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Twelfth Supplemental Indenture
Unitil Energy Systems, Inc.
(successor to Concord Electric Company)
to
U.S. Bank National Association, Trustee
Dated as of December 2, 2002
Amending and Restating the
Concord Electric Company Indenture of Mortgage and Deed of Trust
Dated as of July 15, 1958
In Connection With the Merger of
Exeter & Hampton Electric Company
into Concord Electric Company
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Concord Electric Company
Twelfth Supplemental Indenture
Dated as of December 2, 2002
Table of Contents
Section Heading Page
Recitals.......................................................................1
Part One Restatement of Indenture..................................3
Article I Definitions...............................................7
Section 1.01. Definitions...............................................7
Article II General Provisions as to the Bonds.......................15
Section 2.01. General Limitations......................................15
Section 2.02. General Designation......................................15
Section 2.03. Series of Bonds..........................................16
Section 2.04. Form and Denomination....................................16
Section 2.05. Supplemental Indenture Creating New Series...............16
Section 2.06. Request for Authentication and Delivery of Bonds.........17
Section 2.07. Execution, Authentication, Delivery......................17
Section 2.08. Registration of Holders..................................18
Section 2.09. Persons Deemed Owners....................................18
Section 2.10. Mutilated, Destroyed, Lost and Stolen Bond...............19
Section 2.11. Temporary Bond...........................................19
Article III Bonds of the Outstanding Series and Exchange Bonds.......19
Article IV Bonds Against Property Additions.........................21
Section 4.01. Definitions for Issuing Bonds Against Property
Additions................................................21
A--Fixed Property, Property Additions..................................21
B--Purchased Property..................................................22
C--Gross Expenditures for Property Additions, Gross Expenditures.......22
D--Retirements.........................................................23
E--Net Retirements.....................................................23
F--Net Expenditures for Property Additions, Net Expenditures...........23
G--Bonded Expenditures.................................................24
H--Net Bondable Expenditures for Property Additions, Net Bondable
Expenditures........................................................24
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Section 4.02. Definitions for Earnings Test..............................25
A--Gross Operating Revenues............................................25
B--Earnings Available for Interest Charges.............................25
C--Earnings Available for Interest Charges Certificate, Annual
Interest Requirements...............................................26
Section 4.03. General Provisions.......................................26
Section 4.04. Additional Bonds Against Property Additions Issuance
Tests..................................................27
Section 4.05. Documents Required for Authentication of Bonds...........27
Article V Bonds for Refunding Purposes.............................29
Section 5.01. General Provisions.......................................29
Section 5.02. Issuance Requirements....................................29
Article VI Bonds Against Cash.......................................30
Section 6.01. General Provisions.......................................30
Section 6.02. Cash Withdrawal Requirements.............................30
Article VII Redemption of Bonds......................................31
Section 7.01. Manner of Redemption.....................................31
Section 7.02. Selection of Bonds to Be Redeemed........................31
Section 7.03. Notice of Redemption.....................................32
Section 7.04. Redemption Price.........................................32
Section 7.05. Partial Redemption of Bond...............................32
Section 7.06. Deposited Moneys for Redemption..........................32
Section 7.07. Cancellation of Bonds....................................32
Section 7.08. Payment of Redemption....................................33
Article VIII General Covenants........................................33
Section 8.01. Further Actions..........................................33
Section 8.02. Payment..................................................33
Section 8.03. Maintain Title of Property...............................34
Section 8.04. Taxes and Assessment; Liens..............................34
Section 8.05. Conduct Business and Maintain Properties.................34
Section 8.06. Compliance with Underlying Mortgages.....................35
Section 8.07. Acquisition of Property Subject to Underlying Mortgages..36
Section 8.08. Records of Accounts and Certificate......................37
Section 8.09. Annual Certificate of Compliance.........................37
Section 8.10. Insurance................................................38
Section 8.11. Maintenance of Corporate Existence and Rights............38
Section 8.12. Eminent Domain...........................................39
Section 8.13. Records at Trustee.......................................40
Section 8.14. No Extensions for Claims of Interest.....................40
Section 8.15. Restricted Payments......................................40
Section 8.16. Transactions with Affiliates.............................41
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Article IX Supplemental Indentures and Indenture Modifications......41
Section 9.01. Supplemental Indentures without Consent of Bondholders...41
Section 9.02. Modification of Indenture................................42
Section 9.03. Execution of Supplemental Indenture......................43
Section 9.04. Effect of Supplemental Indenture.........................43
Article X Possession, Use and Release of Mortgaged Property........43
Section 10.01. Possession and Use of Mortgaged Property.................43
Section 10.02. Alterations to Mortgaged Property........................43
Section 10.03. Dispositions of Mortgaged Property without Release.......43
Section 10.04. Release of Mortgaged Property............................44
Section 10.04A. Application for Release of Mortgaged Property............46
Section 10.05. Purchaser Protected......................................47
Section 10.06. Company's Covenant Regarding Disposition.................47
Section 10.07. Powers Exercisable by Receiver or Trustee................47
Article XI Holding and Application of Trust Moneys..................48
Section 11.01. Trust Moneys Defined.....................................48
Section 11.02. Withdrawal or Redemption of Outstanding Bonds............48
Section 11.03. Redemption Procedures....................................49
Section 11.05. Redeemed Bonds...........................................49
Article XII Consolidations, Mergers and Sales........................50
Section 12.01. Consolidation, Merger and Sales Permitted on Certain
Terms..................................................50
Section 12.02. Successor Corporation Substituted........................52
Section 12.03. Opinion of Counsel Required..............................52
Article XIII Discharge of Indenture...................................52
Article XIV Default Provisions and Remedies..........................53
Section 14.01. Events of Default Defined................................53
Section 14.02. Acceleration of Maturity; Rescission and Annulment.......54
Section 14.03. Interest on Overdue Payments.............................56
Section 14.04. Entry Upon Mortgaged Property............................56
Section 14.05. Power of Sale............................................57
Section 14.06. Suits for Enforcement; Remedies..........................57
Section 14.07. Right of Bondholders to Direct Trustee...................58
Section 14.08. Receiver.................................................58
Section 14.09. Bonds Due and Payable Following Sale.....................58
Section 14.10. Bondholders Right to Bid at Sale.........................58
Section 14.11. Purchaser Not Responsible for Proceeds Application.......58
Section 14.13. Application of Moneys by Trustee.........................59
Section 14.14. Waiver of Appraisement and Other Laws....................59
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Section 14.15. Payment Event of the Default Suits to Protect Trust
Estate.................................................60
Section 14.16. Trustee May Enforce Claims Without Possession of Bonds...61
Section 14.17. Limitation on Bondholder Suits...........................61
Article XV The Trustee..............................................62
Section 15.01. Certain Duties and Responsibilities......................62
Section 15.02. Certain Rights of the Trustee............................63
Section 15.03. Trustee's Compensation...................................65
Section 15.04. Notice of Events of Default..............................65
Section 15.05. Intervention in Judicial Proceedings.....................66
Section 15.06. Conversion, Merger, Consolidation or Sale of Business of
Trustee................................................66
Section 15.07. Resignation of Trustee...................................66
Section 15.08. Removal of Trustee.......................................66
Section 15.09. Resignation and Removal Becoming Effective...............66
Section 15.10. Successor or Temporary Trustee...........................66
Section 15.11. Acceptance of Appointment by Successor...................67
Section 15.12. Separate Trustee or Co-Trustees..........................67
Section 15.13. Payment of Certain Charges...............................68
Section 15.14. Instruments Accepted as Conclusive Evidence..............68
Section 16.01. Immunity of Incorporators, Stockholders, Officers,
Directors and Employees................................68
Section 16.02. Evidence of Action by Bondholders; Proof of Execution....69
Section 16.03. Exclusive Benefit of Indenture...........................69
Section 16.04. Separability of Indenture Provisions.....................69
Section 16.05. Service of Notices to the Company and the Trustee........70
Section 16.06. Repayment of Unclaimed Money.............................70
Section 16.07. Certificates or Opinions to Trustee......................70
Section 16.08. Successors and Assigns...................................70
Section 16.09. Counterparts.............................................71
Section 16.11. New Hampshire Law Applicable.............................71
Signature.....................................................................73
Article One Creation of Series L bonds................................1
Article Two Redemption................................................6
Part Two Restatement of Terms and Provisions of Merger Date Series
Bonds
Part Three Terms and Provisions of Exchange Bonds
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Schedule A -- List of Property
Part I - Merrimack County Properties
Part II - Rockingham County Properties
Exhibit A -- Form of Bond
Exhibit B -- Form of Certificate of Net Bondable Expenditures
Exhibit C -- Terms and Provisions of Series I, 8.49% Bonds
Exhibit D -- Terms and Provisions of Series J, 6.96% Bonds
Exhibit E -- Terms and Provisions of Series K, 8.00% Bonds
Exhibit F -- Terms and Provisions of Series L, 8.49% Bonds
Exhibit G -- Terms and Provisions of Series M, 6.96% Bonds
Exhibit H -- Terms and Provisions of Series N, 8.00% Bonds
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This Twelfth Supplemental Indenture is dated as of December 2, 2002 and
entered into by and between Unitil Energy Systems, Inc., a corporation duly
organized and existing under and by virtue of the laws of the State of New
Hampshire, having its principal office and place of business in Hampton, County
of Rockingham in the State of New Hampshire (hereinafter sometimes referred to
as the "Company"), and U.S. Bank National Association, a national banking
association (successor to Old Colony Trust Company), having an office and place
of business in Boston, Massachusetts, as Trustee (hereinafter sometimes referred
to as the "Trustee"), with reference to the following Recitals:
Recitals
The background of this Twelfth Supplemental Indenture is:
A. The Company has heretofore executed and delivered to the Trustee its
Indenture of Mortgage and Deed of Trust dated as of July 15, 1958 (hereinafter
sometimes referred to as the "Original Indenture") and has executed and
delivered to the Trustee, the following supplemental indentures thereto: (a) a
First Supplemental Indenture dated as of January 15, 1968, (b) a Second
Supplemental Indenture dated as of November 15, 1971, (c) a Third Supplemental
Indenture dated as of July 1, 1975, (d) a Fourth Supplemental Indenture dated as
of March 28, 1984, (e) a Fifth Supplemental Indenture dated as of June 1, 1984,
(f) a Sixth Supplemental Indenture dated as of October 29, 1987, (g) a Seventh
Supplemental Indenture dated as of August 29, 1991, (h) an Eighth Supplemental
Indenture dated as of October 14, 1994, (i) a Ninth Supplemental Indenture dated
as of September 1, 1998, (j) a Tenth Supplemental Indenture dated as of January
15, 2001 and (k) an Eleventh Supplemental Indenture dated as of April 20, 2001
(the Original Indenture and such supplemental indentures being sometimes
collectively referred to as the "Indenture") for the purpose of securing Bonds
of the Company to be issued in series from time to time in the manner and
subject to the conditions set forth in the indenture;
B. There are presently issued and outstanding under the Indenture the
following Bonds in the following principal amounts and with the maturity dates
indicated:
(i) $6,000,000 aggregate principal amount of the Company Series I,
8.49% Bonds due October 14, 2024;
(ii) $10,000,000 aggregate principal amount of the Company Series J,
6.96% Bonds due September 1, 2028; and
(iii) $7,500,000 aggregate principal amount of the Company Series K,
8.00% Bonds due May 1, 2031;
C. Exeter & Hampton Electric Company ("Exeter") has executed and delivered
to U.S. Bank National Association, a national banking association (successor to
Old Colony Trust Company), as Trustee, its Indenture of Mortgage and Deed of
Trust dated as of December 1, 1952 (hereinafter sometimes referred to as the
"Original Exeter Indenture") and has executed and delivered to such Trustee, the
following supplemental indentures thereto: (a) a First
Supplemental Indenture dated as of January 16, 1956, (b) a Second Supplemental
Indenture dated as of January 15, 1960, (c) a Third Supplemental Indenture dated
as of June 1, 1964, (d) a Fourth Supplemental Indenture dated as of January 15,
1968, (e) a Fifth Supplemental Indenture dated as of November 15, 1971, (f) a
Sixth Supplemental Indenture dated as of April 1, 1974, (g) a Seventh
Supplemental Indenture dated as of December 15, 1977, (h) an Eighth Supplemental
Indenture dated as of October 28, l987, (i) a Ninth Supplemental Indenture dated
as of August 29, 1991, (j) a Tenth Supplemental Indenture dated as of October
14, 1994, (k) an Eleventh Supplemental Indenture dated as of September 1, 1998
and (l) a Twelfth Supplemental Indenture dated as of April 20, 2001 (the
Original Exeter Indenture and such supplemental indentures being sometimes
collectively referred to as the "Exeter Indenture") for the purpose of securing
Bonds of Exeter to be issued in series from time to time in the manner and
subject to the conditions set forth in the indenture;
D. There are presently issued and outstanding under the Exeter Indenture
the following Bonds (the "Exeter Bonds") in the following principal amounts and
with the maturity dates indicated:
(i) $9,000,000 aggregate principal amount of the Exeter Series K,
8.49% Bonds due October 14, 2024;
(ii) $10,000,000 aggregate principal amount of the Exeter Series L,
6.96% Bonds due September 1, 2028; and
(iii) $7,500,000 aggregate principal amount of the Exeter Series M,
8.00% Bonds due May 1, 2031;
E. Prior to the Merger Date (as hereinafter defined), both the Company and
Exeter were wholly-owned subsidiaries of Unitil Corporation, a registered
holding company under the Public Utility Holding Company Act of 1935, as
amended. On December 2, 2002 (the "Merger Date"), Unitil Corporation combined
all of the operations of the Company and Exeter through the merger of Exeter
into the Company (the "Merger") pursuant to an Agreement and Plan of Merger
dated as of November 26, 2002 between the Company and Exeter (the "Merger
Agreement"). On the Merger Date the Company assumed all of the obligations of
Exeter under the Exeter Indenture and the Exeter Bonds pursuant to a Consent and
Agreement dated as of November 26, 2002 among Exeter, the Company and the
holders of the Exeter Bonds and the Bonds outstanding under the Indenture;
F. On January 24, 2003 (the "Closing Date"), (i) each holder of an Exeter
Bond will exchange such Exeter Bond for a bond issued by the Company under the
Indenture containing substantially the same terms and provisions as such Exeter
Bond (all such exchanges being collectively, the "Exchange"), (ii) the Exeter
Indenture will be cancelled and discharged and (iii) the Exeter Bonds will be
cancelled;
G. The Company, in the exercise of the power and authority conferred upon
or reserved to it by the provisions of the Indenture and pursuant to appropriate
resolutions of its Board of Directors, has duly resolved and determined to make,
execute and deliver to the Trustee
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this Twelfth Supplemental Indenture (hereinafter sometimes referred to as the
"Twelfth Supplemental Indenture") in order to amend and restate the Indenture in
connection with the Merger which will be effective as of the Merger Date;
H. Exeter has obtained and filed with the Trustee the written consent of
the holders of the Exeter Bonds to the Exchange and to the restatement of and
other amendments to the Indenture which are hereinafter set forth;
I. The Company has also obtained and filed with the Trustee the written
consent of the holders of all of the Bonds under the Indenture outstanding prior
to the Merger to the restatement of and the other amendments to the Indenture
which are hereinafter set forth;
J. The Company has determined that all conditions and requirements
necessary to make this Twelfth Supplemental Indenture, in the form and terms
hereof, a valid, binding and legal agreement in accordance with its terms and
the purposes herein expressed, have been performed and fulfilled, and the
execution and delivery hereof have been in all respects duly authorized;
Now, Therefore, in consideration of the premises and of the sum of One
Dollar ($1.00) duly paid by the Trustee to the Company at or before the delivery
of these presents, and for other valuable consideration, the receipt whereof is
hereby acknowledged, the Company hereby covenants and agrees with the Trustee,
and its successors in the trust under the Indenture, for the equal benefit of
all present and future bondholders as follows:
Part One
Restatement of Indenture
The first Whereas paragraph and all provisions of the Original Indenture
which follow such paragraph including, without limitation, the Granting Clauses
and Articles I through XVI of such Original Indenture, and all of the indentures
supplemental thereto other than this Twelfth Supplemental Indenture, are hereby
amended and restated in their entirety to read as follows, provided that this
restatement shall not affect any specific terms or provisions of the Bonds
outstanding contained in the Bonds themselves except as herein or hereinafter
otherwise provided and the form of bond hereinafter issued under the Indenture
shall only be in registered form and the form of such bond to be used
hereinafter is set forth in Exhibit A hereto:
Whereas, the Company has duly authorized by law to issue, sell or otherwise
dispose of its obligations for its lawful corporate purposes and to secure the
payment of such obligations by a first mortgage and deed of trust of and upon
its properties, rights, privileges and franchises now owned or hereafter
acquired; and
Whereas the Company has deemed it necessary and advisable to borrow money
from time to time to retire its obligations and for other proper corporate
purposes, and to issue its Bonds therefor, and to mortgage and pledge its
property hereinafter described to secure the payment of said Bonds, and to that
end has authorized and directed the issue of its Bonds from time to time limited
in aggregate principal amount as hereinafter provided, to be designated as its
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First Mortgage Bonds, to be issuable in one or more series, to be fully
registered Bonds without coupons, to bear such date or dates, to mature on such
date or dates, to bear interest at such rates and to contain and enjoy or to be
subject to such provisions as shall be determined by the Board of Directors of
the Company prior to the issue thereof; and
Whereas all things necessary to make the said Bonds, when authenticated by
the Trustee and issued as in this Indenture provided, valid, binding and legal
obligations of the Company, and to constitute this Indenture a valid first
mortgage and deed of trust to secure the payment of the principal of and
interest on all Bonds issued hereunder, have been done and performed, and the
creation, execution and delivery of this Indenture, and the creation, execution
and issue of said Bonds subject to the terms hereof have in all respects been
duly authorized;
Now, Therefore, This Indenture Witnesseth that, in consideration of the
premises and of the sum of $1 duly paid to the Company by the Trustee, and of
other good and valuable consideration, receipt whereof upon the ensealing and
delivery of this Indenture the Company hereby acknowledges, and in order to
secure the equal pro rata payment (except as herein otherwise provided) of both
the principal of and the interest on all of the Bonds at any time authenticated,
issued and outstanding hereunder, according to their tenor, purport and effect
and the provisions hereof, and to secure the faithful performance and observance
of all the covenants, obligations, conditions and provisions therein and herein
contained;
The Company has given, granted, bargained, sold, warranted, pledged,
assigned, transferred, mortgaged and conveyed, and by these presents does give,
grant, bargain, sell, warrant, pledge, assign, transfer, mortgage and convey,
unto the Trustee and its successors in the trusts hereof, and its and their
assigns, all and singular the following described property and rights and
interests in property, whether now owned or hereafter acquired by the Company
(all of the foregoing, with all other property and rights and interests in
property intended to be hereby conveyed, mortgaged, transferred, and assigned,
or at any time conveyed, mortgaged, pledged, transferred, assigned or delivered,
and all proceeds of any of the foregoing at any time conveyed, mortgaged,
transferred, assigned, paid or delivered to and from time to time held by the
Trustee upon the trusts hereof, being herein generally called, collectively, the
"Mortgaged Property" or "Trust Estate") and grants a security interest therein
as permitted by applicable law;
All real estate and rights and interests in and to real estate, all plants,
stations, structures, lines, facilities and other physical property used or
useful in the business of generating, producing, transmitting, distributing,
utilizing or purchasing electricity, including all machinery, equipment, tools
and other tangible personal property used or useful in connection therewith, all
dams, reservoirs, water, flowage and riparian rights and all franchises,
licenses, permits, easements and rights of way used or useful in connection with
said business, and all other property wherever located and of whatever nature,
whether real, personal or mixed, in all cases not specifically reserved and
excepted, and whether now owned or hereafter acquired by the Company, including,
without limiting the generality of the foregoing, all property specifically
described in Schedule A hereto;
Also any and all cash, stocks, shares, bonds, notes, securities and other
property which at any time hereafter, by delivery or writing of any kind for the
purposes hereof, may be expressly
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conveyed, mortgaged, pledged, delivered, assigned, transferred or paid to or
deposited with the Trustee hereunder by the Company or by a successor
corporation, or with its consent by any one in its behalf, as and for any
additional security for the Bonds issued and to be issued hereunder, the Trustee
being authorized at any and all times to receive such conveyance, mortgage,
pledge, delivery, assignment, transfer, payment or deposit, and to hold and
apply any and all such cash, stocks, shares, bonds, notes, securities and other
property in accordance with the provisions hereof and/or of such writing;
Together With all the Company's now-existing or hereafter acquired right,
title and interest in and to any and all physical property of the Company, now
or hereafter subject to any prior mortgage, pledge, charge and/or other
encumbrance or lien, and the cash and/or other proceeds therefrom, to the extent
that such property, cash and/or proceeds shall not be otherwise held and/or
applied pursuant to the requirements of any such mortgage, pledge, charge and/or
other encumbrance or lien;
And Together With all and singular the now-existing and hereafter-acquired
rights, privileges, tenements, hereditaments and appurtenances belonging or in
any wise appertaining to the aforesaid property or any part thereof, with all
reversion and reversions, remainder and remainders and, subject to the
provisions of Article X hereof, all rents, revenues, income, issues and profits
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 all and every part of the foregoing, it being the intention to include herein
and to subject to the lien hereof all land, interests in land, real estate,
equipment, machinery and other physical assets and all franchises whether now
owned by the Company or which it may hereafter acquire and wherever situated, as
if the same were now owned by the Company and were specifically described and
conveyed hereby, except as hereinafter specified;
Subject, However, in so far as affected thereby, to any Permitted
Encumbrances as defined in Section 1.01, and, as to the property specifically
described in Schedule A hereto, to the liens, encumbrances, reservations,
restrictions, conditions, limitations, covenants, interests and exceptions, if
any, set forth or referred to in the descriptions thereof contained in said
Schedule A, none of which substantially interferes with the free use and
enjoyment by the Company of the property and rights hereinbefore described for
the general purposes and uses of the Company's electric business;
And Subject Further, as to all hereafter-acquired property of any character
hereinbefore described, in so far as affected thereby, to any mortgages,
encumbrances or liens on such after-acquired property existing at the time of
such acquisition or contemporaneously created, conforming to the provisions of
Section 8.07 hereof;
But Specifically Reserving, Excepting and Excluding from this Indenture,
and from the grant, conveyance, mortgage, transfer and assignment herein
contained (sometimes hereinafter called "Excepted Property"):
(a) all property, permits, licenses, franchises and rights, whether now
owned or hereafter acquired by the Company, which are intended to be hereby
granted, conveyed,
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mortgaged, transferred and assigned (exclusive of property specifically
described in Schedule A hereto), but which cannot be so granted, conveyed,
mortgaged, transferred or assigned without the consent of other parties whose
consent is not, after reasonable effort, secured, or without subjecting the
Trustee to a liability not otherwise contemplated by the provisions of this
Indenture, or which otherwise may not be hereby lawfully and/or effectively
granted, conveyed, mortgaged, transferred and assigned by the Company;
(b) 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, and
whether falling within a general or particular description of property herein;
(c) all the Company's present and future fuel, merchandise held for sale,
cash on hand or in bank, books, choses in action, contracts, shares of stock,
bonds and other securities, documents and accounts and bills receivable (except
proceeds of the trust estate, and insurance and other moneys, and purchase money
obligations, required by, the provisions hereof to be paid to or deposited with
the Trustee), and materials, stores, supplies and other personal property which
are consumable (otherwise than by ordinary wear and tear) in their use in the
operation of the plants or systems of the Company; and
(d) all property of the Company which is not Public Utility Property and
which has been duly released by the Trustee from the lien hereof pursuant to
Section 10.04A and is still owned by the Company.
To Have and to Hold the Trust Estate, with all of the privileges and
appurtenances thereunto belonging, unto the Trustee, its successors in the
trusts hereof, and its and their assigns, to its and their own use, forever;
But in Trust Nevertheless for the equal pro rata benefit, security and
protection (except as provided in Section 8.14 of this Indenture and except
insofar as a sinking, improvement or analogous fund or funds, established in
accordance with the provisions of this Indenture, may afford particular security
for Bonds of one or more series) of the registered owners of the Bonds from time
to time authenticated, issued and outstanding hereunder, without (except as
aforesaid) any preference, priority or distinction whatever of any one Bond over
any other Bond by reason of priority in the issue, sale or negotiation thereof,
or otherwise;
Provided, However, and these presents are upon the condition, that if the
Company shall pay or cause to be paid the principal of and premium, if any, and
interest on the Bonds at the times and in the manner therein and herein
provided, and shall keep, perform and observe all and singular the covenants,
agreements and provisions in the Bonds and in this Indenture expressed to be
kept, performed and observed by or on the part of the Company, then this
Indenture and the estate and rights hereby granted shall, pursuant to the
provisions of Article XIII hereof, cease, determine and be void, but otherwise
shall be and remain in full force and effect.
The Company hereby declares that it holds and will hold and apply all
property described in the foregoing clauses (a), (b) and (c) in the fourth
preceding paragraph as specifically reserved
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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 if the same could be and had been hereby granted, conveyed, mortgaged,
transferred and assigned to and vested in the Trustee.
This Indenture Further Witnesseth and it is expressly declared that all
Bonds issued and secured hereunder are to be issued, authenticated and delivered
and all said mortgaged property and trust estate is to be dealt with and
disposed of under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes as hereinafter expressed and
the Company has agreed and covenanted and does hereby agree and covenant with
the Trustee and with the respective holders, from time to time, of the said
Bonds or any part thereof as follows, that is to say:
Article I
Definitions
Section 1.01. Definitions. As hereinafter used in this Indenture each of
the following terms shall be construed to have the meaning hereinafter specified
respectively, unless otherwise clearly indicated by the context.
"Acceptable Bank" means any bank or trust company (including the Trustee
and its affiliates) (i) which is organized under the laws of the United States
of America or any State thereof, (ii) which has capital, surplus and undivided
profits aggregating at least $100,000,000, and (iii) whose long-term unsecured
debt obligations (or the long-term unsecured debt obligations of the bank
holding company owning all of the capital stock of such bank or trust company)
shall have been given a rating of "A" or better by S&P, "A2" or better by
Moody's or an equivalent rating by any other credit rating agency of recognized
national standing.
"Affiliate" means, at any time, and with respect to any Person, (a) any
other Person that at such time directly or indirectly through one or more
intermediaries Controls, or is Controlled by, or is under common Control with,
such first Person, and (b) any Person beneficially owning or holding, directly
or indirectly, 10% or more of any class of voting or equity interests of the
Company or any Subsidiary or any corporation of which the Company and its
Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly,
10% or more of any class of voting or equity interests. As used in this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Unless the context otherwise clearly requires, any reference to an "Affiliate"
is a reference to an Affiliate of the Company.
"Annual Interest Requirements" has the meaning set forth in Section
4.02(C).
"Available Bonds" means Bonds issued under and secured by the lien of this
Indenture, which have been purchased or redeemed by the Company but have not
been either (a) redeemed by the use of any money deposited with the Trustee for
the purposes of any sinking or
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improvement fund; (b) redeemed with moneys deposited with the Trustee pursuant
to Section 8.10, 8.12, 10.03, 10.04 or 10.04A and applied to such redemption
pursuant to Section 11.02 or 11.03; or (c) theretofore used as the basis for the
issue of Bonds under Article V, or delivered to the Trustee in lieu of payments
for any sinking or improvement fund or credited under any other requirement
hereof.
Bonds for the redemption of which moneys shall have been or are
concurrently being deposited with the Trustee shall be deemed to have been
redeemed within the meaning of this definition, provided that notice of such
redemption shall have been duly given or provision satisfactory to the Trustee
shall have been made therefor, or such notice shall have been waived.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of said board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.
"Bond" or "Bonds" means any bond or bonds that have been or may be issued
under this Indenture.
"Bonded" has the meaning set forth in Section 4.01(G).
"Business Day" means any day other than a Saturday, a Sunday or a day on
which commercial banks in Boston, New York or New Hampshire are required or
authorized to be closed.
"Certificate of Net Bondable Expenditures" has the meaning set forth in
Section 4.01(I).
"Closing Date" has the meaning set forth in paragraph F of the Recitals.
"Company" means Concord Electric Company (prior to the Merger Date) and
Unitil Energy Systems, Inc. (successor to Concord Electric Company on and after
the Merger Date), and, subject to the provisions of Article XII hereof, its
successors and assigns.
"Company Post-Merger Bondable Expenditures" has the meaning set forth in
Section 4.01(H).
"Company Post-Merger Bonded Expenditures" has the meaning set forth in
Section 4.01(G).
"Company Post-Merger Gross Expenditures for Property Additions" has the
meaning set forth in Section 4.01(C).
"Company Post-Merger Net Expenditures" has the meaning set forth in Section
4.01(F).
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"Company Post-Merger Net Retirements" has the meaning set forth in Section
4.01(E).
"Company Post-Merger Property Additions" has the meaning set forth in
Section 4.01(A).
"Company Pre-Merger Bondable Expenditures" has the meaning set forth in
Section 4.01(H).
"Company Pre-Merger Bonded Expenditures" has the meaning set forth in
Section 4.01(FG).
"Company Pre-Merger Gross Expenditures for Property Additions" has the
meaning set forth in Section 4.01(C).
"Company Pre-Merger Net Expenditures" has the meaning set forth in Section
4.01(F).
"Company Pre-Merger Net Retirements" has the meaning set forth in Section
4.01(E).
"Company Pre-Merger Property Additions" has the meaning set forth in
Section 4.01(A).
"Default" means any event, which would with the lapse of time or the giving
of notice, or both, become an Event of Default.
"Earnings Available for Interest Charges" has the meaning set forth in
Section 4.02(B).
"Earnings Available for Interest Charges Certificate" has the meaning set
forth in Section 4.02(C).
"Engineer" means an individual, co-partnership or corporation engaged in an
engineering business or employed by the Company to pass upon engineering
questions.
"Engineer's Certificate" means a certificate signed and verified by an
engineer (who, except during the continuance of a Default and except as
otherwise provided herein, may be an employee of the Company) appointed by the
Board of Directors of the Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations promulgated thereunder
from time to time in effect.
"Event of Default" has the meaning set forth in Section 14.01.
"Excepted Property" has the meaning stated in the third paragraph following
the Granting Clauses.
"Exchange" has the meaning set forth in paragraph E of the Recitals.
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"Exchange Bonds" has the meaning set forth in Article III.
"Exeter" means Exeter & Hampton Electric Company.
"Exeter Bonds" has the meaning set forth in paragraph D of the Recitals.
"Exeter Indenture" has the meaning set forth in paragraph C of the
Recitals.
"Exeter Pre-Merger Bondable Expenditures" has the meaning set forth in
Section 4.01(H).
"Exeter Pre-Merger Bonded Expenditures" has the meaning set forth in
Section 4.01(G).
"Exeter Pre-Merger Gross Expenditures for Property Additions" has the
meaning set forth in Section 4.01(C).
"Exeter Pre-Merger Net Expenditures" has the meaning set forth in Section
4.01(F).
"Exeter Pre-Merger Net Retirements" has the meaning set forth in Section
4.01(E).
"Exeter Pre-Merger Property Additions" has the meaning set forth in Section
4.01(A).
"Fixed Property" has the meaning set forth in Section 4.01(A).
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"Gross Expenditures" has the meaning set forth in Section 4.01(C).
"Gross Expenditures for Property Additions" has the meaning set forth in
Section 4.01(C).
"Gross Operating Revenues" has the meaning set forth in Section 4.02(A).
"Indenture" means this instrument, together with any and all indentures
which may hereafter be made supplemental hereto.
"Independent Engineer" means any Engineer who has no specific interest,
direct or indirect, in the Company and, in the case of an individual, is not a
director, officer or employee of the Company and, in the case of a
co-partnership or organization, does not have a partner, director, official or
employee who is a director, official or employee of the Company.
"Independent Engineer's Certificate" means a certificate signed and
verified by an Independent Engineer.
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"Institutional Holder" means any insurance company, bank, savings and loan
association, trust company, investment company, charitable foundation, employee
benefit plan (as defined in ERISA) or other institutional investor or financial
institution.
"Investment" means any investment or acquisition, made in cash or by
delivery of property by the Company or any of its Subsidiaries (i) in any
Person, whether by acquisition of stock, indebtedness or other obligation or
security, or by loan, guaranty, advance, capital contribution or otherwise, or
(ii) in any property.
"Make Whole Amount" has the meaning set forth in Section 14.02.
"Material" means material in relation to the business, operations, affairs,
financial condition, assets, properties, or prospects of the Company and its
Subsidiaries taken as a whole.
"Merger" has the meaning set forth in paragraph E of the Recitals.
"Merger Agreement" has the meaning set forth in paragraph E of the
Recitals.
"Merger Date" has the meaning set forth in paragraph E of the Recitals.
"Merger Date Series" has the meaning set forth in Article III.
"Moody's" means Moody's Investors Service, Inc.
"Mortgaged Property" or "Trust Estate" means the assets of the Company now
or hereafter subject or subjected to the lien of this Indenture.
"Net Bondable Expenditures" has the meaning set forth in Section 4.01(H).
"Net Bondable Expenditures for Property Additions" has the meaning set
forth in Section 4.01(H).
"Net Expenditures" has the meaning set forth in Section 4.01(F).
"Net Expenditures for Property Additions" has the meaning set forth in
Section 4.01(F).
"Net Income" has the meaning set forth in Section 8.15.
"Net Retirements" has the meaning set forth in Section 4.01(E).
"New Gross Expenditures" has the meaning set forth in Section 4.01(I).
"New Property Additions" has the meaning set forth in Section 4.01(I).
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"Officers' Certificate" means a certificate signed by the President or a
Vice-President and the Treasurer or an Assistant Treasurer of the Company. Each
Officers' Certificate shall, if required by Section 16.07, contain the
statements provided for in said Section.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
satisfactory to the Trustee, who, except during the continuance of a Default,
may be of counsel to the Company. Each Opinion of Counsel shall, if required by
Section 16.07, contain the statements provided for in said Section.
"Order of the Company" means a written instrument signed and verified by
the President or a Vice-President and either by the Secretary or the Clerk or
the Treasurer or an Assistant Treasurer of the Company requesting or directing
the particular action in question to be taken.
"Outstanding" shall mean, when used with reference to Bonds or to Bonds of
a specified series, all Bonds which have been authenticated and delivered under
this Indenture or all Bonds of the series specified which have been so
authenticated and delivered except:
(a) Bonds cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Bonds for the payment or redemption of which moneys shall have
theretofore been irrevocably deposited with the Trustee (whether upon or
prior to the maturity or redemption date of said Bonds), provided that if
such Bonds are to be redeemed or paid prior to the maturity thereof, notice
of such redemption shall have been given or provision satisfactory to the
Trustee shall have been made therefor or such notice shall have been
waived; and
(c) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to Section 2.11;
and, whenever such term is used with reference to any action or nonaction which
may be requested or taken by or to which objection may be made by the owners or
holders of a specified percentage or proportion of Bonds outstanding hereunder,
or of Bonds of a specified series outstanding hereunder, Bonds directly or
indirectly owned or held by or for the account of, or for the benefit or
interest of, the Company or any other obligor upon the Bonds or any Affiliate of
the Company or such other obligor shall be disregarded and deemed not to be
Outstanding.
"Permitted Encumbrances" means as of any particular time any of the
following:
(a) liens for taxes, assessments or governmental charges not then
delinquent or the validity of which the Company is contesting in good faith
(unless thereby in the opinion of counsel any of the trust estate will be
in danger of being lost or forfeited), liens for workmen's compensation
awards and similar obligations not then delinquent and liens for judgments,
payment of which in the opinion of counsel has been adequately secured;
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(b) any obligations or duties, affecting the property of the Company,
to any municipality or public authority with respect to any franchise,
grant, license or permit, provided, however, that such franchise, grant,
license or permit does not give such municipality or public authority any
right to purchase property at less than its fair value;
(c) the license from the Federal Power Commission issued under the
provisions of the Federal Power Act of 1935, so-called, and any
modification or renewal of such license, under the terms of which the
United States of America has the right to acquire the Company's Sewalls
Falls hydro-electric plant and certain associated transmission lines by
purchase at the expiration of such license for a sum equal to the net
investment of the Company in the plant;
(d) building or building line restrictions or agreements, easements,
exceptions or reservations in any property of the Company for the purpose
of roads, streets, pipe lines, sewer lines or mains, water lines, ditches,
railroad rights-of-way, telephone, telegraph or electric transmission lines
and other like purposes and which, as shown by an Engineer's Certificate,
do not impair the use of such property for the purposes for which it is
held by the Company;
(e) liens for laborers' and materialmen's services and materials, but
only so long as payment for such labor or material is not yet owing under
the terms of employment or the purchase of materials;
(f) liens, neither assumed by the Company nor on which it customarily
pays interest charges, existing upon real estate or rights in or relating
to real estate acquired by the Company for substation, transmission line or
right of way purposes;
(g) liens, encumbrances, reservations, restrictions, conditions,
limitations, covenants, interests and exceptions, if any, set forth or
referred to in Schedule A attached hereto on property now owned by the
Company; and
(h) any mortgage, loan or encumbrance securing indebtedness or
obligations permitted under Section 8.07 or Section 12.02.
"Person" shall mean an individual, partnership, corporation, limited
liability company, trust or unincorporated organization, and a government or
agency or political subdivision thereof.
"Prime Rate" has the meaning set forth in Section 15.13.
"Property Additions" has the meaning set forth in Section 4.01(A).
"Public Utility Property" has the meaning set forth in Section 10.04(A).
"Purchased Property" has the meaning set forth in Section 4.01(B).
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"Resolution" means a copy of a resolution certified by the Secretary, the
Clerk or any Assistant Secretary of the Company under the corporate seal of the
Company to have been duly adopted by the Board of Directors and to remain in
full force and effect without alteration or with only such alterations as are
specified in such certificate.
"Responsible Officer", when used with respect to the Trustee, shall mean
(i) if U.S. Bank National Association is acting as Trustee, any Vice President
or any officer in the Corporate Trust Services Department who is responsible for
the administration of the trust under the Indenture, or (ii) when any successor
is acting as Trustee, any Vice President or any officer in the department of
such successor who is responsible for the administration of the trust under the
Indenture.
"Restated Indenture" means this Twelfth Supplemental Indenture which amends
and restates the Indenture.
"Retirements" has the meaning set forth in Section 4.01(D).
"S&P" means Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc.
"Series I, 8.49% Bonds" has the meaning set forth in Article III.
"Series J, 6.96% Bonds" has the meaning set forth in Article III.
"Series K, 8.00% Bonds" has the meaning set forth in Article III.
"Series L, 8.49% Bonds" has the meaning set forth in Article III.
"Series M, 6.96% Bonds" has the meaning set forth in Article III.
"Series N, 8.00% Bonds" has the meaning set forth in Article III.
"Stockholders Resolution" means a copy of a resolution certified by the
Clerk or the Secretary or any Assistant Secretary of the Company under the
corporate seal of the Company to have been duly adopted by the stockholders of
the Company entitled to vote upon the subject of such resolution and to remain
in full force and effect without alteration or with only such alterations as are
specified in such certificate.
"Subsidiary" shall mean any corporation which has more than fifty percent
(50%) of its outstanding Voting Stock owned at the time of reference, directly
or indirectly, by the Company, or by one or more Subsidiaries, or by the Company
and one or more Subsidiaries.
"Trustee" means U.S. Bank National Association and, subject to the
provisions of Article XV hereof, its successors as trustee in the trust hereby
created.
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"Trust Estate" or "Mortgaged Property" means the assets of the Company now
or hereafter subject or subjected to the lien of this Indenture.
"Trust Moneys" has the meaning set forth in Section 11.01.
"Underlying Mortgage" means a mortgage lien or other lien or charge
(exclusive of permitted encumbrances) prior to the lien of this Indenture upon
any property, plant or equipment acquired by the Company after the execution and
delivery of this instrument.
"United States Governmental Security" means any direct obligation of, or
obligation guaranteed by, the United States of America, or any agency controlled
or supervised by or acting as an instrumentality of the United States of America
pursuant to authority granted by the Congress of the United States of America,
so long as such obligation or guarantee shall have the benefit of the full faith
and credit of the United States of America which shall have been pledged
pursuant to authority granted by the Congress of the United States of America.
"Voting Stock" shall mean stock of any class or classes having ordinary
voting power for the election of a majority of the directors of such
corporation, other than stock having such power only by reason of the happening
of a contingency.
Article II
General Provisions as to the Bonds
Section 2.01. General Limitations. This Indenture creates a continuing lien
to secure the payment of the principal of and interest on all Bonds which may,
from time to time, be issued, authenticated and delivered hereunder. All Bonds
issued under and in pursuance of this Indenture and at any time Outstanding,
shall be in all respects, subject to the provisions and qualifications in this
Indenture contained, and except as any sinking or other fund established in
accordance with the provisions of this Indenture may afford additional security
for the Bonds of any particular series, equally and ratably secured hereby
without preference, priority or distinction, on account of the actual time or
times of the issue of said Bonds, or any of them, so that all Bonds at any time
Outstanding shall have the same rights, lien and preferences under and by virtue
of this Indenture, and shall all be equally secured hereby, subject to the
provisions and qualifications in this Indenture contained, and except as any
sinking or improvement or other fund established in accordance with the
provisions of this Indenture may afford additional security for the Bonds of any
particular series, with like effect as if they had all been authenticated and
delivered simultaneously on the date hereof, whether the same, or any of them,
shall actually be authenticated or delivered, or sold or disposed of at some
future date.
Section 2.02. General Designation. The Bonds issued under and secured by
this Indenture shall be issuable in series and shall be designated by suitable
descriptive words which shall always include the words "First Mortgage," with
appropriate insertions and changes and designations in such title descriptive of
the respective series of Bonds, as may be determined by the Board of Directors
and set forth in the indenture supplemental hereto creating such series (or,
with respect to the Exchange Bonds, as set forth in the appropriate Exhibit
hereto setting forth
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the terms and provisions of such Exchange Bonds). The text of the Bonds and of
the certificate of the Trustee shall be substantially of the tenor and purport
of the Bonds set forth in Exhibit A attached hereto and made a part hereof, with
appropriate insertions, omissions, substitutions and variations, in case of
Bonds of different denominations and different series, prescribed by the
indenture supplemental hereto by which such Bonds shall be created as provided
in Section 2.05, and in all other respects not inconsistent with the terms of
this Indenture. The Board of Directors may, at the time of the creation of any
series, or at any time thereafter, limit the maximum principal amount of Bonds
of such series which may be issued and an appropriate insertion in respect of
such limitation may, but need not, be made in the Bonds of such series.
Section 2.03. Series of Bonds. All Bonds of the same series shall be
identical in tenor and effect, except as hereinafter in this Section provided,
and except that the same may be of different denominations, shall consist of
registered Bonds without coupons, and may contain such variations in tenor and
effect as are incidental to such differences. Each Bond of each series shall be
dated as of the last interest payment date to which interest was paid upon Bonds
of such series, unless issued on an interest payment date to which interest was
paid upon Bonds of such series, in which event it shall be dated as of the date
of issue, or if the date of issue shall be a date prior to the first interest
payment date for the Bonds of such series, then unless the supplemental
indenture pursuant to which the Bonds of such Series are being created and
issued provides otherwise, such Bonds shall bear interest from, and shall be
dated as of, the date of initial issuance of such Bonds. Each such Bond shall
bear interest from the date thereof.
Section 2.04. Form and Denomination. The form and text of the Bonds of each
series shall be established by the provisions of the supplemental indenture
creating such series. The Bonds of each series shall be of such denomination or
denominations, interchangeable as between denominations or not so
interchangeable, as shall be determined by the Board of Directors at the time
such series is created. The Bonds of each series shall be payable on such date
or dates as may be fixed by the Board of Directors at the time the series is
created. Every order of the Company calling for the authentication and delivery
of Bonds shall specify the denomination and series, permitted by the terms of
this Indenture, in which the Bonds shall be issued and authenticated.
All Bonds shall be payable as to principal, interest and premium, if any,
in lawful money of the United States of America.
Section 2.05. Supplemental Indenture Creating New Series. The Bonds of each
series (other than the Exchange Bonds) shall be created by an indenture
supplemental hereto, authorized by a Resolution and delivered to the Trustee.
Such supplemental indenture shall include such lawful provisions consistent with
the terms of this Indenture as the Board of Directors shall prescribe:
(1) With respect to the payment of the principal of and interest on
the Bonds of such series without deduction for and/or with respect to
reimbursement of specified taxes, assessments or other governmental
charges;
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(2) With respect to the right of the Company to redeem Bonds of such
series, the redemption price or prices at which they may be redeemed and
the time or times, the class or classes, and the manner of their
redemption;
(3) With respect to sinking or improvement funds; and
(4) With respect to serial maturities, exchangeability, convertibility
or other special terms and conditions, including the issuance of Bonds
which are to be issued in exchange for other securities.
Section 2.06. Request for Authentication and Delivery of Bonds. Whenever
requesting the authentication and delivery of any Bonds issuable under Articles
IV, V or VI, the Company shall furnish the Trustee, in addition to any other
instruments elsewhere in this Indenture required, the following:
(1) A Resolution requesting the Trustee to authenticate and deliver
the Bonds, specifying the series, maturities (if Bonds of such series are
of serial maturities), and principal amount of Bonds called for, and
designating the officer or officers of the Company to whom or upon whose
order they shall be delivered;
(2) In case the Bonds to be authenticated and delivered are of a
series not theretofore created, an indenture supplemental hereto authorized
by a Resolution as prescribed by Section 2.05 (all Bonds of such series
which may be executed, authenticated and delivered hereunder shall conform
to the terms expressed in such supplemental indenture); and
(3) An Opinion of Counsel that all instruments furnished the Trustee
conform to the requirements of this Indenture, constitute sufficient
authority under this Indenture for it to authenticate and deliver the Bonds
applied for, that said Bonds when issued and delivered will be valid and
duly secured by the lien of this Indenture, and that all laws and
requirements in respect of the authentication and delivery thereof by the
Trustee have been complied with.
Section 2.07. Execution, Authentication, Delivery. All Bonds issued
hereunder and secured hereby from time to time shall be executed on behalf of
the Company by its President or a Vice-President, and its corporate seal shall
be thereunto affixed and attested by its Treasurer or an Assistant Treasurer.
The Bonds shall then be delivered to the Trustee for authentication by it, and
thereupon, upon compliance with the requirements of and as provided in this
Indenture and not otherwise, the Trustee shall authenticate and deliver the
same.
In case any officer who shall have signed, sealed or attested any of said
Bonds shall cease to be an officer of the Company before the Bonds so signed,
sealed or attested shall have been authenticated or delivered by the Trustee, or
issued, such Bonds may nevertheless be issued, authenticated and/or delivered as
though such person who signed, sealed or attested such
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Bonds had not ceased to be an officer of the Company and also any Bond may be
signed, sealed or attested on behalf of the Company by such person as at the
actual date of the execution of such Bond shall be the proper officer of the
Company, although at the date of such bond such person was not an officer of the
Company.
Only such of the Bonds (whether temporary or definitive) as shall have been
authenticated by the Trustee, by signing the certificate endorsed thereon, shall
be secured by this Indenture, or shall be entitled to any lien or benefit
hereunder, and such certificate of the Trustee shall be conclusive evidence and
the only evidence that the Bonds so authenticated have been duly issued
hereunder, and are entitled to the benefit of the trusts hereby created.
Section 2.08. Registration of Holders. The Company shall keep books at the
principal office of the Trustee for the registration and transfer of Bonds. Such
books shall, in addition to the name of the holder of each registered Bond, show
the address of each such holder.
Such registrations and discharges from registration shall be made under
such reasonable regulations as the Company may prescribe and for which the
Company may make a charge sufficient to reimburse it for any tax or other
governmental charge required to be paid with respect thereto and the charges of
the Trustee, all such charges to be paid by the party requesting such
registration or discharge from registration as a condition precedent to the
exercise of such privilege.
No transfer of Bonds shall be valid unless made on said books by the
registered holder in person, or by his duly authorized attorney, and similarly
noted on the Bond. Upon presentation to the Trustee of any Bond accompanied by
written instrument of transfer, in a form approved by the Trustee, executed by
the registered owner thereof or by his duly authorized attorney, and upon the
surrender and cancellation of such Bond, a new Bond or Bonds of the same series
and maturity date and for the same aggregate principal amount will be issued to
the transferee in exchange therefor.
Unless otherwise provided in the supplemental indenture creating the
particular series of Bonds, upon any transfer of Bonds permitted hereunder, the
Company will make no service charge against the holder of such Bonds or his
transferee for any transfer, but the Company, at its option, may require the
payment of a sum sufficient to reimburse it for any tax or governmental charge
that may be imposed thereon. All Bonds surrendered in connection with any such
transfer shall be forthwith canceled by the Trustee, and upon demand the Trustee
shall deliver the same to the Treasurer of the Company or upon his written
order.
The Company shall not be required to make any transfer or transfers of any
Bond or Bonds during the 15 days next preceding any date on which interest or
principal is required to be paid thereon or with respect thereto nor may any
transfer be required with respect to any Bonds that have been called for
redemption.
Section 2.09. Persons Deemed Owners. The Company and the Trustee shall
treat the person in whose name any Bond shall be registered as the absolute
owner thereof for the purpose of receiving payment of or on account of the
principal of such Bond and for all other purposes, and neither the Company nor
the Trustee shall be affected by any notice to the contrary.
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Section 2.10. Mutilated, Destroyed, Lost and Stolen Bonds. Upon receipt by
the Company and the Trustee of evidence satisfactory to them of the loss, theft,
destruction or mutilation of any Bond (which evidence shall be, in the case of a
holder which is an Institutional Holder, written notice thereof from such
Institutional Holder), and of indemnity satisfactory to them (provided that in
the case of a holder which is an Institutional Holder, the unsecured agreement
of indemnity from such Institutional Holder shall be deemed to be satisfactory)
and upon surrender and cancellation of such Bond, if any, if mutilated, the
Company may execute, and the Trustee may authenticate and deliver, a new Bond of
the same series and of like tenor, to be issued in lieu of such lost, stolen,
destroyed or mutilated Bond. Such new Bond may bear such endorsement as may be
agreed upon by the Company and the Trustee. The Company may require the payment
of a sum sufficient to reimburse it for all expenses in connection with the
issue of each new Bond under this Section. Any new Bond issued under the
provisions of this Section in lieu of any Bond lost, stolen, destroyed or
mutilated shall constitute an original, additional, contractual obligation of
the Company and shall be secured equally and ratably with all other Bonds
Outstanding.
Neither the Company nor the Trustee shall be under any duty or liability to
issue a new Bond in substitution for or in lieu of any Bond lost, stolen,
destroyed or mutilated except under the provisions of this Section.
Section 2.11. Temporary Bonds. Until definitive Bonds of any series are
ready for delivery, the Company may execute and the Trustee shall authenticate
and deliver, in lieu of such definitive Bonds, temporary typewritten or printed
Bonds, in registered form, substantially of the tenor of the bond hereinbefore
described, with appropriate omissions, variations and insertions and with or
without appropriate provisions with respect to registration of the principal of
such Bonds. Such temporary Bonds may be in such denominations as the Company may
determine. Until exchanged for definitive Bonds, such temporary Bonds shall be
entitled to the lien and benefit of this Indenture. Upon such exchange, which
shall be made at the principal office of the Trustee by the Company, at its own
expense and without making any charge therefor, such temporary bond, shall be
cancelled, and if the Company so directs, incinerated by the Trustee, and upon
the exchange of all said Bonds, said Bonds so cancelled or a certificate of such
incineration shall be delivered to the Company. Until such definitive Bonds are
ready for delivery, the holder of one or more temporary Bonds may, with the
consent of the Company, exchange the same on the surrender thereof to the
Trustee for cancellation, and shall be entitled to receive a temporary bond or
temporary Bonds of like aggregate principal amount of the same series and
maturity in other authorized denominations indicated by such holder.
Article III
Bonds of the Merger Date Series and Exchange Bonds
The Bonds of each Merger Date Series shall have the terms, rates and other
provisions specified in Part Two hereof. The text of the Bonds of each Merger
Date Series and of the authentication certificate of the Trustee shall be,
respectively, substantially of the tenor and effect recited in the form of bond
contained in the supplemental indenture pursuant to which such Series was issued
and shall remain the same except as otherwise herein or hereinafter
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provided. As used herein, a "Merger Date Series" of Bonds shall mean the
Company's First Mortgage Bonds described in clauses (i), (ii) and (iii) hereof
issued under the Indenture prior to the Merger Date, each of which has the
following principal amount of Bonds Outstanding on the Merger Date and "Exchange
Bonds" shall mean the Company's First Mortgage Bonds described in clauses (iv),
(v) and (vi) hereof delivered after but effective as of the Merger Date in
exchange for the Exeter Bonds indicated:
(i) $6,000,000 aggregate principal amount of the Company Series
I, 8.49% Bonds due October 14, 2024 (the "Series I, 8.49% Bonds");
(ii) $10,000,000 aggregate principal amount of the Company Series
J, 6.96% Bonds due September 1, 2028 (the "Series J, 6.96% Bonds");
(iii) $7,500,000 aggregate principal amount of the Company Series
K, 8.00% Bonds due May 1, 2031 (the "Series K, 8.00% Bonds");
(iv) $9,000,000 aggregate principal amount of the Company Series
L, 8.49% Bonds due October 14, 2024 (the "Series L, 8.49% Bonds"), in
the form and containing the terms and conditions set forth in Exhibit
F attached hereto, issued as of the Merger Date in exchange for the
Exeter Series K, 8.49% Bonds due October 14, 2024;
(v) $10,000,000 aggregate principal amount of the Company Series
M, 6.96% Bonds due September 1, 2028 (the "Series M, 6.96% Bonds"), in
the form and containing the terms and conditions set forth in Exhibit
G attached hereto, issued as of the Merger Date in exchange for the
Exeter Series L, 6.96% Bonds due September 1, 2028; and
(vi) $7,500,000 aggregate principal amount of the Company Series
N, 8.00% Bonds due May 1, 2031 (the "Series N, 8.00% Bonds"), in the
form and containing the terms and conditions set forth in Exhibit H
attached hereto, issued as of the Merger Date in exchange for the
Exeter Series M, 8.00% Bonds due May 1, 2031.
The principal of and the premium, if any, and the interest on the Bonds
issued prior to or as of the Merger Date shall be payable at the office and
place of business of the Trustee in Boston in the Commonwealth of Massachusetts
(or, if there be a successor to said Trustee, at its office designated by such
successor), in coin or currency of the United States of America which at the
time of payment is legal tender for public and private debts.
Each series of Exchange Bonds shall be dated as of the last interest
payment date to which interest was paid on the series of Exeter Bonds being
exchanged therefore. No Net Bondable Expenditures shall be required to be used
for such issuance but otherwise the Company shall comply with the provisions of
Article IV with respect to the issuance of the Exchange Bonds, except that (i)
the requirement of an indenture supplemental hereto set forth in Section
4.05(4)(iii) shall not be applicable to the issuance of the Exchange Bonds and
(ii) any
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certificates or statements required pursuant to Section 4.05(4)(i) to be made by
an Independent Engineer for the issuance of Exchange Bonds may be made by an
Engineer who is not an Independent Engineer. Exchange Bonds shall be redeemable
at the price and on the conditions set forth in Part Three hereof, any such
redemption to be effected in accordance with the provisions of Article XIV of
the Indenture.
The Bonds of each Merger Date Series shall be redeemable at the price and
on the conditions set forth in Part Two hereof, any such redemption to be
effected in accordance with the provisions of Article VII of this Indenture.
Article IV
Bonds Against Property Additions
Section 4.01. Definitions for Issuing Bonds Against Property Additions. For
the purposes of this Indenture each of the following terms shall be construed to
have the meaning hereinafter specified respectively:
(A) Fixed Property, Property Additions. The term "Fixed Property"
shall mean the sum of all of the physical property, plant and equipment,
real, personal and mixed wherever located which is of such a nature as
under sound accounting practice to be properly chargeable to fixed capital
account and is in fact so charged, and which is used or is to be used as a
part of its permanent and fixed investment in its business as an electric
public utility company. Such term shall not, however, include (a) any
property of the nature of that expressly excluded from the lien of this
Indenture by the Granting Clauses hereof; (b) the cost of any paving or
other public improvement assessed against the Exeter or the Company (as the
case may be) by, or paid by Exeter or the Company (as the case may be) to,
any taxing authority; or (c) any good will or going concern value or value
attributable to any franchise or governmental permit except to the extent
reflected in the fair value of Purchased Property as evidenced by an
Independent Engineer's Certificate;
The term "Property Additions" shall mean the sum of the following
(without duplication): (i) Fixed Property of Exeter located within the
State of New Hampshire which Exeter was authorized to use and operate in
its business as a public utility company and which was used or useful in
such business and was constructed or acquired (by purchase consolidation,
merger or in any other way) during the period after June 30, 1952 and to,
but not including the Merger Date (the "Exeter Pre-Merger Property
Additions"), (ii) Fixed Property of the Company located within the State of
New Hampshire which the Company was authorized to use and operate in its
business as an electric public utility company and which was used or useful
in such business and was constructed or acquired (by purchase,
consolidation, merger or in any other way) during the period after May 31,
1958 to, but not including the Merger Date (the "Company Pre-Merger
Property Additions"), and (iii) Fixed Property of the Company located
within the State of New Hampshire which the Company is authorized to use
and operate in its business as an electric public utility company and which
is used or useful in such
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business and constructed or acquired (by purchase, consolidation, merger or
in any other way) during the period beginning on and including the Merger
Date through the date of calculation but excluding Exeter Pre-Merger
Property Additions (the "Company Post-Merger Property Additions").
When calculating "Property Additions" in the above paragraph, such
term shall not, however, include (1) any leasehold interest in property or,
unless the same shall be movable physical property and shall constitute
personal property in an Opinion of counsel, any permanent improvements
constructed on property held under lease (but shall include rights of way
and easements, any electric distribution, transmission or service lines and
equipment and appurtenances thereto located on and such right of way or
easement or on any property of customers or on any leased property or
located upon any street, alley or public place of any municipality or upon
any public highway), or (2) any property subject to any lien or other
encumbrance except permitted encumbrances and the lien hereof. Nothing
herein contained, however, shall prevent property meeting the definition of
Property Additions as herein in this Section set forth in all respects
except that at the time of its construction or acquisition it was subject
to such a lien or other encumbrance, from constituting "Property Additions"
upon the removal of such lien or other encumbrance.
Property Additions need not consist of a specific or complete
accession, addition or improvement or complete new property but may include
construction work in progress, if carried in plant accounts in accordance
with sound accounting practice, whether capable of complete description and
identification or not.
(B) Purchased Property. The term "Purchased Property" shall mean any
Property Additions devoted to public service at or within a year before the
time of their acquisition by Exeter or the Company (as the case may be);
(C) Gross Expenditures for Property Additions, Gross Expenditures. The
term "Gross Expenditures" shall mean the lesser of:
(1) the fair value of the Property Additions acquired therefor as
of the date of and as evidenced by an Engineer's Certificate or, if
such Property Additions include Purchased Property, as of the date of
and as evidenced by an Independent Engineer's Certificate, and
(2) the aggregate of (i) the market value or, in the absence
thereof, the fair value of any securities or other property of Exeter
or the Company (as the case may be) exchanged for Property Additions
as of the date of and as evidenced by an Independent Engineer's
Certificate and (ii) any cash payments made or monetary obligations
(not represented by securities) incurred for Property Additions.
The term "Gross Expenditures for Property Additions" shall mean the
sum of the following (without duplication): (i) Gross Expenditures for
Exeter for the Exeter
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Pre-Merger Property Additions (the "Exeter Pre-Merger Gross Expenditures
for Property Additions"), (ii) Gross Expenditures for the Company for the
Company Pre-Merger Property Additions (the "Company Pre-Merger Gross
Expenditures for Property Additions"), and (iii) Gross Expenditures for the
Company for the Company Post-Merger Property Additions (the "Company
Post-Merger Gross Expenditures for Property Additions");
(D) Retirements. The removal, replacement, abandonment, permanent
withdrawal from use, destruction, loss from any cause, sale, taking under
power of eminent domain or other disposition of Fixed Property of Exeter or
the Company (as the case may be) shall constitute a Retirement of such
property.
As applied to any period, the term "Retirements" shall mean the
aggregate cost of all Fixed Property retired by Exeter or the Company
during such period (as the case may be). For the purposes of this
definition the cost of Fixed Property shall mean, in the case of Property
Additions, the Gross Expenditures made therefor at the time they became
Property Additions and, in the case of Fixed Property not constituting
Property Additions, its gross book value as recorded on Exeter's or the
Company's (as the case may be) books. No reduction in book values of
property recorded in Exeter's or the Company's (as the case may be) plant
accounts nor the transfer of any amount appearing in any such account to
intangible or adjustment accounts, arising out of adjustments required to
be made by any regulatory body or otherwise, nor the elimination of any
account so transferred, otherwise than in connection with the actual
retirement of Fixed Property, shall be taken into account in determining
Retirements;
(E) Net Retirements. The term "Net Retirements" shall mean the sum of
the following (without duplication): (i) the aggregate amount of all
Retirements made by Exeter under the Exeter Indenture during the period
from June 30, 1952 to, but not including, the Merger Date in excess of the
aggregate amount of all moneys received by or deposited with the Trustee
under the Exeter Indenture during such period pursuant to the provisions of
Sections 8.10, 8.12, 11.03, 11.04 and 11.04A thereof (the "Exeter
Pre-Merger Net Retirements"), (ii) the aggregate amount of all Retirements
made by the Company during the period from May 31, 1958 to, but not
including, the Merger Date in excess of the aggregate amount of all moneys
received by or deposited with the Trustee during such period pursuant to
the provisions of Sections 8.10, 8.12, 10.03, 10.04 and 10.04A hereof (the
"Company Pre-Merger Net Retirements") and (iii) the aggregate amount of all
Retirements made by the Company during the period beginning on and
including the Merger Date through the date of calculation in excess of the
aggregate amount of all moneys received by or deposited with the Trustee
during such period pursuant to the provisions of Sections 8.10, 8.12,
10.03, 10.04 and 10.04A hereof (the "Company Post-Merger Net Retirements");
(F) Net Expenditures for Property Additions, Net Expenditures. The
term "Net Expenditures for Property Additions", herein sometimes referred
to as "Net Expenditures" shall mean the sum of the following (without
duplication): (i) the aggregate amount of Exeter Pre-Merger Gross
Expenditures for Property Additions,
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minus Exeter Pre-Merger Net Retirements ("Exeter Pre-Merger Net
Expenditures"), (ii) the aggregate amount of Company Pre-Merger Gross
Expenditures, minus Company Pre-Merger Net Retirements ("Company Pre-Merger
Net Expenditures") and (iii) the aggregate amount of Company Post-Merger
Gross Expenditures for Property Additions, minus Company Post-Merger Net
Retirements ("Company Post-Merger Net Expenditures");
(G) Bonded Expenditures. The term "Bonded" or "Bonded Expenditures" as
applied to Net Expenditures for Property Additions shall mean the sum of
(without duplication): (i) Exeter Pre-Merger Net Expenditures as have been
used by Exeter as the basis for the issuance of bonds under the Exeter
Indenture, the withdrawal of cash or other credit under any provision of
the Exeter Indenture prior to the Merger Date (the "Exeter Pre-Merger
Bonded Expenditures"), (ii) Company Pre-Merger Net Expenditures as have
been used by the Company as the basis for the issuance of Bonds, the
withdrawal of cash or the taking of other credit under the provision of
this Indenture prior to the Merger Date (the "Company Pre-Merger Bonded
Expenditures") and (iii) Company Post-Merger Net Expenditures as have been
used as the basis for the issuance of Bonds, the withdrawal of cash or the
taking of other credit under the provisions of this Indenture, on or after
the Merger Date (the "Company Post-Merger Bonded Expenditures"); provided,
however, (A) the Exeter Pre-Merger Net Expenditures which were bonded on
the basis of a ratio of bonds issued or cash withdrawn or other credit
taken under the Exeter Indenture of 60% of Net Expenditures for Property
Additions shall be recalculated as of the Merger Date as though all such
bonds so issued or cash withdrawn or other credit taken under the Exeter
Indenture were bonded on the basis of a ratio of 68% of Net Expenditures
for Property Additions rather than a ratio of 60%, all as calculated in
Annex B to Exhibit B hereof, and the term "Exeter Pre-Merger Bonded
Expenditures" shall reflect and mean the amount of bonded Net Expenditures
for Property Additions so calculated, and (B) the Company Pre-Merger Net
Expenditures used as a basis for bonds issued or cash withdrawn or other
credit taken under the Indenture shall be bonded on the basis of a ratio of
68% of Net Expenditures for Property Additions, all as calculated in Annex
C to Exhibit B hereof, and the term "Company Pre-Merger Bonded
Expenditures" shall reflect and mean the amount of bonded Net Expenditures
for Property Additions so calculated;
(H) Net Bondable Expenditures for Property Additions, Net Bondable
Expenditures. The term "Net Bondable Expenditures for Property Additions,"
herein sometimes, referred to as "Net Bondable Expenditures," shall mean as
of any specified date the sum of (without duplication): (i) the excess of
Exeter Pre-Merger Net Expenditures over Exeter Pre-Merger Bonded
Expenditures (the "Exeter Pre-Merger Bondable Expenditures"), (ii) the
excess of Company Pre-Merger Net Expenditures over Company Pre-Merger
Bonded Expenditures (the "Company Pre-Merger Bondable Expenditures") and
(iii) the excess of Company Post-Merger Net Expenditures over Company
Post-Merger Bonded Expenditures (the "Company Post-Merger Bondable
Expenditures"); and
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(I) Certificate of Net Bondable Expenditures, New Gross Expenditures,
New Property Additions. The term "Certificate of Net Bondable Expenditures"
shall mean an Officers' Certificate in substantially the form attached
hereto as Exhibit B which shall include:
(i) a statement of the aggregate amount of "Gross Expenditures"
(herein sometimes called "New Gross Expenditures") which have not been
included in any previous such certificate or in any similar
certificate delivered prior to the Merger Date by officers of Exeter
pursuant to the Exeter Indenture; a description in reasonable detail
of the Property Additions (sometimes hereinafter called "New Property
Additions") for which such expenditures were made; and a statement as
to whether or not any of such New Property Additions constitute
Purchased Property and, if so, a statement of the New Gross
Expenditures made therefor;
(ii) a statement of the aggregate amount of Retirements not
included in any previous such certificate or in any similar
certificate delivered prior to the Merger Date by officers of Exeter
pursuant to the Exeter Indenture and in so far as they represent
specific physical property, a description in reasonable detail of such
property.
Section 4.02. Definitions for Earnings Test. For the purposes of this
Indenture each of the following terms shall be construed to have the meaning
hereinafter specified respectively:
(A) Gross Operating Revenues. The term "Gross Operating Revenues" as
applied to any period shall mean gross receipts of the Company from its
business as an electric public utility company for such period and shall
not include income derived from stocks, Bonds or other securities or gains
arising from appreciation in value or from the sale or other disposition of
fixed capital assets of the Company or of stocks, Bonds or other
securities.
(B) Earnings Available for Interest Charges. The term "Earnings
Available for Interest Charges" as applied to any period shall mean the
amount by which the aggregate Gross Operating Revenues of the Company for
such period exceeds all operating expenses of every character (except
interest charges on indebtedness of the Company) for such period, such
expenses to include (but not to be limited to) rents, insurance premiums,
expenditures for maintenance, reasonable charges against income for the
establishment of a reserve for depreciation (not less than the amounts
required to be charged therefor pursuant to Section 8.05), all taxes
(except any Federal and State taxes based directly or indirectly on income,
including any State of New Hampshire taxes in the nature of a gross
receipts tax which the Company is entitled to recover from its customers in
its rates), and all other expenses in connection with its business as an
electric public utility company, computed if a uniform system of accounts
is prescribed by any commission or other governmental body having
jurisdiction in the premises in accordance with such uniform system,
otherwise in accordance with accepted accounting practice.
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(C) Earnings Available for Interest Charges Certificate, Annual
Interest Requirements. The term "Earnings Available for Interest Charges
Certificate" shall mean an officers' certificate:
(i) stating the Earnings Available for Interest Charges of the
Company for a period of twelve (12) consecutive calendar months within
the fifteen (15) calendar months immediately preceding the first day
of the month in which the application for the authentication and
delivery under this Indenture of Bonds then applied for or other
application is made; and
(ii) stating the aggregate annual charges for interest on all
indebtedness of the Company outstanding at the date of such
application (except any for the refunding of which Bonds applied for
are to be issued) and on all Bonds then to be issued hereunder, said
aggregate sum being sometimes herein referred to as the "Annual
Interest Requirements."
For the purposes of such Earnings Available for Interest Charges
Certificate, Earnings Available for Interest Charges of the Company (i) shall
include for such twelve months period Earnings Available for Interest Charges
computed in the same manner as are those of the Company derived by predecessors
from all Purchased Property acquired within such twelve months period or about
to be acquired by the Company, Gross Expenditures for which have been included
in a prior Certificate of Net Bondable Expenditures or are included in the
Certificate of Net Bondable Expenditures in connection with which such Earnings
Available for Interest Charges Certificate is being filed, (ii) if any Property
Additions are disposed of (a "Disposition") within such twelve months period or
about to be disposed of by the Company, for such twelve months period Earnings
Available for Interest Charges shall be computed in the same manner as though
such Disposition occurred on the first day of such period, and (iii) for any
such twelve months period which includes one or more days prior to the Merger
Date, Earnings Available for Interest Charges for Exeter shall be computed in
the same manner as are those of the Company and as though Exeter had merged into
the Company on the first day of such twelve months period. Any increase or
decrease in Gross Operating Revenues of the Company attributable to higher or
lower rates that have been in effect for less than the full twelve-month period
for which the computation of the Earnings Available for Interest Charges
Certificate is based shall be annualized for such Certificate and there shall
also be annualized for such Certificate the related fixed expenses and charges
as are known to the principal officers of the Company.
Section 4.03. General Provisions. Additional Bonds, executed pursuant to
the provisions of this Article and Articles V and VI hereof shall be
authenticated by the Trustee and delivered to or upon the order of the Company
upon the receipt by the Trustee of the following documents in addition to the
documents specified elsewhere in said three Articles:
(a) The documents specified in Section 2.06 hereof;
(b) A Resolution authorizing the execution and authentication of such
Bonds together with a Stockholders Resolution authorizing the issuance of
such Bonds under the
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provisions hereof or, in the alternative, an opinion of counsel to the
effect that no such Stockholders Resolution is necessary for the issue or
validity of such Bonds or to entitle the same to the security and lien
hereof;
(c) A certified copy of an order issued by each such commission or
other body or official as at the time shall, under any pertinent law, have
power or authority over the issuance of Bonds hereunder or over the
subjection of the mortgaged property or any part thereof to liens,
authorizing the issuance of such Bonds, together with an opinion of counsel
to the effect that any order or orders tendered are sufficient in the
connections aforesaid, or, in the alternative, an opinion of counsel to the
effect that no such order is requisite in respect of such additional Bonds
or in respect of the lien hereof for the security of such Bonds to render
such Bonds the valid obligations of the Company and the lien hereof
effective for the security thereof; and
(d) A receipt or other evidence satisfactory to the Trustee
establishing the payment of any stamp, recording or other tax required by
law to be paid in connection with the issuance of such additional Bonds or
for the effectiveness of the lien of this Indenture for the security
thereof, together with an opinion of counsel to the effect that the taxes
paid constitute all taxes of either nature aforesaid, or in the alternative
an opinion of counsel to the effect that payment of no such tax is
requisite in this connection or for the purposes aforesaid.
Section 4.04. Additional Bonds Against Property Additions Issuance Tests.
Additional Bonds of any series other than the Exchange Bonds issued after the
execution and delivery of the Twelfth Supplemental Indenture may be issued
hereunder to the extent of sixty-eight per cent (68%) of Net Bondable
Expenditures for Property Additions as shown by the Certificate of Net Bondable
Expenditures required by subparagraph (1) of Section 4.05 hereof provided that
the Earnings Available for Interest Charges as shown by the certificate required
by subparagraph (3) of said Section 4.05 hereof are equal at least to two (2)
times the Annual Interest Requirements stated in such certificate.
Section 4.05. Documents Required for Authentication of Bonds. When
requesting the authentication of Bonds pursuant to this Article the Company
shall deliver to the Trustee:
(1) A Certificate of Net Bondable Expenditures dated as of a date
within sixty (60) days of the date on which such Bonds are to be issued;
(2) An Officers' Certificate dated as of the date of the delivery of
such Bonds stating that:
(i) the amount, if any, shown in Item (12) of the certificate
referred to in (1) above plus Gross Expenditures for Property
Additions since the date of said certificate exceeds Net Retirements
since the date of said certificate;
(ii) the Company is not in Default hereunder;
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(3) An Earnings Available for Interest Charges Certificate; and
(4) If there be included in such Certificate of Net Bondable
Expenditures any New Gross Expenditures, the following:
(i) An Engineer's Certificate dated as of the date of such
Certificate of Net Bondable Expenditures (such Engineer's Certificate,
if such Certificate of Net Bondable Expenditures includes any
considerations other than cash or if the New Property Additions
thereby acquired include Purchased Property, either to be an
Independent Engineer's Certificate or the statements therein contained
with respect to considerations other than cash and/or Purchased
Property to be those of an Independent Engineer, the scope of whose
signature and verification thereof may be limited to such matters):
(a) stating that the signer has examined and inspected such
Property Additions and that their construction or acquisition was
reasonable from the standpoint of the Company and of the
bondholders;
(b) setting forth their fair value as of the date of such
certificate and if such Property Additions include Purchased
Property, deducting any portion thereof not useful in the conduct
of the Company's business as an electric public utility company;
(c) setting forth, as of the date of such certificate, the
market value or, if none, the fair value of any securities, or
other property included in such New Gross Expenditures;
(d) stating that the amount of such New Gross Expenditures
included in said Certificate of Net Bondable Expenditures does
not exceed the fair value of the Property Additions acquired
thereby; and
(e) if the Opinion of Counsel responsive to (ii) of this
subparagraph (4) sets forth any Permitted Encumbrances, stating
that such Permitted Encumbrances do not impair the use of the
property to which they pertain for the purposes for which such
property is held by the Company;
(ii) An Opinion of Counsel stating that the Company has good and
marketable title to such Property Additions free from all encumbrances
excepting the lien of this Indenture and Permitted Encumbrances,
specifying any such Permitted Encumbrances, and if any thereof consist
of liens for taxes, assessments or governmental charges which are
delinquent and the validity of which the Company is contesting in good
faith, stating that none of the trust estate will be in danger of
being lost or forfeited by reason thereof;
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(iii) An indenture supplemental hereto or other instrument or
instruments of conveyance specifically subjecting such Property
Additions to the lien hereof together with an Opinion of Counsel
stating that such supplemental indenture or other instrument or
instruments are sufficient, and no other documents are required, to
subject such Property Additions to the lien hereof as a direct first
mortgage lien, or, in the alternative, an Opinion of Counsel to the
effect that such additions are so subject without any such indenture
or other instrument.
Article V
Bonds for Refunding Purposes
Section 5.01. General Provisions. Additional Bonds of any series may, from
time to time, be executed by the Company and delivered to the Trustee for or on
account of the payment, purchase and cancellation, redemption or other discharge
at, before or after maturity, of Available Bonds theretofore authenticated under
this Indenture in an aggregate principal amount equal to the aggregate principal
amount of such Available Bonds, and the Trustee shall, subject to the provisions
of this Article, authenticate and deliver the same to or upon the Order of the
Company upon receipt by the Trustee of:
(1) The documents required by the provisions of Section 4.03 hereof;
(2) Bonds theretofore authenticated and delivered hereunder; provided,
however, that in lieu of Bonds which have been called for redemption or are
then about to mature it shall be sufficient if funds in an amount
sufficient to redeem or pay the same shall have been deposited with the
Trustee and made presently available for payment to the holders of such
Bonds and evidence furnished to the satisfaction of the Trustee that notice
of any such redemption has been duly given, or provided for, or waived;
(3) An Officers' Certificate, dated as of the date of the delivery of
such additional Bonds, stating that the Company is not in Default hereunder
and that all of the Bonds proposed to be refunded constitute Available
Bonds.
Section 5.02. Issuance Requirements. No Bonds shall be authenticated and
delivered under the provisions of this Article except (i) Bonds which bear an
interest rate no higher than that of the Bonds which they are to refund or (ii)
Bonds issued to refund Bonds which have been Outstanding more than five years
and which have an expressed maturity not later than two years from the date on
which such refunding Bonds are to be issued, unless an Earnings Available for
Interest Charges Certificate shall have been filed with the Trustee from which
it shall appear and in which the Company certifies that the Earnings Available
for Interest Charges of the Company for the period covered by such certificate
were at least equal to two times the Annual Interest Requirements therein
stated.
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Article VI
Bonds Against Cash
Section 6.01. General Provisions. Additional Bonds of any series may be
issued under this Indenture from time to time equal in principal amount to the
amount of cash at the time deposited with the Trustee provided, nevertheless,
that no Bonds shall be issued against cash required to be deposited with the
Trustee under any provisions of this Indenture. Bonds so issued may be executed
by the Company and delivered to the Trustee and the Trustee shall authenticate
and deliver the same to or upon the order of the Company upon receipt of:
(1) The documents required by the provisions of Section 4.03 hereof;
(2) An officers' certificate dated as of the date of the delivery of
such Bonds stating that the Company is not in Default hereunder;
(3) An Earnings Available for Interest Charges Certificate;
(4) Cash in an amount equal to the principal amount of the Bonds to be
authenticated;
if it shall appear by the Earnings Available for Interest Charges Certificate
responsive to subparagraph (3) of this Section that the Earnings Available for
Interest Charges for the period covered by such certificate are at least equal
to two (2) times the Annual Interest Requirements therein stated.
Section 6.02. Cash Withdrawal Requirements. Cash received by and on deposit
with the Trustee under the provisions of this Article after the execution and
delivery of the Twelfth Supplemental Indenture may on orders of the Company be
withdrawn, from time to time, to the extent of sixty-eight per cent (68%) of Net
Bondable Expenditures for Property Additions as shown in the pertinent
certificate responsive to subparagraph (1) of this Section, upon receipt by the
Trustee of:
(1) A Certificate of Net Bondable Expenditures dated as of a date
within sixty (60) days of the date on which such cash is to be withdrawn;
(2) An Officers' Certificate dated as of the date of the withdrawal of
such cash stating that
(a) the amount, if any, shown in Item (12) of the certificate
referred to in (1) above plus Gross Expenditures for Property
Additions since the date of said certificate exceeds Net Retirements
since the date of said certificate, and
(b) the Company is not in Default hereunder;
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(3) If there be included in such Certificate of Net Bondable
Expenditures any New Gross Expenditures, the documents required by (i),
(ii) and (iii) of subparagraph (4) of Section 4.05 hereof.
Article VII
Redemption of Bonds
Section 7.01. Manner of Redemption. Whenever the Company shall determine to
exercise any optional right it may have to redeem Bonds of any series issued
hereunder, it shall file with the Trustee not less than sixty days prior to the
date fixed for the redemption of such Bonds, a Resolution specifying the
principal amount of and designating the series of Bonds to be redeemed and
shall, on or before the date fixed for redemption, deposit with the Trustee
sufficient moneys to redeem such Bonds and pay to the Trustee its proper
expenses and charges in connection with such redemption.
Section 7.02. Selection of Bonds to Be Redeemed. The selection of Bonds
(or, in case of fully registered Bonds, of portions thereof) to be redeemed
shall, in case less than all of the Outstanding Bonds of any series are to be
redeemed, be made by the Trustee as follows:
(a) The particular Bonds of such series to be redeemed in whole or in
part shall be designated by the Trustee not more than 60 days nor less than
30 days prior to the date fixed for such redemption by proration so that
the principal amount to be redeemed of Bonds of such series then held by
each holder shall bear the same ratio to the total principal amount of all
Bonds of such series then to be redeemed as the total principal amount of
all Bonds of such series then held by such holder bears to the total
principal amount of all Bonds of such series then Outstanding; provided,
however, that (i) the Trustee in making any proration pursuant to this
Section shall make such adjustments as it shall deem proper to the end that
the principal amount of Bonds so redeemed shall be $1,000 or a multiple
thereof, by increasing or decreasing the amount which would be allocable to
any holder on the basis of exact proration by an amount not exceeding
$1,000 and (ii) if there shall have been previously filed with the Trustee
a written consent of all holders of Bonds of such Series specifying some
other method of selecting Bonds of such series to be redeemed such
selection shall be made by the Trustee in accordance therewith; or
(b) If the Trustee shall determine that the selection method described
in the foregoing clause (a) shall not then be appropriate, the particular
Bonds of such series to be redeemed in whole or in part shall be selected
by the Trustee by lot in any manner deemed by it proper.
The Trustee shall promptly notify the Company in writing of the distinctive
numbers of the Bonds which, or portions of which, have been selected for
redemption, and the principal amount thereof to be redeemed in the case of fully
registered Bonds of a denomination greater than $1,000.
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Section 7.03. Notice of Redemption. Notices of redemption, stating when
funds for the redemption are expected to be available to the holders of the
Bonds to be wholly or partly redeemed, shall be given to the holders by the
Trustee in the name and on behalf of the Company. Redemption notices for all
Bonds issued hereunder shall contain the information required by Section 7.04
and, unless otherwise provided in the supplemental indenture creating a
particular series, shall be mailed as hereinafter provided not more than 60, nor
less than 30, days prior to the date fixed for redemption. The Trustee in the
name and on behalf of the Company, as the case may be, shall send a copy of such
notice to the registered owner of each Bond, so called for redemption, by
reputable overnight courier, or by certified mail, postage prepaid, addressed to
him at his last known address as it appears upon the bond register.
Whenever notice by mail or otherwise is required, the giving of such notice
may be waived in writing by the person entitled to such notice. Any such waiver
of notice by the holders of Bonds shall be filed with the Trustee.
Section 7.04. Redemption Price. Each notice of redemption shall specify the
price at which such Bonds are to be redeemed, the series, date of maturity, date
of redemption, and if less than all of the Bonds outstanding of a specified
series are to be redeemed, the serial numbers of such Bonds.
Section 7.05. Partial Redemption of Bonds. In case any Bond is to be
redeemed in part only, such notice shall specify the principal amount thereof to
be redeemed and shall state that at the election of the registered owner of such
Bond and upon surrender thereof for redemption, a new Bond or new Bonds of that
series in aggregate principal amount equal to the unredeemed portion of such
Bond will be issued in lieu thereof, and, in such case, the Company shall
execute and the Trustee shall authenticate and deliver such new Bond or Bonds to
or upon the written order of the registered owner of such Bond at the expense of
the Company, provided, however, that the Trustee shall pay interest, premium (if
any) and principal upon any Bond without surrender or presentation thereof if
any holder which is an Institutional Holder files with the Trustee an agreement
pursuant to which such holder agrees that (A) it will not sell, transfer or
otherwise dispose of any such Bond with respect to which such redemption has
been made unless either (i) it shall have made a notation thereon of the
principal so redeemed or (ii) the Bond shall have been presented to the Trustee
for such notation or (iii) such Bond shall have been surrendered in exchange for
a new Bond having a principal amount equal to the unredeemed portion and (B) it
will present the Bond to the Trustee before being paid the entire remaining
principal balance of such Bond.
Section 7.06. Deposited Moneys for Redemption. All moneys deposited with or
held by the Trustee for the redemption of Bonds shall be held upon the trusts
hereof for the account of the holders of the Bonds designated or selected for
redemption.
Section 7.07. Cancellation of Bonds. All Bonds which have been redeemed
shall be cancelled by the Trustee, and shall be delivered to or upon the order
of the Company and shall not be reissued.
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Section 7.08. Payment of Redemption. When notice of redemption of any Bond,
or part thereof, shall have been duly given or waived, such Bond, or part
thereof, shall become due and payable on the date fixed for redemption in said
notice and if the amount necessary to redeem such Bond, or part thereof, shall
be deposited with the Trustee, such amount shall be held by the Trustee as
provided in Section 7.06 and shall be paid when due to the registered owner of
such Bond provided that if presentation of such Bond is required hereunder, such
Bond shall have been presented to the Trustee. If the amount necessary to redeem
any Bond, or part thereof, called for redemption shall have been irrevocably
deposited with the Trustee in trust for the account of and shall be immediately
available for payment to the holder of such Bond, and all proper charges and
expenses of the Trustee in connection therewith shall have been paid, and if the
notice hereinbefore mentioned shall have been duly given or waived, or provision
satisfactory to the Trustee shall have been made for the giving of such notice,
then, when all of said conditions shall have been satisfied and the Trustee has
complied with the first sentence of this Section 7.08, (a) the Company (subject
to the provisions of Section 16.10) shall be released from all liability on such
Bond, or part thereof, so called for redemption, and such Bond, or part thereof,
so called for redemption shall no longer be deemed to be Outstanding and shall
cease to be entitled to any lien or benefit of or under this Indenture, (b) the
holder of such Bond, or part thereof, so called for redemption shall look
thereafter for the payment of the principal thereof and premium, if any, and of
accrued and unpaid interest, solely to the redemption funds in the hands of the
Trustee for payment thereof, and (except as provided in Section 16.10) in no
event to the Company, (c) the holder of such Bond shall have the right to
receive prepayment of the redemption price thereof, including interest to such
redemption date, at any time after the deposit of such redemption price, and (d)
after such redemption date, no interest will accrue thereon.
Article VIII
General Covenants
Section 8.01. Further Actions. The Company covenants that it will
faithfully do and perform and at all times faithfully observe any and all
covenants, undertakings, stipulations and provisions contained in each and every
Bond executed, authenticated and delivered hereunder and in the several and
successive Resolutions pursuant to or in observance of the provisions of this
Indenture. The Company covenants that it will promptly make, execute, and
deliver all further assurances, including all financing and continuation
statements covering security interests in personal property, indentures
supplemental to the Indenture or other instruments, and take all such further
action as may reasonably be by the Trustee, or by its counsel, deemed necessary
or advisable for the better securing of any Bonds issued or to be issued
hereunder, or for better assuring and confirming to the Trustee the Mortgaged
Property or any part thereof. The Company covenants that it will cause this
Indenture to be duly recorded and/or filed and to be duly rerecorded and/or
refiled at the times and in the places now or hereafter required by law for the
proper maintenance of the validity and priority of the lien hereof.
Section 8.02. Payment. The Company covenants that it will promptly pay the
principal of and interest on every Bond issued hereunder in lawful money of the
United States of America at the dates and places and in the manner prescribed in
such Bond and herein. Notwithstanding the
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above or any other provisions of this Indenture or any Bond issued hereunder,
the Company may enter into an agreement with the holder of any Bond providing
for the payment to such holder of the principal of (and premium, if any) and
interest on such Bond or any part thereof at a place other than as designated
therein or in such Bond, providing for the payment to such holder of all or a
portion of the principal of and the premium, if any, and interest on such Bond
at a place other than the place specified in such Bond as the place for such
payment without the necessity in the case of a partial payment of principal, of
surrendering the Bond for a new Bond, and in accordance with Section 7.05 for
the making of notation of principal payments on such Bond by such holder. The
Trustee is authorized to consent to any such agreement and shall not be liable
or responsible to any such holder or to the Company for any act or omission on
the part of the Company or any holder of a Bond in connection with any such
agreement. The Company covenants it will, prior to the maturity of each
installment of interest and prior to the maturity of each such Bond, deposit
with the Trustee, or other paying agent appointed with respect to the Bonds of
any particular series, in lawful money of the United States of America an amount
sufficient to make payments of principal (and premium, if any,) and interest on
the Bonds on or prior to the date such payments are due.
Section 8.03. Maintain Title of Property. The Company covenants that,
except as to that part of the Mortgaged Property which may hereafter be acquired
by it, it is on the Merger Date well seized of the physical properties by it
hereby mortgaged or intended so to be and has good right, full power, and lawful
authority to make this Indenture and subject such physical properties to the
lien hereof in the manner and form herein respectively done or intended; and
that it has and, subject to the provisions hereof, will preserve good and
indefeasible title to all such physical properties, and will warrant and forever
defend the same to the Trustee against the claims of all persons whatsoever.
Section 8.04. Taxes and Assessment; Liens. The Company covenants that it
will promptly pay or cause to be paid all lawful taxes, charges and assessments
at any time levied or assessed upon or against the Mortgaged Property or any
part thereof, and/or the interest of the Trustee and of the holders of the Bonds
Outstanding under this Indenture before the same become delinquent, provided,
however, that no such tax, charge or assessment shall be required to be paid so
long as the validity of the same shall be contested in good faith by appropriate
legal proceedings so long as adequate reserves in respect thereof have been
established in accordance with GAAP; that there are not outstanding on the
Merger Date and that the Company will not at any time create or permit to be
created or allow to accrue or to exist any lien or liens prior to the lien of
this Indenture upon the Mortgaged Property or any part thereof, or the income
therefrom, save only any Permitted Encumbrances and the lien of any mortgage or
other lien on any property hereafter acquired by the Company which may exist on
the date of, or be created as a vendor's lien or as a purchase money mortgage in
connection with, such acquisition; and that neither the value of the Mortgaged
Property nor the lien of this Indenture will be diminished or impaired in any
way as the result of any action or nonaction on the part of the Company.
Section 8.05. Conduct Business and Maintain Properties. The Company
covenants that its business will be carried on and conducted in an efficient
manner, and that all of its plants, appliances, systems, equipment and property
useful and necessary in the carrying on of its business will be kept in thorough
repair and maintained in a state of high operating efficiency in
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accordance with standards generally acceptable in the utility industry. The
Company covenants that it will expend for maintenance and reserve for
depreciation whatever amounts may be necessary so to maintain the Mortgaged
Property and provide for the Retirement of the depreciable portion of the
Mortgaged Property, which amounts shall be not less than those prescribed by any
governmental regulatory body having jurisdiction in the premises; and that in
any event the Company will charge as an expense and credit to depreciation
reserve in each of its fiscal years an amount which shall be not less than 2.3%
of the average amount of its depreciable property for such year.
Whenever the holders of at least a majority in principal amount of the
Bonds Outstanding shall so request in a written notice served upon the Trustee,
but not more frequently than once every five years, the Company shall appoint an
Independent Engineer satisfactory to the holders of a majority in principal
amount of the Bonds Outstanding to make an inspection of the property of the
Company. The Company shall cause such Independent Engineer, within a reasonable
time after the date of his appointment, to report to the Company and to the
Trustee whether or not the property of the Company is in general being
maintained as required by this Section, and whether or not any part of such
property that is no longer used or useful in the business of the Company has
been duly recorded as retired on its books.
If such Independent Engineer shall report that the property has not been so
maintained, he shall state in his report the character and extent and estimated
cost of making good such deficiency. The Company shall then proceed with all
reasonable speed to do such maintenance work as may be necessary to make good
any such maintenance deficiency, whereupon such engineer shall, within a period
of 90 days following the Company's completion of such work, report in writing to
the Trustee whether such deficiency has been made good; provided, however, that
in case such engineer shall fail or refuse to make such report within such
period, the Trustee shall appoint another Independent Engineer satisfactory to
the holders of a majority in principal amount of the Bonds Outstanding to make
such report. Unless the Trustee shall be so advised in writing by such engineer
within one year from the date of any report determining a maintenance deficiency
to exist, or such longer period as may be stated in such report to be reasonably
necessary for the purpose, that such deficiency has been made good, the Company
shall be deemed to have defaulted in the due performance of the covenant as to
the maintenance of its property contained in this Section 8.05.
If such Independent Engineer shall report that there is any property no
longer used or useful which has not been recorded as retired on the books of the
Company, he shall briefly describe such property and state the aggregate
Retirement which should be stated on such books with respect thereto. The
Company shall then make on its books appropriate entries recording the
Retirement of such property.
Section 8.06. Compliance with Underlying Mortgages. The Company covenants
that all of the covenants, conditions and agreements of any Underlying Mortgage
upon any property hereafter acquired by it will in all respects be fully
complied with; that upon the payment of all bonds issued under each such
mortgage it will procure such mortgage to be effectively satisfied and
discharged of record; that the Company will not issue or permit to be issued any
additional
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bonds secured by any Underlying Mortgage, but that each and every such mortgage
shall be effectively closed at the date of the acquisition of such property.
Section 8.07. Acquisition of Property Subject to Underlying Mortgages. The
Company covenants that it will not acquire any property which after its
acquisition will be subject to any Underlying Mortgage unless prior to the
acquisition thereof it shall have filed with the Trustee an Officers'
Certificate from which it shall appear and certify that the aggregate of the
Earnings Available for Interest Charges of the Company and the Earnings
Available for Interest Charges of the property to be acquired, computed in the
same manner as are Earnings Available for Interest Charges of the Company in
Section 4.02(c), for any consecutive twelve months out of the fifteen calendar
months immediately preceding the acquisition of such property is equal to at
least two times the Annual Interest Requirements on all Bonds Outstanding and
other indebtedness of the Company for borrowed money, plus all bonds and/or
other obligations secured by existing Underlying Mortgages and all bonds and/or
other obligations secured by any Underlying Mortgage or other lien (whether or
not prior to the lien of this Indenture) upon the property so to be acquired,
and will not acquire any property subject to any Underlying Mortgage securing
indebtedness in excess of sixty per cent (60%) of the lesser of:
(a) the fair value of such property to the Company at the date of
acquisition thereof; and
(b) the aggregate of (i) the amount of any lien subject to which such
property is acquired, (ii) the amount of any purchase money mortgage or
vendor's lien created in connection with its acquisition, (iii) any cash
payment made therefor, and (iv) the market value, or, in the absence
thereof, the fair value of any securities or other property of the Company
exchanged therefor;
all as of the date of and as established by an Independent Engineer's
Certificate, filed with the Trustee, dated as of the date of the acquisition of
such property, unless to offset such part of such indebtedness as shall exceed
such percentage there shall be appropriated Net Bondable Expenditures for
Property Additions in an amount equivalent to such excess. Such appropriation
shall be evidenced by a Resolution deposited with the Trustee together with a
Certificate of Net Bondable Expenditures dated as of the date of such
appropriation and, if there be included in such Certificate of Net Bondable
Expenditures, any New Gross Expenditures, the documents required by (i), (ii)
and (iii) of subparagraph (4) of Section 4.05.
The Company further covenants that it will not acquire any property which
after its acquisition will be subject to any Underlying Mortgage if such
acquisition would operate to increase the aggregate principal amount of all
bonds and/or other obligations secured by Underlying Mortgages (other than such
bonds and/or other obligations for the purchase, payment or redemption of which
cash in the necessary amount shall have been irrevocably deposited with the
trustee or mortgagee under the Underlying Mortgage or mortgages securing the
same or with the Trustee hereunder) to an amount greater than fifteen per cent
(15%) of the aggregate principal amount of all Bonds at the time issued and
Outstanding under this Indenture.
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Section 8.08. Records of Accounts and Certificate. The Company covenants
that proper books of record and account will be kept in which full, true and
correct entries will be made of all dealings or transactions of, or in relation
to, the plants, properties, business and affairs of the Company, and that it
will:
(a) At such times as the Trustee shall reasonably request, furnish
statements in reasonable detail showing the earnings, expenses and
financial condition of the Company;
(b) From time to time furnish to the Trustee such data as to the
plants, property and equipment of the Company, as the Trustee shall
reasonably request;
(c) On or before the expiration of one hundred and twenty (120) days
after the end of each fiscal year, furnish to the Trustee a full audit and
report certified by independent certified public accountants, covering the
operations of the Company during such fiscal year, and showing the earnings
and expenses for such period, and in reasonable detail, the assets,
liabilities and financial condition of the Company at the expiration
thereof; provided for the first fiscal year ending after the Merger Date,
the foregoing shall be reported on as though Exeter had merged into the
Company on the first day of such fiscal year. Said balance sheets and
reports shall be available at all reasonable times for the inspection of
any bondholder or his authorized agent.
The Company further covenants that all books, documents and vouchers
relating to the plants, properties, business and affairs of the Company shall at
all times be open to the inspection of such accountants or other agents as the
Trustee may from time to time designate.
Section 8.09. Annual Certificate of Compliance. The Company covenants that
it will, on or before the expiration of ninety (90) days after the end of each
fiscal year, file with the Trustee: (1) an Opinion of Counsel either stating
that such action has been taken with respect to the execution and delivery of
supplemental indentures, conveyances or other instruments, including all
financing and continuation statements covering security interests in personal
property, and the recording and filing of the same and of this Indenture and the
re-recording and re-filing of this Indenture as is necessary for the purpose of
maintaining the validity and priority of the lien and security interest hereof
on the Mortgaged Property and reciting the details thereof, or stating that no
such action is required for such purpose; and (2) an Officers' Certificate fully
describing all insurance policies then in force on the Mortgaged Property, or
any part thereof, stating that all such policies provide that all losses shall
be payable to the Trustee, as its interest may appear, and stating that the
Company has complied with the requirements of Section 8.10 with respect to the
maintenance of insurance and stating: (a) that all taxes which became due on the
Mortgaged Property during such fiscal year have been duly paid unless the
Company shall in good faith, by appropriate action, contest any of said taxes,
in which event such contest shall be set forth; (b) that all insurance premiums
which became due during such fiscal year upon the insurance policies to which
reference is hereinbefore made have been paid; (c) that no additional Fixed
Property has been acquired by the Company during such calendar year, or if any
Fixed Property has been so acquired, briefly describing the same and stating the
cost thereof; and (d) whether or not the Company is in default in the
fulfillment of any of its obligations under the Indenture and
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if a Default or Event of Default has occurred and then exists, specifying the
nature and period thereof and the action the Company is taking with respect
thereto.
Section 8.10. Insurance. The Company covenants that it will keep such of
the Mortgaged Property as is of an insurable nature and of the character usually
insured by companies engaged in similar geographical locations in any of the
businesses in which the Company is or may be engaged insured against loss or
damage by fire and from other hazards customarily insured against by such
companies and will carry such insurance with insurance companies of good
standing in amounts not less than the fair insurable value of the properties
insured.
All policies required by the provisions of this Section to be carried by
the Company shall provide that all losses shall be payable to the Trustee, as
its interest may appear. In case of any Event of Default by the Company in
fulfilling the covenants contained in this Section with respect to the carrying
of insurance, the Trustee may, at its option, effect such insurance in the name
of the Company or in the name of the Trustee and all premiums paid by the
Trustee for such insurance shall be repaid by the Company on demand and if not
so repaid shall be secured by the lien of this Indenture in priority to the
indebtedness evidenced by Bonds issued hereunder. Upon the happening of every
loss the Company shall make due proof of loss and shall do all things necessary
or desirable to cause the insurer or insurers to make payment in full directly
to the Trustee. In case of any loss covered by any policy of insurance, any
appraisement or adjustment of such loss and settlement and payment of indemnity
therefor which shall be agreed upon between the insured and the insurer shall be
accepted by the Trustee and the Trustee shall in no way be liable for the
adjustment of such loss. The Company shall upon the execution of this Twelfth
Supplemental Indenture furnish to the Trustee a statement in writing signed by
an officer of the Company fully describing all policies of insurance then in
force covering the Mortgaged Property or any part thereof and stating that all
such policies provide that all losses shall be payable to the Trustee, as its
interest may appear. The Trustee at its option may, but shall not be required
to, at any time, require the Company to deposit with it any or all of such
insurance policies and shall require such deposit upon the occurrence of an
Event of Default.
The Trustee shall from time to time, upon receiving an Officers'
Certificate certifying that the property damaged or destroyed has been repaired
or replaced and put in a condition at least as good as that before the loss
occurred, pay to the Company the amount of the insurance money received by the
Trustee on account of such loss if such amount does not exceed, in the case of
any one loss, $50,000. In all other cases the money so received by the Trustee
may be paid or applied from time to time in accordance with the provisions of
Sections 11.02 and 11.03.
Section 8.11. Maintenance of Corporate Existence and Rights. Subject to the
provisions of Article XII hereof, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence. The Company covenants that it now has complete and lawful authority
and privilege to maintain and operate its entire system and properties, and that
none of its rights, franchises or privileges will be allowed to lapse or be
forfeited unless the Board of Directors shall determine that any such right,
franchise or privilege is not necessary for the carrying on of the Company's
business; provided, however, that the expiration by lapse of time of any right,
franchise or privilege shall not constitute a violation of this covenant, but
the Company hereby expressly covenants that it will exercise its best
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endeavors and any and every proper means to procure extension or renewal of each
and every such right, franchise or privilege so expiring and necessary or
desirable for the maintenance of any of its plants, systems or properties.
Section 8.12. Eminent Domain. The Company covenants that it will pay or
cause to be paid to the Trustee the proceeds of any property subject to the lien
of this Indenture which has been taken by any governmental body through the
exercise of the power of eminent domain or which has been sold to such a
governmental body pursuant to the provisions of any statute or franchise
permitting such governmental body to compel the Company to sell the same, except
such thereof as may by the terms of an Underlying Mortgage be required to be
paid to or deposited with its mortgagee or trustee and as to any moneys which
shall be so paid to such mortgagee or trustee, the Company covenants that if any
thereof remains on deposit with such mortgagee or trustee upon the satisfaction
or release of such Underlying Mortgage it will pay the same to or cause the same
to be paid to the Trustee.
The Company further covenants that if any property subject to the lien of
this Indenture is subject to a license under Part I of the Federal Power Act and
at any time prior to the sale of such property, either under the terms of said
Part I or otherwise, the Company is required by the terms of said license or by
a final valid rule, regulation or order applicable thereto and to the Company,
to apply funds held by it in amortization (as distinguished from depreciation)
reserves accumulated, pursuant to the provisions of said license or of any such
final valid rule, regulation or order, out of surplus earnings in excess of a
reasonable rate of return on the Company's net investment in said property as
finally determined as provided in said Part I, to the reduction of the amount of
the Company's net investment therein, then the Company, if permitted to do so by
the provisions of said license or of said rule, regulation or order requiring
such reduction, will effect such reduction by paying or causing to be paid to
the Trustee such funds so required to be applied to such reduction. If such
property shall be purchased from the Company under the provisions of said Part I
or of said license by the United States or by any subsequent licensee of said
property under the provisions of said Part I, and the purchase price paid to the
Company for such property by such purchaser is reduced by the application
thereto of funds then held by the Company (and not then or theretofore held by
the Trustee) as unappropriated surplus or amortization, sinking fund or similar
reserves (but not including depreciation reserve) accumulated as aforesaid out
of surplus earnings in excess of a reasonable rate of return on the Company's
net investment in said property as finally determined as provided in said Part
I, then to the extent the price paid to the Company is actually reduced by such
application of such funds the Company will pay or cause to be paid an amount
equal to such funds to the Trustee as part of the proceeds of the sale of such
property to the United States or to such licensee. Upon the deposit of any funds
with the Trustee in accordance with the provisions of this paragraph, the
Company will cause to be delivered to the Trustee an Officers' Certificate
stating that the funds so deposited are in the amount then required to be
deposited pursuant to the provisions of this paragraph.
The Trustee on behalf of the bondholders may intervene in any proceeding
for such taking or purchase by a governmental body and shall do so upon the
written request of the holders of ten per cent (10%) or more in aggregate
principal amount of Bonds Outstanding being first indemnified for its expenses
as provided in Section 15.01 hereof. The Trustee may execute
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and deliver a release of any property so taken or sold and shall be fully
protected in so doing upon being furnished with (a) an Officers' Certificate
requesting such release stating that such property has been taken by eminent
domain and that all conditions precedent herein provided for relating to such
release have been complied with, (b) an Opinion of Counsel that such
governmental body had a lawful right to take such property or compel the Company
to sell the same and (c) either (i) a sum in cash equal to the proceeds of such
taking or (ii) a sum in cash equal to such proceeds less the amount required to
be paid to or deposited with the mortgagee or trustee of an Underlying Mortgage,
a receipt from such mortgagee or trustee for the amount so paid or deposited,
and an Opinion of Counsel that such amount is required by the terms of such
Underlying Mortgage to be so paid or deposited.
Section 8.13. Records at Trustee. The Company covenants that it will keep
on file at the principal office of the Trustee a list of the names and addresses
of the last known holders of all Bonds Outstanding with the principal amount of
Bonds believed to be held by each. Any bondholder may require his name and
address to be added to said list by filing a written request with the Company or
the Trustee, which request shall include a statement of the principal amount of
Bonds held by each bondholder and the numbers of such Bonds. The Trustee shall
be under no responsibility with regard to the accuracy of said list. Said list
may be inspected and copied by a bondholder or bondholders owning ten per cent
(10%) or more in principal amount of Bonds Outstanding or by his or their
authorized agent, such ownership and the authority of any such agent to be
evidenced to the satisfaction of the Trustee.
Section 8.14. No Extensions for Claims of Interest. The Company covenants
that no claim for interest pertaining to any Bond issued hereunder shall be kept
alive after the date specified for the payment of such interest by the extension
thereof or by the purchase thereof by or on behalf of the Company. Any such
claim for interest which in any way at or after the date specified for the
payment thereof shall have been transferred or pledged separate or apart from
the bond to which it relates or which shall in any manner have been kept alive
after the date specified for the payment thereof by extension or by the purchase
thereof by or on behalf of the Company shall not be entitled to any benefit of
or from this Indenture except after the prior payment in full of the principal
of all Bonds issued hereunder and of all interest obligations not so
transferred, pledged, kept alive or extended.
Section 8.15. Restricted Payments. The Company covenants that it will not
declare or pay dividends (other than in its own common stock) or make any other
distribution on shares of its common stock or apply any of its property or
assets (other than amounts equal to any proceeds received from the sale of
common stock of the Company) to the purchase or retirement of, or make any other
distribution through reduction of capital or otherwise, in respect of, any
shares of its common stock if, after giving effect to such distribution, the
aggregate of all such distributions declared, paid, made or applied subsequent
to December 31, 2000 by the Company and Exeter, plus the amount of all dividends
declared or accrued on any class of preferred stock of the Company or Exeter
subsequent to December 31, 2000, and any amounts charged to net income after
December 31, 2000 in connection with the purchase or retirement of any shares of
preferred stock of the Company or Exeter would exceed an amount equal to net
income of the Company available for dividends after December 31, 2000, plus the
sum of $7,565,000.
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The term "net income", as applied to any period shall mean the net income
(or deficit) of the Company and, for periods prior to the Merger Date, of Exeter
for such period properly transferable to its earned surplus, all computed, if a
uniform system of accounts is prescribed by any commission or other governmental
body having jurisdiction in the premises, in accordance with such uniform
system; otherwise in accordance with accepted accounting practice, and in any
event by deducting from the aggregate gross revenues of the Company and, for
periods prior to the Merger Date, of Exeter for such period all expenses
required to be deducted in computing Earnings Available for Interest Charges for
such period in accordance with Section 4.02(B) and (C) of the Indenture, and
also by deducting all interest requirements, taxes, amortization of debt
discount and expense and other deferred charges, and all other non-operating
expenses for such period.
Section 8.16. Transactions with Affiliates. The Company will not and will
not permit any Subsidiary to enter into directly or indirectly any transaction
or Material group of related transactions (including without limitation the
purchase, lease, sale or exchange of properties of any kind or the rendering of
any service) with any Affiliate (other than the Company or another Subsidiary),
except in the ordinary course and pursuant to the reasonable requirements of the
Company's or such Subsidiary's business and upon fair and reasonable terms no
less favorable to the Company or such Subsidiary than would be obtainable in a
comparable arm's-length transaction with a Person not an Affiliate, or as may be
otherwise ordered or required by a governmental authority having jurisdiction
over the Company.
Article IX
Supplemental Indentures and Indenture Modifications
Section 9.01. Supplemental Indentures without Consent of Bondholders. In
addition to any supplemental indenture otherwise authorized or permitted by this
Indenture, the Company when authorized by Resolution and the Trustee from time
to time and at any time, subject to the conditions and restrictions in this
Indenture contained, and without the consent of or notice to the bondholders,
may execute an indenture or indentures supplemental hereto, and which thereafter
shall form a part hereof, for any one or more or all of the following purposes:
(a) To add to the conditions, limitations and restrictions of the
authorized amount, terms, provisions, purposes of issue, authentication and
delivery of Bonds specified herein, other conditions, limitations and
restrictions thereafter to be observed with respect to the Bonds or any one
or more series thereof;
(b) To add to the covenants and agreements of the Company in this
Indenture contained, other covenants and agreements thereafter to be
observed;
(c) To provide for the creation of any series of Bonds pursuant to
Articles IV, V or VI;
(d) To evidence the succession of another corporation to the Company,
or successive successions, and the assumption by a successor corporation of
the covenants
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and obligations of the Company and the acceptance by the successor
corporation of the provisions in the Bonds hereby secured and in this
instrument and in any and every supplemental indenture contained;
(e) To convey, transfer and assign to the Trustee, and to. subject to
the lien of this Indenture, with the same force and effect as though
included in the Granting Clauses hereof, additional properties, permits and
franchises hereafter acquired by the Company through consolidation or
merger, or by purchase or in any other manner whatsoever;
(f) To cure any ambiguity, or to cure, correct or supplement any
defect or inconsistent provision contained in this instrument or any
indenture supplemental hereto;
(g) To make this Indenture conform to the Trust Indenture Act of 1939
or similar legislation or otherwise to add to the duties and obligations of
the Trustee, but no such supplemental indenture which shall add to the
duties and obligations of the Trustee hereunder shall be made without the
written consent of the Trustee.
Section 9.02. Modification of Indenture. From time to time the holders of
seventy-five per cent (75%) in aggregate principal amount of Bonds Outstanding,
by an instrument or instruments in writing signed by such holders and filed with
the Trustee, shall have power to assent to and authorize any modification of any
of the provisions of this Indenture that shall be proposed by the Company when
authorized by a Resolution, and the Trustee may enter into an indenture
supplemental hereto for the purpose of adding such modification to the Indenture
and any action herein authorized to be taken with the assent or authority, given
as aforesaid, of the holders of seventy-five per cent (75%) in aggregate
principal amount of Bonds Outstanding shall be binding upon the holders of all
of the Bonds at any time Outstanding and upon the Trustee as fully as though
such action were specifically and expressly authorized by the terms of this
Indenture, provided, however, that no such modification shall (i) extend the
time or times of payment of the principal of, or the interest or premium, if
any, on any Bond, or (ii) reduce the principal amount thereof or the rate of
interest or premium thereon, or (iii) authorize the creation of any lien prior
or equal to the lien of this Indenture upon any of the Mortgaged Property, or
deprive any bondholder of the benefit of the lien of this Indenture, or (iv)
affect the rights under this Indenture of the holders of one or more, but less
than all, of the series of Bonds outstanding hereunder unless assented to by the
holders of seventy-five per cent (75%) in aggregate principal amount of Bonds
Outstanding of each of the series so affected, or (v) reduce the percentage of
Bonds, the holders of which are required to assent to any such modification
pursuant to this Section, or (vi) in any manner affect the rights or obligations
of the Trustee without its written consent thereto; and provided further, that,
anything in this Section to the contrary notwithstanding, the holders of
seventy-five per cent (75%) in aggregate principal amount of Bonds Outstanding
of any particular series shall have power to waive any right specifically
provided in respect of that series, and to assent to any modification of any
such right which shall be proposed by the Company, subject, however, to the
provisions of clauses (i) through (vi) of this Section. Any modification of the
provisions of this Indenture so made as aforesaid shall be set forth in a
supplemental indenture between the Trustee and the Company which shall be
recorded and/or filed in the same manner as this Indenture and the Trustee shall
be fully protected in acting in accordance therewith.
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Section 9.03. Execution of Supplemental Indenture. No supplemental
indenture shall become effective until it shall have been executed by the
Trustee and the Trustee is hereby authorized to join with the Company in the
execution of any supplemental indenture authorized or permitted by the
provisions of this Indenture and to make the further agreements and stipulations
which may be therein contained. The Trustee shall be fully protected in relying
on an Opinion of Counsel as to whether or not any proposed supplemental
indenture is authorized or permitted by the provisions of this Indenture and is
consistent therewith.
Section 9.04. Effect of Supplemental Indenture. From and after the
execution of any such supplemental indenture the covenants and provisions
contained therein shall be deemed a part of this Indenture and shall bind and
benefit the Company, the Trustee and the bondholders as effectually as the
covenants and provisions contained in this instrument at the time of its
execution, and the Trustee and the bondholders shall have the same remedies for
a breach thereof as are provided in respect of a breach of the provisions and
covenants now contained in this Indenture.
Article X
Possession, Use and Release of Mortgaged Property
Section 10.01. Possession and Use of Mortgaged Property. Unless an Event of
Default shall have occurred and shall not have been remedied, the Company shall
be suffered and permitted to remain in full possession, enjoyment and control of
all the properties, rights, privileges and franchises hereby mortgaged and shall
be permitted to manage and operate the same, and, subject always to the
provisions hereof, to receive, receipt for, take, use, enjoy and dispose of all
rents, revenues, income, issues and profits thereof.
Section 10.02. Alterations to Mortgaged Property. While in possession of
the Mortgaged Property and if no Default or Event of Default then exists, the
Company shall have the right at all times, as proper management of the business
of the Company may require, to alter, change, add to, repair, and make any
change in the location of its buildings and structures, power plants, conduits,
meters, services, transformers, poles, pole lines, transmission or distribution
lines, wires, cross-arms, cables, equipment and apparatus, provided that the
location of none of the Mortgaged Property may be changed so as to impair the
lien of this Indenture unless such property is sold or exchanged as elsewhere in
this Article permitted.
Section 10.03. Dispositions of Mortgaged Property without Release. While in
possession of the Mortgaged Property and if no Default or Event of Default then
exists, the Company may, without obtaining any release from or consent of the
Trustee, free from the lien of this Indenture:
(1) dispose of (i) fractional interests in poles and their
appurtenances and/or the right to the joint use of such poles by the
purchaser of such interest with the Company, (ii) any of its tangible
personal property which may have become worn out, due for replacement in
the regular course of business, disused or undesirable for use;
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(2) cut and sell, and license others to cut and remove, any pulp wood,
timber, logs and trees having an aggregate fair value in any one five-year
period of not in excess of $100,000, which are now, or at any time
hereafter shall be, upon any land included in the Mortgaged Property;
(3) surrender or assent to the modification of any franchise which it
may hold or under which it may be operating, provided that (a) in the event
of any such surrender, the Company shall then have or shall receive at the
time of such surrender a franchise which, in the Opinion of Counsel (filed
with the Trustee prior to such surrender), shall authorize it to do the
same or an extended business in the same or an extended territory during
the same or an extended or unlimited period of time, and (b) in the event
of any such modification, the franchise as modified shall, in the Opinion
of Counsel (filed with the Trustee prior to the effective date of such
modification), authorize the continuance of the same or an extended
business in the same or an extended territory during the same or an
extended or unlimited period of time; and
(4) make changes or alterations in or substitutions for any licenses
or leases or surrender and cancel the same, provided that such change,
alteration or substitution or such surrender or cancellation, as the case
may be, is in the interest of the Company and will not impair the security
of the Bonds Outstanding; and in such event any modified, altered or
substituted grants, licenses or leases shall forthwith be subject to the
terms of this Indenture to the same extent, if any, as those previously
existing;
provided, however, that the Company either (i) shall apply any net cash proceeds
or other consideration received by the Company for or in connection with any
disposition of Mortgaged Property by the Company under this Section 10.03 in
acquiring, or in reimbursing itself for, other property, not necessarily of the
same character, but of value at least equal to that of the property disposed of,
which other property shall be Fixed Property and shall forthwith become subject
to the lien of this Indenture, or (ii) if and to the extent that such net cash
proceeds or other consideration are not so applied within 12 calendar months
after the receipt thereof, shall pay such net cash proceeds or an amount equal
to such other consideration (unless by the terms of any prior mortgage or other
instrument permitted by the terms hereof such net cash proceeds or other
consideration are required to be and are applied to reduce, discharge or secure
the obligations secured by any such prior mortgage or other instrument) to be
held and applied by the Trustee pursuant to the provisions of Sections 11.02 and
11.03.
Section 10.04. Release of Mortgaged Property. While in possession of the
Mortgaged Property and if no Default or Event of Default then exists, the
Company may sell or exchange but not otherwise dispose of any of its property
(in addition to the property referred to in Section 10.03 and in addition to any
property released pursuant to Section 8.12 hereof) and the Trustee shall release
the same from the lien hereof upon receipt by the Trustee of:
(a) A Resolution authorizing such sale or exchange and requesting such
release;
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(b) An Officer's Certificate signed also by an Engineer who, if the
consideration to be received for the property for the release of which
request is made exceeds $150,000, shall be an Independent Engineer;
(i) describing the property for the release of which request is
made and stating that in the opinion of the signers such release will
be of benefit to the Company and will not be prejudicial to the
security of the Bonds issued hereunder;
(ii) stating that the Company has sold or exchanged, or
contracted to sell or exchange, the property for the release of which
request is made for a stated consideration representing in the opinion
of the signers its full value to the Company and consisting solely of
cash, Property Additions and/or properties which upon such exchange
will constitute Property Additions;
(iii) stating either that the property for the release of which
request is made does not constitute or include all or substantially
all of the physical properties of the Company subject to the lien
hereof, or, that if it does constitute or include all or substantially
all of such physical properties, stating that from the cash
consideration received or to be received therefrom, as increased by
any other Trust Moneys available for the redemption of Bonds, there
will be moneys sufficient in amount to pay all of the expenses and
charges due the Trustee and to redeem all Bonds Outstanding; and
(iv) if any Property Additions, or properties which upon such
exchange will become Property Additions, are included in such
consideration, briefly describing them, and if from the Opinion of
Counsel responsive to (f) of this Section it appears that such are
subject to any Permitted Encumbrances, that such Permitted
Encumbrances do not impair the use of the property to which they
pertain for the purposes for which such property is held or to be held
by the Company;
(c) An Officers' Certificate dated as of a date not more than ten days
prior to such release, stating that immediately after giving effect to such
release, no Default or Event of Default shall have occurred and be
continuing;
(d) All moneys stated in said certificate to be or to have been
received in consideration for any property for the release of which request
is made, or to the extent that such moneys constitute the consideration for
property subject to an Underlying Mortgage, which, by its terms, are
required to be paid to or deposited with its mortgagee or trustee, a
receipt by such mortgagee or trustee for such moneys, the Company
covenanting and directing that upon the satisfaction or release of such
Underlying Mortgage, any such money remaining in the possession or control
of such mortgagee or trustee to which the Company may be entitled shall
forthwith be deposited with the Trustee;
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(e) Such deeds, bills of sale, supplemental indentures, or other
instruments of conveyance as may be necessary or proper to subject to the
lien of this Indenture any property received in exchange for property
released;
(f) An Opinion of Counsel stating;
(i) that the instruments of conveyance above mentioned are
sufficient, and no other documents are required, to subject to the
lien of this Indenture any property received in exchange for property
released, and that all of the property received in exchange will, upon
such acquisition, be subject to no liens in addition to the lien of
this Indenture except Permitted Encumbrances;
(ii) if any part of the consideration for property so to be
released has been or is to be paid to or deposited with the mortgagee
or trustee of an Underlying Mortgage, that such consideration is
required by such Underlying Mortgage to be paid to or deposited with
such mortgagee or trustee;
(g) Either (i) a certificate constituting evidence of the
authorization, approval or consent of any governmental body at the time
having jurisdiction in the premises to the sale or exchange of the property
to be released, the consideration to be received therefor and the
acquisition of any property constituting any part of such consideration,
together with an Opinion of Counsel that the same constitutes sufficient
evidence thereof and that the authorization, approval or consent of no
other governmental body is required; or (ii) an Opinion of Counsel that no
authorization, approval or consent of any governmental body is required.
Section 10.04A. Application for Release of Mortgaged Property. While in
possession of the Mortgaged Property and if no Default or Event of Default then
exists, the Company may apply to the Trustee for the release of certain property
which is not Public Utility Property (as defined below) from the lien of the
Indenture subject to the release valuation limitations hereinafter provided, to
be thereafter held by the Company free of the mortgage, available for sale or
transfer without further authorization from or accountability to the Trustee,
and the Trustee shall release the said property from the said lien upon its
receipt of:
(a) A Resolution identifying the property to be released and
requesting that it be released;
(b) An Officers' Certificate signed also by an Engineer who, if the
release valuation of the property involved exceeds $100,000, shall be an
Independent Engineer;
(i) Identifying the property to be released and stating that no
part of it is Public Utility Property nor included or includable in
any way in the Company's electric utility rate base. For purposes of
this certification, "Public Utility Property" shall mean and include
all property of the Company which is used or useful to it in any
aspect of its business as a New Hampshire electric public utility
company, including without limitation, the transmission, distribution,
use,
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purchase, supply and/or delivery, sale and disposition of electricity
for heat, light, power, refrigeration or any other use, or in any
business incidental thereto, including all properties necessary,
appropriate, or in any manner useful for the transmission,
distribution, use, purchase, supply, and/or delivery, sale and
disposition of electricity, together with all betterments, additions,
replacements, or alterations of, upon, or to any such property, saving
and excepting, however, any and all categories of property of the
Company excluded from the lien of the Indenture by the several
Reservation, Exception and Exclusion Clauses of the Granting Clauses
of the Indenture.
(ii) Stating the release valuation of the property involved, and
showing that such valuation plus the aggregate release valuation of
all prior such releases of property of the Company which is not Public
Utility Property for the preceding twelve calendar months does not
exceed $350,000 nor, for the preceding five-year period, an amount
equal to five percent of the Company's net utility plant as of the
close of the last calendar year as shown in the Company's annual
report for such year to the New Hampshire Public Utilities Commission.
For purposes of the foregoing computation, "release valuation" shall
be defined to mean the recorded net book cost of property other than
real estate, and in the case of real estate, the greater of (x) net
book cost or (y) the latest assessed valuation for purposes of local
real estate taxation.
(c) An Officer's Certificate dated as of a date not more than ten days
prior to such release, stating that after giving effect to such release, no
Default or Event of Default shall have occurred and be continuing; and
(d) A sum of money equivalent to the release valuation of the property
to be released from the lien of the Indenture.
Section 10.05. Purchaser Protected. In favor of every purchaser from the
Company, and of every person claiming any interest by, through or under the
Company, every release of property from the lien of this Indenture by the
Trustee under the provisions of Section 8.12 and this Article shall be valid,
and no such purchaser or person need inquire as to the power or authority of the
Trustee to make any such release, or see to the application of the purchase
money.
Section 10.06. Company's Covenant Regarding Disposition. The Company
covenants that it will not sell, exchange or otherwise dispose of any of its
properties except in the manner permitted by Section 8.12 and this Article,
provided, however, that nothing in this Section shall be construed to be in
derogation of the provisions of Article XII.
Section 10.07. Powers Exercisable by Receiver or Trustee. In case the
Mortgaged Property shall be in the possession of a receiver or trustee lawfully
appointed, the powers in and by this Article conferred upon the Company may be
exercised by such receiver or trustee and if the Trustee shall be in possession
of the Mortgaged Property under any provision of this
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Indenture then all the powers in Section 8.12 and this Article conferred upon
the Company may be exercised by it in its discretion.
Article XI
Holding and Application of Trust Moneys
Section 11.01. "Trust Moneys" Defined. All moneys required to be deposited
with or paid to the Trustee under any provision hereof shall be held by it in
trust (all such moneys being herein sometimes called "Trust Moneys"). Except for
Trust Moneys deposited with or paid to the Trustee for the redemption of Bonds,
notice of the redemption of which has been duly given, all Trust Moneys so paid
over to the Trustee shall, while held by it, constitute part of the Trust Estate
and be subject to the lien hereof. While held by the Trustee any such Trust
Moneys may be invested as provided in Section 11.06 and if no Default or Event
of Default then exists, the interest earnings of any amounts so deposited shall
be distributed to the Company, free of trust, at least quarter-annually.
Section 11.02. Withdrawal or Redemption of Outstanding Bonds. Subject to
the provisions of Section 11.04, the Company, so long as no Default or Event of
Default then exists, may:
(a) withdraw any Trust Moneys deposited with the Trustee pursuant to
the provisions of Sections 8.10 (except as otherwise provided in Section
8.10 with respect to amounts not exceeding $50,000), 8.12, 10.03, 10.04 and
10.04A, to reimburse itself for 100% of Net Bondable Expenditures made by
it for Property Additions as evidenced by the Certificate of Net Bondable
Expenditures for Property Additions to which reference is hereinafter made;
or
(b) cause the Trustee to apply any Trust Moneys withdrawable under (a)
above to the payment or redemption of Bonds then Outstanding;
provided, however, that none of such Trust Moneys shall be so withdrawn under
clause (a) above later than two years after the date of their deposit with the
Trustee.
If the Company shall elect to withdraw Trust Moneys pursuant to clause (a)
of this Section, it shall deliver to the Trustee an Order of the Company
specifying the amount to be withdrawn and stating that such withdrawal is not
prohibited by Section 11.02 or 11.04, and accompanied by a Resolution
authorizing such withdrawal and a Certificate of Net Bondable Expenditures,
together with, if there be included in such certificate any New Gross
Expenditures, the documents required by (i), (ii) and (iii) of subparagraph (4)
of Section 4.05. Such Certificate of Net Bondable Expenditures shall be dated as
of a date within sixty days of the date of such withdrawal. No such withdrawal
shall be made unless the Trustee shall also have received an Officers'
Certificate dated as of the date of such withdrawal stating that the amount, if
any, shown in Item (12) of said Certificate of Net Bondable Expenditures plus
Gross Expenditures for Property Additions since the date of said Certificate
exceeds Net Retirements since the date of said certificate and stating that no
Default or Event of Default then exists.
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If the Company shall elect to cause the Trustee to apply moneys to the
redemption of Bonds pursuant to clause (b) of this Section, it shall deliver to
the Trustee an Order of the Company stating that such application is not
prohibited by Section 11.04 and stating that no Default or Event of Default then
exists. Such Order shall be accompanied by a Resolution authorizing such
redemption. Such redemption shall be made as provided in Section 11.03.
Section 11.03. Redemption Procedures. As soon as conveniently possible
after each election by the Company to apply Trust Moneys to the redemption of
Bonds pursuant to clause (b) of Section 11.02 and after each occasion upon which
the Trustee shall have on hand $5,000 or more of moneys referred to in Section
11.02 which have been on deposit with the Trustee more than two years after the
date of such deposit, the Trustee shall (i) if Bonds of more than one series are
outstanding hereunder and the moneys to be applied are insufficient to redeem
all Bonds then Outstanding, apportion such moneys to the redemption of Bonds of
each such series, in proportion, as nearly as is practicable, to the ratio which
at the time of such apportionment the aggregate principal amount of the Bonds of
each series then Outstanding bears to the total principal amount of the Bonds of
all series then Outstanding, (ii) fix a date (or dates in case Bonds of more
than one series are to be redeemed and are not redeemable on the same date) for
the redemption of Bonds, (iii) select the Bonds to be so redeemed as provided in
Section 7.02, (iv) notify the Company of the Bonds to be so redeemed and of the
date (or dates) of such redemption, and (v) give notice of redemption of such
Bonds as provided in Sections 7.03, 7.04 and 7.05. The Company covenants that it
will, on or before forty (40) days prior to the date (or each date) so fixed,
pay to the Trustee the amount of the charges which will be due it and the amount
of expenses which it will incur in connection with such (or each such)
redemption, and that the Company will deliver to the Trustee, on or prior to the
date (or each date) so fixed for redemption, the excess of the aggregate of the
redemption prices of the Bonds to be so called (including interest to date of
redemption and premium, if any) over the aggregate of the principal amounts
thereof.
Section 11.04. Redemption When Trust Estate is Released. In the event,
however, that all or substantially all the fixed properties of the Company which
constitute the Trust Estate are released from the lien hereof, then the Trustee
shall forthwith by the use, in so far as necessary, of all Trust Moneys
deposited with it (other than moneys held for the redemption of Bonds, a notice
of the redemption of which has been given) redeem all Bonds then Outstanding,
provided, however, that if the aggregate of all such Trust Moneys, after the
deduction therefrom of any expenses or charges for the payment of which the
Trustee will be compelled to resort to such Trust Moneys, will be insufficient
to redeem all Bonds then Outstanding, then the Trustee shall, subject to the
provisions of Section 8.14, apply said Trust Moneys to the pro rata payment on
account of and in proportion to the respective amounts of the principal of,
premium, if any, and accrued interest on all Bonds then Outstanding,
irrespective of series.
Section 11.05. Redeemed Bonds. No Bonds redeemed under the provisions of
this Article shall thereafter be Available Bonds useable as the basis for the
issue of Bonds or of any further action or credit under this Indenture, and all
such Bonds shall be cancelled.
Section 11.06. Investment of Trust Moneys. Except where otherwise provided
in this Indenture, all or any part of any Trust Moneys held by the Trustee
hereunder may from time to
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time at the written direction of the Company, signed by the President,
Vice-President or Treasurer of the Company, be invested or reinvested by the
Trustee in any of the following:
(1) Investments in commercial paper maturing in 270 days or less from
the date of issuance which, at the time of acquisition, is accorded the
highest rating by S&P or Moody's;
(2) Investments in United States Governmental Securities; provided
that such obligations mature within one year from the date of acquisition
thereof;
(3) Investments in certificates of deposit maturing within one year
from the date of origin, issued by an Acceptable Bank; or
(4) any mutual fund or other fund which is operated in the United
States which has substantially all of its investments in the Investments
described above in clauses (1) or (2) of this Section 11.06.
Such Investments shall be held by the Trustee as a part of the Trust
Estate, subject to the same provisions hereof as the cash used by it to purchase
such Investments; but upon a like direction of the Company, the Trustee shall
sell all or any designated part of the same and the proceeds of such sale shall
be held by the Trustee subject to the same provisions hereof as the cash used by
it to purchase the Investments so sold. If under the provisions of this
Indenture any Trust Moneys held by the Trustee and so invested or reinvested
shall be required to be applied to the redemption of Bonds, the Trustee shall
forthwith sell such Investments in an amount equivalent to the Trust Moneys so
to be applied. In case the net proceeds (exclusive of interest) realized, upon
any such sale shall amount to less than the amount invested by the Trustee in
the purchase of the Investments so sold (after appropriate adjustment on account
of any accrued interest paid at the time of purchase), the Trustee shall within
five days after such sale notify the Company in writing thereof and within five
days thereafter the Company shall pay to the Trustee the amount of the
difference between such purchase price and the amount so realized, and the
amount so paid shall be held by the Trustee in like manner and subject to the
same conditions as the proceeds realized upon such sale. The Trustee shall not
be liable or responsible for any loss resulting from any Investment or
reinvestment pursuant to this Section 11.06.
Article XII
Consolidations, Mergers and Sales
Section 12.01. Consolidation, Merger and Sales Permitted on Certain Terms.
Nothing in this Indenture contained shall prevent any lawful consolidation or
merger of the Company with or into any other corporation, or any conveyance or
transfer, subject to the lien of this Indenture, of all, or substantially all,
the Mortgaged Property, as an entirety, to any corporation lawfully entitled to
acquire and operate the same; provided, however, and the Company covenants and
agrees, that such consolidation, merger, conveyance or transfer shall be upon
such terms as in no respect to impair the lien of this Indenture upon the
Mortgaged Property then subject thereto, or any of the rights or powers of the
Trustee or the bondholders hereunder; and provided further,
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that the property of the successor corporation with which the Company shall
consolidate or merge or to which all of the Mortgaged Property shall be conveyed
as an entirety shall not be subject to any lien (other than Permitted
Encumbrances) which after such consolidation, merger or conveyance will be equal
or prior to the lien of this Indenture on the property owned by such other
corporation and included in its fixed asset account, unless the amount of
obligations outstanding under and secured by such equal or prior lien shall not
exceed sixty per cent (60%) of the fair value of such property of such other
corporation, as evidenced by an Independent Engineer's Certificate filed with
the Trustee; or unless there be appropriated Net Bondable Expenditures in an
amount equivalent to such excess (such appropriation to be evidenced in the same
way as a similar appropriation pursuant to Section 8.07), and unless the
Earnings Available for Interest Charges (determined in the manner provided in
Section 4.02 hereof for Earnings Available for Interest Charges of the Company
and verified by independent certified public accountants), derived from the
operation of the property of such other corporation, for a period of twelve (12)
consecutive calendar months within fifteen (15) calendar months immediately
preceding the date of such consolidation, merger or conveyance, shall have been
at least two (2) times the Annual Interest Requirements (determined in the
manner provided in Section 4.02 hereof for Annual Interest Requirements of the
Company, as verified by such accountants), on all obligations outstanding under
and secured by such equal or prior lien at the time of such consolidation,
merger or conveyance and on all other obligations of such other corporation for
borrowed money, except obligations for the payment or redemption of which the
necessary funds shall have been deposited with the trustee under the mortgage
creating such equal or prior lien, or with the Trustee hereunder, together with
irrevocable instructions to apply such funds to the payment or redemption of
such obligations (but subject to any applicable clause in such mortgage
providing for the return of any unclaimed moneys to the Company or such other
corporation, as the case may be, depositing such funds); and provided further,
that such successor corporation shall execute and deliver to the Trustee an
indenture supplemental hereto and satisfactory to the Trustee which shall
provide:
(1) that such successor corporation shall assume the due and punctual
payment of the principal of, (and premium, if any) and interest on all the
Bonds issued hereunder and the performance and observance of all of the
covenants and conditions to be performed or observed by the Company
contained in this Indenture; and
(2) a grant, conveyance, transfer and mortgage in terms sufficient to
include and subject to the lien of the Indenture; subject only to Permitted
Encumbrances, all property (other than Excepted Property) thereafter
acquired or constructed by such successor corporation in the territories
theretofore served by the Company and all property (other than Excepted
Property) forming an integral part of, or essential to the use or operation
of, any property subject to the lien of this Indenture at the time of such
consolidation, merger, conveyance or transfer, and all property
subsequently subjected to the lien of this Indenture as a first mortgage
lien thereon, and all betterments, extensions, improvements, additions,
renewals and replacements thereof, and all franchises necessary or proper
for the operation thereof, the lien thereby created to have the same force,
effect and standing as if the Company had itself acquired or constructed
such property.
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Notwithstanding anything to the contrary contained herein, the successor
corporation shall be organized under the laws of the United States or any state
thereof or under the laws of Canada or any province thereof.
Section 12.02. Successor Corporation Substituted. The successor corporation
thereafter may cause to be signed, issued and delivered, either in its own name
or in the name of Unitil Energy Systems, Inc., any or all Bonds issuable
hereunder which shall not theretofore have been signed by Unitil Energy Systems,
Inc. and authenticated by the Trustee, and upon the order of the successor
corporation in lieu of Unitil Energy Systems, Inc., and subject to all the
terms, conditions and restrictions in this Indenture prescribed, relating to the
authentication and issuance of Bonds, the Trustee shall authenticate and deliver
any of such Bonds which shall have been previously signed and delivered by the
officers of Unitil Energy Systems, Inc. to the Trustee for authentication, and
any of such Bonds which the successor corporation shall thereafter, in
accordance with the provisions of this Indenture, cause to be signed and
delivered to the Trustee for such purpose; provided, however, that no such
Additional Bonds may be issued hereunder and no cash shall be withdrawn or
property released on the basis of Net Bondable Expenditures for Property
Additions, unless (A) thereupon the aggregate indebtedness of such successor
corporation secured by liens on any property equal or superior to the lien of
this Indenture will not exceed 15% of the aggregate principal amount of all
Bonds then Outstanding under this Indenture and (B) such successor corporation
(1) shall effectively close each open end mortgage (other than this Indenture)
to which any of its property may be subject, and (2) shall by an indenture
supplemental hereto to which reference is made in Section 12.01 hereof or by a
subsequent indenture supplemental hereto satisfactory to the Trustee similarly
executed and delivered which shall provide a grant, conveyance, transfer and
mortgage in terms sufficient to include and subject to the lien hereof, subject
only to Permitted Encumbrances, (a) with the same force, effect and standing as
though this Company had itself acquired the same at the time of the delivery of
such supplemental indenture, all property, not theretofore subject to the lien
hereof, then owned by such successor corporation (other than Excepted Property),
and (b) with the same force, effect and standing as though the Company were
itself to construct or acquire such property, all property thereafter acquired
or constructed by such successor corporation (other than Excepted Property).
Section 12.03. Opinion of Counsel Required. The Trustee may receive an
Opinion of Counsel as conclusive evidence (1) that any such indenture can and
does comply with the foregoing conditions and provisions required with respect
thereto by Section 12.01 or 12.02, or both, and (2) that such successor
corporation has complied with the provisions of Section 12.02 with respect to
the closing of open end mortgages.
Article XIII
Discharge of Indenture
If the Company shall pay or cause to be paid to the holders of the Bonds
the principal thereof, including therein the premium thereon, if any, and
interest to become due thereon at the times and in the manner stipulated therein
and herein, and if the Company shall keep, perform and observe all and singular
the covenants and promises in the Bonds and in this Indenture
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expressed to be kept, performed and observed by it or on its part, then these
presents and the estate and rights hereby granted shall (at the option of the
Company evidenced by a Resolution delivered to the Trustee) cease, determine and
be void, and thereupon the Trustee shall, upon the request of the Company but
only after payment of all proper charges and cancellation of all Bonds for the
payment of which cash shall not have been deposited in accordance with the
provisions of this Indenture, cancel and discharge the lien of this Indenture,
and execute and deliver to the Company such deeds or other instruments in
writing as shall be requisite to satisfy the lien hereof, and reconvey to the
Company the estate and title hereby conveyed, and assign and deliver to the
Company any property at the time subject to the lien of this Indenture which may
then be in possession of the Trustee, except cash held for the payment of the
principal of, premium, if any, or interest on Bonds.
Bonds, for the payment or redemption of which moneys shall have been
deposited with the Trustee (whether upon or prior to the maturity or the
redemption date of such Bonds) and been made available for present payment to
the holders of such Bonds, shall be deemed to be paid within the meaning of this
Section; provided, however, that if such Bonds are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been duly given or
provision satisfactory to the Trustee shall have been made therefor, or such
notice shall have been waived.
Article XIV
Default Provisions and Remedies
Section 14.01. Events of Default Defined. Each of the following events is
hereby defined as and is declared to be and to constitute an "Event of Default":
(a) Default in the payment of any interest on any Bond when the same
shall become due and payable and the continuance thereof for a period of
ten (10) days; or
(b) Default in the payment of the principal of (and premium, if any,
on) any Bond when the same shall become due and payable whether at the
stated maturity thereof, or upon redemption thereof, or by declaration as
in Section 14.02 provided; or
(c) Default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the Company in this
Indenture or in the Bonds contained, and the continuance thereof for a
period of thirty (30) days after written notice to the Company by the
Trustee or by the holders of not less than ten per cent (10%) in aggregate
principal amount of Bonds then Outstanding; or
(d) The Company (i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or consents by
answer or otherwise to the filing against it of, a petition for relief or
reorganization or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy, insolvency,
reorganization, moratorium or other similar law of any jurisdiction, (iii)
makes an assignment for the benefit of its creditors, (iv) consents to the
appointment of a
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custodian, receiver, trustee or other officer with similar powers with
respect to it or with respect to any substantial part of the Mortgaged
Property, (v) is adjudicated as insolvent or to be liquidated, or (vi)
takes corporate action for the purpose of any of the foregoing; or
(e) A court or governmental authority of competent jurisdiction enters
an order appointing, without consent by the Company, a custodian, receiver,
trustee or other officer with similar powers with respect to it or with
respect to any substantial part of the Mortgaged Property, or constituting
an order for relief or approving a petition for relief or reorganization or
any other petition in bankruptcy or for liquidation or to take advantage of
any bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation of the Company, or any such petition
shall be filed against the Company and such petition shall not be dismissed
within 60 days; or
(f) If under the provisions of any other law now or hereafter existing
for the relief or aid of debtors any court of competent jurisdiction shall
assume custody or control of the Company or of the whole or any substantial
part of the Mortgaged Property, and such custody or control shall not be
terminated within sixty (60) days from the date of assumption of such
custody or control.
Section 14.02. Acceleration of Maturity; Rescission and Annulment. Upon the
occurrence of an Event of Default the Trustee may, and upon the written request
of the holders of twenty-five per cent (25%) in aggregate principal amount of
Bonds then Outstanding, shall, by notice in writing delivered to the Company,
declare the principal of all Bonds then Outstanding and the interest accrued
thereon along with the Make Whole Amount (as hereinafter defined) immediately
due and payable, and such principal, interest and Make Whole Amount shall
thereupon become and be immediately due and payable; subject, however, to the
right of the holders of a majority in aggregate principal amount of Bonds then
Outstanding, by written notice to the Company and to the Trustee, to annul such
declaration and destroy its effect at any time before any sale hereunder, if,
before any such sale, all agreements with respect to which such Event of Default
shall have been made shall be fully performed or made good, and all arrears of
interest upon all Bonds then Outstanding and the reasonable expenses and charges
of the Trustee, its agents and attorneys, and all other indebtedness secured
hereby, except the principal of any Bonds which have not then attained their
stated maturity and interest accrued on such Bonds since the last interest
payment date, shall be paid, or the amount thereof shall be paid to the Trustee
for the benefit of those entitled thereto. The Company acknowledges that each
holder of a Bond has the right to maintain its investment in such Bond free from
redemption by the Company (except as specifically provided for) and that the
provision for the payment of a Make Whole Amount by the Company in the event the
Bonds are accelerated as a result of an Event of Default, is intended to provide
compensation for the deprivation of such right under such circumstances.
Two Business Days prior to the date the payment thereof becomes due and
payable the Company shall calculate the Make Whole Amount and deliver to the
Trustee and each holder of Bonds an Officers' Certificate specifying the detail
of such calculations. The calculations by the Company shall be deemed to be
correct unless within ten Business Days after such delivery, the
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holders of 25% in aggregate principal amount of the Bonds which are Outstanding
immediately prior to the date of the required payment of the Make Whole Amount,
shall furnish revised calculations in writing to the Trustee and the Company,
which revised calculations shall be deemed to be conclusively correct and any
deficiency in the payment of the Make Whole Amount shall be immediately due and
payable and if the Company fails to deliver the Officers' Certificate such
holders may provide the Make Whole Amount calculation in writing delivered to
the Trustee and the Company which calculations shall be deemed to be
conclusively correct and such Make Whole Amount shall be immediately due and
payable.
For purposes of this Section 14.02, the "Make Whole Amount" shall mean the
greater of (i) the Outstanding principal amount of the Bonds to be paid, plus
interest accrued thereon to the date fixed for such payment, and (ii) the sum of
(A) the aggregate present value as of the date of such payment of each dollar of
principal being paid (taking into account any payments under a sinking fund, if
any) and the amount of interest (exclusive of interest accrued to the date fixed
for such payment) that would have been payable in respect of each such dollar if
such payment had not been made, determined by discounting such amounts at the
Reinvestment Rate (as hereinafter defined) from the respective dates on which
they would have been payable to the date of such payment, plus (B) interest
accrued on the Bonds to be paid to the date fixed for such payment.
For purposes of any determination of the Make Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of 0.50%, plus the yield
reported on page "USD" of the Bloomberg Financial Markets Services Screen (or,
if not available, any other nationally recognized trading screen reporting
on-line intraday trading in the United States Government Securities) at 11:00
A.M. (Eastern time) on the second Business Day preceding the date the Make Whole
Amount becomes due and payable pursuant to the foregoing provisions of this
Section 14.02, for the United States Government Securities having a maturity
(rounded to the nearest month) corresponding to the remaining Weighted Average
Life to Maturity of the principal of the Bonds being paid (taking into account
the application of each payment under a sinking fund, if any) or (2) in the
event that no nationally recognized trading screen reporting on-line intraday
trading in the United States Government Securities is available, Reinvestment
Rate shall mean the sum of 0.50%, plus the arithmetic mean of the yields for the
two columns under the heading "Week Ending" published as of the second Business
Day preceding the date the Make Whole Amount becomes due and payable pursuant to
the foregoing provisions of this Section 14.02, in the Statistical Release under
the caption "Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the Weighted Average Life to Maturity of the
principal amount of the Bonds being paid (taking into account each payment under
a sinking fund, if any). If no maturity exactly corresponds to such Weighted
Average Life to Maturity, yields for the two published maturities most closely
corresponding to such Weighted Average Life to Maturity shall be calculated
pursuant to the immediately preceding sentence, and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straightline basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make Whole Amount shall be
used.
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"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve System and which establishes yields on
actively traded U.S. Government Securities adjusted to constant maturities or,
if such statistical release is not published at the time of any determination
hereunder, then such other reasonably comparable index which shall be designated
by the holders of 66-2/3% in aggregate principal amount of Bonds then
Outstanding.
"Weighted Average Life to Maturity" of the principal amount of the Bonds
being paid shall mean, as of the time of any determination thereof, the number
of years obtained by dividing the then Remaining Dollar-Years of such principal
by the aggregate amount of such principal. The term "Remaining Dollar-Years" of
such principal shall mean the amount obtained by (i) multiplying (x) the
remainder of (1) the amount of principal that would have been payable on each
scheduled sinking fund payment date, if any, if the payment pursuant to this
Section 14.02 had not been made, less (2) the amount of principal on the Bonds
scheduled to become payable on each scheduled sinking fund payment date, if any,
after giving effect to the payment pursuant to this Section 14.02, by (y) the
number of years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and each such sinking fund payment date, if
any, and (ii) totalling the products obtained in (i).
Section 14.03. Interest on Overdue Payments. If Default occurs in payment
of principal, premium or interest due hereunder, the Company covenants that it
will pay or cause to be paid interest upon overdue principal, premium and
interest, to the extent permitted by law, at the greater of (i) six percent (6%)
per annum and (ii) the rate specified in the supplemental indenture or the
Exhibit to the Indenture creating the series of Bonds in question or, if no such
rate is specified therein, then the rate of interest payable on the Bonds of the
series in question plus one percent (1%).
Section 14.04. Entry Upon Mortgaged Property. Upon the occurrence of an
Event of Default, the Company, upon demand of the Trustee, shall forthwith
surrender to the Trustee the actual possession of, and it shall be lawful for
the Trustee, by such officer or agent as it may appoint, to take possession of
all the Mortgaged Property (with the books, papers and accounts of the Company)
and to hold, operate and manage the same, and from time to time make all needful
repairs and such extensions, additions and improvements as to it shall seem
wise; and to receive the rents, revenues, income, issues and profits thereof,
and out of the same to pay, and/or set up proper reserves for the payment of,
all proper costs and expenses of so taking, holding and managing the same,
including reasonable compensation to the Trustee, its agents and counsel, and
any charges of the Trustee hereunder, and any taxes and assessments and other
charges prior to the lien of this Indenture which the Trustee may deem it wise
to pay, and all expenses of such repairs, extensions, additions and
improvements, and to apply the remainder of the moneys so received by the
Trustee, subject to the provisions of Section 8.14 hereof with respect to
extended, transferred or pledged claims for interest, first to the payment of
the installments of interest which are due and unpaid, in the order of their
maturity, and next, if the principal of any said Bonds is due, to the payment of
the principal and accrued interest thereon pro rata without any preference or
priority whatever, except as aforesaid and thereafter the Make Whole Amount.
Whenever all that is due upon such Bonds, including installments of interest and
under any of the terms of this Indenture shall have been paid and all Defaults
made good, the Trustee shall
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surrender possession to the Company, its successors or assigns; the same right
of entry, however, to exist upon any subsequent Event of Default.
Section 14.05. Power of Sale. Upon the occurrence of an Event of Default,
the Trustee, by such officer or agent as it may appoint, with or without entry,
may, if at the time such action shall be lawful, sell all the Mortgaged
Property, including all right, title, interest, claim and demand of the Company
thereto and therein and the right of redemption thereof, as an entirety or in
such parcels as the holders of a majority in aggregate principal amount of Bonds
then Outstanding shall in writing request, or in the absence of such request, as
the Trustee may determine, at public auction, at some convenient place in
Boston, Massachusetts, or at such other place or places as may be required by
law, having first given notice of such sale by publication in at least one daily
newspaper, printed in English and of general circulation in said Boston, at
least once a week for four (4) successive weeks next preceding such sale, and
any other notice which may be required by law. The Trustee, if permitted by law,
may from time to time adjourn such sale or sales in its discretion by
announcement at the time and place or times and places fixed for such sale or
sales without further notice; and the Trustee is hereby appointed the true and
lawful attorney irrevocably of the Company in its name and stead to make,
execute, acknowledge and deliver to the purchaser or purchasers at such sale or
sales good and sufficient deeds of conveyance or bills of sale of the Mortgaged
Property so sold and any sale made as aforesaid shall be a perpetual bar both at
law and in equity against the Company and all persons claiming by, through or
under it.
Section 14.06. Suits for Enforcement; Remedies. In case of the breach of
any of the covenants or conditions of this Indenture, the Trustee shall have the
right and power to take appropriate judicial proceedings for the enforcement of
its rights and the rights of the bondholders hereunder. Upon the occurrence of
an Event of Default, the Trustee may either after entry, or without entry,
proceed by suit or suits at law or in equity to enforce payment of the Bonds
then Outstanding and to foreclose this Indenture and to sell the Mortgaged
Property under the judgment or decree of a court of competent jurisdiction.
If an Event of Default shall have occurred, and if it shall have been
requested so to do by the holders of twenty-five per cent (25%) in aggregate
principal amount of Bonds outstanding hereunder and shall have been indemnified
as provided in Section 15.01 hereof, the Trustee shall be obliged to exercise
such one or more of the rights and powers conferred upon it by this Section and
by Sections 14.04 and 14.05 as it, being advised by counsel, shall deem most
expedient in the interests of the bondholders.
No remedy by the terms of this Indenture conferred upon or reserved to the
Trustee, or to the bondholders, is intended to be exclusive of any other remedy,
but each and every such remedy shall be cumulative and shall be in addition to
any other remedy given hereunder or now or hereafter existing at law or in
equity or by statute.
No delay or omission to exercise any right or power accruing upon any
Default or Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such Default or Event of Default or acquiescence
therein; and every such right and power may be exercised from time to time and
as often as may be deemed expedient.
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No waiver of any Default or Event of Default hereunder, whether by the
Trustee or by the bondholders, shall extend to or shall affect any subsequent
Default or shall impair any rights or remedies consequent thereon.
The Company may waive any period of grace provided for in this Article.
Section 14.07. Right of Bondholders to Direct Trustee. Anything in this
Indenture to the contrary notwithstanding, the holders of a majority in
aggregate principal amount of Bonds then Outstanding shall have the right, at
any time, by an instrument or instruments in writing executed and delivered to
the Trustee, to direct the Trustee to exercise any remedy or take any action
available to the Trustee hereunder, including directing the method and place of
conducting all proceedings to be taken for any sale of the Mortgaged Property,
or for the foreclosure of this Indenture, or for the appointment of a receiver
or any other proceedings hereunder; provided that such direction shall not be
otherwise than in accordance with the provisions of law and of this Indenture.
Section 14.08. Receiver. Upon the occurrence of an Event of Default, and
upon the filing of a bill in equity or other commencement of judicial
proceedings to enforce the rights of the Trustee and of the Bondholders under
this Indenture, the Trustee shall be entitled, as a matter of right, to the
appointment of a receiver or receivers of the Mortgaged Property, and of the
rents, revenues, income, issues and profits thereof, pending such proceedings,
with such powers as the court making such appointment shall confer, whether or
not the Mortgaged Property shall be deemed sufficient ultimately to satisfy the
Bonds outstanding hereunder.
Section 14.09. Bonds Due and Payable Following Sale. Upon any sale being
made either under the power of sale hereby given or under judgment or decree in
any judicial proceedings for the foreclosure or otherwise for the enforcement of
this Indenture, the principal of all Bonds then secured hereby, if not
previously due, shall become and be immediately due and payable.
Section 14.10. Bondholders Right to Bid at Sale. Upon any sale made either
under the power of sale hereby given or under judgment or decree in any judicial
proceedings for foreclosure or otherwise for the enforcement of this Indenture,
the holder or holders of any Bond or Bonds then Outstanding or the Trustee may
bid for and purchase the Mortgaged Property or any part thereof and upon
compliance with the terms of sale may hold, retain and possess and dispose of
such property in his, their or its own absolute right without further
accountability, and any purchasers at any such sale may, in paying the purchase
money, turn in any of such Bonds or claims for interest outstanding hereunder in
lieu of cash to the amount which shall, upon distribution of the net proceeds of
such sale, be payable thereon. Said Bonds, in case the amount so payable thereon
shall be less than the amount due thereon, shall be returned to the holders
thereof after being appropriately stamped to show partial payment.
Section 14.11. Purchaser Not Responsible for Proceeds Application. Upon any
sale made either under the power of sale hereby given or under judgment or
decree in any judicial proceedings for the foreclosure or otherwise for the
enforcement of this Indenture, the receipt of the Trustee or of the officer
making such sale shall be a sufficient discharge to the purchaser or purchasers
at any sale for his or their purchase money and such purchaser or purchasers,
his or
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their assigns or personal representatives, shall not, after paying such purchase
money and receiving such receipt of the Trustee, or of such officer therefor, be
obliged to see to the application of such purchase money, or be in any wise
answerable for any loss, misapplication or nonapplication thereof.
Section 14.12. Company Divested of Title. Any sale made either under the
power of sale hereby given or under judgment or decree in any judicial
proceedings for foreclosure or otherwise for the enforcement of this Indenture
shall, if and to the extent then permitted by law, operate to divest all right,
title, interest, claim and demand whatsoever, either at law or in equity, of the
Company of, in and to the property so sold, including all rights of redemption
thereto, and be a perpetual bar both at law and in equity against the Company
and against any and all persons, firms or corporations claiming or who may claim
the property sold, or any part thereof, from, through or under the Company.
Section 14.13. Application of Moneys by Trustee. The proceeds of any sale
made either under the power of sale hereby given or under judgment or decree in
any judicial proceedings for the foreclosure or otherwise for the enforcement of
this Indenture, together with any other amounts of cash which may then be held
by the Trustee as part of the Mortgaged Property, shall be applied as follows:
First -- To the payment of all taxes, assessments, governmental
charges and liens prior to the lien of this Indenture, except those subject
to which such sale shall have been made, and of all the costs and expenses
of such sale, including reasonable compensation to the Trustee, its agents
and attorneys, and of all other sums payable to the Trustee hereunder by
reason of any expenses or liabilities incurred or advances made in
connection with the management or administration of the trusts hereby
created;
Second -- To the payment in full of the amounts then due and unpaid
for principal, premium and interest upon the Bonds then secured hereby with
interest on amounts overdue as provided in Section 14.03 hereof, and in
case such proceeds shall be insufficient to pay in full the amounts so due
and unpaid, then to the payment thereof ratably, without preference or
priority of principal or premium over interest, or of interest over
principal or premium, or of any installment of interest over any other
installment of interest; subject, however, to the provisions of Section
8.14 hereof;
Third -- Any surplus thereof remaining to the Company, its successors
or assigns, or to whomsoever may be lawfully entitled to receive the same.
Section 14.14. Waiver of Appraisement and Other Laws. In case of an Event
of Default on its part, as aforesaid, to the extent that such rights may then
lawfully be waived, neither the Company nor any one claiming through or under it
shall or will set up, claim, or seek to take advantage of any appraisement,
valuation, stay, extension or redemption laws now or hereafter in force in any
locality where any of the Mortgaged Property 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, but the Company, for itself and all who may claim through
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or under it, hereby waives, to the extent that it lawfully may do so, the
benefit of all such laws and all right of appraisement and redemption to which
it may be entitled under the laws of The State of New Hampshire or of any other
state where any of the Mortgaged Property may be situated. And the Company, for
itself and all who may claim through or under it, waives any and all right to
have the estates comprised in the security intended to be created hereby
marshalled upon any foreclosure of the lien hereof, and agrees that any court
having jurisdiction to foreclose such lien may sell the Mortgaged Property as an
entirety.
Section 14.15. Payment Event of the Default Suits to Protect Trust Estate.
The Company covenants that if an Event of Default shall exist due to the failure
of the Company to make a payment of the principal of any Bonds hereby secured
when the same shall become payable, whether by the maturity of said Bonds or
otherwise, then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Bonds then secured hereby, the
whole amount due and payable on all such Bonds for principal and premium, if
any, and interest, 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, if permitted by law so to do, shall be entitled to sue for and to recover
judgment for the whole amount so due and unpaid.
The Trustee, to the extent permitted by law, shall be entitled to sue and
recover judgment either before or after or during the pendency of any
proceedings for the enforcement of the lien of this Indenture upon the Mortgaged
Property, and in case of a sale of any of the Mortgaged Property and of the
application of the proceeds of sale to the payment of the debt hereby secured,
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 Bonds then Outstanding, for the benefit of the holders thereof,
and the Trustee shall be entitled to recover judgment for any portion of the
debt remaining unpaid, with interest. No recovery of any such judgment by the
Trustee and no levy of any execution upon any such judgment upon any of the
Mortgaged Property or upon any other property, shall in any manner or to any
extent affect the lien of this Indenture upon the Mortgaged Property or any part
thereof, or any rights, powers or remedies of the Trustee hereunder, or any
lien, rights, powers or remedies of the holders of the said Bonds, but such
lien, rights, powers and remedies of the Trustee and of the bondholders shall
continue unimpaired as before.
In case of any receivership, insolvency, bankruptcy or other similar
proceedings affecting the Company or its property, the Trustee shall be entitled
to file and prove a claim for the entire amount due and payable by the Company
under this Indenture at the date of the institution of such proceedings and for
any additional amount which may become due and payable by the Company hereunder
after such date, without regard to or deduction for any amount which may have
been or which may thereafter be received, collected or realized by the Trustee
from or out of the Mortgaged Property or any part thereof or from or out of the
proceeds thereof or any part thereof, but shall not be entitled to consent to
any composition or plan of reorganization on behalf of any bondholder unless by
him specifically authorized so to do.
Any moneys thus collected or received by the Trustee under this Section
shall be applied by it first, to the payment of its expenses, disbursements and
compensation and the expenses, disbursements and compensation of its agents and
attorneys, and, second, toward payment of the
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amounts then due and unpaid upon such Bonds and coupons in respect of which such
moneys shall have been collected, ratably and without preference or priority of
any kind (subject to the provisions of Section 8.14 hereof with respect to
extended, transferred or pledged claims for interest), according to the amounts
due and payable upon such Bonds, at the date fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Bonds and upon
stamping such payment thereon, if partly paid, and upon surrender thereof, if
fully paid.
Section 14.16. Trustee May Enforce Claims Without Possession of Bonds. All
rights of action (including the right to file proof of claim) under this
Indenture or under any of the Bonds may be enforced by the Trustee without the
possession of any of the Bonds or the production thereof in any trial or other
proceeding relating thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its name as trustee, without the necessity of
joining as plaintiffs or defendants any holders of the Bonds hereby secured, and
any recovery of judgment shall be for the equal benefit of the holders of the
outstanding Bonds, subject to the provisions of Section 8.14 hereof with respect
to extended, transferred or pledged claims for interest.
Section 14.17. Limitation on Bondholder Suits. No holder of any bond shall
have any right to institute any suit, action or proceeding in equity or at law
for the foreclosure of this Indenture or for the execution of any trust hereof
or for the appointment of a receiver or for the enforcement of any other remedy
afforded by the Indenture, unless a Default has occurred of which the Trustee
has been notified as provided in subparagraph (g) of Section 15.01 hereof, or of
which by said subparagraph it is deemed to have notice, and unless also such
Default shall have become an Event of Default and the holders of twenty-five per
cent (25%) in aggregate principal amount of Bonds then Outstanding shall have
made written request to the Trustee and shall have offered it reasonable
opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, and unless also they
shall have offered to the Trustee indemnity as provided in Section 15.01 hereof;
and such notification, request and offer of indemnity are hereby declared in
every such case at the option of the Trustee to be conditions precedent to the
execution of the powers and trusts of this Indenture, and to any action or cause
of action for foreclosure or for the appointment of a receiver or for any other
remedy hereunder; it being understood and intended that no one or more holders
of the Bonds shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by his or their action or to enforce any
right hereunder except in the manner herein provided, and that all proceedings
at law or in equity shall be instituted, had and maintained in the manner herein
provided and for the equal benefit of the holders of all Bonds outstanding
hereunder. Nothing in this Indenture contained shall, however, affect or impair
the right of any bondholder which is absolute and unconditional to enforce the
payment of the principal of, premium, if any, and interest on any Bond at and
after the maturity thereof or the obligation of the Company which is also
absolute and unconditional to pay the principal of and interest on each of the
Bonds issued hereunder to the respective holders thereof at the time and place
in said Bonds expressed.
Section 14.18. Restoration of Positions. In case the Trustee shall have
proceeded to enforce any right under this Indenture by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and in
every such case the Company and the Trustee shall be
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restored to their former positions and rights hereunder with respect to the
mortgaged property, and all rights, remedies and powers of the Trustee shall
continue as if no such proceedings had been taken.
Section 14.19. Voluntary Relinquishment of Trust Estate. At any time
hereafter before full payment of the Bonds secured hereby, and whenever it shall
deem it to be expedient for the better protection or security of such Bonds
(although then there shall be no Default or Event of Default entitling the
Trustee to exercise the rights and powers conferred by this Article), the
Company, with the consent of the Trustee, may surrender and deliver to the
Trustee full possession of the whole or of any part of the property, premises
and interest hereby conveyed for any period, fixed or indefinite. In such event,
the Trustee shall enter into and upon the premises so surrendered and delivered,
and shall take and receive possession thereof for such period, fixed or
indefinite, as aforesaid, without prejudice, however, to its right, at any time
subsequently when entitled thereto by any provision hereof, to insist upon and
to maintain such possession, though beyond the expiration of any prescribed
period, and the Trustee from the time of entry shall work, maintain, use,
manage, control and employ the same in accordance with the provisions of this
Indenture, and shall receive and apply the income and revenues thereof as
provided in Section 14.04.
Article XV
The Trustee
Section 15.01. Certain Duties and Responsibilities. (a) Except during the
continuance of an Event of Default of which the Trustee shall have knowledge,
the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise thereof, as a prudent man
would exercise or use under the circumstances in the conduct of his own affairs.
(c) 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 willful misconduct, except that:
(1) this subparagraph (c) shall not be construed to limit the effect
of subparagraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less
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than a majority in principal amount of the Bonds at the time Outstanding
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; and
(4) whether or not an Event of Default shall have occurred, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable ground for believing that the repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Section 15.02. Certain Rights of the Trustee. Except as otherwise provided
in Section 15.01:
(a) The Trustee may execute any of the trusts or powers hereof and
perform any duties required of it by or through attorneys, agents,
receivers or employees, and shall be entitled to advice of counsel
concerning all matters of trusts hereof and its duties hereunder, and may
in all cases pay such reasonable compensation as it shall deem proper to
all such attorneys, agents, receivers and employees as may reasonably be
employed in connection with the trusts hereof and the Trustee may act (1)
upon the opinion or advice of any attorney, surveyor, engineer or
accountant selected by it in the exercise of reasonable care; (2) upon any
Opinion of Counsel; or (3) upon any certificate or opinion conforming to
the applicable requirements of this Indenture. The Trustee shall not be
responsible for any loss or damage resulting from any action or nonaction
in accordance with any such opinion, advice or certificate;
(b) The Trustee shall not be responsible for any recital or
representation herein, or in said Bonds (except in respect of the
certificate of the Trustee endorsed on such Bonds), or for the recording or
rerecording, filing or refiling of this Indenture, or of any conveyance or
instrument of further assurance, or for insuring the Mortgaged Property, or
for the validity of, or of the execution by the Company of, this Indenture
or of any conveyance or instrument of further assurance, or for the
validity of, or the sufficiency of the security for, the Bonds issued
hereunder or intended to be secured hereby, or for the value or title of
any of the Mortgaged Property, or for the payment of or for minimizing
taxes, charges, assessments or liens upon the same, or otherwise as to the
maintenance of the security hereof; except that in the event the Trustee
enters into possession of a part or all of the Mortgaged Property pursuant
to any provision of this Indenture, it shall use due diligence in
preserving the Mortgaged Property; and the Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any covenant,
condition or agreement on the part of the Company, except as hereinafter
set forth; but the Trustee may require of the Company full information and
advice as to the performance of the covenants, conditions and agreements
aforesaid, and of the Company as to the condition of the Mortgaged
Property;
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(c) The Trustee shall not be accountable for the use of any Bonds
authenticated or delivered hereunder or of any of the proceeds of such
Bonds. The Trustee may become the owner of Bonds secured hereby with the
same rights which it would have if not trustee;
(d) The Trustee shall be protected in acting upon any notice, request,
consent, certificate, order, affidavit, letter, telegram or other paper or
document believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons. Any action taken by the Trustee
pursuant to this Indenture upon the request or authority or consent of any
person who at the time of making such request or giving such authority or
consent is the owner of any Bond, shall be conclusive and binding upon all
future owners of the same Bond and upon Bonds issued in exchange therefor
or in place thereof;
(e) As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the Trustee
shall be entitled to rely upon an Officers' Certificate as sufficient
evidence of the facts therein contained and, prior to the occurrence of a
Default of which it has been notified as provided in subparagraph (g) of
this Section or of which by said subparagraph it is deemed to have notice,
shall also be at liberty to accept a similar certificate to the effect that
any particular dealing, transaction or action is or is not necessary or
expedient, but may at its discretion, at the reasonable expense of the
Company, in every case secure such further evidence as it may think
necessary or advisable, but shall in no case be bound to secure the same.
The Trustee may accept a Resolution in the property form, as conclusive
evidence that such Resolution has been duly adopted, and is in full force
and effect;
(f) The permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty of the Trustee and the
Trustee shall be answerable only for its own negligence or willful default;
(g) The Trustee shall not be required to take notice or be deemed to
have notice of any Default or Event of Default hereunder except an Event of
Default arising for failure to make payment of principal, premium, if any,
or interest or failure by the Company to file the documents required
pursuant to Sections 8.08 or 8.09 hereof, unless and until a Responsible
Officer shall have actual knowledge thereof or a written notice thereof
shall be filed with the Trustee by the Company or by the holders of at
least ten per cent (10%) in aggregate principal amount of the Bonds then
Outstanding and all notices or other instruments required by this Indenture
to be delivered to the Trustee must, in order to be effective, be delivered
at the principal office of the Trustee, and in the absence of such notice
so delivered, the Trustee may conclusively assume there is no Default or
Event of Default, except as aforesaid;
(h) The Trustee shall not be personally liable for any debts
contracted or for damages to persons or to personal property injured or
damaged, or for salaries or nonfulfillment of contracts during any period
in which it may be in the possession of or managing the mortgaged property
as in this Indenture provided;
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(i) At any and all reasonable times the Trustee, and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right fully to inspect any and all of the
Mortgaged Property, including all books, papers and contracts of the
Company, and to take such memoranda from and in regard thereto as may be
desired;
(j) The Trustee shall not be required to give any bond or surety in
respect of the execution of the said trusts and powers or otherwise in
respect of the premises;
(k) Notwithstanding anything elsewhere in this Indenture contained,
the Trustee shall have the right, but shall not be required, to demand, in
respect of the authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the purview of
this Indenture, any showings, certificates, opinions, appraisals, or other
information, or corporate action or evidence thereof, in addition to that
by the terms hereof required as a condition of such action if by the
Trustee deemed desirable for the purpose of establishing the right of the
Company to the authentication of any Bonds, the withdrawal of any cash, the
release of any property, or the taking of any other action by the Trustee;
and
(l) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the bondholders pursuant to this Indenture, unless such
bondholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
Section 15.03. Trustee's Compensation. The Trustee shall have a first lien
with right of payment prior to payment on account of interest or principal of
any bond issued hereunder upon the Mortgaged Property for reasonable
compensation, expenses, outlays and counsel fees incurred by it in and about the
execution of the trusts hereby created and the exercise and performance of its
powers and duties hereunder and the cost and expense incurred in defending
against any liability in the premises of any character whatsoever, unless such
liability is adjudicated to have resulted from the negligence or wilful default
of the Trustee. The Company hereby covenants and agrees to pay and indemnify the
Trustee for all outlays, counsel fees and other expenses reasonably made or
incurred by the Trustee in and about the execution of the trusts hereby created
and to reimburse and indemnify it for any expenses paid and to pay the cost and
expense incurred in defending against any liability in the premises of any
character whatsoever, unless such liability is adjudicated to have resulted from
the negligence or wilful default of the Trustee. The Company agrees to pay the
Trustee reasonable compensation for its services in the premises, which
compensation shall not be limited to or governed by any provision of law in
regard to the compensation of trustees of an express trust.
Section 15.04. Notice of Events of Default. If a Default or Event of
Default occurs of which the Trustee is by subparagraph (g) of Section 15.02
required to take notice or if notice of a Default or Event of Default is given
as in said subparagraph (g) of Section 15.02 provided, then the Trustee shall
give written notice (i) of any such Event of Default or (ii) of any Event of
Default if and when any such Default becomes such an Event of Default, by
registered mail or
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reputable overnight courier to the last known owners of all Bonds Outstanding as
shown by the list of bondholders required by the terms of Section 8.13 hereof to
be kept at the office of the Trustee.
Section 15.05. Intervention in Judicial Proceedings. In any judicial
proceedings to which the Company is a party and which in the opinion of the
Trustee and its counsel has a substantial bearing on the interests of owners of
Bonds issued hereunder, the Trustee may intervene on behalf of the bondholders
and shall do so if requested in writing by the owners of at least ten per cent
(10%) of the aggregate principal amount of Bonds then Outstanding. The rights
and obligations of the Trustee under this Section are subject to the approval of
the Court having jurisdiction in the premises.
Section 15.06. Conversion, Merger, Consolidation or Sale of Business of
Trustee. Any corporation or association into which the Trustee may be converted
or merged, or with which it may be consolidated, or to which it may sell or
transfer its corporate trust business and assets as a whole or substantially as
a whole, including the trust created hereunder, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which the Trustee is a party, ipso facto, shall be and become the
successor trustee of the Trustee hereunder without the execution or filing of
any instrument or any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 15.07. Resignation of Trustee. The Trustee and any successor or
successors hereafter appointed, may at any time resign from the trusts hereby
created by giving thirty (30) days' written notice to the Company and the owners
of the Bonds, and subject to Section 15.09 such resignation shall take effect at
the end of such thirty (30) days, or upon the earlier appointment of a successor
to such trustee by the bondholders or by the Company. Such notice may be served
personally or sent by registered mail. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within thirty
(30) days after giving such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
Section 15.08. Removal of Trustee. The Trustee may be removed at any time
by an instrument or concurrent instruments in writing delivered to the Trustee
and to the Company, and signed by the owners of a majority in aggregate
principal amount of Bonds then Outstanding.
Section 15.09. Resignation and Removal Becoming Effective. No resignation
or removal of the Trustee and no appointment of a successor Trustee pursuant to
this Article shall become effective until the acceptance of appointment by the
successor Trustee under Section 15.11.
Section 15.10. Successor or Temporary Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder,
or in case the Trustee shall be taken under the control of any public officer or
officers, or of a receiver appointed by a court, a successor trustee may be
appointed by the owners of a majority in aggregate principal amount of Bonds
then Outstanding, by an instrument or concurrent instruments in writing signed
by such owners, or by their
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attorneys in fact, duly authorized; provided, nevertheless, that in case of such
vacancy the Company by an instrument executed by order of its Board of
Directors, and signed by its President or any Vice-President and attested by its
Treasurer or an Assistant Treasurer under its corporate seal, may appoint a
temporary trustee to fill such vacancy until a successor trustee shall be
appointed by the bondholders in the manner above provided; and any such
temporary trustee so appointed by the Company shall immediately and without
further act be superseded by the trustee so appointed by such bondholders. Every
such successor or temporary trustee shall be a corporation or association in
good standing, having a capital and surplus of not less than One Hundred Million
Dollars ($100,000,000), and organized and doing business under the laws of the
United States of America or any state hereof and authorized under such laws to
exercise corporate trust powers, and, if there be such an institution willing,
qualified and able to accept the trust upon reasonable or customary terms. In
the event that within one (1) year after the appointment of such temporary
trustee by the Company the bondholders do not appoint a successor trustee, the
appointment of the temporary trustee by the Company shall be and become final.
Section 15.11. Acceptance of Appointment by Successor. Every successor
trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Company an instrument in writing accepting such
appointment hereunder, and thereupon such successor, 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; but such
predecessor shall, nevertheless, on the written request of the Company, or of
its successor, execute and deliver an instrument transferring to such successor
all the estates, properties, rights, powers and trusts of such predecessor
hereunder. Should any deed, conveyance or instrument in writing from the Company
be required by any successor trustee for more fully and certainly vesting in
such successor the estates, rights, powers and duties hereby vested or intended
to be vested in the predecessor trustee, any and all such deeds, conveyances and
instruments in writing shall, on request, be executed, acknowledged and
delivered by the Company. The resignation of any trustee and the instrument or
instruments removing any trustee and appointing a successor hereunder, together
with all deeds, conveyances and other instruments provided for in this Article
shall, at the expense of the Company, be forthwith filed and/or recorded by the
successor trustee in each recording office where the Indenture shall have been
filed and/or recorded, provided, however, that none of said instruments shall be
required to be filed and/or recorded in any recording office if, prior to the
resignation of such trustee, all property of the Company located in territory
served by such recording office shall have been released from the lien of the
Indenture, pursuant to the provisions hereof, and a proper release or releases
thereof shall have been filed and/or recorded in such recording office.
Section 15.12. Separate Trustee or Co-Trustees. If at any time or times, in
order to conform to any laws of any state or territory in which the Company now
holds or at any time hereafter may hold any property, the Company or the Trustee
shall so request, the Company and the Trustee shall have power to appoint and
shall unite in the execution, delivery and performance of all instruments and
agreements necessary or proper to constitute another trust company or bank or
banking institution, or one or more persons approved by the Trustee, either to
act as co-trustee or co-trustees of all or any of the property subject to the
lien hereof jointly with the Trustee, or to act as separate trustee or trustees
of all such property or any part thereof.
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Section 15.13. Payment of Certain Charges. In case the Company shall fail
seasonably to pay or to cause to be paid any tax, assessment or governmental or
other charge upon any part of the mortgaged property, the Trustee may pay such
tax, assessment or governmental charge, without prejudice, however, to any
rights of the Trustee or of the bondholders hereunder arising in consequence of
such failure; and any amount at any time so paid under this Section, with
interest thereon from the date of payment at the Prime Rate plus one percent per
annum until paid, shall be repaid by the Company upon demand, and shall become
so much additional indebtedness secured by this Indenture, and the same shall be
given a preference in payment over any of the Bonds, and shall be paid out of
the proceeds of any sale of the Mortgaged Property, if not otherwise paid by the
Company; but the Trustee shall not be under any obligation to make any such
payment unless requested so to do by the holders of at least ten per cent (10%)
of the aggregate principal amount of Bonds outstanding hereunder and provided
with adequate indemnity or funds for the purpose of such payment. The "Prime
Rate" shall mean the rate of interest announced by Fleet National Bank, N.A., or
its successor from time to time as its "prime commercial rate" or the
equivalent.
Section 15.14. Instruments Accepted as Conclusive Evidence. The
resolutions, opinions, certificates and other instruments provided for in this
Indenture may be accepted by the Trustee as conclusive evidence of the facts and
conclusions stated therein provided that the Trustee shall examine the same to
determine if they conform to the requirements of the Indenture and shall be full
warrant, protection and authority to the Trustee for the authentication and
delivery of Bonds or the withdrawal of cash hereunder; but the Trustee may, and
the Trustee shall if requested in writing so to do by the holders of not less
than ten per cent (10%) in aggregate principal amount of Bonds then Outstanding,
cause to be made such independent investigation as to it may seem fit and the
Trustee may decline to authenticate or deliver such Bonds or pay over such cash
unless satisfied by such investigation of the truth and accuracy of the matters
so investigated. The expense of such investigation shall be paid by the Company
or, if paid by the Trustee, shall be repaid by the Company upon demand with
interest, to the extent permitted by law, at the Prime Rate plus one percent per
annum until paid.
Article XVI
Additional Provisions
Section 16.01. Immunity of Incorporators, Stockholders, Officers, Directors
and Employees. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any bond hereby secured, or because of the
creation of any indebtedness hereby secured, shall be had against any
incorporator, stockholder, officer, director or employee, present or future, of
the Company or of any successor corporation, either directly or through the
Company, by the enforcement of any assessment or by any legal or equitable
proceeding by virtue of any statute or otherwise; 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 such incorporators, stockholders, officers, directors or
employees of the Company, or of any successor corporation, or any of them,
because of the incurring 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 hereby secured, or
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implied therefrom; and that any and all personal liability of every name and
nature, and any and all rights and claims against every such incorporator,
stockholder, officer, director or employee, whether arising at common law, or in
equity, or created by statute or constitution, are hereby expressly released and
waived as a condition of, and as a part of the consideration for, the execution
of this Indenture and the issue of the Bonds and interest obligations secured
hereby.
Section 16.02. Evidence of Action by Bondholders; Proof of Execution. Any
request, direction, objection or other instrument required by this Indenture to
be signed and executed by the bondholders may be in any number of concurrent
writings of similar tenor and may be signed or executed by such bondholders in
person or by agent appointed in writing. Proof of the execution of any such
request, direction, objection or other instrument or of the writing appointing
any such agent and of the ownership of Bonds, if made in the following manner,
shall be sufficient for any of the purposes of this Indenture, and shall be
conclusive in favor of the Trustee with regard to any action taken by it under
such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such
writing may be proved by the certificate of any officer in any jurisdiction
who by law has power to take acknowledgments within such jurisdiction that
the person signing such writing acknowledged before him the execution
thereof, or by an affidavit of any witness to such execution; and
(b) The fact of the holding by any party of Bonds transferable by
delivery and the amounts and numbers of such Bonds, and the date of the
holding of the same, may be proved by a certificate executed by any trust
company, bank or bankers (wherever situated) stating that at the date
thereof the party named therein did exhibit to an officer of such trust
company or bank or to such banker, as the property of such party, the Bonds
therein mentioned if such certificate shall be deemed by the Trustee to be
satisfactory. The ownership of Bonds shall be proved by the bond register.
For all purposes of this Indenture and of any proceedings for the
enforcement thereof, such person shall be deemed to continue to be the holder of
such Bond until the Trustee shall have received notice in writing to the
contrary.
Section 16.03. Exclusive Benefit of Indenture. Nothing expressed or
mentioned in or to be implied from this Indenture, or the Bonds issued
hereunder, is intended or shall be construed to give to any person or company
other than the parties hereto, and the holders of the Bonds secured by this
Indenture, any legal or equitable right, remedy or claim under or in respect of
this Indenture, or any covenants, conditions and provisions herein contained in
this Indenture and all the covenants, conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto and the holders of the Bonds hereby secured as herein provided.
Section 16.04. Separability of Indenture Provisions. If any provision of
this Indenture shall be held or deemed to be or shall, in fact, be inoperative
or unenforceable as applied in any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases because it conflicts with
any provision of any constitution or statute or rule of public policy, or for
any other
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reason, such circumstances shall not have the effect of rendering the provision
in question inoperative or unenforceable in any other case or circumstance, or
of rendering any other provision or provisions herein contained invalid,
inoperative, or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses or paragraphs
in this Indenture contained shall not affect the remaining portions of this
Indenture or any part thereof.
Section 16.05. Service of Notices to the Company and the Trustee. Any
notice or demand that by any provision of this Indenture is required or
permitted to be given or served by the Trustee or any bondholder shall be
sufficiently given if delivered personally or mailed first-class postage prepaid
or by reputable overnight courier as follows: (i) if to the Company, to Unitil
Energy Systems, Inc., 6 Liberty Lane West, Hampton, New Hampshire 03842-1720,
Attention: Treasurer, or at such other address as the Company may furnish the
Trustee in writing and (ii) if to the Trustee, to U.S. Bank National
Association, 2 Avenue de Lafayette, Boston, Massachusetts 02111, Attention:
Corporate Trust Department, or at such other address as the Trustee may furnish
the Company in writing.
Section 16.06. Repayment of Unclaimed Money. In the event that any Bond
issued hereunder shall not be presented for payment when the principal thereof
becomes due, either at maturity or otherwise, or at the date fixed for the
redemption thereof and the Company shall have deposited with the Trustee for the
purpose, or left with it if previously so deposited, moneys sufficient to pay or
redeem such bond, the Trustee shall, upon demand of the Company, in case the
holder of any such bond shall not, within six (6) years after the maturity of
any such bond or the date fixed for the redemption of any such bond, claim the
amount so deposited, pay over to the Company such amount, if the Company if at
the time no Default or Event of Default has occurred or is continuing. The
Trustee shall thereupon be relieved from all responsibility to the holder
thereof and in the event of such payment to the Company the holder of any such
Bond shall be deemed to be an unsecured creditor of the Company for an amount
equivalent to the amount deposited as above stated for the payment thereof and
so paid over to the Company.
Section 16.07. Certificates or Opinions to Trustee. Each certificate or
opinion provided for in this Indenture delivered to the Trustee with 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 covenant or
condition has been complied with; and (4) a statement as to whether or not in
the opinion of such person such covenant or condition has been complied with.
Section 16.08. Successors and Assigns. Subject to the provisions of
Articles XII and XV hereof, whenever in this Indenture any of the parties hereto
is named or referred to this shall be deemed to include the successors or
assigns of such party, and all the covenants and agreements in this Indenture
contained by or on behalf of the Company or by or on behalf of the Trustee
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shall bind and inure to the benefit of the respective successors and assigns of
such parties whether so expressed or not.
Section 16.09. Counterparts. This Twelfth Supplemental Indenture shall be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 16.10. Effect of Headings and Table of Contents. The cover of this
Indenture and all article and descriptive headings and the table of contents are
inserted for convenience only, and shall not affect any construction or
interpretation hereof.
Section 16.11. New Hampshire Law Applicable. This Indenture and the Bonds
shall be governed by and construed in accordance with the laws of The State of
New Hampshire.
Part Two
Restatement of Terms and Provisions of
Bonds of the Merger Date Series
Article I
Restatement of Terms and Provisions of Series I, 8.49% Bonds
Section 1.01. Terms and Provisions of Series I, 8.49% Bonds. The terms and
provisions of the Series I, 8.49% Bonds which were set forth in the Eighth
Supplemental Indenture are hereby amended and restated in their entirety in
Exhibit C attached hereto, which shall become effective as of the Merger Date
and control with respect to all terms and provisions of the Series I, 8.49%
Bonds and the Eighth Supplemental Indenture as of the Merger Date shall have no
further force or effect with respect thereto.
Article II
Restatement of Terms and Provisions of Series J, 6.96% Bonds
Section 1.01. Terms and Provisions of Series J, 6.96% Bonds. The terms and
provisions of the Series J, 6.96% Bonds which were set forth in the Ninth
Supplemental Indenture are hereby amended and restated in their entirety in
Exhibit D attached hereto, which shall become effective as of the Merger Date
and control with respect to all terms and provisions of the Series J, 6.96%
Bonds and the Ninth Supplemental Indenture as of the Merger Date shall have no
further force or effect with respect thereto.
Article III
Restatement of Terms and Provisions of Series K, 8.00% Bonds
Section 1.01. Terms and Provisions of Series K, 8.00% Bonds. The terms and
provisions of the Series K, 8.00% Bonds which were set forth in the Tenth
Supplemental Indenture are hereby amended and restated in their entirety in
Exhibit E attached hereto, which shall become effective as of the Merger Date
and control with respect to all terms and provisions of the
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Series K, 8.00% Bonds and the Tenth Supplemental Indenture as of the Merger Date
shall have no further force or effect with respect thereto.
Part Three
Terms and Provisions of Exchange Bonds
Article I
Terms and Provisions of Series L, 8.49% Bonds
Section 1.01. Terms and Provisions of Series L, 8.49% Bonds. As a result of
the Merger, the Exeter Bonds described in clause (iv) of Article III of the
Restated Indenture, are being exchanged as of the Merger Date for new Series L,
8.49% Bonds of the Company, the terms and provisions for which are set forth in
Exhibit F attached hereto.
Article II
Terms and Provisions of Series M, 6.96% Bonds
Section 1.01. Terms and Provisions of Series M, 6.96% Bonds. As a result of
the Merger, the Exeter Bonds described in clause (v) of Article III of the
Restated Indenture, are being exchanged as of the Merger Date for new Series M,
6.96% Bonds of the Company, the terms and provisions for which are set forth in
Exhibit G attached hereto.
Article III
Terms and Provisions of Series N, 8.00% Bonds
Section 1.01. Terms and Provisions of Series N, 8.00% Bonds. As a result of
the Merger, the Exeter Bonds described in clause (vi) of Article III of the
Restated Indenture, are being exchanged as of the Merger Date for new Series N,
8.00% Bonds of the Company, the terms and provisions for which are set forth in
Exhibit H attached hereto.
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In Witness Whereof, Unitil Energy Systems, Inc. has caused this instrument
to be executed in its corporate name by its President or one of its
Vice-Presidents and its corporate seal to be hereunto affixed and to be attested
by its Treasurer or one of its Assistant Treasurers, and U.S Bank National
Association, to evidence its acceptance of the trust hereby created, has caused
this instrument to be executed in its corporate name by an Authorized Officer,
all as of the day and year first above written.
Unitil Energy Systems, Inc.
By:
-------------------------(Corporate
Michael J. Dalton, President Seal)
Attest:
- --------------------------------
Mark H. Collin, Treasurer
U.S. Bank National Association
By:
-----------------------------------
Authorized Officer
Attest:
- --------------------------------
Authorized Officer
-73-
Schedule A - LIST OF PROPERTIES
Part I - MERRIMACK COUNTY PROPERTIES*
Properties and Transmission Line Easement Rights Located in Towns of
Allenstown, Boscawen, Bow, Canterbury, Chichester, Dunbarton, Epsom, Hopkinton,
Loudon, Pembroke, Salisbury and Webster, all in Merrimack County, New Hampshire
1. Rights reserved with respect to premises located on Capitol Street in
the City of Concord conveyed by the Company to 9-15 Capitol Street Corporation
by deed dated December 30, 1980, recorded in Book 1386, Page 199.
2. The substation property situated on the southerly side of Bridge Street
in Concord, New Hampshire shown on plan prepared by Richard D. Bartlett entitled
"Resubdivision, Boundary & Physical Evidence Survey for Concord Electric Co."
dated October 9, 1979, and recorded as Plan No. 6942, together with rights of
passage and other easement rights owned in connection therewith, being the lands
and rights acquired by the Company by the following deeds:
Recorded
Name of Grantor Date of Deed Book Page
John S. Bartlett et als July 01, 1901 344 98
Eva L. Swain, Guardian October 27, 1925 478 515
New England Cable Company January 19, 1937 552 364
Boston and Maine Railroad July 08, 1937 556 72
Boston and Maine Railroad June 21, 1949 665 477
Metropolitan Coal Company July 08, 1937 556 70
The State of New Hampshire November 20, 1951 703 392
The State of New Hampshire February 18, 1955 765 140
Tenney Coal Company February 02, 1940 573 569
Boston and Maine Railroad January 15, 1942 591 349
The State of New Hampshire March 21, 1950 677 209
Arthur J. Boutwell November 11, 1925 478 110
P.F.P. Concord, Inc. February 18, 1981 1388 280
except (a) that portion of the lands so acquired as lies easterly of the
westerly line of the Frederic E. Everett highway as acquired by The State of New
Hampshire by layout and award dated
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* All conveyances relate to premises located in Merrimack County, New Hampshire
and all recording references are to records on file at the Merrimack County
Registry of Deeds, Concord, New Hampshire
Schedule A
(to Twelfth Supplemental Indenture)
February 10, 1949, (b) that portion of the premises acquired from Boutwell (Book
478, Page 110) and the Boston and Maine Railroad (Book 591, Page 349) as
conveyed by the Company to PFP Concord, Inc. by deed dated February 18, 1981,
recorded in Book 1388, Page 283, but subject to a covenant in favor of the
Company, and (c) that portion of the premises acquired as conveyed by the
Company to John L. Hyde and Charles W. Thompson by deed dated December 28, 1981,
recorded in Book 1408, Page 652, subject to the reserved easement rights
described therein with respect to the operation, repair and expansion of the
said substation.
3. Certain transmission and distribution facilities and easement rights
with respect to land located in Concord, New Hampshire formerly part of the
so-called Sewalls Falls Hydro Electric Generating Station, as reserved in deed
dated December 23, 1969, recorded in Book 1065, Page 370.
4. The Penacook service building property located northerly of East Street
in that portion of Concord, New Hampshire, called Penacook and being the
property acquired by the Company by deed of Penacook Electric Light Company
dated May 31, 1917, recorded in Book 434, Page 263, subject to the dam and
flowage rights reserved by The Contoocook Manufacturing and Mechanic Company in
its deed dated August 1, 1891, recorded Book 294, Page 474, and to a sewer pipe
right of way conveyed by the Company to the City of Concord by deed dated
January 17, 1924, recorded in Book 469, Page 22, except Parcel 1 thereof as was
conveyed by the Company to David T. Kenney and Pearl A. Kenney by deed dated
November 2, 1972, recorded in Book 1152, Page 435.
5. The substation property situated in Concord, New Hampshire, southerly of
Pleasant Street, the land for which, together with a right of way to Pleasant
Street, was acquired by the Company by deeds of the Carmelite Monastery of
Concord dated November 1, 1950, recorded in Book 689, Page 262 and dated
September 17, 1957, recorded in Book 819, Page 6, subject to easement rights for
a driveway as conveyed by the Company to Carmelite Monastery of Concord by deed
dated September 11, 1959, recorded in Book 849, Page 482.
6. The substation property situated in Concord, New Hampshire, bordering on
Old Loudon Road, the land for which was acquired by the Company by deed of
George J. Bourassa and Winifred Bourassa dated June 8, 1954, recorded in Book
749, Page 499.
7. The substation property situated in Concord, New Hampshire, bordering on
Gulf Street, the land for which was acquired by the Company by deeds of Emma L.
Welch dated April 23, 1928 and January 13, 1949, recorded in Book 494, Page 419
and in Book 658, Page 190, respectively and by deed of Public Service Company of
New Hampshire dated March 22, 1949, recorded in Book 665, Page 454, except (a)
portion thereof as was conveyed by the Company to Public Service Company of New
Hampshire by deeds dated January 19, 1949, and March 23, 1949, recorded in Book
658, Page 194 and Book 665, Page 450 respectively, (b) portion thereof as was
acquired by the City of Concord in the layout of Gulf Street under date of July
27, 1953, and (c) subject to slope easement granted to the State of New
Hampshire with respect to highway construction on State-owned property abutting
land of the Company in Concord, New Hampshire as conveyed by Corporation Slope
Easement deed dated April 3, 1997, recorded in Book 2051,
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Page 1883, as corrected by Corrective Slope Easement deed dated July 9, 1997,
recorded in Book 2062, Page 865.
8. The substation property situated in Concord, New Hampshire, lying
easterly of North State Street, the land for which was acquired by the Company
by deed of Thomas Fox dated June 25, 1925, recorded in Book 479, Page 95,
together with a right of way leading from said land to North State Street,
acquired by said deed from Fox and by the following instruments:
Recorded
Name of Grantor Date Book Page
Elmer W. Olson et als October 15, 1931 519 320
The State of New Hampshire by March 22, 1935 536 412
Charles B. Clarke, Agent
Elmer W. Olson October 16, 1931 519 325
subject to a sewer pipe right of way conveyed by the Company to the City of
Concord by deed dated February 5, 1930, recorded in Book 519, Page 323.
9. The substation property situated in that portion of Concord, New
Hampshire, called Penacook bordering in part on the Daniel Webster Highway, on
Penacook Street and on Abbott Road, the land for which and certain rights owned
in connection therewith were acquired by the Company under the following deeds:
Recorded
Name of Grantor Date Book Page
First National Bank of Concord February 29, 1940 566 263
First National Bank of Concord July 12, 1940 579 230
Public Service Company of New Hampshire December 16, 1940 583 115
C. M. & A. W. Rolfe, Inc. October 29, 1941 585 559
Public Service Company of New Hampshire March 7, 1956 786 322
subject to an electric line right of way owned by Public Service Company of New
Hampshire and other rights referred to in said deed recorded in Book 566, Page
263, and except so much of said land as was conveyed by the Company under the
following deeds:
Recorded
Name of Grantee Date Book Page
C. M. & A. W. Rolfe November 1, 1941 585 560
Arthur Brodeur October 11, 1946 631 252
-3-
James F. Freeman and Rose A. Freeman April 5, 1950 677 251
Asa A. Batchelder and Evelyn M. Batchelder July 12, 1950 710 294
Celestia A. Loranger June 29, 1966 986 460
Merrimack Valley School District March 7, 1967 1002 177\1
10. The substation property situated in Concord, New Hampshire on the
easterly side of South Main Street, the land for which was acquired by the
Company by deed of William E. Sleeper dated August 29, 1950, recorded in Book
686, Page 42, except (a) portion thereof as was conveyed by the Company to The
State of New Hampshire by deed dated June 5, 1956, recorded in Book 792, Page
90, (b) portion thereof as was conveyed by the Company to Humble Oil & Refining
Company by deed dated July 11, 1972, recorded in Book 1138, Page 229, and (c)
portion thereof as was conveyed by the Company to The State of New Hampshire by
deed dated November 5, 1987, recorded in Book 1687, Page 108.
11. The regulator station property situated in Canterbury, New Hampshire,
bordering on West Road -- North, the land for which was acquired by the Company
by deed of Ralph Graham et als, dated March 4, 1950, recorded in Book 677, Page
162.
12. A lot of land bordering on High Street in Salisbury, New Hampshire,
acquired by the Company by deed of Ralph H. Rogers and Elizabeth Rogers dated
May 20,1953, recorded in Book 731, Page 171.
13. Tract of about 6,500 sq. ft. located on the Dover Road in the Town of
Chichester, acquired as site for regulator station by deeds to the Company of
following grantors:
Edward Gibbs, Jr. and Blanche J. Gibbs dated November 1, 1958, recorded in
Book 833, Page 325, and further deed of same grantors dated November 26,
1958, recorded in Book 836, Page 125.
Try-Gen, Inc. dated April 22, 1959, recorded in Book 844, Page 11, except
portion thereof (4,950 sq. ft.) condemned by the State of New Hampshire for
highway construction purposes under RSA 498-A:5 of the laws of the State of
New Hampshire, said taking by Notice of Condemnation dated August 30, 1991,
recorded in Book 1866, Page 1358.
14. Tract of about 130,000 sq. ft. situate on Old Turnpike Road in the City
of Concord, acquired as site for future substation, by deed of Concord Regional
Development Corporation dated December 30, 1958, recorded in Book 836, Page 544,
except portion thereof
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1/ Excepting and reserving easement rights with respect to said substation and
associated transmission lines. See also Transmission Line Easement conveyed by
Utility Easement deed of Merrimack Valley School District to Concord Electric
Company, dated March 7, 2001, recorded in Book 2253, Page 003.
-4-
(26,476 sq. ft.) as was conveyed by the Company to Concord Regional Development
Corporation by deed dated August 2, 1972, recorded in Book 1141, Page 148.
15. Tract of about 3,300 sq. ft. located off North State Street in the City
of Concord, as well as all interest of the grantor in the adjoining easterly
one-half of the Railroad location, acquired by deed of C. M. Rice Paper Company
dated June 1, 1965 recorded in Book 964, Page 189, subject, however, to a sewer
easement as conveyed by the Company to the City of Concord, by deed dated
December 7, 1965, recorded in Book 977, Page 31.
16. Tract of about 30,000 sq. ft. located on the road from Boscawen to
Canterbury in the Town of Boscawen, acquired as site for Boscawen distribution
substation, by deed of Edward G. and Marion S. Powell dated September 2, 1960,
recorded in Book 870, Page 24, subject to slope easement as conveyed by the
Company to the State of New Hampshire with respect to highway construction on
State-owned property abutting land of the Company in Concord, New Hampshire, by
Corporation Slope Easement deed dated September 6, 1995, recorded in Book 1998,
Page 610.
17. Easement rights for a transmission line and access as reserved in deed
of the Company to Riverside Millwork Company, Inc. by deed dated March 22, 1982,
recorded in Book 1412, Page 409, and shown on plan prepared by Richard D.
Bartlett entitled "Boundary Survey Only for Concord Electric Company Location,
Merrimack Street, Penacook, New Hampshire" dated September 1, 1981, recorded as
Plan No. 7025.
18. Tract of 4.9 acres located near McGuire Street in the City of Concord,
acquired as site for Service Center building by deed of Franklin Hollis dated
February 28, 1964, recorded in Book 940, Page 403 and related relocation of
State of New Hampshire right of way per Indenture between the Company and the
State dated December 30, 1964, recorded in Book 954, Page 397.
19. Tract of about 22,500 sq. ft. on Langdon Street in the City of Concord,
acquired as site of Langdon Street distribution substation by deed of B. & M.
Realty Corporation dated February 5, 1965, recorded in Book 956, Page 72.
20. Tract of about 39,000 sq. ft. located on West Portsmouth Street in the
City of Concord, acquired as distribution substation site, by deed of The State
of New Hampshire dated November 3, 1966, recorded in Book 997, Page 299.
21. Rights-of-way for 3.2 miles of transmission line between West Concord
distribution substation and St. Paul's School as conveyed by following deeds:
Recording Reference
Date of Deed Book Page Grantor Location
Mar. 16, 1959 849 537 St. Paul's School\2 Concord
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2/ This easement released March 11, 1964 in connection with the conveyance of a
subsequent easement on that date to the Company by the same grantor, recorded in
Book 939, Page 415.
-5-
Recording Reference
Date of Deed Book Page Grantor Location
Apr. 06, 1959 842 147 Martin E. & Dorothy M. White Concord
Feb. 02, 1960 857 344 W. Grant & Thelma H. McIntosh Concord
Nov. 22, 1960 874 174 Germaine B. & C. Murray Sawyer and Joseph & Concord
Elizabeth Jordan
Nov. 22, 1960 874 172 Germaine B. Sawyer et al Concord
Dec. 31, 1960 874 449 Daniel J. & Mary V. Scully Concord
May 01, 1962 899 37 City of Concord Concord
July 10, 1962 903 81 State of New Hampshire Concord
Mar. 19, 1963 918 58 Josephine W. & Edgar F. Woodman Concord
Mar. 11, 1964 939 415 St. Paul's School Concord
June 18, 1964 945 531 Germaine B. & C. Murray Sawyer Concord
Dec. 30, 1964 955 24 New England Telephone & Telegraph Co. Concord
Aug. 27, 1965 968 535 New England Telephone & Telegraph Co. Concord
June 29, 1962 907 169 New England Box Company Concord\3
22. Rights-of-way relating to 1.2 miles of transmission line between
Penacook distribution substation and tap in Penacook Village in the City of
Concord serving Brezner Tanning Corp. as conveyed by following deeds:
Recording Reference
Date of Deed Book Page Grantor Location
Apr. 06, 1959 841 315 Howard E. & Luwilda M. Raymond Concord
Feb. 01, 1961 876 103 John H., Isabel, David J., and Edwina L. Concord
Morrill
Feb. 01, 1961 876 153 Raymond F. & Thelma P. George Concord
Jan. 01, 1961 877 71 City of Concord Concord
June 28, 1962 899 465 John G. & Katherine J. Toomey Concord
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3/ The latter conveyance was of the full title to the subject parcel. Tracts II
and III thereof were thereafter conveyed by the Company to John Swenson Granite
Company, Inc. by deed dated June 29, 1964, recorded in Book 941, Page 542,
reserving a transmission line easement to the Company. Tract III thereof was
thereafter conveyed by the Company to City of Concord, conveyed to the City of
Concord by Deed dated October 19, 1979, recorded in Book 1360, Page 220.
-6-
Recording Reference
Date of Deed Book Page Grantor Location
Mar. 07, 1967 1003 203 Merrimack Valley School District\4 Concord
Aug. 09, 1967 1016 448 Arthur S. & Florence M. Brodeur Concord
Aug. 07, 1967 1016 451 Harold L. & Rena M. Bradford Concord
Aug. 08, 1967 1016 443 Lewis & Barbara C. Kelso Concord
Oct. 10, 1967 1016 452 Felix & Patronyne Brodeur Concord
Aug. 08, 1967 1016 447 Olive F. Stevens Concord
Oct. 03, 1967 1016 446 Robert K. & Virginia D. Scott Concord
23. Rights-of-way for 2.8 miles of transmission line between Boscawen
distribution substation and tap in Penacook Village in the City of Concord
serving Brezner Tanning Corp. as conveyed by following deeds:
Recording Reference
Date of Deed Book Page Grantor Location
Sept. 02, 1960 870 26 George A. & Bessie L. Raymond Boscawen
Sept. 08, 1960 870 83 William T. & Mina C. Jordan Boscawen
Nov. 19, 1960 872 181 Edgar R. & Beverly Crete Boscawen
Nov. 21, 1960 872 196 William T. & Mina C. Jordan Boscawen
Jan. 01, 1961 877 34 Concord Savings Bank Concord
Jan. 24, 1961 876 165 R. Louis, Elaine G., Arnold R., and Arlene Boscawen
Martin
Jan. 17, 1961 877 28 Arthur N. Runnells and Concord Savings Bank Concord
Jan. 28, 1961 876 151 Maurice A. & Theodora D. Drolet Boscawen
May 09, 1961 881 95 State of New Hampshire Boscawen
24. Rights-of-way for 7.5 miles of transmission line in the Town of
Boscawen, acquired by deed of Public Service Company of New Hampshire dated
March 11, 1960, recorded in Book 857, Page 513, except for that portion thereof
conveyed to the State of New Hampshire by deed of the Company dated April 14,
1961, recorded in Book 881, Page 97.
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4/ Subject to thirty (30) foot right of way and other easement rights as
conveyed by the Company to NE Tel. and Tel. Co. by deed dated February 3, 1992,
recorded in Book 1876, Page 739.
-7-
25. Rights-of-way for .96 miles of transmission line between Concord Plains
substation of the Company and Sprague Electric Company plant on Pembroke Road in
the City of Concord as conveyed by the following deeds:
Recording Reference
Date of Deed Book Page Grantor Location
July 26, 1960 865 455 Jessie E. Pedeare Concord
Aug. 22, 1960 865 447 L. J. & Elizabeth G. Denis Concord
Aug. 26, 1960 866 490 Harold & L. Marie Johnson Concord\5
Aug. 26, 1960 866 489 Louise V. Cherette Concord
Aug. 26, 1960 866 527 Jennie M. Robbins Concord
Mar. 29, 1961 876 412 Merrimack Power Company\6 Concord
Mar. 30, 1961 876 410 Oscar L. Drew\7 Concord
26. Tract of about 16,500 sq. ft. located on the Bow Bog Road in the Town
of Bow, acquired as site for Bow distribution substation, by deed of Arthur W.
and Laura B. Sargent dated June 2, 1969, recorded in Book 1054, Page 120.
27. Right-of-way for 355 feet of transmission line between Langdon Street
substation of the Company and the McKerley Medical Care Center off South Street
in the City of Concord, conveyed by deed of Capitol Dodge, Inc. dated June 9,
1971, recorded in Book 1102, Page 77.
28. Tract of about 1.13 acres located on Iron Works Road in the City of
Concord, acquired as site for distribution substation, conveyed by deed of the
State of New Hampshire, dated October 31, 1973, recorded in Book 1194, Page 87.
29. Tract of about 7 acres located on East Sugar Ball Road in the City of
Concord, acquired for 1155 feet of transmission line between Hazen Drive and
Hollis substations of the Company conveyed by deed of Francis J. Faucher, dated
January 25, 1974, recorded in Book 1201, Page 413, except portion thereof (2.82
acres.) condemned by the State of New Hampshire for highway construction
purposes under RSA 498-A:5 of the laws of the State of New Hampshire, said
taking by Notice of Condemnation dated August 1, 1977, recorded in Book 1300,
Page 714, as amended January 5, 1978, recorded in Book 1312, Page 206.
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5/ See also Right-of-way for approximately 1220 feet of underground transmission
facilities along the southerly side of Branch Turnpike in the City of Concord,
conveyed to the Company by deed of Johnson Estates, Inc., dated May 28, 1986,
recorded in Book 1602, Page 940.
6/ Deed conveys full title rather than transmission line easement only.
7/ Deed conveys full title rather than transmission line easement only. Tract of
approximately 6.64 acres located northerly of Pembroke Road in the City of
Concord, conveyed by the Company to A & G Realty by deed dated November 8, 1985,
recorded in Book 1537, Page 259, subject to reserved transmission line rights as
described therein.
-8-
30. The substation property situated in Concord, New Hampshire on the
southerly side of Hazen Drive, the land for which was acquired by the Company by
deed of (a) Richard L. and Linda L. Clark dated February 27, 1974, recorded in
Book 1203, Page 513 (approximately 13,083 sq. ft.), except portion thereof
(5,000 sq. ft.) as was conveyed by the Company to United Church of Christ
Retirement Center, Inc. by deed dated June 8, 1978, recorded in Book 1322, Page
570, and (b) United Church of Christ Retirement Community, Inc., dated June 1,
1978, recorded in Book 1322, Page 503 (approximately 8,250 sq. ft.), as
corrected by deed dated November 22, 1978, recorded in Book 1336, Page 497, and
(c) Stanley H. Prescott dated April 8, 1974, recorded in Book 1206, Page 448
(for access).
31. Tract of about 5.6 acres located on the westerly bank of the Merrimack
River in the City of Concord, acquired as the site for transmission line river
crossing tower, conveyed by deed of the Estate of Bertha Salvucci dated June 10,
1974, recorded in Book 1216, Page 251.
32. Rights-of-way relating to 3.1 miles of transmission line between Hollis
substation of the Company and a tap on the transmission line between Bridge
Street and West Portsmouth Street substations of the Company, conveyed by the
following deeds:
Recording Reference
Date of Deed Book Page Grantor Location
Mar. 29, 1972 1127 414 State of New Hampshire Concord
Dec. 07, 1973 1197 248 Christopher H. Edmunds Concord
Dec. 10, 1973 1197 252 Ernest A. Boulay Concord
Jan. 11, 1974 1200 91 Christopher H. Edmunds Concord
33. License to cross land owned by the State of New Hampshire in the City
of Concord with a portion of the transmission line between the West Concord and
Penacook substations of the Company to serve Weeks-Concord Dairy, Inc., granted
by the New Hampshire Public Utilities Commission by its Order No. 11367, dated
April 5, 1974, recorded in Book 1236, Page 303.
34. Right-of-way for about 215 feet of transmission line from a tap on the
transmission line between the Garvins Falls substation of Public Service Company
of New Hampshire and the Bridge Street substation of the Company, acquired to
serve Flanders Office Building on Loudon Road east of the Merrimack River in the
City of Concord, conveyed by deed of Stanley A. Bartlett and Phyllis M. and G.
Alvin Towle, dated February 14, 1975, recorded in Book 1235, Page 450.
35. Right-of-way for about 2000 feet of transmission line in the City of
Concord from a tap on the transmission line between the Pleasant Street and West
Concord substations of the Company to serve United Life and Accident Insurance
Company, conveyed by deed of the City of Concord, dated April 22, 1975, recorded
in Book 1241, Page 40.
36. Tract of about 6.39 acres located on Sewalls Falls Road in the City of
Concord, acquired as site for bulk power supply step-down station, 115KV to
34.5KV, conveyed by deed of Edward J. Sullivan, dated May 8, 1978, recorded in
Book 1321, Page 371.
-9-
37. Right-of-way for about 700 feet of transmission line in the City of
Concord from a tap on the Company's transmission line between its Terrill Park
and Bridge Street substations, acquired as part of the necessary easements to
serve the Flanders Office Building, so-called, on Loudon Road in the City of
Concord, conveyed by deed of Earl L. and Dorothy J. Flanders, dated February 14,
1975, recorded in Book 1242, Page 214. See also Schedule A, Part II, Item 5 of
the Company's Third Supplemental Indenture dated as of July 1, 1975, from which
this acquisition was inadvertently omitted.
38. Right-of-way to provide for the relocation of about 843 feet of
transmission line in the City of Concord between the Penacook and Boscawen
substations of the Company across premises of the Grantor on Merrimack Street in
the Village of Penacook, conveyed by quitclaim deed of Riverside Millwork
Company, Inc., dated October 14, 1976, recorded in Book 1282 page 1069.
39. Transmission line easement in the City of Concord between the Hazen
Drive and Hollis substations of the Company acquired by the Company by deed of
United Church of Christ Retirement Center, Inc., dated June 26, 1978, recorded
in Book 1323, Page 270.
40. Right-of-way to provide for relocation of about 845 feet of
transmission line in the City of Concord between the Gulf Street and Bridge
Street substations of the Company across premises acquired by deed of the State
of New Hampshire, dated January 17, 1980, recorded in Book 1366, Page 63.
41. Right-of-way for about 520 feet of transmission line in the City of
Concord between the Bow Junction and Pleasant Street substations of the Company,
conveyed by deed of Concord Union School District, dated September 10, 1981,
recorded in Book 1403, Page 29, confirmed by deed dated June 9, 1982, recorded
in Book 1417, Page 877.
42. License for about 1.8 miles of transmission line in the City of Concord
between the Bow Junction and Pleasant Street substations of the Company
excepting those portions of the line which cross (a) the premises with respect
to which an easement was conveyed to the Company by Concord Union School
District (Item 5 above) and (b) premises of the Company located on Iron Works
Road. This license, dated June 30, 1982, was granted by Governor and Council
pursuant to Order No. 15,618 of the New Hampshire Public Utilities Commission,
recorded in Book 1420, Page 759.
43. Tract of approximately 0.46 acres located on the southerly side of
Branch Turnpike in the City of Concord acquired by the Company by deed of A & G
Realty, dated November 8, 1985, recorded in Book 1537, Page 263.
44. Leasehold rights with respect to a certain parcel of land located on
the southerly side of U.S. Route 4 in Epsom, New Hampshire, for use as a
step-down transformer location, a "mobil sub," and any appurtenant equipment
necessary or convenient for the operation thereof pursuant to a certain Lease
Agreement by and between Dennis Nolin and David Pauliotte (collectively
"Lessor") and Concord Electric Company ("Lessee"), dated June 8, 1988, and
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recorded in Book 1731, Page 397, such agreement having a term of five years, and
a renewal option for an additional five year term.
45. Leasehold rights with respect to a certain parcel of land located on
the southerly side of U.S. Route 4 in Epsom, New Hampshire for use as a
step-down transformer location, a "mobil sub," and any appurtenant equipment
necessary or convenient for the operation thereof pursuant to a Lease Agreement
between Dennis Nolin and David Pauliotte and Concord Electric Company dated May
28, 1993 and recorded in Book 1917, Page 1853, for a term of five years and a
renewal option for an additional five year term.
46. Transmission Line Easement conveyed by Utility Easement deed of Capital
Regional Development Council to Concord Electric Company, dated May 27, 1999,
recorded in Book 2158, Page 842.
47. Transmission Line Easement conveyed by instrument entitled Addition to
Utility Easement granted by Capital Regional Development Council to Concord
Electric Company, dated December 21, 2000, recorded in Book 2236, Page 1542.
48. Transmission Line Easement conveyed by Utility Easement deed of Irene
C. Bridges to Concord Electric Company, dated February 12, 2001, recorded in
Book 2243, Page 601.
49. Transmission Line Easement conveyed by Utility Easement deed of Park
Plaza Limited Partnership to Concord Electric Company, dated February 6, 2002,
recorded in Book 2361, Page 789.
50. Transmission Line Easement conveyed by Utility Easement deed of Irving
Oil Corporation to Concord Electric Company, dated October 17, 2002, recorded in
Book 2418, Page 1908.
51. All lines of poles and wires, both transmission and distribution,
situated in the City of Concord and the Towns of Allenstown, Boscawen, Bow,
Canterbury, Chichester, Dunbarton, Epsom, Hopkinton, Loudon, Pembroke, Salisbury
and Webster, all in the County of Merrimack, in The State of New Hampshire,
including without limiting the generality of this description, all rights,
privileges, easements in the Company's transmission line running from Garvins
Falls, in said Concord, to that section of Concord known as Penacook, with all
connections, appliances, appurtenances and apparatus connected therewith,
including transformers, services, meters, switches and other devices, with all
rights of way, franchises and locations existing in respect thereto, situated in
the City of Concord and the towns above mentioned.
-11-
SCHEDULE A
Part II - Rockingham County Properties*
Properties and Transmission Line Easement Rights Located in Towns of Exeter,
Hampton, Hampton Falls, Seabrook, Stratham, Kingston, East Kingston,
South Hampton, Newton, Danville, Plaistow, Atkinson, Kensington,
North Hampton, Greenland, Brentwood, Derry, and Hampstead,
all in Rockingham County, New Hampshire
1. Rights reserved with respect to premises located on southerly side of
South Street in the Exeter conveyed by the Company to John A. Bell, the State of
New Hampshire and John W. Flynn, Jr., as tenants in common, by deed dated
December 27, 1978 and recorded in Book 2329, Page 1241.
2. The substation property, situated in Exeter, New Hampshire, on the
Southerly side of River Street, so-called, and being the same premises acquired
by the Company by deed of Fred L. Colcord, dated July 3, 1926, recorded in Book
815, Page 279, and including the right of the Company to erect and maintain a
transmission line or lines from the conveyed premises across the Exeter River,
so-called, as included in said conveyance.
3. The switching-station property, situated in Exeter, New Hampshire, on
the Southerly side of the Exeter River, so-called, and being the same premises
acquired by the Company by deed of The Trustees of The Phillips Exeter Academy,
dated December 14, 1939, recorded in Book 963, Page 275, together with a
right-of-way twelve (12) feet in width extending from Gilman's Lane, so-called,
on other property of said Trustees to the conveyed switching station property.
Said right-of-way hereinabove referred to was discontinued as of the fifteenth
day of March, 1947 and an additional right-of-way in lieu thereof twelve (12)
feet in width was conveyed to Exeter & Hampton Electric Company by The Trustees
of The Phillips Exeter Academy by deed dated March 15, 1947, recorded in Book
1073, Page 407, as appurtenant to the right and easement to maintain an
underground system from said switching-station lot to High Street, so-called,
therein conveyed.
4. The substation property, situated in Hampton, New Hampshire, on the
Southerly side of Lafayette Avenue, so-called, and being the same premises
acquired by the Company under the following deeds:
Date of Deed Book Page Grantor Location
Sept. 25, 1926 804 123 Simeon A. Shaw Hampton
Oct. 28, 1935 896 381 Simeon A. Shaw Hampton
- ----------------------------
* All conveyances relate to premises located in Rockingham County, New
Hampshire, and all recording references are to records on file at the Rockingham
County Registry of Deeds, Exeter, New Hampshire.
Schedule A
(to Twelfth Supplemental Indenture)
Said premises are conveyed subject to the rights of The State of New
Hampshire and/or the Town of Hampton, to construct and maintain an approach to
the overhead bridge maintained across property of the Boston & Maine Railroad,
along and over the Westerly side of the conveyed property.
5. The substation property, situated in Hampton, New Hampshire, on the
Glade Path, so-called, and being the same premises acquired by the Company by
deed of Hampton Beach Improvement Company, dated November 8, 1926, recorded in
Book 831, Page 13.
6. The substation property, situated in Hampton, New Hampshire, on the
Guinea Road West, so-called, and being the same premises acquired by the Company
by deed of Clarence T. Brown, dated August 17, 1926, recorded in Book 804, Page
43.
7. The substation property, situated in Kingston, New Hampshire, and being
the same premises acquired by the Company by deed of John W. Trow, dated May 28,
1937, recorded in Book 931, Page 157, except that portion of the premises
acquired (approximately 1350 square feet) as conveyed by the Company to Edward
B. Holt and Helen J. Holt by deed, dated January 26, 1988, recorded in Book
2727, Page 1232, subject to transmission easement rights reserved therein.
The above described property is conveyed subject to a right to erect,
maintain and operate a transmission line or lines as acquired by Rockingham
County Light and Power Company under deed of Mary J. Crosby, dated May 18, 1904,
recorded in Book 601, Page 389, which right is now owned and operated by New
Hampshire Electric Company, and more specifically described as the right to
maintain a transmission line consisting of poles, wires and all necessary
appurtenances, together with a right to keep clear of all growth detrimental to
the proper operation of said line, a space of one rod on either side of the
center line thereof.
8. The substation property situated on Glade Path in Hampton, New
Hampshire, in that section known as Hampton Beach acquired by the Company by
deed of Hampton Beach Improvement Company, dated February 21, 1949, recorded in
Book 1124, Page 37.
9. The substation property situated in Plaistow, New Hampshire, on the
Easterly side of Witch Lane, so-called, acquired by the Company by deed of Roger
B. Hill, dated August 16, 1951, recorded in Book 1219, Page 63, except (a) those
portions of the premises acquired as conveyed by the Company to the Town of
Plaistow by deeds, dated June 27, 1977, recorded in Book 2287, Page 172 and Book
2287, Page 173, (b) that portion of the premises acquired as conveyed by the
Company to the Dart Container Corporation by deed dated June 27, 1977, recorded
in Book 2293, Page 1350, and (c) easement as conveyed by the Company to New
England Telephone and Telegraph Company by deed, dated June 25, 1979 recorded in
Book 2341, Page 1050.
10. The distribution lines, property, rights and franchises formerly owned
by Plaistow Electric Light & Power Company, situate principally in the Towns of
Plaistow and Atkinson, both in New Hampshire, as acquired by the Company by deed
of Plaistow Electric Light & Power Company, dated September 30, 1926, recorded
in Book 816, Page 470.
-2-
11. A license to construct and maintain a line of transmission wires and
poles over and across public waters in the Towns of Hampton and Hampton Falls,
New Hampshire, as shown by Petition D-E3308, Exeter & Hampton Electric Company
to New Hampshire Public Utilities Commission, Vol. XXXVI, Page 89.
12. A license to construct and maintain a line of transmission wires and
poles over and across lands of the Legatees under the Will of Moses Eaton, in
the Town of Seabrook New Hampshire, as shown by Petition D-E3327, Exeter &
Hampton Electric Company to New Hampshire Public Utilities Commission, Vol.
XXXVI, Page 189, and further recorded with Rockingham County Registry of Deeds,
Book 1323, Page 228.
13. A tract of land, including without limitation the Service Building
located thereon, situated in Kensington, New Hampshire, on the Drinkwater Road,
so-called, acquired by the Company by deed of John W. York, dated June 14, 1954,
recorded in Book 1319, Page 33, subject to the reservation of the said John W.
York to the use of a right-of-way approximately fifteen (15) feet in width
extending from said Drinkwater Road to other land of said John W. York, lying
Easterly of the land therein conveyed, for men, teams, vehicles, and for all
necessary and desirable purposes, subject, however, to the understanding and
agreement that said right-of-way shall not be fenced or made subject to gates
and bars, that the said John W. York shall assume all expenses of maintenance
thereof, and that said Company, its successors or assigns, shall have full and
unimpeded rights of using said right of way whenever necessary or desirable,
except that portion of the premises acquired as conveyed by the Company to
Arthur H. Chapman and Marion J. Chapman by deed dated December 26, 1968,
recorded in Book 1955, Page 91.
14. A tract of land situated in Seabrook, New Hampshire, acquired by the
Company by deed of Charles Fogg Janvrin, dated May 21, 1954, recorded in Book
1316, Page 425.
15. The East Kingston distribution substation located on the northerly side
of the East Kingston Road with a capacity of 1,500 KVA and consisting of a
transformer, switching facilities and associated apparatus, together with a
connection to the Kingston transmission line, constructed on a tract of land
acquired by the Company under a deed of Robert H. and Marjorie E. Andersen,
dated January 28, 1957, recorded in Book 1422, Page 215.
16. 3.4 miles of transmission line rights-of-way, including without
limitation, transmission and distribution wires and poles located thereon,
situated in Stratham, New Hampshire, acquired by the Company under the following
deeds:
Recording Reference
Date of Deed Book Page Grantor Location
Dec. 22, 1951 1307 351 Mary E, Summerfield Stratham
Nov. 12, 2002 TBR TBR Cabernet Builders of Stratham, L.L.C. Stratham
1315 496 Carrie J. Rollins Stratham
May 14, 1954 1315 360 Earle L. Stockbridge, Executor of the Will of Stratham
Florence E. Rollins
-3-
Oct. 26, 2002 TBR* TBR* Thornhill Condominium Association Stratham
May 22, 1985 2545 2989 Walter Biery Stratham
_______, 2002 TBR* TBR* Rollins Hill Development, L.L.C. Stratham
Mar. 17, 1987 2674 665 Christine A. Eldridge Stratham
Dec. 18, 1986 2650 521 Winifred and Louise Pazzanese Stratham
_______, 2002 Winifred M. Pazzanese Stratham
Dec. 18, 1986 2674 662 Charlan Chapman Stratham
Nov. 21, 1986 2644 1473 Daniel A. Daudelin Stratham
Nov. 30, 1982 2442 109 Virginia Holmgren and Lucy Perry Stratham
May 08, 1978 232 951 Lucy Perry Stratham
May 04, 2001 3577 1449 Parkman Brook Development, LLC Stratham
Jan. 24, 2002 3713 990 Parkman Brook Development, LLC Stratham
(corrective deed)
Nov. 1, 2002 TBR* TBR* Cameron Sewall, Trustee of the Cameron Sewall Stratham
1987 Trust; and Joan M. Sewall, Trustee of the
Joan M. Sewall 1987 Trust
Feb. 26, 2002 3770 2311 Joseph Falzone as Trustee of Bunker Hill Stratham
Realty Trust
Dec. 24, 1950 1194 457 H. Roby and Nellie M. Jewell Stratham
Nov. 15, 2002 TBR* TBR* William A. Woods Stratham
_______, 2002 TBR* TBR* Public Service Company of New Hampshire Stratham
Dec. 1950 1194 454 Nelson E. and Levi H. Barker Stratham
Oct. 23, 1963 PUC Order, in Archibald & Lucille Harding Hampton Falls
Condemnation
May 06, 1963 1669 194 Russell P. Merrill Sr. & Jr. Hampton Falls
*TBR = To be recorded
17. A right-of-way for purposes of transmission and distribution lines,
situated in Hampton, New Hampshire, acquired by the Company by deed of Henry V.
Dupuis, dated July 21, 1955, recorded in Book 1362, Page 81.
-4-
18. A tract of land for purposes of transmission and distribution lines,
situated in Hampton, New Hampshire, acquired by the Company by deed of Richard
J. Oosting and Olive B. Oosting, dated May 27, 1955, recorded in Book 1355, Page
476.
19. The 33 KV Kingston transmission line 11.8 miles in length consisting of
rights of way with poles, wires and apparatus erected thereon running from a
point near the Company's Guinea Road switching station in Hampton, New
Hampshire, through the Towns of Hampton, Hampton Falls, Kensington, East
Kingston and Kingston, New Hampshire, to a distribution substation at West
Kingston Road in Kingston, acquired by the Company under the following deeds:
Deed of the New Hampshire Electric Company, dated December 31, 1955,
recorded in Book 1383, Page 102;
Deed of Horace B. Philbrick, dated November 27, 1957, recorded in Book
1453, Page 111;
together with a tie between said transmission line and the Guinea Road station
constructed upon rights of way theretofore owned by the Company.
21. Rights-of-way to widen the 11.8 miles of 33 KV Kingston transmission
line to 100 feet to provide for a second circuit in the future from the
Company's Guinea Road Switching Station in Hampton, New Hampshire, through the
towns of Hampton, Hampton Falls, Kensington, East Kingston and Kingston, New
Hampshire, to a distribution substation at West Kingston Road, Kingston,
acquired by the Company under the following deeds:
Date of Deed Book Page Grantor Location
Jan. 11, 1961 1574 72 Edward B. & Helen J. Holt Kingston
Dec. 07, 1960 1571 40 Thomas D. & Jean M. Spinella Kingston
Nov. 24, 1961 1609 95 Chas. W. & Clinton W. Senter Kingston
Jan. 14, 1961 1574 70 Warren W. & Marjorie N. George Kingston
Jan. 28, 1961 1574 584 Arthur E. Alton Kingston
Dec. 17, 1960 1571 43 John A. & Anna W. Greene Kingston
Jan. 05, 1962 1613 331 Amanda C. Goodwin et alii Kingston
Sept. 23, 1961 1600 341 Sarkis Bannaian Kingston
Jan. 23, 1962 1614 403 George E. & Edith Arnold Kingston
Jan. 10, 1962 1613 329 John E. & Gardner Ladd Kingston
Jan. 10, 1962 1613 324 E. M. Bowley & J. B. Dutton Kingston
Jan. 14, 1961 1574 82 Frieda M. & Walter R. Modlich Kingston
Jan. 11, 1961 1574 75 Kenneth & Gladys F. Hoyt Kingston
Apr. 01, 1961 1579 84 Beverly S. & Mary S. Chamberlain Kingston
Apr. 01, 1961 1579 87 Beverly S. & Mary S. Chamberlain East Kingston
Jan. 11, 1961 1574 55 Arnold L. & A. Elvena Belcher East Kingston
Jan. 11, 1961 1574 84 Lucy A. Sprague East Kingston
Nov. 25, 1961 1609 103 Frederick P. & Dorothy H. Montrose East Kingston
-5-
Date of Deed Book Page Grantor Location
Jan. 28, 1961 1574 587 Archie D. & Ellen B. Osmond East Kingston
Nov. 25, 1961 1609 100 Frederick P. & Dorothy H. Montrose East Kingston
Dec. 17, 1960 1571 227 George E. & Lillian A. Henshaw East Kingston
Jan. 11, 1961 1574 62 Henry H. & Emily H. Clark East Kingston
Jan. 23, 1962 1614 405 Harold P. Nason Kingston
Nov. 25, 1961 1609 98 Arlan T. & Jacqueline W. Clements Kingston
Jan. 27, 1962 1615 299 Nellie R. Shattuck Kingston
Mar. 22, 1962 1620 368 John J. Bakie Kingston
Apr. 26, 1961 1580 546 John W. & Nora M. Tuthill (Lot) Kingston
Jan. 14, 1961 1574 79 G. Austin & Donald A. Kemp East Kingston
Dec. 17, 1960 1571 35 J. Edward & Annie L. Stevens East Kingston
Dec. 17, 1960 1571 38 J. Edward & Annie L. Stevens East Kingston
Jan. 12, 1962 1613 326 John W. & Jessie E. York East Kingston
Apr. 15, 1961 1580 539 Wendell E. & Doris M. Sweetser East Kingston
Apr. 15, 1961 1580 535 Wendell E. & Doris M. Sweetser East Kingston
Oct. 18, 1961 1603 360 Richard E. Sargent East Kingston
Jan. 31, 1961 1574 581 Paul W. & Marian C. Kimball Kensington
Jan. 14, 1961 1574 60 Parker M. Blodgett Kensington
Apr. 29, 1961 1581 224 Margaret M. Alger Kensington
Apr. 26, 1961 1580 542 John W. & Nora M. Tuthill Kensington
Jan. 11, 1961 1574 57 Elmer C. & Bernice E. Brewer Kensington
Sept. 09, 1961 1599 294 Horace B. Philbrick Kensington
Dec. 24, 1962 1656 258 Louis E. & Merida Daigneault Kensington
May 10, 1961 1582 156 David C. & Joan T. Engel Kensington & Hampton
Falls
Sept. 9, 1961 1599 287 John P. & Nancy P. Hall Hampton Falls
Sept. 15, 1961 1600 338 Chas. F. & Lucille C. Savage Hampton Falls
Mar. 30, 1961 1579 92 Earl G. & Katherine P. Warfield Hampton Falls
Mar. 30, 1961 1579 90 Agnes R. Knight Hampton Falls
May 01, 1961 1599 290 Stanley A. Hamel Hampton Falls
Sept. 01, 1961 1599 292 Homer A. Johnson Hampton
Dec. 29, 1962 1656 263 Wilbert M. & Jennie A. Swett Kingston
Dec. 29, 1962 1656 256 Helen D. Ball\8 Kingston
Dec. 29, 1962 1656 261 Arthur H. Penniman\9 Kingston
22. Additional rights-of-way to widen the 11.8 miles of 34 KV Kingston
transmission line to 100 feet to provide for a second circuit in the future from
the Company's Guinea Road Switching Station in Hampton, New Hampshire, through
the towns of Hampton, Hampton Falls,
- ----------------------------
8/ Except portion thereof released by deed from the Company to Helen D. Ball
dated January 3, 1963, recorded in Book 1656, Page 266.
9/ Except portion thereof released by deed from the Company to Arthur H.
Penniman dated January 3, 1963, recorded in Book 1656, Page 265.
-6-
Kensington, East Kingston and Kingston, New Hampshire, to a distribution
substation at West Kingston Road, Kingston, acquired by the Company under the
following deeds:
Date of Deed Book Page Grantor Location
Dec. 6, 1966 1847 103 William F. Tucker, Jr. Kingston
May 19, 1966 1821 554 Lyman B. Pope Kingston
May 13, 1966 1823 490 Ethel Milbury Kingston
June 07, 1966 1823 147 Cleveland Webster and
Robert Kuegel Kensington
Jan. 02, 1965 1751 095 Heirs of I. Webster Kingston
Sept. 14, 1964 1739 001 Joseph Noble Hampton Falls
Nov. 13, 1965 1796 450 Elizabeth Kudaruska and Hampton and
Benjamin Checkoway Hampton Falls
July 24 1967 1869 494 Edward & Helen Holt Kingston
Mar. 25, 1965 1761 026 Augustine & George Hurley Kingston
Feb. 28, 1967 1857 012 State of New Hampshire Kingston
Mar. 18, 1966 1862 377 Jenney Mfg. Co. Kingston
May 17, 1966 1823 104 Unknown Owners - Gerald Giles G/A/L Kingston and
Kensington
Oct. 19, 1964 1738 498 Ruth Simes Kingston
May 17, 1966 1823 167 Nathan Battles Kingston
May 17, 1966 1823 126 Robert & Marjorie Anderson East Kingston
Nov. 3, 1965 1796 456 Cora Colby Kensington
Sept. 21, 1964 1739 005 John & Nora Tuthill (Lot) Kensington
May 17, 1966 1823 187 Abbie Simes Kingston
23. 2.5 miles of transmission line rights-of-way running from a tap in
Hampton Falls, on the Hampton to Exeter transmission line to the Sylvania
Electric Products, Inc., plant on Portsmouth Avenue, Exeter, acquired by the
Company under the following deeds:
Date of Deed Book Page Grantor Location
June 26, 1963 1676 423 Irene A. Barker Exeter
May 17, 1963 1672 235 Amede & Florence Baillargeon Exeter
July 16, 1963 1679 497 Henry & Cecilia D. Saltonstall Exeter
May 18, 1963 1672 233 Ralph V. & Alice E. Amsden Exeter
July 10, 1963 1679 5 Edward & Elsa Rogalski Exeter & Stratham
P.U.C. Order, October 23, 1963, in Archibald & Lucille Harding Hampton Falls
Condemnation
May 06, 1963 1669 194 Russell P. Merrill Sr. & Jr. Hampton Falls
24. 1.9 miles of transmission line rights-of-way running from the Exeter
Substation on River Street to Drinkwater Road, Exeter, New Hampshire, acquired
by the Company under the following deeds:
-7-
Date of Deed Book Page Grantor Location
Mar. 17, 1960 1539 488 Trustees of the P. E. A. Exeter
Feb. 24, 1960 1537 470 John F. Sanborn Exeter
25. Rights-of-way at Hampton for moving transmission lines to allow for the
construction of New Hampshire Route 101-C, acquired by the Company under the
following deeds:
Date of Deed Book Page Grantor Location
Mar. 11, 1960 1539 116 Town of Hampton Hampton
Feb. 23, 1960 1537 446 Jessie M. Toppan Hampton
Feb. 23, 1960 1537 449 Walter H. Purington Hampton
26. Rights reserved with respect to premises located on southerly side of
South Street in the Exeter conveyed by the Company to John A. Bell, the State of
New Hampshire and John W. Flynn, Jr., as tenants in common, by deed dated
December 27, 1978, recorded in Book 2329, Page 1241.
27. 1.5 miles of transmission line rights-of-way from a tap in Exeter on
the transmission line to Sylvania Electric Products, Inc. and running westerly
in Exeter and Stratham and including a substation lot, acquired by the Company
under the following deeds:
Date of Deed Book Page Grantor Location
Oct. 08, 1965 1793 091 Sylvania Electric Products, Inc. Exeter
Feb. 21, 1966 1851 452 Paul Molloy Exeter
Oct. 09, 1965 1792 093 Harold & Vera Haley (Lot) Exeter and
Stratham\10
Feb. 03, 1966 1809 253 Callahan Realty Corp. Stratham
Feb. 08, 1966 1809 250 Lionell Labonte Stratham
Feb. 04, 1966 1811 450 Julia Scammon Stratham
Mar. 08, 1966 1853 382 Edward Laviolette Stratham
Oct. 09, 1965 1792 094 Harold & Vera Haley Stratham
28. Lot of land adjacent to substation lot on River Street, Exeter,
acquired by the Company by deed of Lena Bondi, dated September 27, 1965,
recorded in Book 1789, Page 180.
29. Distribution substation lot and 400 feet of distribution rights-of-way
on easterly side of Route 125 in Plaistow, acquired by the Company by deed of
Old County Court Inc., dated May 15, 1965, recorded in Book 1774, Page 407.
- ----------------------------
10/ Except that portion of the premises acquired as conveyed by the Company to
the State of New Hampshire by deed dated July 29, 1997, recorded in Book 3233,
Page 195, subject to reserved rights as stated therein.
-8-
30. 7 miles of transmission line rights-of-way running from Plaistow
substation to the plant of Process Engineering, Inc. in Plaistow, acquired by
the Company under the following deeds:
Date of Deed Book Page Grantor Location
Nov. 26, 1966 1845 088 Myron & Mary Sorenson (Lot) Plaistow
Aug. 03, 1966 1831 119 Gordon A. Cheney Plaistow
Oct. 25, 1966 1842 097 Donald & Marilyn Senter Plaistow
Oct. 27, 1966 1841 567 Process Engineering, Inc. Plaistow
July 14, 1966 1829 435 Nettie Bell Hill Plaistow
Nov. 21, 1966 1844 510 Nicholas & Grace Kay Plaistow
31. Transmission line rights-of-way in the Town of Seabrook, acquired by
the Company under the following deeds:
Date of Deed Book Page Grantor Location
Apr. 13, 1964 1711 340 Town of Seabrook Seabrook
Apr. 07, 1964 1711 454 John D. Fogg Seabrook
32. 1.1 miles of transmission line rights-of-way running through the Bailey
Company property to a distribution substation site on Cemetery Lane in Seabrook,
acquired by the Company under the following deeds:
Date of Deed Book Page Grantor Location
June 08, 1967 1866 016 Melvin & Helen S. Morgan Seabrook
May 22, 1967 1861 463 Bailey Company\11 Seabrook
Mar. 28, 1967 1857 009 Richard & Alice Holloway Seabrook
June 08, 1967 1863 412 K. J. Quinn Company Seabrook
Sept. 15, 1967 1877 412 John W. Durgin, Jr. (Lot) Seabrook
Sept. 15, 1967 1877 413 John W. Durgin, Jr. Seabrook
33. 5.2 miles of transmission line rights-of-way running from a point on
the Guinea Road to Hampton transmission line in town of Hampton. Running through
the towns of Hampton, Hampton Falls, South Hampton and Seabrook, acquired by the
Company under the following deeds:
Date of Deed Book Page Grantor Location
Feb. 02, 1966 1810 016 Public Service Company of N.H. (Lot) Hampton
Feb. 02, 1966 1810 011 Public Service Company of N.H. Hampton,
Hampton Falls,
South Hampton
and Seabrook\12
- ----------------------------
11/ Possibly subject to condemnation by Public Service Company of New Hampshire
for Seabrook Station, said taking by Petition for Condemnation filed with New
Hampshire Public Utilities Commission on April 9, 1974, said Petition and Order
thereon, recorded in Book 2220, Page 1659
12/ Except (a) that portion of the premises acquired as conveyed by the Company
to Ray W. Coombs by deed dated January 31, 1969, recorded in Book 1955, Page 93,
(b) that portion of the premises acquired as conveyed by the Company to Howard
L. Janvrin, Jr. and Betty J. Janvrin by deed dated April 5, 1971, recorded in
Book 2062, Page 85, in exchange for other rights acquired by the Company, (c)
that portion of the premises acquired as conveyed by the Company to Raymond F.
Lalime and Diane Lalime by deed dated April 5, 1971, recorded in Book 2062, Page
88, in exchange for other rights acquired by the Company, (d) that portion of
the premises acquired as conveyed by the Company to George W. Lonergan and
Drucilla H. Lonergan by deed dated April 5, 1971, recorded in Book 2062, Page
91, in exchange for other rights acquired by the Company, (e) that portion of
the premises acquired as conveyed by the Company to Anthony Smoker and Sandra E.
Smoker by deed dated April 5, 1971, recorded in Book 2062, Page 94, in exchange
for other rights acquired by the Company, (f) that portion of the premises
acquired as conveyed by the Company to Arthur G. Dupuis and Frances M. Dupuis by
deed dated April 5, 1971, recorded in Book 2062, Page 97, in exchange for other
rights acquired by the Company, (g) that portion of the premises acquired as
conveyed by the Company to Daniel E. Dow by deed dated April 5, 1971, recorded
in Book 2062, Page 98, in exchange for other rights acquired by the Company, (h)
that portion of the premises acquired as conveyed by the Company to Richard S.
Robie by deed dated May 12, 1971, recorded in Book 2071, Page 350, in exchange
for other rights acquired by the Company, and (i) that portion of the premises
acquired as conveyed by the Company to Applecrest Farm Orchards, Inc. by deed
dated September 14, 1971, recorded in Book 3061, Page 006, in exchange for other
rights acquired by the Company. See Paragraph 35, below.
-9-
34. Distribution rights-of-way located in various towns as indicated,
acquired by the Company under the following deeds:
Date of Deed Book Page Grantor Location
Feb. 18, 1964 1706 360 Irving E. & Anna E. Peaslee Plaistow
Dec. 15, 1964 1748 003 Paul W. Hobbs & James A. Bricket Trs. Hampton
May 26, 1967 1862 379 Town of Hampton Hampton
June 29, 1965 1774 004 Bernice K. Davis Danville
June 29, 1965 1774 006 Alden & Francis Colby Danville
35. Easements to widen portions of 5.2 miles of transmission line
right-of-way from a point on the Guinea Road to Hampton transmission line, in
Hampton, through Hampton Falls and Seabrook, and acquired by the Company under
the following deeds:
Date of Deed Book Page Grantor Location
Mar. 31, 1971 2062 081 Edwin L. Batchelder, Jr. Hampton
Apr. 21, 1971 2066 040 Flora B. Hurd Hampton
Apr. 07, 1971 2066 037 Ernest N. & Rose V. Brown Hampton Falls
Mar. 17, 1971 2079 291 Applecrest Farm Orchards, Inc. Hampton Falls
July 06, 1971 2080 203 Francis J. & Anne M. Ferreira Hampton Falls
Mar. 20, 1971 2062 092 Anthony & Sandra E. Smoker Hampton Falls
Mar. 31, 1971 2062 086 Raymond F. & Diane LaLime Hampton Falls
Mar. 20, 1971 2062 083 Howard L. & Betty J. Janvrin Hampton Falls
Mar. 20, 1971 2066 034 Daniel E. Dow Hampton Falls
Mar. 20, 1971 2062 095 Arthur G. & Frances Dupuis Hampton Falls
Mar. 20, 1971 2062 089 George W. & Drucilla H. Lonergan Hampton Falls
June 16, 1971 2076 402 Helen Evans Woodworth Hampton Falls
-10-
Date of Deed Book Page Grantor Location
June 15, 1971 2076 400 Walter & Edna Combs Hampton Falls
May 12, 1971 2068 146 Richard S. Robie Hampton Falls
Sept. 01, 1970 2032 272 Lloyd Graves Hampton
Sept. 03, 1968 1928 164 John W. Durgin, Jr. Seabrook
36. 2.1 miles of transmission line right-of-way running from a point on the
Hampton to Hampton Beach transmission line to a substation on High Street, in
Hampton, acquired under the following deeds:
Date of Deed Book Page Grantor Location
Feb. 09, 1968 1897 348 Bruce M. Fall & Ruth V. Aquizap Hampton
Apr. 17, 1970 2011 252 Mary Ruth Perkins Hampton
May 26, 1970 2016 464 Byron Redman Hampton
May 26, 1970 2016 466 Donald Northway Hampton
Apr. 17, 1970 2011 260 Vrylna Olney Hampton\13
Jan. 04, 1971 2050 141 Marion Garland Hampton\14
Feb. 10, 1970 2004 014 Moses Brown Hampton\15
May 08, 1970 2014 169 John W. Durgin, Jr. (Lot) Hampton
Apr. 17, 1970 2011 258 Robert Mace Hampton
Apr. 17, 1970 2011 265 Robert Mace Hampton
Mar. 10, 1970 2006 368 Flora & Gary Hurd Hampton
Oct. 29, 1969 1991 418 Homer A. Johnson Hampton
Oct. 29, 1969 1991 420 Arthur & Florence Lamprey Hampton
Aug. 01, 1969 1978 190 Town of Hampton Hampton
Nov. 26, 1969 1995 474 Lloyd C. Ring Hampton
Dec. 12, 1969 1998 008 John & Irene Hines Hampton
Mar. 10, 1970 2006 370 Francis & Irene O'Connor Hampton
37. Distribution substation lot and 400 feet of distribution right-of-way
on westerly side of Hampton Road, in Exeter, acquired under the following deeds:
Date of Deed Book Page Grantor Location
Sept. 25, 1970 2036 105 Ralston Tree Exeter
Sept. 16, 1970 2034 436 Exeter & Hampton Mobile Home Exeter
Sept. 16, 1970 2034 434 Exeter & Hampton Mobile Home (Lot) Exeter\16
- ----------------------------
13/ Partially relocated pursuant to Easement Deed of Meadow Pond Farm
Corporation dated April 29, 2002, recorded in Book 3792, Page 219.
14/ Released and relocated pursuant to Easement Deed of Meadow Pond Farm
Corporation and Ice House Lane Condominium Association dated April 29, 2002,
recorded in Book 3792, Page 209.
15/ Partially relocated pursuant to Easement
Deed of Town of Hampton, New Hampshire dated June 24, 2002, recorded in Book
3792, Page 203.
16/ Subject to easement rights granted by the Company to First Altex Realty
Trust, Third Altex Realty Trust, and Renwick Realty by deed, dated January 31,
1985, recorded in Book 2531, Page 0654.
-11-
38. Parcel of land adjacent to Guinea Road Switching Station, in Hampton,
acquired by deed of Lloyd Graves, dated September 1, 1970, recorded in Book
2032, page 271.
39. Easements to widen transmission line rights-of-way from Guinea Road
Switching Station 0.3 mile in Hampton, to the transmission lines of Public
Service Company of New Hampshire, acquired under the following deeds:
Date of Deed Book Page Grantor Location
Sept. 1, 1970 2032 275 Billie and Oletha Barton Hampton
Sept. 1, 1970 2032 274 Billie and Oletha Barton (Lot) Hampton
Sept. 1, 1970 2032 277 Roger James Hampton
40. 0.3 mile transmission line right-of-way from Exeter Switching Station
to Phillips Exeter Academy Substation, and lot of land, acquired under the
following deeds:
Date of Deed Book Page Grantor Location
July 09, 1968 1918 294 Phillips Exeter Academy Exeter
July 09, 1968 1918 292 Phillips Exeter Academy Exeter
July 09, 1968 1918 291 Phillips Exeter Academy (Lot) Exeter
41. Lot of land adjacent to Service Building on Drinkwater Road,
Kensington, acquired under the following deeds:
Date of Deed Book Page Grantor Location
July 26 1968 1921 432 Carolyn Christie\17 Kensington
Mar. 11, 1069 1955 089 Arthur Chapman Kensington
42. Distribution rights-of-way located in various towns as indicated,
acquired by the Company under the following deeds:
Date of Deed Book Page Grantor Location
Feb. 23, 1971 2057 080 B-Jack Investments, Inc. Exeter
Feb. 23, 1971 2057 082 Brickside Corporation Exeter
Aug. 19, 1968 1927 205 Samuel H. Tamposi Seabrook
Feb. 06, 1969 1960 024 Paul D. Dichter Seabrook
Sept. 15, 1969 1985 146 Weare Park Associates Seabrook
Dec. 01, 1969 1996 482 First Development Corporation Seabrook
Oct. 22 1969 1992 260 Exeter Manor Nursing Home Exeter
Aug. 30, 1969 1990 468 Roselle Iron Works, Inc. Kingston
- ----------------------------
17/ Except that portion of the premises acquired as conveyed by the Company to
Arthur H. Chapman and Marion J. Chapman by deed dated December 26, 1968,
recorded in Book 1955, Page 91
-12-
43. Easements for transmission line right-of-way from Powder Mill Road in
Exeter to Charter Street in Exeter, a distance of 5810 feet, and a lot of land
acquired under the following deeds:
Date of Deed Book Page Grantor Location
Jan. 31, 1972 2136 135 Walter A. Stone Exeter
April 4, 1972 2134 39 Jerry W. Belmonte Exeter
Oct. 27, 1972 2182 86 John W. Durgin (Lot) Exeter
Nov. 08, 1972 2184 438 Richard I. LaPerle Exeter
Mar. 16, 1973 2199 461 Norman L. Judkins Exeter
Mar. 16, 1973 2199 463 Francis L. Keaton Exeter
Mar. 20, 1973 2199 459 Richard Irvine Exeter
44. Lot of land on southerly side of Old Westville Road in Plaistow for a
distribution substation acquired by deed of Westville Mkt. Inc., dated March 6,
1972, recorded in Book 2125, Page 268.
45. Easements to widen portion of transmission line right-of-way located in
Hampton Falls, which is part of the Seabrook Loop right-of-way, acquired under
the following deeds:
Date of Deed Book Page Grantor Location
June 23, 1971 2076 400 Walter W. Combs Hampton Falls
June 23, 1971 2076 402 Helen C. Woodworth Hampton Falls
July 07, 1971 2079 291 Apple Crest Farm Orchards, Inc. Hampton Falls
July 09, 1971 2080 203 Francis J. Ferreira Hampton Falls
46. Lot of land on westerly side of Mill Road in Kingston for a substation
acquired by deed of Richard W. and Sylvia Senter, dated March 4, 1974, recorded
in Book 2207, Page 1072, subject to a transmission line easement owned by Public
Service Company of New Hampshire.
47. Lot of land on the southerly side of Rocks Road, in Seabrook, 100 feet
by 200 feet, for a distribution substation, acquired by deed of John W. Durgin,
dated September 27, 1974, recorded in Book 2230, Page 1620, subject to a 30 foot
easement for the benefit of New England Telephone and Telegraph Company.
48. Easements for pole lines to service new industrial customers adjacent
to the Boston & Maine Railroad in Hampton acquired under the following deeds:
Date of Deed Book Page Grantor Location
Nov. 10, 1975 2247 838 Charles G. and Mary O. White Hampton
Dec. 08, 1975 2249 396 Dunfey Family Corp. Hampton
Dec. 19, 1975 2249 1828 Webb Family Trust Hampton
-13-
49. Tract of approximately .43 acres on the southerly side of Route 1 in
the Town of Hampton, New Hampshire, adjacent to the southerly boundary of the
existing Hampton Substation, conveyed to the Company by deed of the State of New
Hampshire, dated September 15, 1980, and recorded in Book 2377, Page 978. (Also
provided is a utility easement located between this parcel and the southerly
sideline of US Route 1, containing 0.10 acres, more or less.)
50. Right-of-way for approximately 900 feet of transmission line
construction in the Town of Hampton, New Hampshire to extend the 3341 and 3360
lines into Public Service Company of New Hampshire's Timber Swamp Substation,
conveyed by deed of Public Service Company of New Hampshire, dated February 23,
1983, recorded in Book 2437, Page 238.
51. Right-of-way for approximately 80 feet of transmission line
construction in the Town of Hampton, New Hampshire to extend the 3341 and 3360
lines into Public Service Company of New Hampshire's Timber Swamp Substation,
conveyed by deed of Thomas L. & Patricia M. Deardeuff, dated July 15, 1982,
recorded in Book 2418, Page 22.
52. Right-of-way for approximately 3300 feet of underground transmission
line for the relocation of a portion of the 3359 line through the site of the
Seabrook Nuclear Plant in the Town of Seabrook, New Hampshire, conveyed by deed
of Properties, Inc., dated September 15, 1978, recorded in Book 2321, Page 591.
53. Right-of-way for approximately 1470 feet of transmission line located
in Town of Hampton, New Hampshire, conveyed by deed of the State of New
Hampshire, dated March 26, 1987, recorded in Book 2668, Page 1455.
54. Easement exchange between Properties, Inc. and Exeter & Hampton
Electric Company to straighten a certain section of the 3359 Transmission Line
to run parallel to and alongside a certain section of a 345 kV Transmission Line
from the Seabrook Plant.
Granted from Properties, Inc. to Exeter & Hampton Electric Company are
rights-of-way for a 100 foot strip across a portion of four (4) parcels
acquired by Properties, Inc. under the following deeds:
Date of Deed Book Page Grantor Location
Parcel 1:
May 10, 1971 2070 31 Town of Seabrook Seabrook
May 11, 1971 2233 281 Karl J.E. Grove Seabrook
May 10, 1971 2071 252 Bruce G. & Cynthia L. Brown Seabrook
June 8, 1984 2496 1470 Properties, Inc. v. Natalie B. Chase, et als. Seabrook
(Rockingham County Superior Court #E-22-84)
-14-
Date of Deed Book Page Grantor Location
Parcel 2:
June 8, 1971 2074 217 Chase Enterprises, Inc. Seabrook
May 12, 1971 2071 250 Colin W. Stard (Portion of "Parcel 1") Seabrook
Parcel 3:
April 7, 1971 2070 21 Forrest C. Chase Seabrook
May 12, 1971 071 250 Colin W. Stard (Portion of "Parcel 2") Seabrook
Parcel 4:
May 10, 1971 2234 1196 Ray W. Coombs Seabrook
Additional Easement:
May 12, 1992 2927 2505 Public Service Company of New Seabrook
Hampshire to Grantor
55. Easement Deed of Town of Exeter, New Hampshire dated December 11, 1995,
recorded in Book 3136, Page 1638, conveying easement rights with respect to
property in said Exeter.
56. All lines of poles and wires, both transmission and distribution,
situate in the Towns of Exeter, Hampton, Hampton Falls, Seabrook, Stratham,
Kingston, East Kingston, South Hampton, Newton, Danville, Plaistow, Atkinson,
Kensington, North Hampton, Greenland, Brentwood, Derry, and Hampstead, all in
the County of Rockingham, in The State of New Hampshire, including without
limiting the generality of this description all rights, privileges and easements
in the Company's transmission line running from said Exeter to that section of
said Hampton known as Hampton Beach, the transmission line running from said
Hampton to said Exeter, and the transmission line running from Kingston to the
substation property acquired by said Company by deed of Roger B. Hill, dated
August 16, 1951, recorded in Book 1219, Page 63, with all connections,
appliances, appurtenances and apparatus connected therewith, including
transformers, meters, switches and other devices, with all rights of way,
franchises and locations existing in respect thereto including rights of way
acquired but not presently utilized for transmission line purposes, of which the
Company is possessed, situated in the Towns above mentioned.
-15-
[Form of Bond]
Unitil Energy Systems, Inc.
First Mortgage Bond, Series ___, _____%
Due _______________
No. ____ $____________
Unitil Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to _____________ or registered assigns, on the _____ day
of _____________, ______, the principal sum of _____________ Dollars
($___________) and to pay interest thereon from the date hereof at the rate of
_____ per centum (______%) per annum (computed on the basis of a thirty (30) day
month and a three hundred sixty (360) day year) payable [insert frequency] on
[insert payment dates] in each year, commencing with the ____ day of
_____________, ______, until said principal sum is paid; and to pay interest on
any overdue principal (including any overdue prepayment of principal) and
premium, if any, and (to the extent permitted by applicable law) on any overdue
payment of interest at the rate of [insert overdue rate] % per annum. The
principal of, premium, if any, and the interest on this bond shall be payable at
the corporate trust office of U.S. Bank National Association, in Boston,
Massachusetts, or at the corporate trust office of its successor as Trustee of
the trust hereinafter referred to, or at the option of certain holders in
accordance with the provisions of Section 7.05 of the Indenture hereinafter
referred to, in lawful money of the United States of America.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company limited as to aggregate principal amount as set forth in the Indenture
hereinafter mentioned, issuable in series, and is one of a series known as First
Mortgage Bonds, Series ____, all bonds of all series being issued and to be
issued under and pursuant to and all equally secured (except as any sinking or
other fund, established in accordance with the provisions of the Indenture
hereinafter mentioned, may afford additional security for the bonds of any
particular series) by an Indenture of Mortgage and Deed of Trust dated as of
July 15, 1958 (herein called the "Original Indenture") duly executed and
delivered by the Company to Old Colony Trust Company (U.S. Bank National
Association being successor Trustee and together with each predecessor trustee
being called the "Trustee"), which, together with all indentures supplemental
thereto, was amended and restated by the execution and delivery of a Twelfth
Supplemental Indenture dated as of December 2, 2002 (the "Amended and Restated
Indenture"), to which Amended and Restated Indenture and to all indentures
supplemental thereto, including a Supplemental Indenture (the "_____
Supplemental Indenture") dated as of _____________ (the Amended and Restated
Indenture together with all indentures supplemental thereto, herein being the
"Indenture") reference is hereby made for a description of the property
transferred, assigned and mortgaged thereunder, the nature and extent of the
security, the terms and conditions upon which the bonds are secured and
additional bonds may be issued and secured, and the rights of the holders or
registered owners of said bonds, of the Trustee and of the Company in respect of
such security. Neither the foregoing reference to the Indenture, nor any
provision of this bond or of
Exhibit A
(to Twelfth Supplemental Indenture)
the Indenture, shall affect or impair the obligation of the Company, which is
absolute, unconditional and unalterable, to pay, at the stated or accelerated
maturities herein provided, the principal of and premium, if any, and interest
on this bond as herein provided.
[Bonds of this Series ____ are entitled to the benefit of a required
sinking fund provided for in the ________ Supplemental Indenture and shall
become subject to redemption for the purposes of such sinking fund at the
principal amount thereof without premium, plus interest accrued thereon to the
date of such redemption, all on the conditions and in the manner provided in the
________ Supplemental Indenture.]
[Bonds of this Series _____ are also redeemable, in whole or in part, in
integral multiples of _______________ dollars, at the option of the Company on
any date on at least 30 days' notice, in the manner, with the effect, subject to
the limitations and for the amounts specified in Section _____ of the ________
Supplemental Indenture.]
[On the conditions and in the manner provided in the Section _____ of the
________ Supplemental Indenture, Series ____ Bonds may also become subject to
redemption, in whole or in part, at any time on at least 30 days' notice, in the
manner, with the effect and for the amounts specified in said Section _____, by
the use of moneys deposited with or paid to the Trustee as the proceeds of the
sale or condemnation of property of the Company or as the proceeds of insurance
policies deposited with or paid to the Trustee because of damage to or
destruction of property of the Company.]
[In the event that all or any part of the bonds of this Series _______
shall be redeemed or otherwise discharged prior to their maturity pursuant to or
in accordance with the order of any governmental commission or regulatory
authority upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such Series ____ Bonds shall be entitled to
be paid therefor an amount specified in Section _____ of the ________
Supplemental Indenture.]
The Indenture provides that, if notice of redemption of any bond issued
pursuant to its terms, including the Series ____ Bonds, or of any portion of the
principal amount of any such bond selected for redemption has been duly given,
then such bond or such portion thereof shall become due and payable on the
redemption date, and, if the redemption price shall have been duly deposited
with the Trustee, interest thereon shall cease to accrue from and after the
redemption date, and that whenever the redemption price thereof shall have been
duly deposited with the Trustee and notice of redemption shall have been duly
given, or provision thereof made as provided in the Indenture, such bond or such
portion thereof shall no longer be entitled to any lien or benefit of the
Indenture.
In case an Event of Default, as defined in the Indenture, occurs, the
principal of this bond may become or may be declared due and payable prior to
the stated maturity hereof in the manner and with the effect and subject to the
conditions provided in the Indenture.
This Bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, upon books of the Company to be kept for that purpose
at the corporate trust office of
A-2
the Trustee under the Indenture, upon surrender thereof at said office for
cancellation and upon presentation of a written instrument of transfer duly
executed, and thereupon the Company shall issue in the name of the transferee or
transferees, and the Trustee shall authenticate and deliver, a new registered
bond or bonds, of like form and in an authorized denomination or in authorized
denominations and of the same series, for the same aggregate principal amount.
Bonds of Series ____ upon surrender thereof at said office may be exchanged for
the same aggregate principal amount of fully registered bonds of Series _____ of
another authorized denomination or other authorized denominations, all upon
payment of the charges, if any, and subject to the terms and conditions
specified in the Indenture.
The Company and the Trustee may treat the registered owner of this bond as
the absolute owner hereof for all purposes.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, any of the provisions of the Indenture or of any
instrument supplemental thereto may be modified by the assent or authority of
the holders of at least seventy-five per centum (75%) in principal amount of the
bonds then outstanding thereunder, provided, however, that no such modification
shall (i) extend the time or times or payment of the principal of, or the
interest or premium, if any, on any bond, (ii) reduce the principal amount
thereof or the rate of interest or premium thereon, (iii) authorize the creation
of any lien prior or equal to the lien of the Indenture upon any property
subject to the lien thereof, or deprive any bondholder of the benefit of the
lien of the Indenture, (iv) affect the rights under the Indenture of the holders
of one or more, but less than all, of the series of bonds outstanding thereunder
unless assented to by the holders of seventy-five per centum (75%) in aggregate
principal amount of bonds outstanding thereunder of each of the series so
affected, (v) reduce the percentage of bonds, the holders of which are required
to assent to any such modification, or (vi) in any manner affect the rights or
obligations of the Trustee without its written consent thereto.
No recourse shall be had for the payment of the principal of or the
interest on this bond or of any claim based hereon or in respect hereof or of
the Indenture, against any incorporator, stockholder, officer or director of the
Company, or of any successor company, whether by virtue of any statute or rule
of law or by the enforcement of any assessment of penalty or otherwise, all such
liability being by the acceptance hereof expressly waived and released and being
also waived and released by the terms of the Indenture.
This bond shall not be valid nor become obligatory for any purpose until it
shall have been authenticated by the execution of the certificate hereon
endorsed by the Trustee under the Indenture.
A-3
In Witness Whereof, Unitil Energy Systems, Inc. has caused this bond to be
signed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Treasurer or one of
its Assistant Treasurers, and this bond to be dated the _____ day of
______________.
Unitil Energy Systems, Inc.
By
--------------------------------
Name:
---------------------------
Title:
--------------------------
attest:
----------------------------
Treasurer
(Corporate Seal)
A-4
[Form of Trustee's Certificate of Authentication]
Trustee's Certificate of Authentication
This is one of the First Mortgage Bonds, Series ____ referred to in the
within mentioned Indenture.
U.S. Bank National Association, Trustee
By:
------------------------------------
Authorized Officer
A-5
(Form of Endorsement)
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
______ the within bond, and all rights thereunder, hereby irrevocably
constituting and appointing ___________________________________________________
attorney to transfer said bond on the books of the Company, with full power of
substitution in the premises.
Dated:
--------------------- ----------------------------------
Signature of Registered Owner
In the presence of
------------------------------------------------
NOTICE: The signature of this assignment must correspond with the name of
the payee as it appears upon the face of the within bond in every particular,
without alteration or enlargement or any change whatever.
A-6
Unitil Energy Systems, Inc.
Certificate of Net Bondable Expenditures
Certificate of Net Bondable Expenditures filed with U.S. Bank National
Association (as successor to Old Colony Trust Company), Trustee, under Indenture
of Mortgage and Deed of Trust dated as of July 15, 1958, as amended and restated
by the Twelfth Supplemental Indenture thereto dated as of December 2, 2002 (the
"Amended and Restated Indenture"), as such Amended and Restated Indenture may be
supplemented (such Amended and Restated Indenture, as so supplemented, the
"Indenture").
The undersigned, _________________ and ________________, being President
and Treasurer, respectively, of Unitil Energy Systems, Inc. (the "Company"), a
New Hampshire corporation, being duly sworn, depose and state as follows:
Upon application for Authentication and Delivery under Article IV of
$___________ of First Mortgage Bonds, Series
(or here substitute appropriate language if certificate is in
connection with withdrawal of cash or taking of credit)
the undersigned do hereby certify that the summary statements herein contained
covering (i) the period from June 30, 1952 to, but not including, December 2,
2002 (the "Merger Date") for Exeter and Hampton Electric Company ("Exeter"),
(ii) the period from May 31, 1958 to, but not including, the Merger Date for the
Company and (iii) the period on or after the Merger Date through the date of
calculation for the Company, are correct and complete, that the Property
Additions for which the Gross Expenditures hereinafter referred to have been
made constitute Property Additions as defined in Section 4.01(A) of said
Indenture and that the Company is now entitled to have authenticated and
delivered said amount of First Mortgage Bonds, Series
(or here substitute appropriate language with respect to the
withdrawal of cash or the taking of credit)
Computation of Net Expenditures for
Property Additions
1. Gross Expenditures for Property Additions, the sum of:
(i) Exeter Pre-Merger Gross Expenditures for
Property Additions, ............................$82,291,896
(ii) Company Pre-Merger Gross Expenditures for
Property Additions, and.........................$66,738,186
(iii) Company Post-Merger Gross Expenditures for
Property Additions calculated from the Merger
Date to date....................................$__________
Exhibit B
(to Twelfth Supplemental Indenture)
[Here insert statement respecting New Gross Expenditures
required by (i) of Section 4.01I.]
Total for (1) $_________
Less
2. Net Retirements, the sum of:
(i) Exeter Pre-Merger Net Retirements...........$15,046,604
(ii) Company Pre-Merger Net Retirements, and....$15,272,384
(iii) Net Retirements, beginning with the
Merger Date to date computed as follows:........$___________
(a) Retirements, beginning
with the Merger Date to date.....$_________
[Here insert statement respecting
new Retirements required by
(ii) of Section 4.01I.]
(b) Less all moneys received
by or deposited with the
Trustee pursuant to: Section
8.10--$ ; Section
8.12--$ ; Section
10.03--$ ; and Section
10.04--$ ; all from the
Merger Date to date..............$_________
Company Post-Merger Net
Retirements...................... $___________
Total for (2) $_________
Equals
3. Net Expenditures for Property Additions, the sum of:
(i) Exeter Pre-Merger Net Expenditures...........$67,245,292
[(1)(i) minus (2)(i)]
(ii) Company Pre-Merger Net Expenditures.........$51,465,802
[(1)(ii) minus (2)(ii)]
(iii) Company Post-Merger Net Expenditures.......$___________
[(1)(iii) minus 2(iii)]
-2-
Total for (3) $_________
Computation of Net Bondable Expenditures
for Property Additions
(As of date of filing of this Certificate)
4. Net Expenditures for Property Additions,........$___________
Same as (3) above.
Less
5. Aggregate of Net Bondable Expenditures
Heretofore Bonded, the sum of :
(i) Exeter Pre-Merger Bonded Expenditures.......$49,378,806
(from Line 3 of Annex B)
(ii) Company Pre-Merger Bonded Expenditures.....$46,592,604
(from Line 3 of Annex C)
(iii) Company Post-Merger Bonded Expenditures;
namely, the amount certified pursuant to
(5)(iii) of the last certificate filed after
the Merger Date $________ plus the amount
certified pursuant to (11) of said last
certificate filed $________.....................$___________
Total for (5) $_________
Equals
6. Net Bondable Expenditures at the date of this
certificate, the sum of:
(i) Exeter Pre-Merger Bondable Expenditures.....$17,866,486
[(3)(i) minus (5)(i)]
(ii) Company Pre-Merger Bondable Expenditures... $4,873,198
[(3)(ii) minus (5)(ii)]
(iii) Company Post-Merger Bondable Expenditures.$___________
[(3)(iii) minus (5)(iii)]
Total for (6) $_________
-3-
Statement of Net Bondable Expenditures
Now to Be Bonded
7. 147.06% of total of: aggregate principal
amount of Bonds now to be issued under
Article IV $_______; and aggregate
amount of cash now to be withdrawn under
Article VI $_______............................. $_________
8. Total of Net Bondable Expenditures now
to be appropriated under Section 8.07
$______ and Section 12.01 $_______ ............. $_________
9. 147.06% of credits now to be entered
against sinking and improvement funds
under Article IX................................ $_________
10. Aggregate amount of cash for the
withdrawal of which application is now
made under (a) of Section 11.02................. $_________
11. Amount of Net Bondable Expenditures, if
any, now to be Bonded........................... $_________
Total of (7), (8), (9) and (10).
12. Amount of Net Bondable Expenditures, not
now to be Bonded................................ $_________
(6) minus (11).
(Note: The amount of (11) cannot exceed the amount of the
Net Bondable Expenditures existing at the time of the filing
of this certificate, namely, the amount certified pursuant
to (6) above.)
-4-
Here insert statements required by Section 16.07 of the Indenture.
Dated _______________________
---------------------------------------
President
Unitil Energy Systems, Inc.
---------------------------------------
Treasurer
Unitil Energy Systems, Inc.
Subscribed and sworn to by _______________, President, and _______________,
Treasurer, of Unitil Energy Systems, Inc., before me this _______ day of
____________, 20___.
----------------------------
Notary Public
-5-
Calculation of Exeter
Pre-Merger Bonded Expenditures
The Exeter Pre-Merger Bonded Expenditures taken by Exeter for bonds issued,
the withdrawal of cash or other credit taken under the Exeter Indenture using a
ratio of 60% of Net Expenditures for Property Additions, is hereby calculated
using a ratio of 68% rather than 60%:
(1) Net Bondable Expenditures of Exeter certified as
Bonded pursuant to (5) of the last Exeter
certificate plus the amount thereof certified
pursuant to (10) of said certificate for a total
of Net Bondable Expenditures of Exeter bonded
using a 60%
ratio............................................ $55,962,647
(2) Amount of Bonds previously issued or cash
withdrawn or other credit taken under the Exeter
Indenture equals (1) above multiplied by
60%.............................................. $33,577,588
(3) Amount of Net Bondable Expenditures of Exeter
which would have been bonded if a 68% ratio had
been used equals (2) divided by 68% so Exeter
Pre-Merger Bonded Expenditures
equals........................................... $49,378,806
[insert in (5)(i) of the Certificate of Net
Bondable Expenditures]
Annex B TO Exhibit B
(to Twelfth Supplemental Indenture)
Calculation of Company
Pre-Merger Bonded Expenditures
The Company Pre-Merger Expenditures taken by the Company for bonds issued,
the withdrawal of cash or credit taken under the Indenture using a ratio of 60%
of Net Expenditures for Property Additions, was recalculated pursuant to an
amendment to Section 4.04 contained in the Tenth Supplemental Indenture dated as
of January 15, 2001 using a ratio of 68% rather than 60%, which recalculation is
set forth in paragraph (1) below. The only additional Net Bonded Expenditures of
the Company bonded thereafter and prior to the Merger Date were calculated on
the basis of a 68% ratio and are set forth in paragraph (2) below. As a result,
paragraph (3) contains the Net Bondable Expenditures of the Company bonded prior
to the Merger Date calculated as follows:
(1) Amount of Net Bondable Expenditures which would
have been bonded prior to the Tenth Supplemental
Indenture if the amount of bonds previously issued
or cash withdrawn or other credit taken under the
Indenture had been bonded on the basis of a 68%
ratio rather than a 60% ratio (per Schedule 1 to
Annex A to the Tenth Supplemental Indenture)....... $35,563,104
(2) Amount of Net Bondable Expenditures bonded after
the Tenth Supplemental Indenture but prior to the
Merger Date (which were calculated on the basis of
a 68%
ratio)............................................. $11,029,500
(3) Amount of Net Bondable Expenditures by the Company
based upon a 68% ratio. ((1) plus (2)
................................................... $46,592,604
[insert in (5)(ii) of the Certificate of Net
Bondable Expenditures]
Exhibit C
(to Twelfth Supplemental Indenture)
Series I Bonds
The terms and provisions of the Series I, 8.49% Bonds of the Company which
were set forth in the Eighth Supplemental Indenture, have been amended and
restated in this Exhibit C, which shall from and after the Merger Date control
the terms and conditions of such Series I, 8.49% Bonds, and the Eighth
Supplemental Indenture shall have no further force or effect with respect to
such terms and conditions.
All things have been done and performed which are necessary to make the
Series I Bonds, when authenticated by the Trustee and issued as herein provided,
legal, valid and binding obligations of the Company;
And It Is Hereby Covenanted, Declared and Agreed, as set forth in the
following covenants, agreements, conditions and provisions, to wit:
Article One
Amendment and Restatement of Series I Bonds
Section 1.01. There is hereby amended and restated the series of bonds
heretofore designated as "First Mortgage Bonds, Series I." Series I Bonds which
shall be fully registered bonds and of the denomination of $1,000 and multiples
thereof. The registered bonds of Series I issued after the Merger Date shall be
dated as provided in Section 2.03 of the Indenture. All Series I Bonds shall
mature on October 14, 2024 and shall bear interest at the rate of eight and
forty-nine one hundredths percent (8.49%) per annum from their respective dates
of issue, such interest to be payable semi-annually on the fourteenth day of
April and the fourteenth day of October in each year commencing the fourteenth
day of April, 2003, and shall bear interest on any overdue principal (including
any overdue prepayment of principal) and premium, if any, and (to the extent
permitted by applicable law) on any overdue payment of interest, at the rate of
9.49% per annum. The principal of, premium, if any, and interest on bonds of
Series I shall be payable at the corporate trust office in Boston, Massachusetts
of U.S. Bank National Association or at the corporate trust office designated by
its successor as Trustee hereunder, in lawful money of the United States of
America, provided that the Company may enter into a written agreement with any
registered Institutional Holder of the bonds of Series I providing that payment
of interest thereon and of the redemption price on any portion of the principal
amount thereof (including premium, if any) which may be redeemed shall be made
directly to such holder or to its nominee, as the case may be, at a duly
designated place of payment within the United States, without surrender or
presentation of such bonds of Series I to the Trustee, provided that (A) there
shall have been filed with the Trustee a copy of such agreement and (B) pursuant
to such agreement such holder shall agree that it will not sell, transfer or
otherwise dispose of any such bond of Series I in respect of which any such
payment or redemption shall have been made unless, prior to the delivery thereof
by it, either (i) it shall have made a clear and accurate notation of the amount
of principal so redeemed upon such bond to be transferred, or (ii) such bond of
Series I shall have been presented to the Trustee for appropriate notation
thereon of the portion of the principal amount thereof redeemed, or (iii) such
bond or bonds of Series I shall
Exhibit C
(to Twelfth Supplemental Indenture)
have been surrendered in exchange for a new bond or bonds of Series I for the
unredeemed balance of the principal amount thereof in accordance with the other
terms of the Indenture. For purposes of this Section 1.01, the term
"Institutional Holder" shall mean any insurance company, bank, savings and loan
association, trust company, investment company, charitable foundation, employee
benefit plan (as defined in ERISA) or other institutional investor or financial
institution. The text of the Series I Bonds and the Trustee's certificate with
respect thereto shall be respectively substantially of the tenor and purport set
forth in Schedule A hereto. The Series I Bonds shall be numbered in such manner
or by such method as shall be satisfactory to the Trustee.
The issue of bonds of Series I hereunder is hereby limited to the
$6,000,000 in aggregate principal amount of Series I Bonds initially issued
under the Eighth Supplemental Indenture and to Series I Bonds issued in exchange
or substitution for outstanding Series I Bonds under the provisions of Sections
2.08, 2.10, 2.11 and 7.05 of the Indenture and of Section 1.07 hereof.
Section 1.02. As a required sinking fund for the benefit of the Series I
Bonds, the Company covenants that it will, on or prior to October 13 in each
year, beginning with October 13, 2015, and continuing to and including October
13, 2024, pay to the Trustee immediately available funds sufficient to redeem,
at par, Series I Bonds then outstanding, in the principal amount of Six Hundred
Thousand Dollars ($600,000) (or the remaining principal amount if less than
$600,000 principal amount of Series I Bonds at the time remains outstanding).
The payments required for the sinking fund as above provided are in this Section
1.02 and elsewhere in this Exhibit C referred to as "required sinking fund
payments" and the day following the latest date on which each such payment is
required to be made is herein and therein referred to as a "required sinking
fund redemption date." Each required sinking fund payment shall be applied to
the redemption of Series I Bonds on the applicable required sinking fund
redemption date.
No redemption under Section 1.03, 1.04, 1.05 or 1.06 hereof shall affect or
reduce the obligation of the Company to provide for required sinking fund
redemptions under this Section 1.02 until all Series I Bonds shall have been
paid in full.
Section 1.03. At the same time it makes any required sinking fund payment,
the Company shall have the option (which shall be non-cumulative) to pay to the
Trustee, in immediately available funds, an additional principal amount of Six
Hundred Thousand Dollars ($600,000) (in this Section 1.03 and elsewhere in this
Exhibit C to the Twelfth Supplemental Indenture referred to as an "optional
sinking fund payment"), provided, that the cumulative amount of all optional
sinking fund payments pursuant to this Section 1.03 shall not exceed One Million
Two Hundred Thousand Dollars ($1,200,000) and each such optional sinking fund
payment shall be applied to the redemption of Series I Bonds on the required
sinking fund redemption date for such required sinking fund payment. The Company
will give notice, by registered mail, postage prepaid, to the Trustee and to
each registered owner of a bond of Series I of any required or optional payment
to be made pursuant to Section 1.02, this Section 1.03, Section 1.04 or Section
1.05 hereof not more than 60, nor less than 30, days prior to the required
sinking fund redemption date (or other designated date of redemption in the case
of a redemption pursuant to Section 1.04 or Section 1.05).
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Section 1.04. In addition to the required and optional sinking funds
provided by Sections 1.02 and 1.03 hereof, all of the bonds of Series I, or any
part of the principal amount thereof constituting One Hundred Thousand Dollars
($100,000) or any integral multiple thereof, shall be subject to redemption, at
the option of the Company, on any date on or after October 14, 1994 and before
October 14, 2019, pursuant to the provisions of Article VII of the Indenture,
and by payment of an amount equal to the Make Whole Amount, as defined below in
this Section 1.04, determined five Business Days prior to such redemption. In
addition to the foregoing, on any date on or after October 14, 2019, all of the
bonds of Series I, or any part of the principal amount thereof constituting One
Hundred Thousand Dollars ($100,000) or any integral multiple thereof, shall be
subject to redemption, at the option of the Company, by payment of the interest
accrued on the principal amount of the bond or bonds optionally to be redeemed
to the date fixed for such redemption plus an amount equal to the applicable
percentage of the principal amount thereof as follows:
Applicable
Date Fixed for Redemption Percentage
If redeemed on or after October 14, 2019 and before October 14, 2020 101.5%
On or after October 14, 2020 and before October 14, 2021 101.0%
On or after October 14, 2021 and before October 14, 2022 100.5%
On or after October 14, 2022 and prior to maturity 100%
For purposes of this Section 1.04, the Make Whole Amount shall mean the
greater of (i) the outstanding principal amount of the bonds to be redeemed,
plus interest accrued thereon to the date fixed for such redemption, and (ii)
the sum of (A) the aggregate present value as of the date of such redemption of
each dollar of principal being redeemed (taking into account each redemption
required by Section 1.02 above) and the amount of interest (exclusive of
interest accrued to the date fixed for such redemption) that would have been
payable in respect of each such dollar if such redemption had not been made,
determined by discounting such amounts at the Reinvestment Rate (as hereinafter
defined) from the respective dates on which they would have been payable to the
date of such redemption, plus (B) interest accrued on the bonds to be redeemed
to the date fixed for such redemption.
For purposes of any determination of the Make Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of 0.50%, plus the yield
reported on page "USD" of the Bloomberg Financial Markets Services Screen
(or, if not available, any other nationally recognized trading screen
reporting on-line intraday trading in the United States government
Securities) at 11:00 A.M. (Eastern time) on the fifth Business Day
preceding the date the Make Whole Amount becomes due and payable pursuant
to the foregoing provisions of this Section 1.04, for the United States
government Securities having a maturity (rounded to the nearest month)
corresponding to the remaining Weighted Average Life to Maturity of the
principal of the bonds being redeemed (taking into account the application
of each redemption required by Section 1.02) or (2) in the event that no
nationally recognized trading screen reporting on-line intraday trading in
the
C-3
United States government Securities is available, Reinvestment Rate shall
mean the sum of 0.50%, plus the arithmetic mean of the yields for the two
columns under the heading "Week Ending" published on the fifth Business Day
preceding the date the Make Whole Amount becomes due and payable pursuant
to the foregoing provisions of this Section 1.04, in the Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the Weighted Average Life
to Maturity of the principal amount of the bonds being redeemed (taking
into account each redemption required by Section 1.02). If no maturity
exactly corresponds to such Weighted Average Life to Maturity, yields for
the two published maturities most closely corresponding to such Weighted
Average Life to Maturity shall be calculated pursuant to the immediately
preceding sentence, and the Reinvestment Rate shall be interpolated or
extrapolated from such yields on a straightline basis, rounding in each of
such relevant periods to the nearest month. For the purposes of calculating
the Reinvestment Rate, the most recent Statistical Release published prior
to the date of determination of the Make Whole Amount shall be used.
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. Government Securities adjusted
to constant maturities or, if such statistical release is not published at
the time of any determination hereunder, then such other reasonably
comparable index which shall be designated by the holders of 66-2/3% in
aggregate principal amount of outstanding Series I bonds.
"Weighted Average Life to Maturity" of the principal amount of the
bonds being redeemed shall mean, as of the time of any determination
thereof, the number of years obtained by dividing the then Remaining
Dollar-Years of such principal by the aggregate amount of such principal.
The term "Remaining Dollar-Years" of such principal shall mean the amount
obtained by (i) multiplying (x) the remainder of (1) the amount of
principal that would have been payable on each scheduled redemption date
under Section 1.02 hereof if the redemption pursuant to this Section 1.03
had not been made, less (2) the amount of principal on the bonds scheduled
to become payable on each such redemption date under Section 1.02 after
giving effect to the redemption pursuant to this Section 1.04, by (y) the
number of years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and each such scheduled redemption date
under Section 1.02, and (ii) totaling the products obtained in (i).
Section 1.05. Series I Bonds may be redeemed pursuant to Article XI of the
Indenture (i) out of Trust Moneys, required by Section 8.12 of the Indenture to
be deposited with the Trustee, on any date and shall be redeemed for an amount
equal to the principal amount of the bonds to be redeemed, plus interest accrued
to the date of redemption; or (ii) out of Trust Moneys required by Sections
8.10, 10.03, 10.04 or 10.04A of the Indenture to be deposited with the Trustee,
on any date and, if redeemed prior to October 14, 2019, then they shall be
redeemed for an amount equal to the Make Whole Amount, as defined above in
Section 1.04, and if redeemed on any date on or after October 14, 2019, then
they shall be redeemed for an amount equal to the interest accrued on the
principal amount of the bond or bonds to be redeemed to the date fixed
C-4
for redemption, plus an amount equal to the applicable percentage of the
principal amount thereof set forth in Section 1.04, above, for optional
redemptions occurring on or after October 14, 2019.
Section 1.06. In the event that all or any part of the bonds of Series I
shall be redeemed or otherwise discharged prior to their maturity pursuant to or
in accordance with the order of any governmental commission or regulatory
authority upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such bonds of Series I shall be entitled to
be paid an amount equal to the Make Whole Amount, if such redemption or
discharge occurs prior to October 14, 2019, or, if such redemption or discharge
occurs on or after October 14, 2019, then the registered owners of such bonds
shall be entitled to be paid an amount equal to the interest accrued on the
principal amount of the bonds to be redeemed to the date of redemption, plus an
amount equal to the then applicable percentage of the principal amount thereof
provided in Section 1.04, above, for optional redemptions after such date.
Section 1.07. Bonds of Series I, upon surrender thereof at the principal
office of the Trustee, may be exchanged for the same aggregate principal amount
of other bonds of this Series.
Within a reasonable time after the receipt of a request for such an
exchange, the Company shall issue and the Trustee shall authenticate and deliver
all bonds required in connection therewith, and the Trustee shall make such
exchange upon payment to it of such charge, if any, as is required by the
following paragraph.
For any exchange of bonds of Series I, the Company, at its option, may
require the payment of a sum sufficient to reimburse it for any stamp or other
tax or governmental charge required to be paid by the Company or the Trustee.
Article Two
Redemption
Section 2.01. In the case of any required or optional sinking fund
redemption pursuant to Sections 1.02 and 1.03 hereof, forthwith after the
September 14 preceding each required sinking fund redemption date, and in the
case of any proposed redemption pursuant to Sections 1.04 or 1.05, forthwith
after the Trustee's receipt of proper notice from the Company of any such
proposed redemption, the Trustee, shall act in accordance with the provisions of
Article VII of the Indenture.
The Company covenants that it will pay to the Trustee
(i) on or before the day prior to each required sinking fund
redemption date, the sum required by Section 1.02 hereof, plus the sum, if
any, payable in accordance with any notice of optional redemption delivered
prior to such required sinking fund redemption date pursuant to Section
1.03 hereof,
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(ii) on or before the day prior to the date proposed by the Company in
a notice (which notice shall conform to the requirements of Article VII of
the Indenture) of any redemption pursuant to Section 1.04 or 1.05 hereof,
the amount payable in accordance with such notice, and
(iii) at the time of each required sinking fund redemption or other
redemption the Company shall pay to the Trustee the amount of the charges
which shall be due the Trustee and the amount of the expenses which the
Trustee advises the Company it has incurred or will incur in connection
with such redemption.
C-6
(Form of Series I Bond)
Unitil Energy Systems, Inc.
No. IR-_____ $____________
First Mortgage Bond, Series I, 8.49%
due October 14, 2024
Unitil Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to _________________ or registered assigns, on the
fourteenth day of October, 2024, the principal sum of
_____________________________ Dollars ($____________) and to pay interest
thereon from the date hereof at the rate of eight and forty-nine hundredths per
centum (8.49%) per annum (computed on the basis of a thirty (30) day month and
three hundred sixty (360) day year) payable semi-annually on the fourteenth day
of April and the fourteenth day of October in each year, commencing the
fourteenth day of April, 2003, until said principal sum is paid; and to pay
interest on any overdue principal (including any overdue prepayment of
principal) and premium if any, and (to the extent permitted by applicable law)
on any overdue payment of interest, at the rate of 9.49% per annum. The
principal of and premium, if any, and the interest on this bond shall be payable
at the corporate trust office in Boston, Massachusetts of U.S. Bank National
Association, or at the corporate trust office designated by its successor as
trustee in the trust hereinafter referred to, or at the option of certain
holders, in accordance with the provisions of Section 1.01 of Exhibit C of the
Twelfth Supplemental Indenture hereinafter referred to, in lawful money of the
United States of America.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company limited as to aggregate principal amount as set forth in the Indenture
hereinafter mentioned, issuable in series, and is one of a series known as First
Mortgage Bonds, Series I, all bonds of all series being issued and to be issued
under and pursuant to and all equally secured (except as any sinking or other
fund, established in accordance with the provisions of the Indenture hereinafter
mentioned, may afford additional security for the bonds of any particular
series) by an Indenture of Mortgage and Deed of Trust dated as of July 15, 1958
(herein called the "Original Indenture") duly executed and delivered by the
Company to Old Colony Trust Company (U.S. Bank National Association being
successor Trustee and together with each predecessor trustee being called the
"Trustee"), to which Original Indenture and to all Indentures supplemental
thereto, including a Twelfth Supplemental Indenture (the "Twelfth Supplemental
Indenture") dated as of December 2, 2002 (herein together called the
"Indenture") reference is hereby made for a description of the property
transferred, assigned and mortgaged thereunder, the nature and extent of the
security, the terms and conditions upon which the bonds are secured and
additional bonds may be issued and secured, and the rights of the holders or
registered owners of said bonds, of the Trustee and of the Company in respect of
such security. Neither the foregoing reference to the Indenture, nor any
provision of this bond or of the Indenture, shall affect or impair the
obligation of the Company, which is absolute, unconditional and unalterable, to
pay,
Schedule A
(to Exhibit C of the Twelfth Supplemental Indenture)
at the stated or accelerated maturities herein provided, the principal of and
premium, if any, and interest on this bond as herein provided.
Bonds of this Series I are entitled to the benefit of a required sinking
fund and an optional sinking fund provided for in Exhibit C to the Twelfth
Supplemental Indenture and shall become subject to redemption for the purposes
of such sinking funds at the principal amount thereof without premium, plus
interest accrued thereon to the date of such redemption, all on the conditions
and in the manner provided in Exhibit C to the Twelfth Supplemental Indenture.
Bonds of this Series I are also redeemable, in whole or in part, in
integral multiples of one hundred thousand dollars, at the option of the Company
on any date on at least 30 days' notice, in the manner, with the effect, subject
to the limitations and for the amounts specified in Section 1.04 of Exhibit C to
the Twelfth Supplemental Indenture.
On the conditions and in the manner provided in the Section 1.05 of Exhibit
C to the Twelfth Supplemental Indenture, Series I Bonds may also become subject
to redemption, in whole or in part, at any time on at least 30 days' notice, in
the manner, with the effect and for the amounts specified in said Section 1.05,
by the use of moneys deposited with or paid to the Trustee as the proceeds of
the sale or condemnation of property of the Company or as the proceeds of
insurance policies deposited with or paid to the Trustee because of damage to or
destruction of property of the Company.
In the event that all or any part of the bonds of this Series I shall be
redeemed or otherwise discharged prior to their maturity pursuant to or in
accordance with the order of any governmental commission or regulatory authority
upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such Series I Bonds shall be entitled to be
paid therefor an amount specified in Section 1.06 of Exhibit C to the Twelfth
Supplemental Indenture.
The Indenture provides that, if notice of redemption of any bond issued
pursuant to its terms, including the Series I Bonds, or any portion of the
principal amount of any such bond selected for redemption has been duly given,
then such bond or such portion thereof shall become due and payable on the date
fixed for redemption, and, if the redemption price shall have been duly
deposited with the Trustee, interest thereon shall cease to accrue from and
after the date fixed for redemption, and that whenever the redemption price
thereof shall have been duly deposited with the Trustee and notice of redemption
shall have been duly given, or provision therefor made as provided in the
Indenture, such bond or such portion thereof shall no longer be entitled to any
lien or benefit of the Indenture.
In case an Event of Default, as defined in the Indenture, occurs, the
principal of this bond may become or may be declared due and payable prior to
the stated maturity hereof in the manner and with the effect and subject to the
conditions provided in the Indenture.
This bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, upon books of the Company to be kept for that purpose
at the corporate trust office of the Trustee under the Indenture, upon surrender
thereof at said office for cancellation and upon
C-A-2
presentation of a written instrument of transfer duly executed, and thereupon
the Company shall issue in the name of the transferee or transferees, and the
Trustee shall authenticate and deliver, a new registered bond or bonds, of like
form and in an authorized denomination or in authorized denominations and of the
same series, for the same aggregate principal amount. Bonds of this series upon
surrender thereof at said office may be exchanged for the same aggregate
principal amount of bonds, also of this series but of another authorized
denomination or other authorized denominations, all upon payment of the charges,
if any, and subject to the terms and conditions specified in the Indenture.
The Company and the Trustee may treat the registered owner of this bond as
the absolute owner hereof for all purposes.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, property may be released from the lien thereof, and
the terms and provisions of the Indenture may be modified by the assent or
authority of the holders of at least seventy-five per centum (75%) in principal
amount of the bonds then outstanding thereunder, provided, however, that no such
modification shall (i) extend the time or times or payment of the principal of,
or the interest or premium, if any, on any bond, (ii) reduce the principal
amount thereof or the rate of interest or premium thereon, (iii) authorize the
creation of any lien prior or equal to the lien of the Indenture upon any
property subject to the lien thereof, or deprive any bondholder of the benefit
of the lien of the Indenture, (iv) affect the rights under the Indenture of the
holders of one or more, but less than all, of the series of bonds outstanding
thereunder unless assented to by the holders of seventy-five per centum (75%) in
aggregate principal amount of bonds outstanding thereunder of each of the series
so affected, (v) reduce the percentage of bonds, the holders of which are
required to assent to any such modification, or (vi) in any manner affect the
rights or obligations of the Trustee without its written consent thereto.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or of any claim based hereon or in respect hereof or of
the Indenture, against any incorporator, stockholder, officer or director of the
Company, or of any successor company, whether by virtue of any statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being by the acceptance hereof expressly waived and released and being
also waived and released by the terms of the Indenture.
This bond shall not be valid nor become obligatory for any purpose until it
shall have been authenticated by the execution of the certificate hereon
endorsed by the Trustee under the Indenture.
C-A-3
In witness whereof, Unitil Energy Systems, Inc. has caused this bond to be
signed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Treasurer, and this
bond to be dated the ________________, _____.
Unitil Energy Systems, Inc.
By:
-----------------------------------
President
Attest:
---------------------------
Treasurer
(Corporate Seal)
C-A-4
(Form of Trustee's Certificate for all Bonds of Series I)
Trustee's Certificate of Authentication
This is one of the First Mortgage Bonds, Series I, referred to in the
within mentioned Indenture.
U.S. Bank National
Association
By:
----------------------------------
Authorized Officer
(Form of Endorsement)
For Value Received the undersigned hereby sells, assigns and transfers unto
_________________ the within bond, and all rights thereunder, hereby irrevocably
constituting and appointing ____________ attorney to transfer said bond on the
books of the Company, with full power of substitution in the premises.
-----------------------------------------
Signature of Registered Owner
Dated:
-------------------------
In the presence
of:
-----------------------------
Notice: The signature of this assignment must correspond with the name of
the payee as it appears upon the face of the within bond in every particular,
without alteration or enlargement or any change whatever.
Series J Bonds
The terms and provisions of the Series J, 6.96% Bonds of the Company which
were set forth in the Ninth Supplemental Indenture, have been amended and
restated in this Exhibit D, which shall from and after the Merger Date control
the terms and conditions of such Series J, 6.96% Bonds, and the Ninth
Supplemental Indenture shall have no further force or effect with respect to
such terms and conditions.
All things have been done and performed which are necessary to make the
Series J Bonds, when authenticated by the Trustee and issued as herein provided,
legal valid and binding obligations of the Company;
And it is Hereby Covenanted, Declared and Agreed, as set forth in the
following-covenants, agreements, conditions and provisions, to wit:
Article One
Amendment and Restatement of Series J Bonds
Section 1.01. There is hereby amended and restated the series of bonds
heretofore designated as and entitled "First Mortgage Bonds, Series J." Series J
Bonds which shall be fully registered bonds, of the denomination of $1,000 and
multiples thereof. The registered bonds of Series J issued after the Merger Date
shall be dated as provided in Section 2.03 of the Indenture. All Series J Bonds
shall mature on September 1, 2028 and shall bear interest at the rate of six and
ninety-six one hundredths percent (6.96%) per annum from their respective dates
of issue, such interest to be payable quarterly in arrears on the first day of
March, June, September and December in each year commencing the first day of
March, 2003, and shall bear interest on any overdue principal (including any
overdue prepayment of principal) and premium, if any, and (to the extent
permitted by applicable law) on any overdue payment of interest, at the rate of
8.96% per annum. The principal of, premium if any, and interest on bonds of
Series J shall be payable at the corporate trust office in Boston, Massachusetts
of U.S. Bank National Association or at the corporate trust office designated by
its successor as Trustee hereunder, in lawful money of the United States of
America provided that the Company may enter into a written agreement with any
registered Institutional Holder of the bonds of Series J providing that payment
of interest thereon and of the redemption price on any portion of the principal
amount thereof (including premium, if any) which may be redeemed shall be made
directly to such holder or to its nominee, as the case may be, at a duly
designated place of payment within the United States, without surrender or
presentation of such bonds of Series J to the Trustee, provided that (A) there
shall have been filed with the Trustee a copy of such agreement, (B) pursuant to
such agreement such holder shall agree that it will not sell, transfer or
otherwise dispose of any such bond of Series J in respect of which any such
payment or redemption shall have been made unless, prior to the delivery thereof
by it, either (i) it shall have made a clear and accurate notation of the amount
of
Exhibit D
(to Twelfth Supplemental Indenture)
principal so redeemed upon such bond to be transferred, or (ii) such bond of
Series J shall have been presented to the Trustee for appropriate notation
thereon of the portion of the principal amount thereof redeemed, or (iii) such
bond or bonds of Series J shall have been surrendered in exchange for a new bond
or bonds of Series J for the unredeemed balance of the principal amount thereof
in accordance with the other terms of the Indenture and (C) in such agreement
such holder shall agree that prior to receiving any final payment of the entire
remaining unpaid principal amount of any Series J bond, the holder thereof shall
be required to deliver such bond to the Trustee. For purposes of this Section
1.01, the term "Institutional Holder" shall mean any insurance company, bank,
savings and loan association, trust company, investment company, charitable
foundation, employee benefit plan (as defined in ERISA) or other institutional
investor or financial institution. The text of the Series J Bonds and the
Trustee's certificate with respect thereto shall be respectively substantially
of the tenor and purport set forth in Schedule A hereto. The Series J Bonds
shall be numbered in such manner or by such method as shall be satisfactory to
the Trustee.
The issue of bonds of Series J hereunder is hereby limited to the
$10,000,000 in aggregate principal amount of Series J Bonds initially issued
under the Ninth Supplemental Indenture and to Series J Bonds issued in exchange
or substitution for outstanding Series J Bonds under the provisions of Sections
2.08, 2.10, 2.11 and 7.05 of the Indenture and of Section 1.06 hereof.
Section 1.02. As a required sinking fund for the benefit of the Series J
Bonds, the Company covenants that it will, on or prior to September 1 in each
year, beginning with September 1, 2019, and continuing to and including
September 1, 2028, pay to the Trustee immediately available funds sufficient to
redeem, at par, Series J Bonds then outstanding, in the principal amount of One
Million Dollars ($1,000,000) (or the remaining principal amount if less than
$1,000,000 principal amount of Series J Bonds at the time remains outstanding).
The payments required for the sinking fund as above provided are in this Section
1.02 and elsewhere in this Exhibit D referred to as "required sinking fund
payments" and the day following the latest date on which each such payment is
required to be made is herein and therein referred to as a "required sinking
fund redemption date". Each required sinking fund payment shall be applied to
the redemption of Series J bonds on the applicable required sinking fund
redemption date.
No redemption under Section 1.03, 1.04 or 1.05 hereof shall affect or
reduce the obligation of the Company to provide for required sinking fund
redemptions under this Section 1.02 until all Series J Bonds shall have been
paid in full.
Section 1.03. In addition to the required sinking fund provided by Section
1.02 hereof, all of the bonds of Series J, or any part of the principal amount
thereof constituting One Hundred Thousand Dollars ($100,000) or any integral
multiple thereof, shall be subject to redemption, at the option of the Company,
on any date on or after September 1, 1998 and before September 1, 2026, pursuant
to the provisions of Article VII of the Indenture, and by payment of an amount
equal to the Make Whole Amount, as defined below in this Section 1.03,
determined five Business Days prior to such redemption. In addition to the
foregoing, on any date on or after September 1, 2026, all of the bonds of Series
J, or any part of the principal amount thereof constituting One Hundred Thousand
Dollars ($100,000) or any integral multiple thereof, shall be subject to
redemption, at the option of the Company, by payment of the interest accrued on
the
D-2
principal amount of the bond or bonds optionally to be redeemed to the dates
fixed for such redemption plus 100% of the principal amount thereof.
For purposes of this Section 1.03, the Make Whole Amount shall mean the
greater of (i) the outstanding principal amount of the bonds to be redeemed,
plus interest accrued thereon to the date fixed for such redemption, and (ii)
the sum of (A) the aggregate present value as of the date of such redemption of
each dollar of principal being redeemed (taking into account each redemption
required by Section 1.02 above) and the amount of interest (exclusive of
interest accrued to the date fixed for such redemption) that would have been
payable in respect of each such dollar if such redemption had not been made,
determined by discounting such amounts at the Reinvestment Rate (as hereinafter
defined) from the respective dates on which they would have been payable to the
date of such redemption, plus (B) interest accrued on the bonds to be redeemed
to the date fixed for such redemption.
For purposes of any determination of the Make Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of 0.50%, plus the yield
reported on page "USD" of the Bloomberg Financial Markets Services Screen
(or, if not available, any other nationally recognized trading screen
reporting on-line intraday trading in the United States government
Securities) at 11:00 A.M. (Eastern time) on the fifth Business Day
preceding the date the Make Whole Amount becomes due and payable pursuant
to the foregoing provisions of this Section 1.03, for the United States
government Securities having a maturity (rounded to the nearest month)
corresponding to the remaining Weighted Average Life to Maturity of the
principal of the bonds being redeemed (taking into account the application
of each redemption required by Section 1.02) or (2) in the event that no
nationally recognized trading screen reporting on-line intraday trading in
the United States government Securities is available, Reinvestment Rate
shall mean the sum of 0.50%, plus the arithmetic mean of the yields for the
two columns under the heading "Week Ending" published on the fifth Business
Day preceding the date the Make Whole Amount becomes due and payable
pursuant to the foregoing provisions of this Section 1.03, in the
Statistical Release under the caption "Treasury Constant Maturities" for
the maturity (rounded to the nearest month) corresponding to the Weighted
Average Life to Maturity of the principal amount of the bonds being
redeemed (taking into account each redemption required by Section 1.02). If
no maturity exactly corresponds to such Weighted Average Life to Maturity,
yields for the two published maturities most closely corresponding to such
Weighted Average Life to Maturity shall be calculated pursuant to the
immediately preceding sentence, and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straightline basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make Whole
Amount shall be used.
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. Government Securities adjusted
to constant maturities or, if such statistical release is not
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published at the time of any determination hereunder, then such other
reasonably comparable index which shall be designated by the holders of
66-2/3% in aggregate principal amount of outstanding Series J Bonds.
"Weighted Average Life to Maturity" of the principal amount of the
bonds being redeemed shall mean, as of the time of any determination
thereof, the number of years obtained by dividing the then Remaining
Dollar-Years of such principal by the aggregate amount of such principal.
The term "Remaining Dollar-Years" of such principal shall mean the amount
obtained by (i) multiplying (x) the remainder of (1) the amount of
principal that would have been payable on each scheduled redemption date
under Section 1.02 hereof if the redemption pursuant to this Section 1.03
had not been made, less (2) the amount of principal on the bonds scheduled
to become payable on each such redemption date under Section 1.02 after
giving effect to the redemption pursuant to this Section 1.03, by (y) the
number of years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and each such scheduled redemption date
under Section 1.02, and (ii) totaling the products obtained in (i).
Section 1.04. Series J Bonds may be redeemed pursuant to Article XI of the
Indenture (i) out of Trust Moneys, required by Section 8.12 of the Indenture to
be deposited with the Trustee, on any date and shall be redeemed for an amount
equal to the principal amount of the bonds to be redeemed, plus interest accrued
to the date of redemption; or (ii) out of Trust Moneys required by Sections
8.10, 10.03, 10.04 or 10.04A of the Indenture to be deposited with the Trustee,
on any date and, if redeemed prior to September 1, 2026, then they shall be
redeemed for an amount equal to the Make Whole Amount, as defined above in
Section 1.03, and if redeemed on any date on or after September 1, 2026, then
they shall be redeemed for an amount equal to the interest accrued on the
principal amount of the bond or bonds to be redeemed to the date fixed for
redemption, plus 100% of the principal amount thereof, for optional redemptions
occurring on or after September 1, 2026.
Section 1.05. In the event that all or any part of the bonds of Series J
shall be redeemed or otherwise discharged prior to their maturity pursuant to or
in accordance with the order of any governmental commission or regulatory
authority upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such bonds of Series J shall be entitled to
be paid an amount equal to the Make Whole Amount, if such redemption or
discharge occurs prior to September 1, 2026, or, if such redemption or discharge
occurs on or after September 1, 2026, then the registered owners of such bonds
shall be entitled to be paid an amount equal to the interest accrued on the
principal amount of the bonds to be redeemed to the date of redemption, plus
100% of the principal amount thereof.
Section 1.06. Bonds of Series J, upon surrender thereof at the principal
office of the Trustee, may be exchanged for the same aggregate principal amount
of other bonds of this Series.
Within a reasonable time after the receipt of a request for such an
exchange, the Company shall issue and the Trustee shall authenticate and deliver
all bonds required in connection therewith, and the Trustee shall make such
exchange upon payment to it of such charge, if any, as is required by the
following paragraph.
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For any exchange of bonds of Series J, the Company, at its option, may
require the payment of a sum sufficient to reimburse it for any stamp or other
tax or governmental charge required to be paid by the Company or the Trustee.
Article Two
Redemption
Section 2.01. In the case of any required sinking fund redemption pursuant
to Section 1.02 hereof, forthwith after the August 1 preceding each required
sinking fund redemption date, and in the case of any proposed redemption
pursuant to Sections 1.03 or 1.04, forthwith after the Trustee's receipt of
proper notice from the Company of any such proposed redemption, the Trustee,
pursuant to the provisions of Article VII of the Indenture.
The Company covenants that it will pay to the Trustee
(i) on or before the day prior to each required sinking fund
redemption date, the sum required by Section 1.02 hereof,
(ii) on or before the day prior to the date proposed by the Company in
a notice (which notice shall conform to the requirements of Article VII of
the Indenture) of any redemption pursuant to Section 1.03 or 1.04 hereof,
the amount payable in accordance with such notice, and
(iii) at the time of each required sinking fund redemption or other
redemption the Company shall pay to the Trustee the amount of the charges
which shall be due the Trustee and the amount of the expenses which the
Trustee advises the Company it has incurred or will incur in connection
with such redemption.
D-5
(Form of Series J Bond)
Unitil Energy Systems, Inc.
First Mortgage Bond, Series J, 6.96%
due September 1, 2028
No. JR-______ $_______________
Unitil Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to ________ or registered assigns, on the first day of
September, 2028, the principal sum of ___________ Dollars ($_______________) and
to pay interest thereon from the date hereof at the rate of six and ninety-six
hundredths per centum (6.96%) per annum (computed on the basis of a thirty (30)
day month and three hundred sixty (360) day year) payable quarterly in arrears
on the first day of March, June, September and December in each year, commencing
the first day of March, 2003, until said principal sum is paid; and to pay
interest on any overdue principal (including any overdue prepayment of
principal) and premium if any, and (to the extent permitted by applicable law)
on any overdue payment of interest, at the rate of 8.96% per annum. The
principal of and premium if any, and the interest on this bond shall be payable
at the corporate trust office in Boston, Massachusetts of U.S. Bank National
Association, or at the corporate trust office designated by its successor as
trustee in the trust hereinafter referred to, or at the option of certain
holders, in accordance with the provisions of Section 1.01 of Exhibit D of the
Twelfth Supplemental Indenture hereinafter referred to, in lawful money of the
United States of America.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company limited as to aggregate principal amount as set forth in the Indenture
hereinafter mentioned, issuable in series, and is one of a Series J known as
First Mortgage Bonds, Series J, all bonds of all series being issued and to be
issued under and pursuant to and all equally secured (except as any sinking or
other fund, established in accordance with the provisions of the Indenture
hereinafter mentioned, may afford additional security for the bonds of any
particular series) by an Indenture of Mortgage and Deed of Trust dated as of
July 15, 1958 (herein called the "Original Indenture") duly executed and
delivered by the Company to Old Colony Trust Company (U.S. Bank National
Association being successor Trustee and together with each predecessor trustee
being called the "Trustee"), to which Original Indenture and to all Indentures
supplemental thereto, including a Twelfth Supplemental Indenture (the "Twelfth
Supplemental Indenture") dated as of December 2, 2002 (herein together called
the "Indenture") reference is hereby made for a description of the property
transferred, assigned and mortgaged thereunder, the nature and extent of the
security, the terms and conditions upon which the bonds are secured and
additional bonds may be issued and secured, and the rights of the holders or
registered owners of said bonds, of the Trustee and of the Company in respect of
such security. Neither the foregoing reference to the Indenture, nor any
provision of this bond or of the Indenture, shall affect or impair the
obligation of the Company, which is absolute, unconditional and unalterable, to
pay, at the stated or accelerated maturities herein provided, the principal of
and premium, if any, and interest on this bond as herein provided.
Schedule A
(to Exhibit D of the Twelfth Supplemental Indenture)
Bonds of this Series J are entitled to the benefit of a required sinking
fund provided for in Exhibit D to the Twelfth Supplemental Indenture and shall
become subject to redemption for the purposes of such sinking fund at the
principal amount thereof without premium, plus interest accrued thereon to the
date of such redemption, all on the conditions and in the manner provided in
Exhibit D to the Twelfth Supplemental Indenture.
Bonds of this Series J are also redeemable, in whole or in part, in
integral multiples of one hundred thousand dollars, at the option of the Company
on any date on at least 30 days' notice, in the manner, with the effect, subject
to the limitations and for the amounts specified in Section 1.03 of Exhibit D to
the Twelfth Supplemental Indenture.
On the conditions and in the manner provided in the Section 1.04 of Exhibit
D to the Twelfth Supplemental Indenture, Series J Bonds may also become subject
to redemption, in whole or in part, at any time on at least 30 days' notice, in
the manner, with the effect and for the amounts specified in said Section 1.04,
by the use of moneys deposited with or paid to the Trustee as the proceeds of
the sale or condemnation of property of the Company or as the proceeds of
insurance policies deposited with or paid to the Trustee because of damage to or
destruction of property of the Company.
In the event that all or any part of the bonds of this Series J shall be
redeemed or otherwise discharged prior to their maturity pursuant to or in
accordance with the order of any governmental commission or regulatory authority
upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such Series J Bonds shall be entitled to be
paid therefor an amount specified in Section 1.05 of Exhibit D to the Twelfth
Supplemental Indenture.
The Indenture provides that, if notice of redemption of any bond issued
pursuant to its terms, including the Series J Bonds, or any portion of the
principal amount of any such bond selected for redemption has been duly given,
then such bond or such portion thereof shall become due and payable on the date
fixed for redemption, and, if the redemption price shall have been duly
deposited with the Trustee, interest thereon shall cease to accrue from and
after the date fixed for redemption, and that whenever the redemption price
thereof shall have been duly deposited with the Trustee and notice of redemption
shall have been duly given, or provision therefor made as provided in the
Indenture, such bond or such portion thereof shall no longer be entitled to any
lien or benefit of the Indenture.
In case an Event of Default, as defined in the Indenture, occurs, the
principal of this bond may become or may be declared due and payable prior to
the stated maturity hereof in the manner and with the effect and subject to the
conditions provided in the Indenture.
This bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, upon books of the Company to be kept for that purpose
at the corporate trust office of the Trustee under the Indenture, upon surrender
thereof at said office for cancellation and upon presentation of a written
instrument of transfer duly executed, and thereupon the Company shall issue in
the name of the transferee or transferees, and the Trustee shall authenticate
and deliver, a new registered bond or bonds, of like form and in an authorized
D-A-2
denomination or in authorized denominations and of the same series, for the same
aggregate principal amount. Bonds of this series upon surrender thereof at said
office may be exchanged for the same aggregate principal amount of bonds, also
of this series but of another authorized denomination or other authorized
denominations, all upon payment of the charges, if any, and subject to the terms
and conditions specified in the Indenture.
The Company and the Trustee may treat the registered owner of this bond as
the absolute owner hereof for all purposes.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, property may be released from the lien thereof, and
the terms and provisions of the Indenture may be modified by the assent or
authority of the holders of at least seventy-five per centum (75%) in principal
amount of the bonds then outstanding thereunder, provided, however, that no such
modification shall (i) extend the time or times or payment of the principal of,
or the interest or premium, if any, on any bond, (ii) reduce the principal
amount thereof or the rate of interest or premium thereon, (iii) authorize the
creation of any lien prior or equal to the lien of the Indenture upon any
property subject to the lien thereof, or deprive any bondholder of the benefit
of the lien of the Indenture, (iv) affect the rights under the Indenture of the
holders of one or more, but less than all, of the series of bonds outstanding
thereunder unless assented to by the holders of seventy-five per centum (75%) in
aggregate principal amount of bonds outstanding thereunder of each of the series
so affected, (v) reduce the percentage of bonds, the holders of which are
required to assent to any such modification, or (vi) in any manner affect the
rights or obligations of the Trustee without its written consent thereto.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or of any claim based hereon or in respect hereof or of
the Indenture, against any incorporator, stockholder, officer or director of the
Company, or of any successor company, whether by virtue of any statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being by the acceptance hereof expressly waived and released and being
also waived and released by the terms of the Indenture.
This bond shall not be valid nor become obligatory for any purpose until it
shall have been authenticated by the execution of the certificate hereon
endorsed by the Trustee under the Indenture.
D-A-3
In Witness Whereof, Unitil Energy Systems, Inc. has caused this bond to be
signed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Treasurer, and this
bond to be dated the __________, _____.
Unitil Energy Systems, Inc.
By
-----------------------------------------
President
Attest:
---------------------------
Treasurer
(Corporate Seal)
D-A-4
(Form of Trustee's Certificate for all Bonds of Series J)
Trustee's Certificate of Authentication
This is one of the First Mortgage Bonds, Series J, referred to in the
within mentioned Indenture.
U.S. Bank National Association
By
-----------------------------------------
Authorized Officer
D-A-5
(FORM OF ENDORSEMENT)
For Value Received the undersigned hereby sells, assigns and transfers unto
_____________________________ the within bond, and all rights thereunder, hereby
irrevocably constituting and appointing ___________________________ attorney to
transfer said bond on the books of the Company, with full power of substitution
in the premises.
-------------------------------------------
Signature of Registered Owner
Dated:
-------------------------
In the presence
of:
----------------------------
Notice: The signature of this assignment must correspond with the name of
the payee as it appears upon the face of the within bond in every particular,
without alteration or enlargement or any change whatever.
Series K Bonds
The terms and provisions of the Series K, 8.00% Bonds of the Company which
were set forth in the Eleventh Supplemental Indenture, have been amended and
restated in this Exhibit E, which shall from and after the Merger Date control
the terms and conditions of such Series K, 8.00 % Bonds, and the Eleventh
Supplemental Indenture shall have no further force or effect with respect to
such terms and conditions.
All things have been done and performed which are necessary to make the
Series K Bonds, when authenticated by the Trustee and issued as herein provided,
legal valid and binding obligations of the Company;
And it is Hereby Covenanted, Declared and Agreed, as set forth in the
following-covenants, agreements, conditions and provisions, to wit:
Article One
Amendment and Restatement of Series K Bonds
Section 1.01. There is hereby amended and restated the series of bonds
heretofore designated as and entitled "First Mortgage Bonds, Series K." Series K
Bonds shall be fully registered bonds, of the denomination of $1,000 and
multiples thereof. The registered bonds of Series K issued after the Merger Date
shall be dated as provided in Section 2.03 of the Indenture. All Series K Bonds
shall mature on May 1, 2031 and shall bear interest at the rate of eight percent
(8.00%) per annum from their respective dates of issue, such interest to be
payable quarterly in arrears on the first day of February, May, August and
November each year commencing the first day of February, 2003, and shall bear
interest on any overdue principal (including any overdue prepayment of
principal) and premium, if any, and (to the extent permitted by applicable law)
on any overdue payment of interest, at the rate of 10.00% per annum. The
principal of, premium if any, and interest on bonds of Series K shall be payable
at the corporate trust office in Boston, Massachusetts of U.S. Bank National
Association or at the corporate trust office designated by its successor as
Trustee hereunder, in lawful money of the United States of America provided that
the Company may enter into a written agreement with any registered Institutional
Holder of the bonds of Series K providing that payment of interest thereon and
of the redemption price on any portion of the principal amount thereof
(including premium, if any) which may be redeemed shall be made directly to such
holder or to its nominee, as the case may be, at a duly designated place of
payment within the United States, without surrender or presentation of such
bonds of Series K to the Trustee, provided that (A) there shall have been filed
with the Trustee a copy of such agreement, (B) pursuant to such agreement such
holder shall agree that it will not sell, transfer or otherwise dispose of any
such bond of Series K in respect of which any such payment or redemption shall
have been made unless, prior to the delivery thereof by it, either (i) it shall
have made a clear and accurate notation of the amount of principal so redeemed
upon such bond to be transferred, or (ii) such bond of Series K shall have
Exhibit E
(to Twelfth Supplemental Indenture)
been presented to the Trustee for appropriate notation thereon of the portion of
the principal amount thereof redeemed, or (iii) such bond or bonds of Series K
shall have been surrendered in exchange for a new bond or bonds of Series K for
the unredeemed balance of the principal amount thereof in accordance with the
other terms of the Indenture and (C) in such agreement such holder shall agree
that prior to receiving any final payment of the entire remaining unpaid
principal amount of any Series K bond, the holder thereof shall be required to
deliver such bond to the Trustee. For purposes of this Section 1.01, the term
"Institutional Holder" shall mean any insurance company, bank, savings and loan
association, trust company, investment company, charitable foundation, employee
benefit plan (as defined in ERISA) or other institutional investor or financial
institution. The text of the Series K Bonds and the Trustee's certificate with
respect thereto shall be respectively substantially of the tenor and purport set
forth in Schedule A hereto. The Series K Bonds shall be numbered in such manner
or by such method as shall be satisfactory to the Trustee.
The issue of bonds of Series K hereunder is hereby limited to the
$7,500,000 in aggregate principal amount of Series K Bonds initially issued
under the Eleventh Supplemental Indenture and to Series K Bonds issued in
exchange or substitution for outstanding Series K Bonds under the provisions of
Section 2.08, 2.10, 2.11 and 7.05 of the Indenture and of Section 1.06 hereof.
Section 1.02. As a required sinking fund for the benefit of the Series K
Bonds, the Company covenants that it will, on or prior to May 1 in each year,
beginning with May 1, 2022, and continuing to and including May 1, 2031, pay to
the Trustee immediately available funds sufficient to redeem, at par, Series K
Bonds then outstanding, in the principal amount of Seven Hundred Fifty Thousand
Dollars ($750,000) (or the remaining principal amount if less than $750,000
principal amount of Series K Bonds at the time remains outstanding). The
payments required for the sinking fund as above provided are in this Section
1.02 and elsewhere in this Exhibit E referred to as "required sinking fund
payments" and the day following the latest date on which each such payment is
required to be made is herein and therein referred to as a "required sinking
fund redemption date". Each required sinking fund payment shall be applied to
the redemption of Series K Bonds on the applicable required sinking fund
redemption date.
No redemption under Section 1.03, 1.04 or 1.05 hereof shall affect or
reduce the obligation of the Company to provide for required sinking fund
redemptions under this Section 1.02 until all Series K Bonds shall have been
paid in full.
Section 1.03. In addition to the required sinking fund provided by Section
1.02 hereof, all of the bonds of Series K, or any part of the principal amount
thereof constituting One Hundred Thousand Dollars ($100,000) or any integral
multiple thereof, shall be subject to redemption, at the option of the Company,
on any date on or after May 1, 2001 and before May 1, 2029, pursuant to the
provisions of Article VII of the Indenture, and by payment of an amount equal to
the Make Whole Amount, as defined below in this Section 1.03, determined five
Business Days prior to such redemption. In addition to the foregoing, on any
date on or after May 1, 2029, all of the bonds of Series K, or any part of the
principal amount thereof constituting One Hundred Thousand Dollars ($100,000) or
any integral multiple thereof, shall be subject to redemption, at the option of
the Company, by payment of the interest accrued on the principal amount of the
E-2
bond or bonds optionally to be redeemed to the dates fixed for such redemption
plus 100% of the principal amount thereof.
For purposes of this Section 1.03, the Make Whole Amount shall mean the
greater of (i) the outstanding principal amount of the bonds to be redeemed,
plus interest accrued thereon to the date fixed for such redemption, and (ii)
the sum of (A) the aggregate present value as of the date of such redemption of
each dollar of principal being redeemed (taking into account each redemption
required by Section 1.02 above) and the amount of interest (exclusive of
interest accrued to the date fixed for such redemption) that would have been
payable in respect of each such dollar if such redemption had not been made,
determined by discounting such amounts at the Reinvestment Rate (as hereinafter
defined) from the respective dates on which they would have been payable to the
date of such redemption, plus (B) interest accrued on the bonds to be redeemed
to the date fixed for such redemption.
For purposes of any determination of the Make Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of 0.50%, plus the yield
reported on page "USD" of the Bloomberg Financial Markets Services Screen
(or, if not available, any other nationally recognized trading screen
reporting on-line intraday trading in the United States government
Securities) at 11:00 A.M. (Eastern time) on the fifth Business Day
preceding the date the Make Whole Amount becomes due and payable pursuant
to the foregoing provisions of this Section 1.03, for the United States
government Securities having a maturity (rounded to the nearest month)
corresponding to the remaining Weighted Average Life to Maturity of the
principal of the bonds being redeemed (taking into account the application
of each redemption required by Section 1.02) or (2) in the event that no
nationally recognized trading screen reporting on-line intraday trading in
the United States government Securities is available, Reinvestment Rate
shall mean the sum of 0.50%, plus the arithmetic mean of the yields for the
two columns under the heading "Week Ending" published on the fifth Business
Day preceding the date the Make Whole Amount becomes due and payable
pursuant to the foregoing provisions of this Section 1.03, in the
Statistical Release under the caption "Treasury Constant Maturities" for
the maturity (rounded to the nearest month) corresponding to the Weighted
Average Life to Maturity of the principal amount of the bonds being
redeemed (taking into account each redemption required by Section 1.02). If
no maturity exactly corresponds to such Weighted Average Life to Maturity,
yields for the two published maturities most closely corresponding to such
Weighted Average Life to Maturity shall be calculated pursuant to the
immediately preceding sentence, and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straightline basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make Whole
Amount shall be used.
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. Government Securities adjusted
to constant maturities or, if such statistical release is not
E-3
published at the time of any determination hereunder, then such other
reasonably comparable index which shall be designated by the holders of
66-2/3% in aggregate principal amount of outstanding Series K Bonds.
"Weighted Average Life to Maturity" of the principal amount of the
bonds being redeemed shall mean, as of the time of any determination
thereof, the number of years obtained by dividing the then Remaining
Dollar-Years of such principal by the aggregate amount of such principal.
The term "Remaining Dollar-Years" of such principal shall mean the amount
obtained by (i) multiplying (x) the remainder of (1) the amount of
principal that would have been payable on each scheduled redemption date
under Section 1.02 hereof if the redemption pursuant to this Section 1.03
had not been made, less (2) the amount of principal on the bonds scheduled
to become payable on each such redemption date under Section 1.02 after
giving effect to the redemption pursuant to this Section 1.03, by (y) the
number of years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and each such scheduled redemption date
under Section 1.02, and (ii) totaling the products obtained in (i).
Section 1.04. Series K Bonds may be redeemed pursuant to Article XI of the
Indenture (i) out of Trust Moneys, required by Section 8.12 of the Indenture to
be deposited with the Trustee, on any date and shall be redeemed for an amount
equal to the principal amount of the bonds to be redeemed, plus interest accrued
to the date of redemption; or (ii) out of Trust Moneys required by Sections
8.10, 10.03, 10.04 or 10.04A of the Indenture to be deposited with the Trustee,
on any date and, if redeemed prior to May 1, 2029, then they shall be redeemed
for an amount equal to the Make Whole Amount, as defined above in Section 1.03,
and if redeemed on any date on or after May 1, 2029, then they shall be redeemed
for an amount equal to the interest accrued on the principal amount of the bond
or bonds to be redeemed to the date fixed for redemption, plus 100% of the
principal amount thereof, for optional redemptions occurring on or after May 1,
2029.
Section 1.05. In the event that all or any part of the bonds of Series K
shall be redeemed or otherwise discharged prior to their maturity pursuant to or
in accordance with the order of any governmental commission or regulatory
authority upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such bonds of Series K shall be entitled to
be paid an amount equal to the Make Whole Amount, if such redemption or
discharge occurs prior to May 1, 2029, or, if such redemption or discharge
occurs on or after May 1, 2029, then the registered owners of such bonds shall
be entitled to be paid an amount equal to the interest accrued on the principal
amount of the bonds to be redeemed to the date of redemption, plus 100% of the
principal amount thereof.
Section 1.06. Bonds of Series K, upon surrender thereof at the principal
office of the Trustee, may be exchanged for the same aggregate principal amount
of other bonds of this Series.
Within a reasonable time after the receipt of a request for such an
exchange, the Company shall issue and the Trustee shall authenticate and deliver
all bonds required in connection therewith, and the Trustee shall make such
exchange upon payment to it of such charge, if any, as is required by the
following paragraph.
E-4
For any exchange of bonds of Series K, the Company, at its option, may
require the payment of a sum sufficient to reimburse it for any stamp or other
tax or governmental charge required to be paid by the Company or the Trustee.
Article Two
Redemption
Section 2.01. In the case of any required sinking fund redemption pursuant
to Section 1.02 hereof, forthwith after the April 1 preceding each required
sinking fund redemption date, and in the case of any proposed redemption
pursuant to Sections 1.03 or 1.04, forthwith after the Trustee's receipt of
proper notice from the Company of any such proposed redemption, the Trustee,
pursuant to the provisions of Article VII of the Indenture.
The Company covenants that it will pay to the Trustee
(i) on or before the day prior to each required sinking fund
redemption date, the sum required by Section 1.02 hereof,
(ii) on or before the day prior to the date proposed by the
Company in a notice (which notice shall conform to the requirements of
Article VII of the Indenture) of any redemption pursuant to Section
1.03 or 1.04 hereof, the amount payable in accordance with such
notice, and
(iii) at the time of each required sinking fund redemption or
other redemption the Company shall pay to the Trustee the amount of
the charges which shall be due the Trustee and the amount of the
expenses which the Trustee advises the Company it has incurred or will
incur in connection with such redemption.
E-5
(Form of Series K Bond)
Unitil Energy Systems, Inc.
First Mortgage Bond, Series K, 8.00%
due May 1, 2031
No. KR- $_______________
Unitil Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to ________ or registered assigns, on the first day of
May, 2031, the principal sum of ___________ Dollars ($_______________) and to
pay interest thereon from the date hereof at the rate of eight per centum
(8.00%) per annum (computed on the basis of a thirty (30) day month and three
hundred sixty (360) day year) payable quarterly in arrears on the first day of
February, May, August and November each year, commencing the first day of
February, 2003, until said principal sum is paid; and to pay interest on any
overdue principal (including any overdue prepayment of principal) and premium if
any, and (to the extent permitted by applicable law) on any overdue payment of
interest, at the rate of 10.00% per annum. The principal of and premium if any,
and the interest on this bond shall be payable at the corporate trust office in
Boston, Massachusetts of U.S. Bank National Association, or at the corporate
trust office designated by its successor as trustee in the trust hereinafter
referred to, or at the option of certain holders, in accordance with the
provisions of Section 1.01 of Exhibit E of the Twelfth Supplemental Indenture
hereinafter referred to, in lawful money of the United States of America.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company limited as to aggregate principal amount as set forth in the Indenture
hereinafter mentioned, issuable in series, and is one of a Series K known as
First Mortgage Bonds, Series K, all bonds of all series being issued and to be
issued under and pursuant to and all equally secured (except as any sinking or
other fund, established in accordance with the provisions of the Indenture
hereinafter mentioned, may afford additional security for the bonds of any
particular series) by an Indenture of Mortgage and Deed of Trust dated as of
July 15, 1958 (herein called the "Original Indenture") duly executed and
delivered by the Company to Old Colony Trust Company (U.S. Bank National
Association being successor Trustee and together with each predecessor trustee
being called the "Trustee"), to which Original Indenture and to all Indentures
supplemental thereto, including a Twelfth Supplemental Indenture (the "Twelfth
Supplemental Indenture") dated as of December 2, 2002 (herein together called
the "Indenture") reference is hereby made for a description of the property
transferred, assigned and mortgaged thereunder, the nature and extent of the
security, the terms and conditions upon which the bonds are secured and
additional bonds may be issued and secured, and the rights of the holders or
registered owners of said bonds, of the Trustee and of the Company in respect of
such security. Neither the foregoing reference to the Indenture, nor any
provision of this bond or of the Indenture, shall affect or impair the
obligation of the Company, which is absolute, unconditional and unalterable, to
pay,
Schedule A
(to Exhibit E of the Twelfth Supplemental Indenture)
at the stated or accelerated maturities herein provided, the principal of and
premium, if any, and interest on this bond as herein provided.
Bonds of this Series K are entitled to the benefit of a required sinking
fund provided for in Exhibit E to the Twelfth Supplemental Indenture and shall
become subject to redemption for the purposes of such sinking fund at the
principal amount thereof without premium, plus interest accrued thereon to the
date of such redemption, all on the conditions and in the manner provided in
Exhibit E to the Twelfth Supplemental Indenture.
Bonds of this Series K are also redeemable, in whole or in part, in
integral multiples of one hundred thousand dollars, at the option of the Company
on any date on at least 30 days' notice, in the manner, with the effect, subject
to the limitations and for the amounts specified in Section 1.03 of Exhibit E to
the Twelfth Supplemental Indenture.
On the conditions and in the manner provided in the Section 1.04 of Exhibit
E to the Twelfth Supplemental Indenture, Series K bonds may also become subject
to redemption, in whole or in part, at any time on at least 30 days' notice, in
the manner, with the effect and for the amounts specified in said Section 1.04,
by the use of moneys deposited with or paid to the Trustee as the proceeds of
the sale or condemnation of property of the Company or as the proceeds of
insurance policies deposited with or paid to the Trustee because of damage to or
destruction of property of the Company.
In the event that all or any part of the bonds of this Series K shall be
redeemed or otherwise discharged prior to their maturity pursuant to or in
accordance with the order of any governmental commission or regulatory authority
upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such Series K bonds shall be entitled to be
paid therefor an amount specified in Section 1.05 of Exhibit E to the Twelfth
Supplemental Indenture.
The Indenture provides that, if notice of redemption of any bond issued
pursuant to its terms, including the Series K bonds, or any portion of the
principal amount of any such bond selected for redemption has been duly given,
then such bond or such portion thereof shall become due and payable on the date
fixed for redemption, and, if the redemption price shall have been duly
deposited with the Trustee, interest thereon shall cease to accrue from and
after the date fixed for redemption, and that whenever the redemption price
thereof shall have been duly deposited with the Trustee and notice of redemption
shall have been duly given, or provision therefor made as provided in the
Indenture, such bond or such portion thereof shall no longer be entitled to any
lien or benefit of the Indenture.
In case an Event of Default, as defined in the Indenture, occurs, the
principal of this bond may become or may be declared due and payable prior to
the stated maturity hereof in the manner and with the effect and subject to the
conditions provided in the Indenture.
This bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, upon books of the Company to be kept for that purpose
at the corporate trust office of the Trustee under the Indenture, upon surrender
thereof at said office for cancellation and upon
E-A-2
presentation of a written instrument of transfer duly executed, and thereupon
the Company shall issue in the name of the transferee or transferees, and the
Trustee shall authenticate and deliver, a new registered bond or bonds, of like
form and in an authorized denomination or in authorized denominations and of the
same series, for the same aggregate principal amount. Bonds of this series upon
surrender thereof at said office may be exchanged for the same aggregate
principal amount of bonds, also of this series but of another authorized
denomination or other authorized denominations, all upon payment of the charges,
if any, and subject to the terms and conditions specified in the Indenture.
The Company and the Trustee may treat the registered owner of this bond as
the absolute owner hereof for all purposes.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, property may be released from the lien thereof, and
the terms and provisions of the Indenture may be modified by the assent or
authority of the holders of at least seventy-five per centum (75%) in principal
amount of the bonds then outstanding thereunder, provided, however, that no such
modification shall (i) extend the time or times or payment of the principal of,
or the interest or premium, if any, on any bond, (ii) reduce the principal
amount thereof or the rate of interest or premium thereon, (iii) authorize the
creation of any lien prior or equal to the lien of the Indenture upon any
property subject to the lien thereof, or deprive any bondholder of the benefit
of the lien of the Indenture, (iv) affect the rights under the Indenture of the
holders of one or more, but less than all, of the series of bonds outstanding
thereunder unless assented to by the holders of seventy-five per centum (75%) in
aggregate principal amount of bonds outstanding thereunder of each of the series
so affected, (v) reduce the percentage of bonds, the holders of which are
required to assent to any such modification, or (vi) in any manner affect the
rights or obligations of the Trustee without its written consent thereto.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or of any claim based hereon or in respect hereof or of
the Indenture, against any incorporator, stockholder, officer or director of the
Company, or of any successor company, whether by virtue of any statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being by the acceptance hereof expressly waived and released and being
also waived and released by the terms of the Indenture.
This bond shall not be valid nor become obligatory for any purpose until it
shall have been authenticated by the execution of the certificate hereon
endorsed by the Trustee under the Indenture.
E-A-3
In Witness Whereof, Unitil Energy Systems, Inc. has caused this bond to be
signed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Treasurer, and this
bond to be dated the ____ day of ________________, _____.
Unitil Energy Systems, Inc.
By
-----------------------------------------
President
Attest:
---------------------------
Treasurer
(Corporate Seal)
E-A-4
(Form of Trustee's Certificate for all Bonds of Series K)
Trustee's Certificate of Authentication
This is one of the First Mortgage Bonds, Series K, referred to in the
within mentioned Indenture.
U.S. Bank National Association
By:
----------------------------------------
Authorized Officer
(Form of Endorsement)
For Value Received the undersigned hereby sells, assigns and transfers unto
_____________________________ the within bond, and all rights thereunder, hereby
irrevocably constituting and appointing ___________________________ attorney to
transfer said bond on the books of the Company, with full power of substitution
in the premises.
-------------------------------------------
Signature of Registered Owner
Dated:
-------------------------
In the presence
of:
----------------------------
Notice: The signature of this assignment must correspond with the name of
the payee as it appears upon the face of the within bond in every particular,
without alteration or enlargement or any change whatever.
Series L Bonds
As a result of the Merger of Exeter into the Company on the Merger Date, as
more fully described in the Twelfth Supplemental Indenture, $9,000,000 aggregate
principal amount of the Exeter Series K, 8.49% Bonds due October 14, 2024 (the
"Exeter Series K Bonds") issued under the Exeter Indenture are being exchanged
as of the Merger Date by the holder thereof for Bonds issued under the Indenture
containing substantially the same terms and provisions as the Exeter Series K
Bonds which are the Company's Series L, 8.49% Bonds due October 14, 2024 (the
"Series L Bonds"). Accordingly, the provisions for the issuance of $9,000,000
aggregate principal amount of the Company's Series L Bonds and the terms and
provisions thereof are hereinafter set forth.
All things have been done and performed which are necessary to make the
Series L Bonds, when authenticated by the Trustee and issued as herein provided,
legal, valid and binding obligations of the Company;
And It Is Hereby Covenanted, Declared and Agreed, as set forth in the
following covenants, agreements, conditions and provisions, to wit:
Article One
Creation of Series L Bonds
Section 1.01. There shall be and is hereby created an additional series of
bonds designated as and entitled "First Mortgage Bonds, Series L." Series L
Bonds shall be fully registered bonds, of the denomination of $1,000 and
multiples thereof. The registered bonds of Series L originally issued shall be
dated as provided in Article III of the Indenture and any bonds of Series L
subsequently issued shall be dated as provided in Section 2.03 of the Indenture.
All Series L Bonds shall mature on October 14, 2024 and shall bear interest at
the rate of eight and forty-nine one hundredths percent (8.49%) per annum from
their respective dates of issue, such interest to be payable semi-annually on
the fourteenth day of April and the fourteenth day of October in each year
commencing the fourteenth day of April, 2003, and shall bear interest on any
overdue principal (including any overdue prepayment of principal) and premium,
if any, and (to the extent permitted by applicable law) on any overdue payment
of interest, at the rate of 9.49% per annum. The principal of, premium, if any,
and interest on bonds of Series L shall be payable at the corporate trust office
of in Boston, Massachusetts of U.S. Bank National Association or at the
corporate trust office designated by its successor as Trustee hereunder, in
lawful money of the United States of America, provided that the Company may
enter into a written agreement with any registered Institutional Holder of the
bonds of Series L providing that payment of interest thereon and of the
redemption price on any portion of the principal amount thereof (including
premium, if any) which may be redeemed shall be made directly to such holder or
to its nominee, as the case may be, at a duly designated place of payment within
the United States, without surrender or presentation of such bonds of Series L
to the Trustee, provided that (A) there shall have been filed with the Trustee a
copy of such agreement and (B) pursuant to such agreement such holder shall
agree that it will not sell, transfer or otherwise dispose of any such bond of
Exhibit F
(to Twelfth Supplemental Indenture)
Series L in respect of which any such payment or redemption shall have been made
unless, prior to the delivery thereof by it, either (i) it shall have made a
clear and accurate notation of the amount of principal so redeemed upon such
bond to be transferred, or (ii) such bond of Series L shall have been presented
to the Trustee for appropriate notation thereon of the portion of the principal
amount thereof redeemed, or (iii) such bond or bonds of Series L shall have been
surrendered in exchange for a new bond or bonds of Series L for the unredeemed
balance of the principal amount thereof in accordance with the other terms of
the Indenture and (C) in such agreement such holder shall agree that prior to
receiving any final payment of the entire remaining unpaid principal amount of
any Series L bond, the holder thereof shall be required to deliver such bond to
the Trustee. For purposes of this Section 1.01, the term "Institutional Holder"
shall mean any insurance company, bank, savings and loan association, trust
company, investment company, charitable foundation, employee benefit plan (as
defined in ERISA) or other institutional investor or financial institution. The
text of the Series L Bonds and the Trustee's certificate with respect thereto
shall be respectively substantially of the tenor and purport set forth in
Schedule A hereto. The Series L Bonds shall be numbered in such manner or by
such method as shall be satisfactory to the Trustee.
The issue of bonds of Series L hereunder is hereby limited to the
$9,000,000 in aggregate principal amount of Series L Bonds initially issued as
provided in Section 1.08 hereof and to Series L Bonds issued in exchange or
substitution for outstanding Series L Bonds under the provisions of Sections
2.08, 2.10, 2.11 and 7.05 of the Indenture and of Section 1.07 hereof.
Section 1.02. As a required sinking fund for the benefit of the Series L
Bonds, the Company covenants that it will, on or prior to October 13 in each
year, beginning with October 13, 2015, and continuing to and including October
13, 2024, pay to the Trustee immediately available funds sufficient to redeem,
at par, Series L Bonds then outstanding, in the principal amount of Nine Hundred
Thousand Dollars ($900,000) (or the remaining principal amount if less than
$900,000 principal amount of Series L Bonds at the time remains outstanding).
The payments required for the sinking fund as above provided are in this Section
1.02 and elsewhere in this Exhibit F referred to as "required sinking fund
payments" and the day following the latest date on which each such payment is
required to be made is herein and therein referred to as a "required sinking
fund redemption date." Each required sinking fund payment shall be applied to
the redemption of Series L Bonds on the applicable required sinking fund
redemption date.
No redemption under Section 1.03, 1.04, 1.05 or 1.06 hereof shall affect or
reduce the obligation of the Company to provide for required sinking fund
redemptions under this Section 1.02 until all Series L Bonds shall have been
paid in full.
Section 1.03. At the same time it makes any required sinking fund payment,
the Company shall have the option (which shall be non-cumulative) to pay to the
Trustee, in immediately available funds, an additional principal amount of Nine
Hundred Thousand Dollars ($900,000) (in this Section 1.03 and elsewhere in this
Exhibit F to the Twelfth Supplemental Indenture referred to as an "optional
sinking fund payment"), provided, that the cumulative amount of all optional
sinking fund payments pursuant to this Section 1.03 shall not exceed One Million
Eight Hundred Thousand Dollars ($1,800,000) and each such optional sinking fund
payment shall be
F-2
applied to the redemption of Series L Bonds on the required sinking fund
redemption date for such required sinking fund payment. The Company will give
notice, by registered mail, postage prepaid, to the Trustee and to each
registered owner of a bond of Series L of any required or optional payment to be
made pursuant to Section 1.02, this Section 1.03, Section 1.04 or Section 1.05
hereof not more than 60, nor less than 30, days prior to the required sinking
fund redemption date (or other designated date of redemption in the case of a
redemption pursuant to Section 1.04 or Section 1.05).
Section 1.04. In addition to the required and optional sinking funds
provided by Sections 1.02 and 1.03 hereof, all of the bonds of Series L, or any
part of the principal amount thereof constituting One Hundred Thousand Dollars
($100,000) or any integral multiple thereof, shall be subject to redemption, at
the option of the Company, on any date on or after October 14, 1994 and before
October 14, 2019, pursuant to the provisions of Article VII of the Indenture,
and by payment of an amount equal to the Make Whole Amount, as defined below in
this Section 1.04, determined five Business Days prior to such redemption. In
addition to the foregoing, on any date on or after October 14, 2019, all of the
bonds of Series L, or any part of the principal amount thereof constituting One
Hundred Thousand Dollars ($100,000) or any integral multiple thereof, shall be
subject to redemption, at the option of the Company, by payment of the interest
accrued on the principal amount of the bond or bonds optionally to be redeemed
to the date fixed for such redemption plus an amount equal to the applicable
percentage of the principal amount thereof as follows:
Date Fixed for Redemption Applicable Percentage
If redeemed on or after October 14, 2019 and before October 14, 2020 101.5%
On or after October 14, 2020 and before October 14, 2021 101.0%
On or after October 14, 2021 and before October 14, 2022 100.5%
On or after October 14, 2022 and prior to maturity 100%
For purposes of this Section 1.04, the Make Whole Amount shall mean the
greater of (i) the outstanding principal amount of the bonds to be redeemed,
plus interest accrued thereon to the date fixed for such redemption, and (ii)
the sum of (A) the aggregate present value as of the date of such redemption of
each dollar of principal being redeemed (taking into account each redemption
required by Section 1.02 above) and the amount of interest (exclusive of
interest accrued to the date fixed for such redemption) that would have been
payable in respect of each such dollar if such redemption had not been made,
determined by discounting such amounts at the Reinvestment Rate (as hereinafter
defined) from the respective dates on which they would have been payable to the
date of such redemption, plus (B) interest accrued on the bonds to be redeemed
to the date fixed for such redemption.
For purposes of any determination of the Make Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of 0.50%, plus the yield
reported on page "USD" of the Bloomberg Financial Markets Services Screen
(or, if not available,
F-3
any other nationally recognized trading screen reporting on-line intraday
trading in the United States government Securities) at 11:00 A.M. (Eastern
time) on the fifth Business Day preceding the date the Make Whole Amount
becomes due and payable pursuant to the foregoing provisions of this
Section 1.04 for the United States government Securities having a maturity
(rounded to the nearest month) corresponding to the remaining Weighted
Average Life to Maturity of the principal of the bonds being redeemed
(taking into account the application of each redemption required by Section
1.02) or (2) in the event that no nationally recognized trading screen
reporting on-line intraday trading in the United States government
Securities is available, Reinvestment Rate shall mean the sum of 0.50%,
plus the arithmetic mean of the yields for the two columns under the
heading "Week Ending" published on the fifth Business Day preceding the
date the Make Whole Amount becomes due and payable pursuant to the
foregoing provisions of this Section 1.04 in the Statistical Release under
the caption "Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the Weighted Average Life to Maturity of
the principal amount of the bonds being redeemed (taking into account each
redemption required by Section 1.02). If no maturity exactly corresponds to
such Weighted Average Life to Maturity, yields for the two published
maturities most closely corresponding to such Weighted Average Life to
Maturity shall be calculated pursuant to the immediately preceding
sentence, and the Reinvestment Rate shall be interpolated or extrapolated
from such yields on a straightline basis, rounding in each of such relevant
periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to
the date of determination of the Make Whole Amount shall be used.
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. Government Securities adjusted
to constant maturities or, if such statistical release is not published at
the time of any determination hereunder, then such other reasonably
comparable index which shall be designated by the holders of 66-2/3% in
aggregate principal amount of outstanding Series L bonds.
"Weighted Average Life to Maturity" of the principal amount of the
bonds being redeemed shall mean, as of the time of any determination
thereof, the number of years obtained by dividing the then Remaining
Dollar-Years of such principal by the aggregate amount of such principal.
The term "Remaining Dollar-Years" of such principal shall mean the amount
obtained by (i) multiplying (x) the remainder of (1) the amount of
principal that would have been payable on each scheduled redemption date
under Section 1.02 hereof if the redemption pursuant to this Section 1.04
had not been made, less (2) the amount of principal on the bonds scheduled
to become payable on each such redemption date under Section 1.02 after
giving effect to the redemption pursuant to this Section 1.04, by (y) the
number of years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and each such scheduled redemption date
under Section 1.02, and (ii) totaling the products obtained in (i).
F-4
Section 1.05. Series L Bonds may be redeemed pursuant to Article XI of the
Indenture (i) out of Trust Moneys, required by Section 8.12 of the Indenture to
be deposited with the Trustee, on any date and shall be redeemed for an amount
equal to the principal amount of the bonds to be redeemed, plus interest accrued
to the date of redemption; or (ii) out of Trust Moneys required by Sections
8.10, 10.03, 10.04 or 10.04A of the Indenture to be deposited with the Trustee,
on any date and, if redeemed prior to October 14, 2019, then they shall be
redeemed for an amount equal to the Make Whole Amount, as defined above in
Section 1.04, and if redeemed on any date on or after October 14, 2019, then
they shall be redeemed for an amount equal to the interest accrued on the
principal amount of the bond or bonds to be redeemed to the date fixed for
redemption, plus an amount equal to the applicable percentage of the principal
amount thereof set forth in Section 1.04, above, for optional redemptions
occurring on or after October 14, 2019.
Section 1.06. In the event that all or any part of the bonds of Series L
shall be redeemed or otherwise discharged prior to their maturity pursuant to or
in accordance with the order of any governmental commission or regulatory
authority upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such bonds of Series L shall be entitled to
be paid an amount equal to the Make Whole Amount, if such redemption or
discharge occurs prior to October 14, 2019, or, if such redemption or discharge
occurs on or after October 14, 2019, then the registered owners of such bonds
shall be entitled to be paid an amount equal to the interest accrued on the
principal amount of the bonds to be redeemed to the date of redemption, plus an
amount equal to the then applicable percentage of the principal amount thereof
provided in Section 1.04, above, for optional redemptions after such date.
Section 1.07. Bonds of Series L, upon surrender thereof at the principal
office of the Trustee, may be exchanged for the same aggregate principal amount
of other bonds of this Series.
Within a reasonable time after the receipt of a request for such an
exchange, the Company shall issue and the Trustee shall authenticate and deliver
all bonds required in connection therewith, and the Trustee shall make such
exchange upon payment to it of such charge, if any, as is required by the
following paragraph.
For any exchange of bonds of Series L, the Company, at its option, may
require the payment of a sum sufficient to reimburse it for any stamp or other
tax or governmental charge required to be paid by the Company or the Trustee.
Section 1.08. Upon execution of this Twelfth Supplemental Indenture and
subject to the provisions of Article III of the Indenture and upon compliance
with the applicable provisions of Article IV of the Indenture, the Company shall
execute and deliver to the Trustee, and the Trustee shall authenticate and
deliver to or upon the order of the Company, bonds of the Series L in the form
set forth in Schedule A hereto in the aggregate principal amount of Nine Million
Dollars ($9,000,000).
F-5
Article Two
Redemption
Section 2.01. In the case of any required or optional sinking fund
redemption pursuant to Sections 1.02 and 1.03 hereof, forthwith after the
September 14 preceding each required sinking fund redemption date, and in the
case of any proposed redemption pursuant to Sections 1.04 or 1.05, forthwith
after the Trustee's receipt of proper notice from the Company of any such
proposed redemption, the Trustee, shall act in accordance with the provisions of
Article VII of the Indenture.
The Company covenants that it will pay to the Trustee
(i) on or before the day prior to each required sinking fund
redemption date, the sum required by Section 1.02 hereof, plus the sum,
if any, payable in accordance with any notice of optional redemption
delivered prior to such required sinking fund redemption date pursuant
to Section 1.03 hereof,
(ii) on or before the day prior to the date proposed by the
Company in a notice (which notice shall conform to the requirements of
Article VII of the Indenture) of any redemption pursuant to Section
1.04 or 1.05 hereof, the amount payable in accordance with such notice,
and
(iii) at the time of each required sinking fund redemption or
other redemption the Company shall pay to the Trustee the amount of
charges which shall be due the Trustee and the amount of the expenses
which the Trustee advised the Company it has incurred or will incur in
connection with such redemption.
F-6
(Form of Series L Bond)
Unitil Energy Systems, Inc.
No. LR-_____ $____________
First Mortgage Bond, Series L, 8.49%
due October 14, 2024
Unitil Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to _________________ or registered assigns, on the
fourteenth day of October, 2024, the principal sum of
_____________________________ Dollars ($____________) and to pay interest
thereon from the date hereof at the rate of eight and forty-nine hundredths per
centum (8.49%) per annum (computed on the basis of a thirty (30) day month and
three hundred sixty (360) day year) payable semi-annually on the fourteenth day
of April and the fourteenth day of October in each year, commencing the
fourteenth day of April, 2003, until said principal sum is paid; and to pay
interest on any overdue principal (including any overdue prepayment of
principal) and premium if any, and (to the extent permitted by applicable law)
on any overdue payment of interest, at the rate of 9.49% per annum. The
principal of and premium, if any, and the interest on this bond shall be payable
at the corporate trust office in Boston, Massachusetts or U.S. Bank National
Association, or at the corporate trust office designated by its successor as
trustee in the trust hereinafter referred to, or at the option of certain
holders, in accordance with the provisions of Section 1.01 of Exhibit F of the
Twelfth Supplemental Indenture hereinafter referred to, in lawful money of the
United States of America.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company limited as to aggregate principal amount as set forth in the Indenture
hereinafter mentioned, issuable in series, and is one of a series known as First
Mortgage Bonds, Series L, all bonds of all series being issued and to be issued
under and pursuant to and all equally secured (except as any sinking or other
fund, established in accordance with the provisions of the Indenture hereinafter
mentioned, may afford additional security for the bonds of any particular
series) by an Indenture of Mortgage and Deed of Trust dated as of July 15, 1958
(herein called the "Original Indenture") duly executed and delivered by the
Company to Old Colony Trust Company (U.S. Bank National Association being
successor Trustee and together with each predecessor trustee being called the
"Trustee"), to which Original Indenture and to all Indentures supplemental
thereto, including a Twelfth Supplemental Indenture (the "Twelfth Supplemental
Indenture") dated as of December 2, 2002 (herein together called the
"Indenture") reference is hereby made for a description of the property
transferred, assigned and mortgaged thereunder, the nature and extent of the
security, the terms and conditions upon which the bonds are secured and
additional bonds may be issued and secured, and the rights of the holders or
registered owners of said bonds, of the Trustee and of the Company in respect of
such security. Neither the foregoing reference to the Indenture, nor any
provision of this bond or of the Indenture, shall affect or impair the
obligation of the Company, which is absolute, unconditional and unalterable, to
pay,
Schedule A
(to Exhibit F of the Twelfth Supplemental Indenture)
at the stated or accelerated maturities herein provided, the principal of and
premium, if any, and interest on this bond as herein provided.
Bonds of this Series L are entitled to the benefit of a required sinking
fund and an optional sinking fund provided for in Exhibit F to the Twelfth
Supplemental Indenture and shall become subject to redemption for the purposes
of such sinking funds at the principal amount thereof without premium, plus
interest accrued thereon to the date of such redemption, all on the conditions
and in the manner provided in Exhibit F to the Twelfth Supplemental Indenture.
Bonds of this Series L are also redeemable, in whole or in part, in
integral multiples of one hundred thousand dollars, at the option of the Company
on any date on at least 30 days' notice, in the manner, with the effect, subject
to the limitations and for the amounts specified in Section 1.04 of Exhibit F to
the Twelfth Supplemental Indenture.
On the conditions and in the manner provided in the Section 1.05 of Exhibit
F to the Twelfth Supplemental Indenture, Series L Bonds may also become subject
to redemption, in whole or in part, at any time on at least 30 days' notice, in
the manner, with the effect and for the amounts specified in said Section 1.05,
by the use of moneys deposited with or paid to the Trustee as the proceeds of
the sale or condemnation of property of the Company or as the proceeds of
insurance policies deposited with or paid to the Trustee because of damage to or
destruction of property of the Company.
In the event that all or any part of the bonds of this Series L shall be
redeemed or otherwise discharged prior to their maturity pursuant to or in
accordance with the order of any governmental commission or regulatory authority
upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such Series L Bonds shall be entitled to be
paid therefor an amount specified in Section 1.06 of Exhibit F to the Twelfth
Supplemental Indenture.
The Indenture provides that, if notice of redemption of any bond issued
pursuant to its terms, including the Series L Bonds, or any portion of the
principal amount of any such bond selected for redemption has been duly given,
then such bond or such portion thereof shall become due and payable on the date
fixed for redemption, and, if the redemption price shall have been duly
deposited with the Trustee, interest thereon shall cease to accrue from and
after the date fixed for redemption, and that whenever the redemption price
thereof shall have been duly deposited with the Trustee and notice of redemption
shall have been duly given, or provision therefor made as provided in the
Indenture, such bond or such portion thereof shall no longer be entitled to any
lien or benefit of the Indenture.
In case an Event of Default, as defined in the Indenture, occurs, the
principal of this bond may become or may be declared due and payable prior to
the stated maturity hereof in the manner and with the effect and subject to the
conditions provided in the Indenture.
This bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, upon books of the Company to be kept for that purpose
at the corporate trust office of the Trustee under the Indenture, upon surrender
thereof at said office for cancellation and upon
F-A-2
presentation of a written instrument of transfer duly executed, and thereupon
the Company shall issue in the name of the transferee or transferees, and the
Trustee shall authenticate and deliver, a new registered bond or bonds, of like
form and in an authorized denomination or in authorized denominations and of the
same series, for the same aggregate principal amount. Bonds of this series upon
surrender thereof at said office may be exchanged for the same aggregate
principal amount of bonds, also of this series but of another authorized
denomination or other authorized denominations, all upon payment of the charges,
if any, and subject to the terms and conditions specified in the Indenture.
The Company and the Trustee may treat the registered owner of this bond as
the absolute owner hereof for all purposes.
With the consent of the Company and to the extent permitted by and as
provided in the Indenture, property may be released from the lien thereof, and
the terms and provisions of the Indenture may be modified by the assent or
authority of the holders of at least seventy-five per centum (75%) in principal
amount of the bonds then outstanding thereunder, provided, however, that no such
modification shall (i) extend the time or times or payment of the principal of,
or the interest or premium, if any, on any bond, (ii) reduce the principal
amount thereof or the rate of interest or premium thereon, (iii) authorize the
creation of any lien prior or equal to the lien of the Indenture upon any
property subject to the lien thereof, or deprive any bondholder of the benefit
of the lien of the Indenture, (iv) affect the rights under the Indenture of the
holders of one or more, but less than all, of the series of bonds outstanding
thereunder unless assented to by the holders of seventy-five per centum (75%) in
aggregate principal amount of bonds outstanding thereunder of each of the series
so affected, (v) reduce the percentage of bonds, the holders of which are
required to assent to any such modification, or (vi) in any manner affect the
rights or obligations of the Trustee without its written consent thereto.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or of any claim based hereon or in respect hereof or of
the Indenture, against any incorporator, stockholder, officer or director of the
Company, or of any successor company, whether by virtue of any statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being by the acceptance hereof expressly waived and released and being
also waived and released by the terms of the Indenture.
This bond shall not be valid nor become obligatory for any purpose until it
shall have been authenticated by the execution of the certificate hereon
endorsed by the Trustee under the Indenture.
F-A-3
In witness whereof, Unitil Energy Systems, Inc. has caused this bond to be
signed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Treasurer, and this
bond to be dated the ________________, _____.
Unitil Energy Systems, Inc.
By:
--------------------------------------
President
Attest:
---------------------------
Treasurer
(Corporate Seal)
F-A-4
(Form of Trustee's Certificate for all Bonds of Series L)
Trustee's Certificate of Authentication
This is one of the First Mortgage Bonds, Series L, referred to in the
within mentioned Indenture.
U.S. Bank National Association
By:
---------------------------------------
Authorized Officer
(Form of Endorsement)
For Value Received the undersigned hereby sells, assigns and transfers unto
_________________ the within bond, and all rights thereunder, hereby irrevocably
constituting and appointing ____________ attorney to transfer said bond on the
books of the Company, with full power of substitution in the premises.
-------------------------------------------
Signature of Registered Owner
Dated:
-------------------------
In the presence
of:
----------------------------
Notice: The signature of this assignment must correspond with the name of
the payee as it appears upon the face of the within bond in every particular,
without alteration or enlargement or any change whatever.
Series M Bonds
As a result of the Merger of Exeter into the Company on the Merger Date, as
more fully described in the Twelfth Supplemental Indenture, $10,000,000
aggregate principal amount of the Exeter Series L, 6.96% Bonds due September 1,
2028 ("Exeter Series L Bonds") issued under the Exeter Indenture are exchanged
as of Merger Date by the holders thereof for Bonds issued under the Indenture
containing substantially the same terms and provisions as the Exeter Series L
Bonds which are the Company's Series M 6.96% Bonds due September 1, 2028 (the
"Series M Bonds"). Accordingly, the provisions for the issuance of $10,000,000
aggregate principal amount of the Company's Series M Bonds and the terms and
provisions thereof are hereinafter set forth.
All things have been done and performed which are necessary to make the
Series M Bonds, when authenticated by the Trustee and issued as herein provided,
legal valid and binding obligations of the Company;
And it is Hereby Covenanted, Declared and Agreed, as set forth in the
following-covenants, agreements, conditions and provisions, to wit:
Article One
Creation of Series M Bonds
Section 1.01. There shall be and is hereby created an additional series of
bonds designated as and entitled "First Mortgage Bonds, Series M." Series M
Bonds shall be fully registered bonds, of the denomination of $1,000 and
multiples thereof. The registered bonds of Series M originally issued shall be
dated as provided in Article III of the Indenture and any bonds of Series M
subsequently issued shall be dated as provided in Section 2.03 of the Indenture.
All Series M Bonds shall mature on September 1, 2028 and shall bear interest at
the rate of six and ninety-six one hundredths percent (6.96%) per annum from
their respective dates of issue, such interest to be payable quarterly in
arrears on the first day of March, June, September and December in each year
commencing the first day of March, 2003, and shall bear interest on any overdue
principal (including any overdue prepayment of principal) and premium, if any,
and (to the extent permitted by applicable law) on any overdue payment of
interest, at the rate of 8.96% per annum. The principal of, premium if any, and
interest on bonds of Series M shall be payable at the corporate trust office in
Boston, Massachusetts of U.S. Bank National Association or at the corporate
trust office designated by its successor as Trustee hereunder, in lawful money
of the United States of America provided that the Company may enter into a
written agreement with any registered Institutional Holder of the bonds of
Series M providing that payment of interest thereon and of the redemption price
on any portion of the principal amount thereof (including premium, if any) which
may be redeemed shall be made directly to such holder or to its nominee, as the
case may be, at a duly designated place of payment within the United States,
without
Exhibit G
(to Twelfth Supplemental Indenture)
surrender or presentation of such bonds of Series M to the Trustee, provided
that (A) there shall have been filed with the Trustee a copy of such agreement,
(B) pursuant to such agreement such holder shall agree that it will not sell,
transfer or otherwise dispose of any such bond of Series M in respect of which
any such payment or redemption shall have been made unless, prior to the
delivery thereof by it, either (i) it shall have made a clear and accurate
notation of the amount of principal so redeemed upon such bond to be
transferred, or (ii) such bond of Series M shall have been presented to the
Trustee for appropriate notation thereon of the portion of the principal amount
thereof redeemed, or (iii) such bond or bonds of Series M shall have been
surrendered in exchange for a new bond or bonds of Series M for the unredeemed
balance of the principal amount thereof in accordance with the other terms of
the Indenture and (C) in such agreement such holder shall agree that prior to
receiving any final payment of the entire remaining unpaid principal amount of
any Series M bond, the holder thereof shall be required to deliver such bond to
the Trustee. For purposes of this Section 1.01, the term "Institutional Holder"
shall mean any insurance company, bank, savings and loan association, trust
company, investment company, charitable foundation, employee benefit plan (as
defined in ERISA) or other institutional investor or financial institution. The
text of the Series M Bonds and the Trustee's certificate with respect thereto
shall be respectively substantially of the tenor and purport set forth in
Schedule A hereto. The Series M Bonds shall be numbered in such manner or by
such method as shall be satisfactory to the Trustee.
The issue of bonds of Series M hereunder is hereby limited to the
$10,000,000 in aggregate principal amount of Series M Bonds initially issued as
provided in Section 1.07 hereof and to Series M Bonds issued in exchange or
substitution for outstanding Series M Bonds under the provisions of Sections
2.08, 2.10, 2.11 and 7.05 of the Indenture and of Section 1.06 hereof.
Section 1.02. As a required sinking fund for the benefit of the Series M
Bonds, the Company covenants that it will, on or prior to September 1 in each
year, beginning with September 1, 2019, and continuing to and including
September 1, 2028, pay to the Trustee immediately available funds sufficient to
redeem, at par, Series M Bonds then outstanding, in the principal amount of One
Million Dollars ($1,000,000) (or the remaining principal amount if less than
$1,000,000 principal amount of Series M Bonds at the time remains outstanding).
The payments required for the sinking fund as above provided are in this Section
1.02 and elsewhere in this Exhibit G referred to as "required sinking fund
payments" and the day following the latest date on which each such payment is
required to be made is herein and therein referred to as a "required sinking
fund redemption date". Each required sinking fund payment shall be applied to
the redemption of Series M bonds on the applicable required sinking fund
redemption date.
No redemption under Section 1.03, 1.04 or 1.05 hereof shall affect or
reduce the obligation of the Company to provide for required sinking fund
redemptions under this Section 1.02 until all Series M Bonds shall have been
paid in full.
Section 1.03. In addition to the required sinking fund provided by Section
1.02 hereof, all of the bonds of Series M, or any part of the principal amount
thereof constituting One Hundred Thousand Dollars ($100,000) or any integral
multiple thereof, shall be subject to redemption, at the option of the Company,
on any date on or after September 1, 1998 and before September 1, 2026, pursuant
to the provisions of Article VII of the Indenture, and by payment of an amount
G-2
equal to the Make Whole Amount, as defined below in this Section 1.03,
determined five Business Days prior to such redemption. In addition to the
foregoing, on any date on or after September 1, 2026, all of the bonds of Series
M, or any part of the principal amount thereof constituting One Hundred Thousand
Dollars ($100,000) or any integral multiple thereof, shall be subject to
redemption, at the option of the Company, by payment of the interest accrued on
the principal amount of the bond or bonds optionally to be redeemed to the dates
fixed for such redemption plus 100% of the principal amount thereof.
For purposes of this Section 1.03, the Make Whole Amount shall mean the
greater of (i) the outstanding principal amount of the bonds to be redeemed,
plus interest accrued thereon to the date fixed for such redemption, and (ii)
the sum of (A) the aggregate present value as of the date of such redemption of
each dollar of principal being redeemed (taking into account each redemption
required by Section 1.02 above) and the amount of interest (exclusive of
interest accrued to the date fixed for such redemption) that would have been
payable in respect of each such dollar if such redemption had not been made,
determined by discounting such amounts at the Reinvestment Rate (as hereinafter
defined) from the respective dates on which they would have been payable to the
date of such redemption, plus (B) interest accrued on the bonds to be redeemed
to the date fixed for such redemption.
For purposes of any determination of the Make Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of 0.50%, plus the yield
reported on page "USD" of the Bloomberg Financial Markets Services Screen
(or, if not available, any other nationally recognized trading screen
reporting on-line intraday trading in the United States government
Securities) at 11:00 A.M. (Eastern time) on the fifth Business Day
preceding the date the Make Whole Amount become due and payable pursuant to
the foregoing provisions of this Section 1.03 for the United States
government Securities having a maturity (rounded to the nearest month)
corresponding to the remaining Weighted Average Life to Maturity of the
principal of the bonds being redeemed (taking into account the application
of each redemption required by Section 1.02) or (2) in the event that no
nationally recognized trading screen reporting on-line intraday trading in
the United States government Securities is available, Reinvestment Rate
shall mean the sum of 0.50%, plus the arithmetic mean of the yields for the
two columns under the heading "Week Ending" published on the fifth Business
Day preceding the date the Make Whole Amount become due and payable
pursuant to the foregoing provisions of this Section 1.03 in the
Statistical Release under the caption "Treasury Constant Maturities" for
the maturity (rounded to the nearest month) corresponding to the Weighted
Average Life to Maturity of the principal amount of the bonds being
redeemed (taking into account each redemption required by Section 1.02). If
no maturity exactly corresponds to such Weighted Average Life to Maturity,
yields for the two published maturities most closely corresponding to such
Weighted Average Life to Maturity shall be calculated pursuant to the
immediately preceding sentence, and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straightline basis,
rounding in each of such relevant periods to the nearest month. For the
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make Whole
Amount shall be used.
G-3
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor publication
which is published weekly by the Federal Reserve System and which
establishes yields on actively traded U.S. Government Securities adjusted
to constant maturities or, if such statistical release is not published at
the time of any determination hereunder, then such other reasonably
comparable index which shall be designated by the holders of 66-2/3% in
aggregate principal amount of outstanding Series M Bonds.
"Weighted Average Life to Maturity" of the principal amount of the
bonds being redeemed shall mean, as of the time of any determination
thereof, the number of years obtained by dividing the then Remaining
Dollar-Years of such principal by the aggregate amount of such principal.
The term "Remaining Dollar-Years" of such principal shall mean the amount
obtained by (i) multiplying (x) the remainder of (1) the amount of
principal that would have been payable on each scheduled redemption date
under Section 1.02 hereof if the redemption pursuant to this Section 1.03
had not been made, less (2) the amount of principal on the bonds scheduled
to become payable on each such redemption date under Section 1.02 after
giving effect to the redemption pursuant to this Section 1.03, by (y) the
number of years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and each such scheduled redemption date
under Section 1.02, and (ii) totaling the products obtained in (i).
Section 1.04. Series M Bonds may be redeemed pursuant to Article XI of the
Indenture (i) out of Trust Moneys, required by Section 8.12 of the Indenture to
be deposited with the Trustee, on any date and shall be redeemed for an amount
equal to the principal amount of the bonds to be redeemed, plus interest accrued
to the date of redemption; or (ii) out of Trust Moneys required by Sections
8.10, 10.03, 10.04 or 10.04A of the Indenture to be deposited with the Trustee,
on any date and, if redeemed prior to September 1, 2026, then they shall be
redeemed for an amount equal to the Make Whole Amount, as defined above in
Section 1.03, and if redeemed on any date on or after September 1, 2026, then
they shall be redeemed for an amount equal to the interest accrued on the
principal amount of the bond or bonds to be redeemed to the date fixed for
redemption, plus 100% of the principal amount thereof, for optional redemptions
occurring on or after September 1, 2026.
Section 1.05. In the event that all or any part of the bonds of Series M
shall be redeemed or otherwise discharged prior to their maturity pursuant to or
in accordance with the order of any governmental commission or regulatory
authority upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such bonds of Series M shall be entitled to
be paid an amount equal to the Make Whole Amount, if such redemption or
discharge occurs prior to September 1, 2026, or, if such redemption or discharge
occurs on or after September 1, 2026, then the registered owners of such bonds
shall be entitled to be paid an amount equal to the interest accrued on the
principal amount of the bonds to be redeemed to the date of redemption, plus
100% of the principal amount thereof.
Section 1.06. Bonds of Series M, upon surrender thereof at the principal
office of the Trustee, may be exchanged for the same aggregate principal amount
of other bonds of this Series.
G-4
Within a reasonable time after the receipt of a request for such an
exchange, the Company shall issue and the Trustee shall authenticate and deliver
all bonds required in connection therewith, and the Trustee shall make such
exchange upon payment to it of such charge, if any, as is required by the
following paragraph.
For any exchange of bonds of Series M, the Company, at its option, may
require the payment of a sum sufficient to reimburse it for any stamp or other
tax or governmental charge required to be paid by the Company or the Trustee.
Section 1.07. Upon execution of this Twelfth Supplemental Indenture and
subject to the provisions of Article III of the Indenture and upon compliance
with the applicable provisions of Article IV of the Indenture, the Company shall
execute and deliver to the Trustee, and the Trustee shall authenticate and
deliver to or upon the order of the Company, bonds of the Series M in the form
set forth in Schedule A hereto in the aggregate principal amount of Ten Million
Dollars ($10,000,000).
Article Two
Redemption
Section 2.01. In the case of any required sinking fund redemption pursuant
to Section 1.02 hereof, forthwith after the August 1 preceding each required
sinking fund redemption date, and in the case of any proposed redemption
pursuant to Sections 1.03 or 1.04, forthwith after the Trustee's receipt of
proper notice from the Company of any such proposed redemption, the Trustee,
shall act in accordance with the provisions of Article VII of the Indenture.
The Company covenants that it will pay to the Trustee
(i) on or before the day prior to each required sinking fund
redemption date, the sum required by Section 1.02 hereof,
(ii) on or before the day prior to the date proposed by the Company in
a notice (which notice shall conform to the requirements of Article VII of
the Indenture) of any redemption pursuant to Section 1.03 or 1.04 hereof,
the amount payable in accordance with such notice, and
(iii) at the time of each required sinking fund redemption or other
redemption the Company shall pay to the Trustee the amount of the charges
which shall be due the Trustee and the amount of the expenses which the
Trustee advises the Company it has incurred or will incur in connection
with such redemption.
G-5
(Form of Series M Bond)
Unitil Energy Systems, Inc.
First Mortgage Bond, Series M, 6.96%
due September 1, 2028
No. MR-______ $_______________
Unitil Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to ________ or registered assigns, on the first day of
September, 2028, the principal sum of ___________ Dollars ($_______________) and
to pay interest thereon from the date hereof at the rate of six and ninety-six
hundredths per centum (6.96%) per annum (computed on the basis of a thirty (30)
day month and three hundred sixty (360) day year) payable quarterly in arrears
on the first day of March, June, September and December in each year, commencing
the first day of March, 2003, until said principal sum is paid; and to pay
interest on any overdue principal (including any overdue prepayment of
principal) and premium if any, and (to the extent permitted by applicable law)
on any overdue payment of interest, at the rate of 8.96% per annum. The
principal of and premium if any, and the interest on this bond shall be payable
at the corporate trust office in Boston, Massachusetts of U.S. Bank National
Association, or at the corporate trust office designated by its successor as
trustee in the trust hereinafter referred to, or at the option of certain
holders, in accordance with the provisions of Section 1.01 of Exhibit G of the
Twelfth Supplemental Indenture hereinafter referred to, in lawful money of the
United States of America.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company limited as to aggregate principal amount as set forth in the Indenture
hereinafter mentioned, issuable in series, and is one of a Series M known as
First Mortgage Bonds, Series M, all bonds of all series being issued and to be
issued under and pursuant to and all equally secured (except as any sinking or
other fund, established in accordance with the provisions of the Indenture
hereinafter mentioned, may afford additional security for the bonds of any
particular series) by an Indenture of Mortgage and Deed of Trust dated as of
July 15, 1958 (herein called the "Original Indenture") duly executed and
delivered by the Company to Old Colony Trust Company (U.S. Bank National
Association being successor Trustee and together with each predecessor trustee
being called the "Trustee"), to which Original Indenture and to all Indentures
supplemental thereto, including a Twelfth Supplemental Indenture (the "Twelfth
Supplemental Indenture") dated as of December 2, 2002 (herein together called
the "Indenture") reference is hereby made for a description of the property and
transferred, assigned and mortgaged thereunder, the nature and extent of the
security, the terms and conditions upon which the bonds are secured and
additional bonds may be issued and secured, and the rights of the holders or
registered owners of said bonds, of the Trustee and of the Company in respect of
such security. Neither the foregoing reference to the Indenture, nor any
provision of this bond or of the Indenture, shall affect or impair the
obligation of the Company, which is absolute, unconditional and unalterable, to
pay, at the stated or accelerated maturities herein provided, the principal of
and premium, if any, and interest on this bond as herein provided.
G-A-1
Bonds of this Series M are entitled to the benefit of a required sinking
fund provided for in Exhibit G to the Twelfth Supplemental Indenture and shall
become subject to redemption for the purposes of such sinking fund at the
principal amount thereof without premium, plus interest accrued thereon to the
date of such redemption, all on the conditions and in the manner provided in
Exhibit G to the Twelfth Supplemental Indenture.
Bonds of this Series M are also redeemable, in whole or in part, in
integral multiples of one hundred thousand dollars, at the option of the Company
on any date on at least 30 days' notice, in the manner, with the effect, subject
to the limitations and for the amounts specified in Section 1.03 of Exhibit G to
the Twelfth Supplemental Indenture.
On the conditions and in the manner provided in the Section 1.04 of Exhibit
G to the Twelfth Supplemental Indenture, Series M Bonds may also become subject
to redemption, in whole or in part, at any time on at least 30 days' notice, in
the manner, with the effect and for the amounts specified in said Section 1.04,
by the use of moneys deposited with or paid to the Trustee as the proceeds of
the sale or condemnation of property of the Company or as the proceeds of
insurance policies deposited with or paid to the Trustee because of damage to or
destruction of property of the Company.
In the event that all or any part of the bonds of this Series M shall be
redeemed or otherwise discharged prior to their maturity pursuant to or in
accordance with the order of any governmental commission or regulatory authority
upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such Series M Bonds shall be entitled to be
paid therefor an amount specified in Section 1.05 of Exhibit G to the Twelfth
Supplemental Indenture.
The Indenture provides that, if notice of redemption of any bond issued
pursuant to its terms, including the Series M Bonds, or any portion of the
principal amount of any such bond selected for redemption has been duly given,
then such bond or such portion thereof shall become due and payable on the date
fixed for redemption, and, if the redemption price shall have been duly
deposited with the Trustee, interest thereon shall cease to accrue from and
after the date fixed for redemption, and that whenever the redemption price
thereof shall have been duly deposited with the Trustee and notice of redemption
shall have been duly given, or provision therefor made as provided in the
indenture, such bond or such portion thereof shall no longer be entitled to any
lien or benefit of the Indenture.
In case an Event of Default, as defined in the Indenture, occurs, the
principal of this bond may become or may be declared due and payable prior to
the stated maturity hereof in the manner and with the effect and subject to the
conditions provided in the Indenture.
This bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, upon books of the Company to be kept for that purpose
at the corporate trust office of the Trustee under the Indenture, upon surrender
thereof at said office for cancellation and upon presentation of a written
instrument of transfer duly executed, and thereupon the Company shall issue in
the name of the transferee or transferees, and the Trustee shall authenticate
and deliver, a new registered bond or bonds, of like form and in an authorized
denomination or in authorized
G-A-2
denominations and of the same series, for the same aggregate principal amount.
Bonds of this series upon surrender thereof at said office may be exchanged for
the same aggregate principal amount of bonds, also of this series but of another
authorized denomination or other authorized denominations, all upon payment of
the charges, if any, and subject to the terms and conditions specified in the
Indenture.
The Company and the Trustee may treat the registered owner of this bond as
the absolute owner hereof for all purposes.
With the consent of the company and to the extent permitted by and as
provided in the Indenture, property may be released from the lien thereof, and
the terms and provisions of the Indenture may be modified by the assent or
authority of the holders of at least seventy-five per centum (75%) in principal
amount of the bonds then outstanding thereunder, provided, however, that no such
modification shall (i) extend the time or times or payment of the principal of,
or the interest or premium, if any, on any bond, (ii) reduce the principal
amount thereof or the rate of interest or premium thereon, (iii) authorize the
creation of any lien prior or equal to the lien of the Indenture upon any
property subject to the lien thereof, or deprive any bondholder of the benefit
of the lien of the Indenture, (iv) affect the rights under the Indenture of the
holders of one or more, but less than all, of the series of bonds outstanding
thereunder unless assented to by the holders of seventy-five per centum (75%) in
aggregate principal amount of bonds outstanding thereunder of each of the series
so affected, (v) reduce the percentage of bonds, the holders of which are
required to assent to any such modification, or (vi) in any manner affect the
rights or obligations of the Trustee without its written consent thereto.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or of any claim based hereon or in respect hereof or of
the Indenture, against any incorporator, stockholder, officer or director of the
Company, or of any successor company, whether by virtue of any statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being by the acceptance hereof expressly waived and released and being
also waived and released by the terms of the Indenture.
This bond shall not be valid nor become obligatory for any purpose until it
shall have been authenticated by the execution of the certificate hereon
endorsed by the Trustee under the Indenture.
G-A-3
In Witness Whereof, Unitil Energy Systems, Inc. has caused this bond to be
signed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Treasurer, and this
bond to be dated the __________, _____.
Unitil Energy Systems, Inc.
By
-----------------------------------------
President
Attest:
---------------------------
Treasurer
(Corporate Seal)
G-A-4
(Form of Trustee's Certificate for all Bonds of Series M)
Trustee's Certificate of Authentication
This is one of the First Mortgage Bonds, Series M, referred to in the
within mentioned Indenture.
U.S. Bank National Association
By
----------------------------------------
Authorized Officer
G-A-5
(Form of Endorsement)
For Value Received the undersigned hereby sells, assigns and transfers unto
_____________________________ the within bond, and all rights thereunder, hereby
irrevocably constituting and appointing ___________________________ attorney to
transfer said bond on the books of the Company, with full power of substitution
in the premises.
-------------------------------------------
Signature of Registered Owner
Dated:
-------------------------
In the presence
of:
----------------------------
Notice: The signature of this assignment must correspond with the name of
the payee as it appears upon the face of the within bond in every particular,
without alteration or enlargement or any change whatever.
G-A-1
Series N Bonds
As a result of the Merger of Exeter into the Company on the Merger Date, as
more fully described in the Twelfth Supplemental Indenture, $7,500,000 aggregate
principal amount of the Exeter Series M, 8.00% Bonds due May 1, 2031("Exeter
Series M Bonds") issued under the Exeter Indenture are exchanged as of Merger
Date by the holders thereof for Bonds issued under the Indenture containing
substantially the same terms and provisions as the Exeter Series M Bonds which
are the Company's Series N 8.00% Bonds due May 1, 2031 (the "Series N Bonds").
Accordingly, the provisions for the issuance of $7,500,000 aggregate principal
amount of the Company's Series N Bonds and the terms and provisions thereof are
hereinafter set forth.
All things have been done and performed which are necessary to make the
Series N Bonds, when authenticated by the Trustee and issued as herein provided,
legal valid and binding obligations of the Company;
And it is Hereby Covenanted, Declared and Agreed, as set forth in the
following-covenants, agreements, conditions and provisions, to wit:
Article One
Creation of Series N Bonds
Section 1.01. There shall be and is hereby created an additional series of
bonds designated as and entitled "First Mortgage Bonds, Series N." Series N
Bonds shall be fully registered bonds, of the denomination of $1,000 and
multiples thereof. The registered bonds of Series N originally issued shall be
dated as provided in Article III of the Indenture and any bonds of Series N
subsequently issued shall be dated as provided in Section 2.03 of the Indenture.
All Series N Bonds shall mature on May 1, 2031 and shall bear interest at the
rate of eight percent (8.00%) per annum from their respective dates of issue,
such interest to be payable quarterly in arrears on the first day of February,
May, August and November each year commencing the first day of February, 2003,
and shall bear interest on any overdue principal (including any overdue
prepayment of principal) and premium, if any, and (to the extent permitted by
applicable law) on any overdue payment of interest, at the rate of 10.00% per
annum. The principal of, premium if any, and interest on bonds of Series N shall
be payable at the corporate trust office in Boston, Massachusetts of U.S. Bank
National Association or at the corporate trust office designated by its
successor as Trustee hereunder, in lawful money of the United States of America
provided that the Company may enter into a written agreement with any registered
Institutional Holder of the bonds of Series N providing that payment of interest
thereon and of the redemption price on any portion of the principal amount
thereof (including premium, if any) which may be redeemed shall be made directly
to such holder or to its nominee, as the case may be, at a duly designated place
of payment within the United States, without surrender or presentation of such
bonds of Series N to the Trustee, provided that (A) there shall have been filed
with the Trustee a copy of such agreement, (B) pursuant to such agreement such
holder shall agree that it will not sell, transfer or
Exhibit H
(to Twelfth Supplemental Indenture)
otherwise dispose of any such bond of Series N in respect of which any such
payment or redemption shall have been made unless, prior to the delivery thereof
by it, either (i) it shall have made a clear and accurate notation of the amount
of principal so redeemed upon such bond to be transferred, or (ii) such bond of
Series N shall have been presented to the Trustee for appropriate notation
thereon of the portion of the principal amount thereof redeemed, or (iii) such
bond or bonds of Series N shall have been surrendered in exchange for a new bond
or bonds of Series N for the unredeemed balance of the principal amount thereof
in accordance with the other terms of the Indenture and (C) in such agreement
such holder shall agree that prior to receiving any final payment of the entire
remaining unpaid principal amount of any Series N bond, the holder thereof shall
be required to deliver such bond to the Trustee. For purposes of this Section
1.01, the term "Institutional Holder" shall mean any insurance company, bank,
savings and loan association, trust company, investment company, charitable
foundation, employee benefit plan (as defined in ERISA) or other institutional
investor or financial institution. The text of the Series N Bonds and the
Trustee's certificate with respect thereto shall be respectively substantially
of the tenor and purport set forth in Schedule A hereto. The Series N Bonds
shall be numbered in such manner or by such method as shall be satisfactory to
the Trustee.
The issue of bonds of Series N hereunder is hereby limited to the
$7,500,000 in aggregate principal amount of Series N Bonds initially issued as
provided in Section 1.07 hereof and to Series N Bonds issued in exchange or
substitution for outstanding Series N Bonds under the provisions of Section
2.08, 2.10, 2.11 and 7.05 of the Indenture and of Section 1.06 hereof.
Section 1.02. As a required sinking fund for the benefit of the Series N
Bonds, the Company covenants that it will, on or prior to May 1 in each year,
beginning with May 1, 2022, and continuing to and including May 1, 2031, pay to
the Trustee immediately available funds sufficient to redeem, at par, Series N
Bonds then outstanding, in the principal amount of Seven Hundred Fifty Thousand
Dollars ($750,000) (or the remaining principal amount if less than $750,000
principal amount of Series N Bonds at the time remains outstanding). The
payments required for the sinking fund as above provided are in this Section
1.02 and elsewhere in this Exhibit H referred to as "required sinking fund
payments" and the day following the latest date on which each such payment is
required to be made is herein and therein referred to as a "required sinking
fund redemption date". Each required sinking fund payment shall be applied to
the redemption of Series N Bonds on the applicable required sinking fund
redemption date.
No redemption under Section 1.03, 1.04 or 1.05 hereof shall affect or
reduce the obligation of the Company to provide for required sinking fund
redemptions under this Section 1.02 until all Series N Bonds shall have been
paid in full.
Section 1.03. In addition to the required sinking fund provided by Section
1.02 hereof, all of the bonds of Series N, or any part of the principal amount
thereof constituting One Hundred Thousand Dollars ($100,000) or any integral
multiple thereof, shall be subject to redemption, at the option of the Company,
on any date on or after May 1, 2001 and before May 1, 2029, pursuant to the
provisions of Article VII of the Indenture, and by payment of an amount equal to
the Make Whole Amount, as defined below in this Section 1.03, determined five
Business Days prior to such redemption. In addition to the foregoing, on any
date on or after May 1, 2029, all of the bonds of Series N, or any part of the
principal amount thereof constituting One Hundred
H-2
Thousand Dollars ($100,000) or any integral multiple thereof, shall be subject
to redemption, at the option of the Company, by payment of the interest accrued
on the principal amount of the bond or bonds optionally to be redeemed to the
dates fixed for such redemption plus 100% of the principal amount thereof.
For purposes of this Section 1.03, the Make Whole Amount shall mean the
greater of (i) the outstanding principal amount of the bonds to be redeemed,
plus interest accrued thereon to the date fixed for such redemption, and (ii)
the sum of (A) the aggregate present value as of the date of such redemption of
each dollar of principal being redeemed (taking into account each redemption
required by Section 1.02 above) and the amount of interest (exclusive of
interest accrued to the date fixed for such redemption) that would have been
payable in respect of each such dollar if such redemption had not been made,
determined by discounting such amounts at the Reinvestment Rate (as hereinafter
defined) from the respective dates on which they would have been payable to the
date of such redemption, plus (B) interest accrued on the bonds to be redeemed
to the date fixed for such redemption.
For purposes of any determination of the Make Whole Amount:
"Reinvestment Rate" shall mean (1) the sum of 0.50%, plus the
yield reported on page "USD" of the Bloomberg Financial Markets
Services Screen (or, if not available, any other nationally recognized
trading screen reporting on-line intraday trading in the United States
government Securities) at 11:00 A.M. (Eastern time) on the fifth
Business Day preceding the date the Make Whole Amount become due and
payable pursuant to the foregoing provisions of this Section 1.03 for
the United States government Securities having a maturity (rounded to
the nearest month) corresponding to the remaining Weighted Average
Life to Maturity of the principal of the bonds being redeemed (taking
into account the application of each redemption required by Section
1.02) or (2) in the event that no nationally recognized trading screen
reporting on-line intraday trading in the United States government
Securities is available, Reinvestment Rate shall mean the sum of
0.50%, plus the arithmetic mean of the yields for the two columns
under the heading "Week Ending" published on the fifth Business Day
preceding the date the Make Whole Amount become due and payable
pursuant to the foregoing provisions of this Section 1.03 in the
Statistical Release under the caption "Treasury Constant Maturities"
for the maturity (rounded to the nearest month) corresponding to the
Weighted Average Life to Maturity of the principal amount of the bonds
being redeemed (taking into account each redemption required by
Section 1.02). If no maturity exactly corresponds to such Weighted
Average Life to Maturity, yields for the two published maturities most
closely corresponding to such Weighted Average Life to Maturity shall
be calculated pursuant to the immediately preceding sentence, and the
Reinvestment Rate shall be interpolated or extrapolated from such
yields on a straightline basis, rounding in each of such relevant
periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior
to the date of determination of the Make Whole Amount shall be used.
"Statistical Release" shall mean the then most recently published
statistical release designated "H.15(519)" or any successor
publication which is published weekly
H-3
by the Federal Reserve System and which establishes yields on actively
traded U.S. Government Securities adjusted to constant maturities or,
if such statistical release is not published at the time of any
determination hereunder, then such other reasonably comparable index
which shall be designated by the holders of 66-2/3% in aggregate
principal amount of outstanding Series N Bonds.
"Weighted Average Life to Maturity" of the principal amount of
the bonds being redeemed shall mean, as of the time of any
determination thereof, the number of years obtained by dividing the
then Remaining Dollar-Years of such principal by the aggregate amount
of such principal. The term "Remaining Dollar-Years" of such principal
shall mean the amount obtained by (i) multiplying (x) the remainder of
(1) the amount of principal that would have been payable on each
scheduled redemption date under Section 1.02 hereof if the redemption
pursuant to this Section 1.03 had not been made, less (2) the amount
of principal on the bonds scheduled to become payable on each such
redemption date under Section 1.02 after giving effect to the
redemption pursuant to this Section 1.03, by (y) the number of years
(calculated to the nearest one-twelfth) which will elapse between the
date of determination and each such scheduled redemption date under
Section 1.02, and (ii) totaling the products obtained in (i).
Section 1.04. Series N Bonds may be redeemed pursuant to Article XI of the
Indenture (i) out of Trust Moneys, required by Section 8.12 of the Indenture to
be deposited with the Trustee, on any date and shall be redeemed for an amount
equal to the principal amount of the bonds to be redeemed, plus interest accrued
to the date of redemption; or (ii) out of Trust Moneys required by Sections
8.10, 10.03, 10.04 or 10.04A of the Indenture to be deposited with the Trustee,
on any date and, if redeemed prior to May 1, 2029, then they shall be redeemed
for an amount equal to the Make Whole Amount, as defined above in Section 1.03,
and if redeemed on any date on or after May 1, 2029, then they shall be redeemed
for an amount equal to the interest accrued on the principal amount of the bond
or bonds to be redeemed to the date fixed for redemption, plus 100% of the
principal amount thereof, for optional redemptions occurring on or after May 1,
2029.
Section 1.05. In the event that all or any part of the bonds of Series N
shall be redeemed or otherwise discharged prior to their maturity pursuant to or
in accordance with the order of any governmental commission or regulatory
authority upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such bonds of Series N shall be entitled to
be paid an amount equal to the Make Whole Amount, if such redemption or
discharge occurs prior to May 1, 2029, or, if such redemption or discharge
occurs on or after May 1, 2029, then the registered owners of such bonds shall
be entitled to be paid an amount equal to the interest accrued on the principal
amount of the bonds to be redeemed to the date of redemption, plus 100% of the
principal amount thereof.
Section 1.06. Bonds of Series N, upon surrender thereof at the principal
office of the Trustee, may be exchanged for the same aggregate principal amount
of other bonds of this Series.
Within a reasonable time after the receipt of a request for such an
exchange, the Company shall issue and the Trustee shall authenticate and deliver
all bonds required in connection
H-4
therewith, and the Trustee shall make such exchange upon payment to it of such
charge, if any, as is required by the following paragraph.
For any exchange of bonds of Series N, the Company, at its option, may
require the payment of a sum sufficient to reimburse it for any stamp or other
tax or governmental charge required to be paid by the Company or the Trustee.
Section 1.07. Upon execution of this Twelfth Supplemental Indenture and
subject to the provisions of Article III of the Indenture and upon compliance
with the applicable provisions of Article IV of the Indenture, the Company shall
execute and deliver to the Trustee, and the Trustee shall authenticate and
deliver to or upon the order of the Company, bonds of the Series N in the form
set forth in Schedule A hereto in the aggregate principal amount of Seven
Million Five Hundred Thousand Dollars ($7,500,000).
Article Two
Redemption
Section 2.01. In the case of any required sinking fund redemption pursuant
to Section 1.02 hereof, forthwith after the April 1 preceding each required
sinking fund redemption date, and in the case of any proposed redemption
pursuant to Sections 1.03 or 1.04, forthwith after the Trustee's receipt of
proper notice from the Company of any such proposed redemption, the Trustee,
shall act in accordance with the provisions of Article VII of the Indenture.
The Company covenants that it will pay to the Trustee
(i) on or before the day prior to each required sinking fund
redemption date, the sum required by Section 1.02 hereof,
(ii) on or before the day prior to the date proposed by the
Company in a notice (which notice shall conform to the requirements of
Article VII of the Indenture) of any redemption pursuant to Section
1.03 or 1.04 hereof, the amount payable in accordance with such
notice, and
(iii) at the time of each required sinking fund redemption or
other redemption the Company shall pay to the Trustee the amount of
the charges which shall be due the Trustee and the amount of the
expenses which the Trustee advises the Company it has incurred or will
incur in connection with such redemption.
H-5
(Form of Series N Bond)
Unitil Energy Systems, Inc.
First Mortgage Bond, Series N, 8.00%
due May 1, 2031
No. NR- $_______________
Unitil Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to ________ or registered assigns, on the first day of
May, 2031, the principal sum of ___________ Dollars ($_______________) and to
pay interest thereon from the date hereof at the rate of eight per centum
(8.00%) per annum (computed on the basis of a thirty (30) day month and three
hundred sixty (360) day year) payable quarterly in arrears on the first day of
February, May, August and November each year, commencing the first day of
February, 2003, until said principal sum is paid; and to pay interest on any
overdue principal (including any overdue prepayment of principal) and premium if
any, and (to the extent permitted by applicable law) on any overdue payment of
interest, at the rate of 10.00% per annum. The principal of and premium if any,
and the interest on this bond shall be payable at the corporate trust office in
Boston, Massachusetts of U.S. Bank National Association, or at the corporate
trust office designated by its successor as trustee in the trust hereinafter
referred to, or at the option of certain holders, in accordance with the
provisions of Section 1.01 of Exhibit H of the Twelfth Indenture hereinafter
referred to, in lawful money of the United States of America.
This bond is one of a duly authorized issue of First Mortgage Bonds of the
Company limited as to aggregate principal amount as set forth in the Indenture
hereinafter mentioned, issuable in series, and is one of a Series N known as
First Mortgage Bonds, Series N, all bonds of all series being issued and to be
issued under and pursuant to and all equally secured (except as any sinking or
other fund, established in accordance with the provisions of the Indenture
hereinafter mentioned, may afford additional security for the bonds of any
particular series) by an Indenture of Mortgage and Deed of Trust dated as of
July 15, 1958 (herein called the "Original Indenture") duly executed and
delivered by the Company to Old Colony Trust Company (U.S. Bank National
Association being successor Trustee and together with each predecessor trustee
being called the "Trustee"), to which Original Indenture and to all Indentures
supplemental thereto, including a Twelfth Supplemental Indenture (the "Twelfth
Supplemental Indenture") dated as of December 2, 2002 (herein together called
the "Indenture") reference is hereby made for a description of the property and
transferred, assigned and mortgaged thereunder, the nature and extent of the
security, the terms and conditions upon which the bonds are secured and
additional bonds may be issued and secured, and the rights of the holders or
registered owners of said bonds, of the Trustee and of the Company in respect of
such security. Neither the foregoing reference to the Indenture, nor any
provision of this bond or of the Indenture, shall affect or impair the
obligation of the Company, which is absolute, unconditional and unalterable, to
pay,
Schedule A
(to Exhibit H of the Twelfth Supplemental Indenture)
at the stated or accelerated maturities herein provided, the principal of and
premium, if any, and interest on this bond as herein provided.
Bonds of this Series N are entitled to the benefit of a required sinking
fund provided for in Exhibit H to the Twelfth Supplemental Indenture and shall
become subject to redemption for the purposes of such sinking fund at the
principal amount thereof without premium, plus interest accrued thereon to the
date of such redemption, all on the conditions and in the manner provided in
Exhibit H to the Twelfth Supplemental Indenture.
Bonds of this Series N are also redeemable, in whole or in part, in
integral multiples of one hundred thousand dollars, at the option of the Company
on any date on at least 30 days' notice, in the manner, with the effect, subject
to the limitations and for the amounts specified in Section 1.03 of Exhibit H to
the Twelfth Supplemental Indenture.
On the conditions and in the manner provided in the Section 1.04 of Exhibit
H to the Twelfth Supplemental Indenture, Series N bonds may also become subject
to redemption, in whole or in part, at any time on at least 30 days' notice, in
the manner, with the effect and for the amounts specified in said Section 1.04,
by the use of moneys deposited with or paid to the Trustee as the proceeds of
the sale or condemnation of property of the Company or as the proceeds of
insurance policies deposited with or paid to the Trustee because of damage to or
destruction of property of the Company.
In the event that all or any part of the bonds of this Series N shall be
redeemed or otherwise discharged prior to their maturity pursuant to or in
accordance with the order of any governmental commission or regulatory authority
upon the reorganization, dissolution or liquidation of the Company, or
otherwise, the registered owners of such Series N bonds shall be entitled to be
paid therefor an amount specified in Section 1.05 of Exhibit H to the Twelfth
Supplemental Indenture.
The Indenture provides that, if notice of redemption of any bond issued
pursuant to its terms, including the Series N bonds, or any portion of the
principal amount of any such bond selected for redemption has been duly given,
then such bond or such portion thereof shall become due and payable on the date
fixed for redemption, and, if the redemption price shall have been duly
deposited with the Trustee, interest thereon shall cease to accrue from and
after the date fixed for redemption, and that whenever the redemption price
thereof shall have been duly deposited with the Trustee and notice of redemption
shall have been duly given, or provision therefor made as provided in the
indenture, such bond or such portion thereof shall no longer be entitled to any
lien or benefit of the Indenture.
In case an Event of Default, as defined in the Indenture, occurs, the
principal of this bond may become or may be declared due and payable prior to
the stated maturity hereof in the manner and with the effect and subject to the
conditions provided in the Indenture.
This bond is transferable by the registered owner hereof, in person or by
duly authorized attorney, upon books of the Company to be kept for that purpose
at the corporate trust office of the Trustee under the Indenture, upon surrender
thereof at said office for cancellation and upon
H-A-2
presentation of a written instrument of transfer duly executed, and thereupon
the Company shall issue in the name of the transferee or transferees, and the
Trustee shall authenticate and deliver, a new registered bond or bonds, of like
form and in an authorized denomination or in authorized denominations and of the
same series, for the same aggregate principal amount. Bonds of this series upon
surrender thereof at said office may be exchanged for the same aggregate
principal amount of bonds, also of this series but of another authorized
denomination or other authorized denominations, all upon payment of the charges,
if any, and subject to the terms and conditions specified in the Indenture.
The Company and the Trustee may treat the registered owner of this bond as
the absolute owner hereof for all purposes.
With the consent of the company and to the extent permitted by and as
provided in the Indenture, property may be released from the lien thereof, and
the terms and provisions of the Indenture may be modified by the assent or
authority of the holders of at least seventy-five per centum (75%) in principal
amount of the bonds then outstanding thereunder, provided, however, that no such
modification shall (i) extend the time or times or payment of the principal of,
or the interest or premium, if any, on any bond, (ii) reduce the principal
amount thereof or the rate of interest or premium thereon, (iii) authorize the
creation of any lien prior or equal to the lien of the Indenture upon any
property subject to the lien thereof, or deprive any bondholder of the benefit
of the lien of the Indenture, (iv) affect the rights under the Indenture of the
holders of one or more, but less than all, of the series of bonds outstanding
thereunder unless assented to by the holders of seventy-five per centum (75%) in
aggregate principal amount of bonds outstanding thereunder of each of the series
so affected, (v) reduce the percentage of bonds, the holders of which are
required to assent to any such modification, or (vi) in any manner affect the
rights or obligations of the Trustee without its written consent thereto.
No recourse shall be had for the payment of the principal of or the
interest on this bond, or of any claim based hereon or in respect hereof or of
the Indenture, against any incorporator, stockholder, officer or director of the
Company, or of any successor company, whether by virtue of any statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being by the acceptance hereof expressly waived and released and being
also waived and released by the terms of the Indenture.
This bond shall not be valid nor become obligatory for any purpose until it
shall have been authenticated by the execution of the certificate hereon
endorsed by the Trustee under the Indenture.
H-A-3
In Witness Whereof, Unitil Energy Systems, Inc. has caused this bond to be
signed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Treasurer, and this
bond to be dated the ____ day of ________________, _____.
Unitil Energy Systems, Inc.
By:
----------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Attest:
---------------------------
Treasurer
(Corporate Seal)
H-A-4
(Form of Trustee's Certificate for all Bonds of Series N)
Trustee's Certificate of Authentication
This is one of the First Mortgage Bonds, Series N, referred to in the
within mentioned Indenture.
U.S. Bank National Association
By:
----------------------------------------
Authorized Officer
(Form of Endorsement)
For Value Received the undersigned hereby sells, assigns and transfers unto
_____________________________ the within bond, and all rights thereunder, hereby
irrevocably constituting and appointing ___________________________ attorney to
transfer said bond on the books of the Company, with full power of substitution
in the premises.
-------------------------------------------
Signature of Registered Owner
Dated:
-------------------------
In the presence
of:
----------------------------
Notice: The signature of this assignment must correspond with the name of
the payee as it appears upon the face of the within bond in every particular,
without alteration or enlargement or any change whatever.