provisions of
Article III hereof, including Bonds which the Company was entitled to
issue but had not issued hereunder, but subject to all the terms,
conditions, and restrictions herein prescribed, and for this purpose
may use any Bonds theretofore executed by the Company or any
intermediate successor corporation or purchaser or may cause to be
signed, issued, and delivered, either in its own name or in the name
of Western Massachusetts Electric Company or in the name of any
intermediate successor corporation or purchaser, any or all Bonds
which shall not theretofore have been signed by the Company or any
intermediate successor corporation or purchaser and which have not
been certified by the Trustee; and upon the application of the
successor corporation or the purchaser, in lieu of the Company, and
subject to all the terms, conditions, and restrictions herein
prescribed in respect of the certification and delivery of Bonds, the
Trustee shall certify and deliver any of such bonds which shall have
been previously signed and delivered by the officers of the Company
or of any intermediate successor corporation or purchaser to the
Trustee for certification, and any of such Bonds which the successor
corporation or purchaser shall thereafter, in accordance with the
provisions of this Indenture, cause to be signed by its appropriate
officers and delivered to the Trustee for such purpose;
B. possess, use, enjoy, and obtain the release of Mortgaged
Property (including all property subjected to the Lien hereof sub-
sequent to any such consolidation, merger, or sale) in accordance
with the provisions of Article VII;
C. withdraw money from the hands of the Trustee (including
money in its hands at the time of such merger, consolidation, or
Sale) in accordance with the provisions of Article VIII and 3.06 and
3.07;
D. irrevocably allocate Net Property Additions in accordance
with the provisions of Article VI; and
E. call for redemption and redeem Bonds at any time Outstanding
hereunder in accordance with the provisions of Article V;
provided however that if property owned by the other Corporation prior to
any merger or consolidation, being or having become Fundable Property
hereunder, shall be Made the Basis for Action or Credit hereunder, such
property shall be subjected to the Lien hereof by Supplemental Indenture
and the Cost or Fair Value thereof as stated in the Independent Engineer's
Certificate described in 14.02 shall be the Cost thereof or the Fair Value
thereof as of the date of such merger or consolidation.
All Bonds of any one series issued pursuant to the provisions of this
Section shall in all respects have the same legal rank and security as the
Bonds of said series theretofore or thereafter issued in accordance with
the terms of this Indenture.
14.05 The Company covenants that if Bonds at any time be issued in
any new name the Company will provide for the stamping, or for the
exchange, of any Bonds previously issued for Bonds of the same tenor and
amounts issued in any such new name, at the option of the holders and
without expense to them, and the Trustee shall also do such acts as may be
necessary on its part to that end, including certification of the Bonds so
to be issued in exchange.
ARTICLE XV.
Defeasance
15.01 If the Company shall pay and discharge the entire in-
debtedness on all Bonds Outstanding hereunder in any one or more of the
following ways, to wit:
A. if, when the principal of all the Bonds at the time Out-
standing hereunder shall have become due and payable or will become
due and payable within two (2) years, by their terms, on redemption,
by declaration, or in any other manner, the Company shall pay or
cause to be paid the whole amount of the principal of said Bonds and
of the interest to the stated or accelerated maturity or maturities
thereof (as the case may be) due or to become due on said Bonds with
interest on overdue principal and overdue interest (so far as the
same may be legally enforceable) at the rate or rates borne by the
respective Bonds, and the premium if any due in respect of any Bonds
called for redemption, or shall deposit or cause to be deposited with
the Trustee for the account of the holders of said Bonds and of the
holders of the coupons, if any, appertaining thereto representing
such interest a sum which, together with so much of any moneys in the
hands of the Trustee or of any other paying agent hereunder (not held
for the benefit of the holders of other Bonds previously Outstanding
hereunder or of overdue coupons not previously presented for payment)
as the Company shall be permitted to apply to the purpose and shall
elect so to do, shall be sufficient to pay the whole amount of such
principal, interest, interest on overdue payments, and premium, and
in case any or all of said Bonds have been or are about to be called
for redemption the Company shall have furnished to the Trustee proof
satisfactory to it that the notice of redemption of all of said Bonds
has been duly given or has given to the Trustee irrevocable power or
powers of attorney in conformity with 5.05 to call all of said Bonds;
or
B. if the Company shall surrender to the Trustee for cancella-
tion by it all Bonds Outstanding hereunder together with all unpaid
coupons thereto appertaining;
and shall also pay or cause to be paid all other sums payable
hereunder by the Company (except in respect of any refund or
reimbursement of taxes, assessments, or other governmental charges as
to Bonds of any series for which the holders of Bonds shall look only
to the Company), then and in any such case immediately or at any time
after such payment, deposit, or surrender and, in the case of the
redemption of Bonds, such furnishing of proof or giving of
irrevocable power of attorney, but subject to the provisions of
15.02, said Bonds shall cease to be entitled to any benefit or
security hereunder, the estate, right, title and interest of the
Trustee hereby created shall determine, and, upon the request and at
the cost of the Company, and upon the receipt by the Trustee of an
Officers' Certificate stating that the conditions hereinabove in this
Section specified have been fully performed and complied with and an
Opinion of Counsel stating that the instruments which have been or
are therewith delivered to the Trustee conform to the requirements
hereof and constitute sufficient authority hereunder for the Trustee
to release and discharge the Lien hereof, and stating that the
conditions hereinabove in this Section specified have been fully
performed and complied with, the Trustee shall execute to the Company
a good and sufficient release and discharge of this Indenture and of
the Lien hereby created, and shall surrender possession to the
Company of any property of which it shall have taken possession
hereunder and which shall not have been, or shall not be required to
be, sold or disposed of under and by virtue of this Indenture; and
the Trustee shall thereupon pay to the Company all moneys, if any,
then remaining in the possession of the Trustee, which are not
required to discharge any obligation of the Company under any of the
provisions hereof or of the Bonds and shall transfer and assign to
the Company any purchase money obligations or other indebtedness, and
the security therefor held by the Trustee hereunder as part of the
Mortgaged Property; but otherwise, and until such payment and
performance, this Indenture shall be and remain in full force and
effect.
15.02 Notwithstanding the release and discharge hereof, any moneys
deposited by the Company with the Trustee, whether for the payment of
interest, interest on overdue interest, principal, or premium on any Bond
or coupon at any time Outstanding hereunder, shall be held in trust for the
exclusive benefit of the holders or registered owners of said Bonds or the
holders of said coupons respectively; provided however that any moneys
deposited with the Trustee or any paying agent for the payment of
principal, premium, or interest on Bonds at any time issued hereunder and
not applied to such payment within six (6) years after the date on which
the same shall have become due shall be repaid by the Trustee or such
paying agent to the Company, and thereafter Bondholders shall be entitled
to look only to the Company for payment, and then only to the extent of the
amount so repaid, and the Company shall not be liable for any interest
thereon and shall not be regarded as a trustee of such money; provided,
however, that the Trustee, before being required to make any such repayment
shall, at the expense of the Company, give Published Notice of the fact
that such moneys have not been so applied and that after a date specified
therein any unclaimed balance of said moneys then remaining will be repaid
to the Company.
ARTICLE XVI.
Supplemental Indentures
16.01 In addition to any Supplemental Indenture otherwise au-
thorized by this Indenture, the Company, when authorized by resolution of
its Board of Directors, or of its Executive Committee and the Trustee, at
any time and from time to time, subject to the conditions, provisions, and
restrictions herein contained, may enter into an Indenture or Indentures
Supplemental hereto and which shall thereafter form a part hereof, for any
one or more or all of the following purposes:
(a) To close the Indenture against the issue of additional Bonds
or to add to the conditions, limitations, and restrictions on the
authorized amount, terms, provisions, purposes of issue, cer-
tification and delivery of Bonds specified in Articles II and III
hereof, other conditions, limitations, and restrictions thereafter to
be observed;
(b) To add to the covenants and agreements of the Company in
this Indenture contained, other covenants and agreements thereafter
to be observed, which the Board of Directors or the Executive
Committee of the Company shall consider to be for the protection of
the Mortgaged Property and of the holders of the Bonds, although the
freedom of action of the Company may be materially restricted
thereby, and/or to surrender any right or power herein reserved to,
or conferred upon, the Company, or to or upon any successor
Corporation;
(c) To correct or amplify the description of any property hereby
conveyed, assigned, or pledged or intended so to be, or to convey,
transfer, and/or assign to the Trustee, and to subject to or confirm
the Lien of this Indenture upon, with the same force and effect as
though included in the granting clauses' hereof, additional
properties and franchises hereafter acquired by the Company through
consolidation or merger, or by purchase or otherwise;
(d) To include in the Mortgaged Property any assets of the
Company now classified as Excepted Property;
(e) To evidence the succession of another Corporation to the
Company, or successive successions, and the assumption by such
successor Corporation of the covenants, agreements, and obligations
of the Company under this Indenture and to provide for the execution,
certification, and issue of Bonds hereunder pursuant to 14.04;
(f) For the purpose of curing any ambiguity, or of curing,
correcting, or supplementing any defective or inconsistent provision
contained herein or in any Supplemental Indenture;
(g) For the appointment of a separate trustee or a co-trustee to
act under this Indenture and/or under any Supplemental Indenture;
(h) To provide the terms and conditions of Bonds of a new series
or for the exchange of Bonds of one series for Bonds of another
series; or for the conversion of Bonds of any series into capital
stock, or other securities and the terms and conditions of such
conversion;
(i) To provide for meetings of Bondholders;
(j) To amend this Indenture by modifying, eliminating, or
amending any provision contained therein which is required by the
Trust Indenture Act of 1939, to be included in an indenture to be
qualified under said Act so long as the Indenture, as so amended,
shall comply with the provisions of said Act in effect at the time of
any such amendment; to eliminate all such required provisions in the
event said Act shall no longer be in effect; or to insert in this
Indenture any provision which shall be required by the provisions of
said Act then in effect; provided, however, that no such
modification, elimination, or amendment of any such provision or
provisions which would adversely affect any Bonds theretofore issued
and then Outstanding under this Indenture shall be made;
(k) To modify any of the provisions of this Indenture for the
purpose of relieving the Company from any of the obligations,
conditions, or restrictions herein contained; provided that no such
modification shall be or become operative or effective, or in any
manner impair any of the rights of the Bondholders or of the Trustee,
while any Bonds of any series established prior to the execution of
such Supplemental Indenture shall remain Outstanding; and provided,
further, that such Supplemental Indenture shall be specifically
referred to in the test of all Bonds of any series established after
the execution of such Supplemental Indenture; and provided also, that
the Trustee may in its uncontrolled discretion decline to enter into
any such Supplemental Indenture which, in its opinion, may not afford
adequate protection to the Trustee when the same shall become
operative;
(l) For any other purpose not inconsistent with the terms of
this Indenture.
Any Supplemental Indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent
of the holders of any of the Bonds at the time Outstanding notwithstanding
any of the provisions of 16.02.
16.02 The Company and the Trustee, at any time and from time to
time, may also enter into one or more Supplemental Indentures for the
purpose of modifying, amending, suspending, or rescinding any of the
provisions of this Indenture, or inserting any provision therein, if such
modification, amendment, suspension, rescission, or insertion shall be
approved by resolution of the Board of Directors of the Company and by the
written consent, filed with the Trustee, of the holders of not less than
seventy percentum (70%) in principal amount of the Bonds at the time
Outstanding (excluding Company-owned Bonds); provided, however:
(1) that, before any such Supplemental Indenture shall be
executed by the Trustee or be of any effect, there shall be filed
with the Trustee an Officers' Certificate to the effect that
Published Notice has been given for not less than four (4) successive
calendar weeks, stating in general terms the substance of any
modification, amendment, suspension, rescission, or insertion
embodied in any such Supplemental Indenture presented to the Trustee
for execution, and that a similar notice has been mailed, postage
prepaid, at least thirty (30) days prior to such presentation to the
Trustee, to each registered owner of Bonds then Outstanding hereunder
at his address as given upon the registry books kept by the Trustee,
provided however that if at any time not more than forty-five (45)
and not less than thirty (30) days prior to such presentation to the
Trustee, all Bonds Outstanding hereunder shall be in fully registered
form, Published Notice as aforesaid may be dispensed with;
(2) that no such modification, amendment, suspension, rescis-
sion, or insertion shall be such, or shall be so construed, as to
change any of the powers, rights, duties, or obligations of the
Trustee without the Trustee's written assent thereto;
(3) that no action shall be taken under this Section affecting
the rights of the holders of one or more series of Bonds in any
manner or to any extent differing from that in or to which the rights
of holders of any other series of Bonds are affected, unless such
action shall have received the written consent, filed with the
Trustee, of holders of not less than seventy percentum (70%) in
principal amount of the Bonds of each series so affected then Out-
standing (excluding Company-owned Bonds);
(4) that no such modification, amendment, suspension, rescis-
sion, or insertion shall affect the obligation of the Company in
respect of the principal of or interest on any Bond, which obligation
is absolute, unconditional, and unalterable, or permit any change in
the principal amount, or premium, or any extension of the maturity,
of any Bond, or the reduction of the rate, or extension of the time
of payment, of the interest thereon, or permit any modification in
the terms of payment of such principal or interest, without the
consent of the holder thereof, or impair or affect the right of any
Bondholder, without his consent, to receive payment of the principal
of or interest on any of his Bonds on or after the respective due
dates expressed in the Bonds and coupons, or to institute suit for
the enforcement of any such payment on or after such respective
dates, subject to the limitations contained in 9.18 hereof;
(5) that no such modification, amendment, suspension, rescis-
sion, or insertion shall reduce the percentage required by the pro-
visions of this Section for the taking of any action thereunder, or
shall permit any other change in any of the provisions of this
Section, or authorize the creation by the Company, except as herein
expressly authorized, of any mortgage, pledge, or lien on any part or
all of the Mortgaged Property ranking prior to or on an equality with
the Lien of this Indenture.
Subject to the provisions of 13.02 and 13.03 hereof the Trustee shall receive
and shall be entitled to rely for all purposes on an Opinion of Counsel that
the provisions of any such Supplemental Indenture executed by the Company and
presented to the Trustee for execution comply with the provisions hereof; and
any such Supplemental Indenture executed by the Company, and by the Trustee
pursuant to such Opinion of Counsel, shall have full force and effect
notwithstanding any conflict thereof with any provisions hereof, (or of any
prior Supplemental Indenture) other than subclauses (1), (2), (3), (4), and
(5) immediately preceding; and the Trustee shall be as fully protected in
relying on and acting pursuant to any such Supplemental Indenture as if the
provisions thereof were herein set forth as a part hereof, and were expressed
to control, in case of conflict, all other provisions hereof.
It shall not be necessary for the consent of Bondholders under this
Section to approve the particular form of any proposed Supplemental Indenture
but it shall be sufficient if such consent shall approve the substance
thereof.
16.03 In each and every case provided for in this Article, the Trustee
shall be entitled to exercise its uncontrolled discretion in determining
whether or not any proposed Supplemental Indenture, or any term or provision
thereof, is necessary or desirable, having in view the needs of the Company
and the respective rights and interests of the holders of Bonds theretofore
issued hereunder; and the Trustee, subject to the provisions of 13.02 and
13.03 hereof shall be under no responsibility or liability to the Company or
to any holder of any Bond, or otherwise, for any act or thing which it may do
or decline to do in good faith, pursuant to the provisions of this Article
XVI, in the exercise of such discretion.
16.04 The Trustee is authorized to join with the Company in the
execution of any Supplemental Indenture authorized under this Article XVI, to
make the further agreements and stipulations which may be therein contained,
and to accept the conveyance, transfer, and assignment of any property
thereunder.
Any Supplemental Indenture executed in accordance with any of the
provisions of this Article shall thereafter form a part of this Indenture;
and all the terms and conditions contained in any such Supplemental
Indenture, if authorized hereby to be contained therein, shall be, and be
deemed to be, part of the terms or conditions hereof for any and all
purposes, and, if deemed necessary or desirable by the Trustee, any of such
terms or conditions may be set forth in reasonable and customary manner in
the Bonds of the particular series to which such Supplemental Indenture shall
apply and express reference may be made thereto in the test of the Bonds of
any series issued thereafter; provided, however, that each such supplemental
indenture or mortgage shall comply with any applicable requirements of the
Trust Indenture Act of 1939 as in effect on the date of the execution of this
Indenture, unless said Act shall then have been repealed, and shall stipulate
that the Trustee shall not be taken impliedly to waive thereby any right it
would otherwise have, and that nothing in this Section shall affect or limit
the obligation of the Company to execute and deliver to the Trustee any
instrument of further assurance, or other instrument, which elsewhere in this
Indenture is required to be made to or with the Trustee.
ARTICLE XVII.
Miscellaneous
17.01 Nothing in this Indenture, expressed or implied, is intended
or shall be construed to confer upon, or give to any person or corporation
other than the parties hereto and the holders from time to time of the Bonds
and coupons Outstanding hereunder, any security, rights, remedies, or claims,
legal or equitable, under or by reason hereof, or any covenant, condition or
stipulation hereof; and this Indenture and all the covenants, conditions,
stipulations, and agreements herein are and shall be held to be for the sole
and exclusive benefit of the parties hereto and the holders from time to time
of the Bonds and coupons Outstanding hereunder.
17.02 Each Certificate or Opinion provided for in this Indenture
delivered to the Trustee in respect to compliance with a condition or
covenant herein contained shall include (1) a statement that the person
making such Certificate or Opinion has read such covenant or condition; (2)
a
brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Certificate or Opinion are based; (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such a
covenant or condition has been complied with; and (4) a statement as to
whether or not in the opinion of such person such condition or covenant has
been complied with.
Each Certificate or Opinion of an Independent Engineer or Independent
Accountant provided for in this Indenture delivered to the Trustee shall also
state that such Engineer or Accountant, as the case may be, is in fact
independent and is not a director, officer, or employee of, or under retainer
by, the Company or any Affiliate of the Company.
17.03 Any notice or demand by any Bondholder to or upon the Trustee
shall be due and sufficient notice or demand for each and every purpose
hereunder if made by written instrument delivered to the Trustee at its
principal office. Any notice or demand which by any provision of this
Indenture is required or provided to be given or served by the Trustee or by
any Bondholder, upon the Company shall be deemed to have been sufficiently
given or served for all purposes if mailed as registered mail matter, postage
prepaid, addressed as follows:
Western Massachusetts Electric Company
45 Federal Street
Greenfield, Massachusetts
or addressed to the Company at any other address which it may file with the
Trustee as the address to which notices or demands shall be mailed.
17.04 All parties to this Indenture agree, and each holder or owner
of any Bond by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken 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 Trustee, to any suit instituted by any Bondholder,
or group of Bondholders, holding in the aggregate more than ten percentum
(10%) in aggregate principal amount of the Bonds outstanding (excluding
Company-owned Bonds), or to any suit instituted by any Bondholder for the
enforcement of the payment of the principal of or interest on any Bond, on or
after the respective due dates expressed in such Bond.
17.05 If and to the extent that any provision of this Indenture
limits, qualifies, or conflicts with any other provision included herein that
is required to be included herein by the Trust Indenture Act of 1939, such
required provision shall control.
17.06 Wherever reference is made in this Indenture to the Trust
Indenture Act of 1939, reference is made to such Act as it was in force on
the date of the execution of this Indenture.
17.07 Whenever in this Indenture either of the parties hereto is
named or referred to, the successors and assigns of such party shall be
deemed to be included, and all the covenants, promises, and agreements in
this Indenture contained by or on behalf of the Company, or by or on behalf
of the Trustee, shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
17.08 In case any one or more of the provisions contained in this
Indenture or in the Bonds or coupons shall for any reason be held to be
invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability shall not affect any other provisions of this
Indenture, but this Indenture shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
17.09 The date of this Indenture, to wit, August 1, 1954, is in-
tended as and for a date for reference and for identification, the actual
time of the execution hereof being the date written in the testimonium clause
hereof.
17.10 The cover of this Indenture, and all Articles and description
headings, and the table of contents and marginal notes and headings, if any,
are inserted for convenience of reference, and are not to be taken to be any
part of these provisions, nor to control or affect the meaning, construction,
or effect of the same.
17.11 It is hereby certified that the United States Internal Revenue
tax which may be imposed by reason of the initial issue of eleven million
dollars ($11,000,000) principal amount of the 2.95% Bonds, and which may be
paid by affixing stamps to this Indenture, has been paid by affixing to an
original counterpart hereof (to be filed with the Trustee), and duly
canceling, the required stamps.
17.12 This Indenture may be simultaneously executed in any number of
counterparts, each of which shall be deemed an original; and all said
counterparts executed and delivered, each as an original, shall constitute
but one and the same instrument, which shall for all purposes be sufficiently
evidenced by any such original counterpart.
IN WITNESS WHEREOF, said Western Massachusetts Electric Company has
caused this instrument to be executed in its corporate name by its President
or one of its Vice-Presidents, thereunto duly authorized, and its corporate
seal to be hereto affixed, attested by its Clerk or an Assistant Clerk and
said Old Colony Trust Company has caused this instrument to be executed in
its corporate name by one of its Vice-Presidents, thereunto duly authorized,
and its corporate seal to be hereto affixed, all on August 17, 1954, but as
of the day and year first above written.
WESTERN MASSACHUSETTS ELECTRIC COMPANY
By /s/ Howard J. Cadwell
President
ATTEST:
/s/ James Gray
Clerk
signed, sealed and delivered by
Western Massachusetts Electric
Company in our presence:
/s/ A. W. Wilkinson
/s/ D. R. Pokross
OLD COLONY TRUST COMPANY
By /s/ J. J. Walsh
Vice-President
Signed, sealed and delivered by
Old Colony Trust Company in our
presence:
/s/ A. W. Wilkinson
/s/ D. R. Pokross
SCHEDULE A
I. All real estate and rights in real estate owned of record by the
Company, as follows:
A. Hydro-Electric Properties
A.1. Turners Falls Dam and associated or adjacent real estate as
follows:
The site of The Turners Falls dam across the Connecticut River in the
towns of Montague and Gill in Franklin County, Massachusetts, including land
in said towns occupied by the head gates, canal, and forebay; two
hydro-electric generating stations in said Montague known as Cabot Station
and Turners Falls Station; office building, garage, maintenance building, and
switching station in said Montague; also the flowage, seepage, and
percolation rights appurtenant to said dam, canal, and forebay upstream of
said dam in said towns and in the towns of Erving, Northfield, and Greenfield
(all in said Franklin County) and extending into Hinsdale, New Hampshire, and
Vernon, Vermont. The title to said site and rights hereby conveyed is that
acquired by the Company by deed of Turners Falls Power & Electric Company
dated December 30, 1942, and recorded in Franklin County Deeds, Book 856,
page 174, and by two deeds of other grantors dated March 30, 1949, and
November 14, 1950, and recorded with said Deeds, Book 934, page 372, and Book
956, page 197, respectively; except that rights under certain indentures to
draw and use water from said canal have since then been released to the
Company. The title conveyed to the Company thereby was then and is now
subject to indentures between said Turners Falls Power & Light Company, or a
predecessor thereof, and others, relating to rights to draw and use water
from said canal, as follows:
Indentures with Keith Paper Company
dated September 2, 1873, and recorded Book 275, page 397,
dated June 2, 1885, and recorded Book 377, page 235,
dated September 12, 1892, and recorded Book 427, page 100,
dated August 21, 1900, and recorded Book 478, page 252,
dated June 13, 1912, and recorded Book 576, page 78,
dated December 29, 1920, and recorded Book 650, page 288,
dated May 1, 1922, and recorded Book 876, page 12;
Indenture with Marshall Paper Company
dated June 20, 1895, and recorded Book 440, page 334;
Indentures with Esleeck Manufacturing Company
dated July 22, 1903, and recorded Book 504, page 154,
dated July 28, 1922, and recorded Book 691, page 124,
dated August 7, 1928, and recorded Book 751, page 40.
A.2. Gardners Falls Dam and associated or adjacent real estate as
follows:
The site of Gardners Falls Dam across the Deerfield River in the towns
of Buckland and Shelburne including land occupied by the head gates, canal,
and forebay in said towns; the hydro-electric generating station in said
Buckland; also the flowage, seepage, and percolation rights appurtenant to
said dam, canal, and forebay upstream of said dam in said towns; the title to
said real estate and rights in real estate being that acquired by the Company
by the following deeds, of which all but the last were acquired under the
Company's prior name, Greenfield Electric Light & Power Company:
Recording Reference in
Date of Deed Franklin County Deed
(a) June 23, 1903 Book 501, page 223
(b) June 26, 1903 Book 501, page 231
(c) April 30, 1904 Book 557, page 111
(d) May 23, 1918 Book 632, page 230
(e) May 9, 1919 Book 650, page 11
(f) June 11, 1924 Book 690, page 312
(g) October 25, 1945 Book 884, page 310.
A.3. Dam across Green River and associated or adjacent real estate as
follows:
The site of the dam across Green River in said Greenfield including
land occupied by the head gates, canal, and forebay and hydro-electric
station, all in said Greenfield; also the flowage, seepage, and percolation
rights appurtenant to said dam, canal, and forebay upstream of said dam in
said town; the title to said real estate and rights in real estate being that
acquired by having been conveyed to the Company (under its prior name,
Greenfield Electric Light & Power Company) by deed of Arthur D. Potter and
others dated September 23, 1910, and recorded in said Franklin County Deeds,
Book 566, page 123.
A.4. Indian Orchard Dam and associated or adjacent real estate as
follows:
The site of the Indian Orchard Dam across the Chicopee River in the
town of Ludlow and city of Springfield, both in Hampden County,
Massachusetts, including land occupied by head gates, canal, and forebay in
said town and city; a hydro-electric generating station in said Springfield;
also the flowage, seepage, and percolation rights appurtenant to said dam,
canal, and forebay upstream of said dam in said town and city; the title to
said real estate and rights in real estate being that acquired by the Company
by deed of United Electric Light Company dated December 30, 1942, and
recorded in Hampden County Deeds, Book 1753, page 597.
A.5. Leases: The rights of the Company as lessee under the following
leases to it:
(a) Lease from the City of Springfield dated June 21, 1928, and
recorded with Hampden County Deeds, Book 1467, page 174, as amended by
two later agreements, one dated August 1, 1928, recorded with said
Deeds, Book 1467, page 186, and the other dated February 25, 1929,
recorded with said Deeds, Book 1467, page 187, subject to the payment
of rent as therein provided, of a hydro-electric generating station
situated on the Westfield Little River in the town of Granville known
as the Cobble Mountain Plant, together with the right to operate said
plant for the generation of electricity and to sell the electricity so
generated and for this purpose to draw water from the Cobble Mountain
Reservoir so-called which is owned by said City, all as set forth in
said lease as amended; except the last day of the term of said lease.
(b) Lease from The Quinnehtuk Company dated June 30, 1947, but not
recorded, subject to the payment of rent as therein provided, of a
hydroelectric development on Chicopee River in the city of Chicopee
known as the Dwight Plant, said lease being for a period of ten years
beginning July 1, 1947, with provisions for successive automatic
renewals and for termination on thirty days' notice by either party;
except the last day of the term of said lease.
B. Steam Generating Properties
B.1. West Springfield plant consisting of the following:
(a) The site of the principal steam generating plant of the
Company and of an outdoor substation and other transmission facilities
in the town of West Springfield, Hampden County, on the westerly side
of Highway Route 5, so-called.
(b) The site of the screen well house between the easterly side of
said Route 5 and Connecticut River; said sites (a) and (b) together
containing about fifty acres.
(c) Easements appurtenant to parcels (a) and (b) for tunnels under
said Route 5. For Company's title to said easements, see the following
deeds in said Hampden County Deeds:
Book 1358, page 260
Book 1864, page 97
Book 1900, page 171
Book 1900, page 169
Book 2017, page 287
Book 2315, page 342
The title to said sites (a) and (b) being that acquired by the Company
by the following deeds recorded in said Hampden Deeds:
Date Recording Data
December 30, 1942 Book 1753, page 597
January 7, 1947 Book 1846, page 303
January 7, 1947 Book 1846, page 378
March 1, 1947 Book 1864, page 100
April 1, 1947 Book 1864, page 93
April 1, 1947 Book 1864, page 95
May 12, 1947 Book 1867, page 14
The land acquired under said deeds was reduced by taking of
Commonwealth of Massachusetts for said Route 5. (See Book 2264, page 462,
Book 2274, page 228.)
B.2. The site of a team generating plant in said Springfield on the
easterly side of the Connecticut River at the foot of State Street containing
about 157,600 square feet; the title to said real estate being that acquired
by the Company by the following deeds recorded in said Hampden County Deeds:
Date Recording Data
December 30, 1942 Book 17O3, page 597
February 16, 1948 Book 1925, page 69
July 29, 1948 Registered land. See Certificate No. 4574.
B.3. The site containing about thirty-four acres of a steam generating
plant in the city of Chicopee at the confluence of the Chicopee and
Connecticut Rivers at the foot of Depot Street; the title to said real estate
being that acquired by the Company by deed from Turners Falls Power &
Electric Company dated December 30, 1942, recorded in said Hampden County
Deeds, Book 1753, page 594.
B.4. The site of a steam generating plant and transmission facilities,
including an outdoor substation and other transmission facilities, in the
city of Pittsfield, Berkshire County, at the corner of Fourth Street and
Silver Lake Road, containing about 298,000 square feet; the title to said
real estate being that acquired by the Company by deed from Pittsfield
Electric Company dated December 30, 1942, recorded in Berkshire Middle
District Deeds, Book 511, page 43.
C. Transmission and Distribution Properties,
the titles to the various sites being those acquired
by the Company by the respective deeds below mentioned:
Fourteen sites in said Springfield as follows:
C.1. Of the Distribution Department building, garage, and storage
facilities on King Street containing about 114,000 square feet.
C.2. Of the Meter Department building, a substation and storage facili-
ties on Wilbraham Avenue containing about 123,000 square feet.
C.3. Of No. 4 Distribution Substation building, so-called, on Carew
Street, containing about 23,000 square feet.
C.4. Of No. 5 Transmission Substation building, so-called, and trans-
mission line facilities on Page Boulevard, containing about eleven acres.
C.5. Of No. 7 Distribution Substation building, so-called, at the
corner of Converse and Buckler Streets, containing about 19,923 square feet.
C.6. Of a Distribution Substation building at the corner of Armory and
Ledyard Streets containing about 6,937 square feet.
C.7. Of a Distribution Substation building on Birnie Avenue containing
about 4,740 square feet.
The above sites, C.1 to C.7 inclusive, were all acquired by the Company
by deed of United Electric Light Company dated December 30, 1942, and
recorded in Hampden County Deeds, Book 1753, page 597.
C.8. Of Unit Substation No. 12 so-called, on Longhill Street, contain-
ing about 9,968 square feet, acquired by deed of J. C. Nowak, dated January
27, 1948, and recorded in said Hampden County Deeds, Book 1919, page 432.
C.9. Of Unit Substation No. 13 so-called, on Berkshire Avenue and
Jasper Street containing about 3,520 square feet, acquired by deed of Marcel
A. Bedard dated November 10, 1949, and recorded in said Hampden County Deeds,
Book 2019, page 325.
C.10. Of Unit Substation No. 14 so-called, on said Carew Street
containing about 5,000 square feet, acquired by deed of Stephen W. Sarandis
and Demetrius G. Hondros dated November 25, 1949, and recorded in said
Hampden County Deeds, Book 2021, page 451.
C.11. Of Unit Substation No. 15 so-called, on Main Street (Indian
Orchard section) containing about 5,000 square feet, acquired by deed of
Stanley J. Chmura dated February 24, 1950, and recorded in said Hampden
County Deeds, Book 2034, page 561.
C.12. Of a prospective unit substation at the corner of Wilbraham
Road and Kane Street containing about 8,986 square feet, acquired by deed of
Elizabeth Varanka dated October 8, 1953, and recorded in said Hampden County
Deeds, Book 2270, page 514.
C.13. Of a prospective unit substation on Allen Street containing
about 20,963 square feet, acquired by deed of Frank Pessolano dated October
8, 1953, and recorded in said Hampden County Deeds, Book 2270, page 515.
C.14. Of a prospective unit substation and transmission substation
at the corner of said Wilbraham Road and Bradley Road containing about 11.85
acres, acquired by deed of Estate of Jane D. Namack dated November 2, 1953,
and recorded in said Hampden County Deeds, Book 2276, page 412.
Twenty-two sites outside of said Springfield as follows:
C.15. Of No. 9 Distribution Substation so-called, on Southwick
Street, Agawam, in said Hampden County, containing about 32,480 square feet,
acquired by said deed of United Electric Light Company dated December 30,
1942, recorded in said Hampden County Deeds, Book 1753, page 597.
C.16. Of No. 19 Distribution Substation on Perry Street in said
Agawam containing about 9,927 square feet, acquired by two deeds of Agawam
Manufacturing Company, Inc. dated October 9, 1952, and June 8, 1954, recorded
in said Hampden County Deeds, Books 2203, page 159, and Book 2315, page 544,
respectively.
C.17. Of No. 10 Distribution Substation on Hubbard Street in said
Ludlow containing about 13,699 square feet, acquired by said deed of United
Electric Light Company dated December 30, 1942, recorded in said Hampden
County Deeds, Book 1753, page 597.
C.18. Of No. 11 Unit Substation on Union Street in said West
Springfield containing about 7,000 square feet, acquired by deed of Walter R.
Johnson et ux. dated November 25, 1947, recorded in said Hampden County
Deeds, Book 1908, page 275.
C.19. Of No. 17 Unit Substation on Kings Highway in said West
Springfield, containing about 15,000 square feet, acquired by deed of Rachel
E. Raleigh dated September 29, 1952, recorded in said Hampden County Deeds,
Book 2200, page 432.
C.20. Of No. 16 Distribution Substation so-called, on Longmeadow
Street in Longmeadow, in said Hampden County, containing about 13,600 square
feet, acquired by deed of Marjorie S. Jennings, dated September 6, 1951,
recorded in said Hampden County Deeds, Book 2134, page 108.
C.21. Of a Unit Substation at the corner of Bernardston-Northfield
State Highway and Turners Falls Road, in Bernardston, in said Franklin
County, containing about 15,491 square feet, acquired by deed of Herbert L.
Ryther dated July 13, 1948, recorded in said Franklin County Deeds, Book 914,
page 348.
C.22. Of Regulator Units on State Highway leading from Shelburne
Falls in Colrain, in said Franklin County, containing about 7,000 square
feet, acquired by deed of Earle H. Temple and Harold D. Temple dated February
3, 1941, recorded in said Franklin County Deeds, Book 845, page 155.
C.23. Of a Unit Substation on Graves Street in Deerfield, in said
Franklin County, containing about 4.8 acres, acquired by deed of Selvestor
Jachimowicz et ux. dated December 10, 1949, recorded in said Franklin County
Deeds, Book 943, page 351.
C.24. Of a Distribution and Meter Department building, garage, and
storage facilities on Federal Street in said Greenfield, containing about
43,000 square feet, acquired by the following deeds, of which all but the
last were acquired under the Company's prior name, Greenfield Electric Light
& Power Company; being recorded in said Franklin County Deeds.
Date Recording Data
(a) January 24, 1913 Book 594, page 23
(b) May 5, 1916 Book 624, page 12
(c) June 13, 1916 Book 624, page 60
(d) April 14, 1920 Book 662, page 82
(e) April 29, 1920 Book 663, page 101
(f) May 17, 1920 Book 661, page 126
(g) June 7, 1920 Book 661, page 167
(h) April 8, 1927 Book 738, page 24
(i) February 1, 1929 Book 758, page 141
(j) July 1, 1929 Book 767, page 5
(k) January 8, 1930 Book 748, page 393
(l) May 10, 1945 Book 883, page 21
Note: A portion of the parcel acquired by said deed (e) was conveyed
to Town of Greenfield by deed dated December 18, 1925, recorded in said
Deeds, Book 707, page 372, but a right of way 12 feet wide to Main Street was
reserved by the Company in said deed over said portion so conveyed.
Also by the same deed to said Town portions of the parcels acquired by
said deeds (f) and (g) were conveyed to said Town.
Said portions so conveyed to said Town are not included in the area of
about 43,000 square feet.
C.25. Of a Unit Substation on Franklin Street in said Greenfield,
containing about 16,346 square feet, acquired by deed of Franklin Savings
Institution dated January 13, 1939, recorded in said Franklin County Deeds,
Book 827, page 336.
C.26. Of Greenfield Substation building and transmission line
facilities on Mill Street, in said Greenfield, containing about 525,865
square feet, acquired by the Company under its prior name, Greenfield
Electric Light & Power Company by the following deeds recorded in said
Franklin County Deeds:
Date Recording Data
(a) August 2, 1897 Book 457, page 112
(b) June 21, 1915 Book 601, page 381
(c) February 2, 1916 Book 612, page 70
(d) April 21, 1916 Book 611, page 170
(e) February 18, 1925 Book 707, page 78
(f) December 18, 1925 Book 706, page 348
(g) September 6, 1926 Book 736, page 158
(h) September 27, 1926 Book 737, page 150
(i) May 7, 1931 Book 775, page 155
Note: A portion of the parcel acquired by said deed (b) was conveyed
to H. Kunaszko by deed dated February 2, 1916, recorded in said Deeds,
Book 612, page 70. Also portions of the parcels acquired by said deeds
(g) and (h) were taken by said Town March 26, 1954, for highway purposes by
a taking recorded in said Deeds, Book 1000, page 348. Said portions are not
included in the area of about 525,865 square feet.
C.27. Of the Millers Falls Substation so-called, on Grand Avenue in
said Montague containing about 9,712 square feet (under the name of Green-
field Electric Light & Power Company) by deed of Franklin Electric Company
dated July 21, 1923, recorded in said Franklin County Deeds, Book 674,
page 361.
C.28. Of Montague Town Substation so-called, on Sunderland-Turners
Falls Highway in said Montague, containing about 11,592 square feet, acquired
by deed of Boston and Maine Railroad dated December 21, 1950, recorded in
said Franklin County Deeds, Book 956, page 389.
C.29. Of Leyden Substation so-called, on Greenfield Road in Leyden
in said Franklin County, containing about 7,500 square feet, acquired by deed
of William A. Webb et ux. dated November 14, 1952, recorded in said Franklin
County Deeds, Book 982, page 54.
C.30. Of Agawam Substation so-called, a service building, storage
facilities, and transmission facilities on Maple Street in said Agawam
containing about 22.13 acres, acquired by deed of Turners Falls Power &
Electric Company dated December 30, 1942, recorded in said Hampden County
Deeds, Book 1753, page 594.
C.31. Of Chicopee Substation so-called, and transmission facilities
on Gratton Street in said Chicopee containing about 5 acres acquired by said
deed of Turners Falls Power & Electric Company dated December 30, 1942,
recorded in said Hampden County Deeds, Book 1753, page 194.
C.32. Of Westfield Substation so-called, on Elm Street in the city
of Westfield in said Hampden County, containing about 41,086 square feet,
acquired by two deeds of said Turners Falls Power & Electric Company and of
The Quinnehtuk Company dated December 30, 1942, and October 31, 1944 respec-
tively; and recorded in said Hampden County Deeds, Book 1753, page 594, and
Book 1790, page 54, respectively.
C.33. Of Amherst Substation so-called, garage, transmission, and
storage facilities on College Street in Amherst, Hampshire County,
Massachusetts, containing about 5 acres, acquired by deed of Western Counties
Electric Company dated December 30, 1933, recorded in Hampshire County Deeds,
Book 893, page 488.
C.34. Of the West Chesterfield Substation so-called, northerly of,
but not abutting on, the Chesterfield-West Chesterfield Highway in
Chesterfield in said Hampshire County, containing about 3,000 square feet,
with a right of way to said site from said highway, acquired by said deed of
Western Counties Electric Company dated December 30, 1933, recorded in said
Hampshire County Deeds, Book 893, page 488.
C.35. Of a garage with stock room and storage facilities on Liberty
Street, Easthampton, in said Hampshire County, containing about 42,312 square
feet, acquired by deed of Easthampton Gas Company dated May 31, 1935,
recorded in said Hampshire County Deeds, Book 906, page 219.
C.36. Of Easthampton Substation so-called, on said Liberty Street in
said Easthampton containing about 57,000 square feet, acquired by said deed
of Western Counties Electric Company dated December 30, 1933, recorded in
said Hampshire County Deeds, Book 893, page 488.
C.37. Of Mount Tom Substation so-called, on State Highway leading to
Northampton in said Easthampton containing about 6 acres, acquired by deed of
said Turners Falls Power & Electric Company dated December 30, 1942, recorded
in said Hampshire County Deeds, Book 972, page 521.
C.38. Of Bancroft Substation so-called, on Bancroft Road in the town
of Becket, in said Berkshire County, containing about 11,689 square feet.
C.39. Of Dalton Substation so-called, on Housatonic Street in the
town of Dalton, in said Berkshire County, containing about 47,000 square
feet.
C.40. Of Canal Street Substation so-called, at the foot of Canal
Street in Lee in said Berkshire County, containing about 9,000 square feet.
C.41. Of Valley Mill Substation so-called, on the easterly side of
Housatonic River in Lee, containing about .87 acres.
C.42. Of Maple Street Substation so-called, on Maple Street in said
Lee containing about 44,700 square feet.
C.43. Of Woodland Road Substation so-called, and transmission
facilities on Woodland Road in said Lee containing about 25 acres.
Sites numbered 38 to 43 inclusive were all acquired by deed of
Pittsfield Electric Company dated December 30, 1942, recorded in Berkshire
County Middle District Deeds, Book 511, page 43.
C.44. Of Fairview Street Substation so-called, on Fairview Street in
said Lee containing about 70,000 square feet acquired by deed of Southern
Berkshire Power and Electric Company dated November 9, 1945, recorded in said
Berkshire County Middle District Deeds, Book 512, page 435.
C.45. Of Renne Avenue Substation so-called, on Eagle Street in said
city of Pittsfield, containing about 5,740 square feet, acquired by said deed
of Pittsfield Electric Company dated December 30, 1942, recorded in said
Berkshire County Middle District Deeds, Book 511, page 43.
C.46. Of Seymour Street Substation so-called, on Seymour Street in
said Pittsfield containing about 3,960 square feet, acquired by deed of
Leonard S. Murrel et ux. dated April 13, 1950, recorded in said Berkshire
County Middle District Deeds, Book 555, page 374.
C.47. Of Dorchester Avenue Substation so-called, on Dorchester
Avenue in said Pittsfield containing about 10,000 square feet, acquired by
deeds of Turners Falls Power & Electric Company and Pittsfield Electric
Company dated December 30, 1942, recorded in said Berkshire County Middle
District Deeds, Book 512, page 42, and Book 511, page 43, respectively.
C.48. Of Coltsville Substation so-called, on Merrill Road in said
Pittsfield containing about 39,525 square feet, acquired by deeds of
Edward H. Prentice et ux. dated April 15, 1952, and March 26, 1953, recorded
in said Berkshire County Middle District Deeds, Book 583, page 121, and Book
595, page 156, respectively.
C.49. Of Wyandotte Substation so-called, on North Street in said
Pittsfield containing about 15,000 square feet, acquired by deed of
Francis J. Quirico dated March 4, 1954, recorded in said Berkshire County
Middle District Deeds, Book 610, page 318.
C.50. Of Doreen Substation so-called, and transmission line and
switching facilities on Elm Street in said Pittsfield, containing about 12
acres, acquired by deed of Anna Dragone dated November 3, 1952, recorded in
said Berkshire County Middle District Deeds, Book 590, page 568.
D. Office Properties
The following sites of office properties, in addition to office
properties included in the sites above mentioned; the titles to the various
sites being those acquired by the Company by the respective deeds below
mentioned:
D.1. Of the office of the Springfield Division, 73 State Street,
Springfield containing about 51,187 square feet, acquired by said deed of
United Electric Light Company dated December 30, 1942, recorded in Hampden
County Deeds, Book 1753, page 597.
D.2. Of office, living quarters, and garage on College Highway in
Southwich; Hampden County, containing about 9,528 square feet, acquired by
deed of Pittsfield Electric Company dated December 30, 1942, recorded in
Hampden County Deeds, Book 1753, page 592.
D.3. Of an office building on Federal Street in said Greenfield
containing about 10,041 square feet, acquired (under prior name of Greenfield
Electric Light & Power Company) by deed of Jacob Schick dated December 13,
1929, recorded in Franklin County Deeds, Book 768, page 101.
D.4. Of an office building, a Distribution Department building, garage,
and storage facilities on Eagle Street in said Pittsfield, containing about
56,586 square feet, acquired by deed of Pittsfield Electric Company dated
December 30, 1942, recorded in Berkshire County Middle District Deeds, Book
511, page 43.
E. Miscellaneous Properties Not Included in the Foregoing and
Not Including Easements or other Transmission Line Rights
The titles to the various sites are those acquired by the Company by
the respective deeds below mentioned:
E.1. Of the former location of Northfield Substation so-called (not now
in use) on Parker Avenue in Northfield, in said Franklin County, containing
about 30,717 square feet, acquired (under said prior name) by two deeds, one
dated December 27, 1910, recorded in said Franklin County Deeds, Book 566,
page 326, and one dated February 4, 1928, and recorded with said Deeds, Book
748, page 90.
B.2. Of a radio tower and associated equipment southerly of, but not
abutting on, Old Albany Road, so-called, in said Shelburne containing about
1.24 acres, acquired by deed of Guy Manners and Rachel L. Manners dated March
3, 1950, recorded in said Franklin County Deeds, Book 945, page 135; also and
easement to said site acquired by deed of Harry P. Koch dated February 2,
1950, and recorded in said Franklin County Deeds, Book 944, page 315.
E.3. Of a radio tower and associated equipment on North Street in the
town of Blandford, said Hampden County, containing about 2.3 acres, acquired
by deed of Ethel M. Fiske dated May 13, 1953, recorded in said Hampden County
Deeds, Book 2240, page 405.
E.4. Of the portion of a former transformer location, remaining after
a taking by the Commonwealth of Massachusetts for Route 5, on Bishop Street
in said West Springfield containing about 599 square feet, acquired by said
deed of United Electric Light Company dated December 30, 1942, recorded in
said Hampden County Deeds, Book 1753, page 597.
E.5. Of a former dam site and hydro-generating plant known as No. 3
Substation on East Main Street in said Chicopee and Monsanto Avenue in said
Springfield containing about 14.28 acres acquired by said deed of United
Electric Light Company dated December 30, 1942, recorded in said Hampden
County Deeds, Book 1753, page 597.
E.6. Of a radio tower and associated equipment on Washington Mountain
Road in the town of Washington in said Berkshire County, containing about
10,000 square feet, acquired by deed of Arthur W. Dust et ux. dated
January 26, 1950, recorded in said Berkshire County Middle District Deeds,
Book 558, page 210.
F. Transmission and Distribution Lines
All locations of record for all transmission or distribution lines of
the Company of whatever capacity and wherever situated, of which the
following are all the lines operating at a voltage of 13,400 volts or more.
In some instances two or more lines carrying different voltages are in whole
or in part within the same location.
13,400-Volt Lines
F.1. Gardners Falls Line from said Gardners Falls Hydro-Electric
Station in Buckland running easterly through Shelburne and Greenfield to said
Montague Substation.
F.2. South Deerfield Line from said Gardners Falls Line in Greenfield
running southerly through Deerfield to said South Deerfield Substation.
F.3. Millers Falls Line from said Montague Substation easterly to said
Millers Falls Substation, all in said Montague.
F.4. A distribution line from said Millers Falls Line southerly to said
Montague Town Substation, all in said Montague.
F.5. Leyden Line in Greenfield and Leyden from said Greenfield Sub-
station northerly to said Leyden Substation.
F.6. Mount Hermon Line from said Turners Falls Station so-called, in
Montague running northerly through Gill to said Mount Hermon Substation in
Bernardston.
F.7. Underground distribution line from said Gardners Falls Line in
Montague westerly to said Greenfield Substation.
F.8. A line in Montague from said Montague Substation northerly to said
Turners Falls Station.
F.9. A line leading from a tap off said Gardners Falls Line in
Greenfield running northeasterly to said Greenfield Substation.
F.10. Lane Quarry Line from said Mount Tom Substation in Easthampton
running across the Connecticut River through the town of Hadley in a
northerly direction then easterly and southerly in said Amherst to Lane's
Quarry.
F.11. A line from said Mount Tom Substation in Easthampton running
southwesterly on the northerly side of the Easthampton Branch Railroad to
said Easthampton Substation.
F.11.A. A line from said Mount Tom Substation running southwesterly on
the northerly side of the Easthampton Branch Railroad, then northerly to the
boundary between the city of Northampton and said Easthampton and there
connecting with the lines of Northampton Electric Lighting Company.
F.12. A line in Easthampton from said Mount Tom Substation running
southerly, then westerly to said Easthampton Substation.
F.13. A line from said Chicopee Substation running southerly to the
United States Rubber Company (Fisk Tire Plant) with a tap therefrom running
easterly, to Chicopee Manufacturing Corporation and Savage Arms Corporation
(J. Stevens Arms Div.), all in Chicopee.
F.14. Willimansett Line from said Chicopee Substation running south-
westerly, southerly, and westerly to the steam generating station in
Chicopee; with a tap line running northerly to A. G. Spalding & Brothers, a
tap line running southerly to Dwight Station, and a tap line to Moore Drop
Forging Co., all in Chicopee.
F.15. Bear Hole Line from said Agawam Substation running north-
westerly, westerly, and northerly, through West Springfield, to Lanes
Quarries in Westfield.
F.16. Southwick Tap from said Bear Hole Line running southerly,
westerly, and southerly to said No. 9 Distribution Substation, with a tap
westerly to a television station, all in Agawam, and a tap in Agawam to Suzio
Quarry in Southwick.
F.17. Ramapogue Line from said Bear Hole Line in said Agawam running
northerly and easterly to Boston and Albany Railroad shops in West
Springfield.
F.18. Merrick Line from said Agawam Substation running easterly and
northerly to General Fiber Box Co. in said West Springfield.
F.19. Warehouse Point (Riverside Park) Line from said Agawam Sub-
station running southerly and easterly to Riverside Park, all in said Agawam.
F.20. A line from said West Springfield Substation underground
beneath the Connecticut River easterly to said State Street Substation in
Springfield.
23,000-Volt Lines
F.20.A. Chester Line from said Westfleld Substation running north-
westerly through Montgomery, Russell, Huntington, and Chester to Bancroft
Substation in said Becket.
F.21. West Chesterfield Line, a tap off said Chester Line in
Huntington running northerly through Huntington and Chesterfield to said Welt
Chesterfield Substation.
F.22. Dalton Line from said outdoor substation on Silver Lake Road
in Pittsfield running easterly and northeasterly to said Dalton Substation.
F.23. Coltsville Line from said Doreen Substation running northerly
to said Coltsville Substation, all in Pittsfield.
F.24. Wyandotte Line from said Coltsville Substation running
northerly and westerly to said Wyandotte Substation, all in Pittsfield.
F.25. A line from said Woodland Road Substation running southerly to
said Maple Street Substation, thence southerly and westerly to said Fairview
Street Substation, all in Lee.
F.26. A line from said Valley Mill Substation running southerly and
westerly to Hurlburt Paper Company, all in Lee.
F.27. A line from said outdoor substation on Silver Lake Road in
Pittsfield running easterly to said Doreen Substation, thence southerly
through Pittsfield and Lenox to said Woodland Road Substation.
66,000-Vott Lines
F.28. Mount Tom-Agawam Line from said Mount Tom Substation running
southerly through Easthampton, Southampton, and Westfield to said Westfield
Substation, thence running southeasterly through Agawam to said Agawam
Substation.
F.29. Cobble Mount Line from said Cobble Mountain Station running
northeasterly through Granville to a connection in Westfield with said Mount
Tom-Agawam Line.
F.30. Holyoke Tap Line from a tap in Chicopee off the
Agawam-Chicopee Line below mentioned running northerly and northwesterly to
Holyoke Water Power Company, in Holyoke.
F.31. A line from said Amherst Substation running southerly through
Amherst and Granby, thence westerly through South Hadley and Hadley across
the Connecticut River to said Mount Tom Substation.
F.32. The Hampden Tap Line, being a tap off said Agawam-Chicopee
Line at a point near the Connecticut River in Chicopee, running southerly to
said Steam Station in Chicopee.
Parallel 66,000-Volt and 115,000-Vott Lines
F.33. Two parallel lines, one of 66,000 volts known as the Montague-
Mount Tom Line, the other of 115,000 volts known as the Montague-Agawam Line,
both running from said Montague Substation northeasterly, southeasterly, and
southerly through Montague, Sunderland, Leverett, and Amherst to said Amherst
Substation.
F.34. Two parallel lines, one of 66,000 volts known as the Agawam-
Chicopee Line, and the other of 115,000 volts known as the Montague-Agawam
Line, from said Chicopee Substation running southwesterly across the Con-
necticut River thence westerly and southerly into West Springfield, said
lines being separated for a distance with individual rights of ways but
continuing parallel again through West Springfield to said Agawam Substation.
115,000-Volt Lines
F.35. A line from said Montague Substation running northerly through
Montague and Greenfield to a connection with the Harriman-Millbury line of
the New England Power Company.
F.36. Montague-Pittsfield Line from said Montague Substation running
westerly, southerly, and westerly through Montague thence westerly through
Greenfield, Deerfield, Shelburne, Conway, Ashfield, Plainfield, Windsor,
Peru, Hinsdale, Dalton, and Pittsfield to said Silver Lake Road Substation in
Pittsfield.
F.37. Lanesboro Line from said Silver Lake Road Substation in
Pittsfield running easterly to Doreen Substation thence northerly through
Pittsfield and Lanesboro to a connection with the lines of the New England
Power Company.
F.38. A line, being a portion of the Montague-Agawam Line, from said
Amherst Substation running southerly and southwesterly through Amherst and
Granby thence southerly, southeasterly, and southwesterly through Chicopee to
aid Chicopee Substation.
F.39. East Springfield Tap Line, being a tap off the Montague-Agawam
Line at a point northeasterly of the Chicopee Substation in Chicopee, running
southeasterly to the Chicopee River thence southerly across said Chicopee
River through Springfield to said East Springfield Substation.
F.40. Agawam-West Springfield Line from said Agawam Substation
running easterly through Agawam and West Springfield and again through
Agawam, thence northeasterly through West Springfield to said West
Springfield Substation.
F.41. Agawam-Hartford Line from said Agawam Substation running
southerly and southwesterly through Agawam to the Massachusetts-Connecticut
state boundary line where connection is made with Connecticut Power Company
Lines.
All the real estate and rights in real estate mentioned in this
Schedule A are conveyed subject to and with the benefit of all easements,
reservations, and restrictions which are set forth or referred to in the
respective deeds above mentioned insofar as now in force and applicable.
The Company holds a license dated January 17, 1944, as amended by
Amendment No. 1 dated April 5, 1950, and Amendment No. 2 dated January 3,
1951, granted by the Federal Power Commission for the operation and
maintenance of the hydro-electric project known as the Turners Falls
development on the Connecticut River and designated as Project No. 1889.
The project is described in the license and includes the two hydro-electric
generating stations in said Montague known as Cabot Station and Turners Falls
Station, the Turners Falls dam, the headgates, canal, and forebay, and the
land and water rights appurtenant to the project, all of which are mentioned
in Paragraph A.1. hereof, and also all structures, fixtures, equipment, and
facilities connected therewith, and the transmission lines and circuits
between said Cabot Station and the switching station near said Cabot Station.
The license is effective from January 1, 1938 to June 30, 1970, and is
subject to the provision among others, that the United States shall have the
right upon or after the expiration of the license to take over the project
upon payment as provided therein.
II. All tangible personal property now owned by the Company and
situated in any city or town within the Counties of Franklin, Hampshire,
Hampden, and Berkshire in the Commonwealth of Massachusetts, other than
property of the character described as included in paragraphs A to J, both
inclusive, of the description of the property conveyed by the Indenture to
the Trustee.
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
On this 17th day of August in the year 1954 before me personally came
Howard J. Cadwell and James Gray, both to me personally known, who being by
me duly sworn did depose and say that they reside in Greenfield,
Massachusetts and in Springfield, Massachusetts, respectively; that they are
respectively president and clerk of Western Massachusetts Electric Company,
one of the corporations described in and which executed the foregoing
Indenture; that they know the seal of said corporation; that the seal affixed
to said instrument opposite the execution was affixed thereto pursuant to the
authority and order of its Board of Directors; that they signed their
respective names thereto by like authority; and each of them acknowledged
said instrument to be his free act and deed in his said capacity and the free
act and deed of Western Massachusetts Electric Company.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal, at Boston in said Commonwealth, the day and year first above written.
/s/ Elliot G. Kelley
Notary Public for
the Commonwealth of Massachusetts
My commission expires: November 14, 1958
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss.
On this 17th day of August in the year 1954 before me personally came
J. J. Walsh to me personally known, who being by me duly sworn did depose and
say that he resides in Dorchester, Massachusetts; that he is a vice-president
of Old Colony Trust Company, one of the corporations described in and which
executed the foregoing Indenture; that he knows the seal of said corporation;
that the seal affixed to said instrument opposite the execution was affixed
thereto pursuant to the authority and order of its Board of Directors; that
he signed his name thereto by like authority; and he acknowledged said
instrument to be his free act and deed in his said capacity and the free act
and deed of Old Colony Trust Company.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal, at Boston in said Commonwealth, the day and year first above written.
/s/ Elliot G. Kelley
Notary Public for
the Commonwealth of Massachusetts
My commission expires: November 14, 1958
I, the undersigned, Clerk of WESTERN MASSACHUSETTS ELECTRIC COMPANY,
hereby certify that at a special meeting of the stockholders of said Company,
duly called and held at Springfield, Massachusetts, on July 23, 1954, the
following vote was duly adopted by the affirmative vote of all the
outstanding stock of said Company; and I, the undersigned, further certify
that at a meeting of the Board of Directors of said Company, duly called and
held on July 23, 1954, at which a quorum was present and voting, the same
identical vote was unanimously passed by said Board of Directors:
Further Voted: That a First Mortgage Indenture and Deed of Trust,
dated as of August 1, 1954, between the Company and Old Colony Trust
Company, as Trustee, providing for the issue of First Mortgage Bonds,
of which $11,000,000 in original aggregate principal amount are to be
issued forthwith, and known as First Mortgage Bonds, Series A, 2.95%,
due October 1, 1973, and of other and further bonds of other and
different series, and conveying, transferring, and assigning to said
Trustee as security for said First Mortgage Bonds all real estate,
rights in real estate, rights of way, and all property now owned or
hereafter to be acquired by the Company and used or planned to be used
by it in the business of operating its electric utility and steam
systems, and the franchises of the Company thereto enabling, but
excluding therefrom all cash, receivables, securities, office
furniture, vehicles, materials, supplies and the like, all as described
in paragraphs A to J, both inclusive, of the description of the
property so conveyed, transferred, or assigned, in the form as laid
before this meeting be and it is hereby approved, subject to such
changes, insertions, and omissions, not inconsistent with the general
tenor and purposes thereof as may be approved prior to the execution
thereof by the President of the Company or any Vice President of the
Company, and either the President or any Vice President be and each of
them is hereby authorized and directed to execute the same for and on
behalf of the Company and under its corporate seal, and either the
President or any Vice President be and each of them is hereby
authorized and directed to deliver the same in as many counterparts as
may be deemed desirable by the said Trustee for execution by it, and
that the execution as aforesaid of an Indenture of the above
description by either the President or any Vice President shall be
conclusive evidence that it is the Indenture in the form in which it
has been hereby approved and the execution of which is hereby
authorized.
And I further certify that Howard J. Cadwell is the President and
Robert R. Habberley is a Vice President of said Company, each of said
officers being duly authorized to execute, in the name and on behalf of said
Company, the foregoing First Mortgage Indenture and Deed of Trust, dated as
of August 1, 1954; and I am the Clerk of said Company, duly authorized to
attest the ensealing of said First Mortgage Indenture and Deed of Trust; that
the First Mortgage Indenture and Deed of Trust, to which this certificate is
attached, is substantially in the form presented to and approved at each of
said meetings held on July 23, 1954; that the foregoing is a correct copy of
the vote adopted at each of said meetings; and that the foregoing vote
remains in full force and effect without alteration.
IN WITNESS WHEREOF, I have hereunto subscribed my name as Clerk and
have caused the corporate seal of the Company to be hereunto affixed on
August 17, 1954.
/s/ James Gray
Clerk
RECORDING NOTE
The First Mortgage Indenture and Deed of Trust dated as of August 1,
1954, from Western Massachusetts Electric Company to Old Colony Trust Company
as Trustee, has been duly filed for record as follows:
in the following Registries of Deeds:
County of Franklin
County of Hampden
County of Hampshire
County of Berkshire-Middle District
County of Berkshire-Northern District
County of Berkshire-Southern District
all in the Commonwealth of Massachusetts
County of Cheshire
in the State of New Hampshire
Vernon Land Records
in the State of Vermont
and in the following Land Court Registration Districts:
County of Hampden
County of Hampshire
County of Berkshire-Middle District
all in the Commonwealth of Massachusetts.
A Confirmatory Indenture of Mortgage dated August 17, 1954, from said
Company to Old Colony Trust Company as Trustee, incorporating by reference
the terms and provisions of said First Mortgage Indenture and Deed of Trust,
was duly filed for record in the offices of the clerks of the following
cities and towns:
City of Boston
City of Springfield
City of Chicopee
City of Pittsfield
Town of West Springfield
City of Westfield
Town of Lee
Town of Greenfield
Town of Easthampton
Town of Dalton
Town of Montague
all in the Commonwealth of Massachusetts.