As filed with the SEC on November 27, 2002
File No. 70-10084
United States Securities and Exchange Commission
Washington, D.C. 20549
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Pre-Effective Amendment No. 2 to Form U-1
Application/Declaration
Under the
Public Utility Holding Company Act of 1935
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Concord Electric Company Exeter & Hampton Electric Company
One McGuire Street 114 Drinkwater Road
Concord, NH 03301 Kensington, NH 03833
Unitil Corporation
6 Liberty Lane West
Hampton, NH 03842-1720
(name and principal executive office of applicants
and top registered holding company)
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Mark H. Collin
Treasurer and Secretary
Unitil Corporation
6 Liberty Lane West
Hampton, NH 03842-1720
(name and address of agent for service for all applicants)
The Commission is also requested to send copies
of any communication in connection with this matter to:
Sheri E. Bloomberg Meabh Purcell
LeBoeuf, Lamb, Greene & MacRae, L.L.P. LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street 260 Franklin Street, Suite 23
New York, NY 10019-5389 Boston, MA 02110
(212) 424-8000 (617) 439-9500
Facsimile: (212) 424-8500 Facsimile: (617) 439-0341
TABLE OF CONTENTS
Item 1. Description of the Proposed Transaction................................1
A. Introduction...........................................................1
B. General Request........................................................2
C. Background.............................................................2
D. Summary of the Proposed Transition.....................................3
E. Intended Benefits from the Merger......................................9
Item 2. Fees, Commissions and Expenses........................................11
Item 3. Applicable Statutory Provisions.......................................11
A. Applicable Provisions.................................................11
Item 4. Regulatory Approvals..................................................13
Item 5. Procedure.............................................................14
Item 7. Information as to Environmental Effects...............................16
Signature.....................................................................17
i
This Pre-Effective Amendment No. 2 amends and restates the
Application-Declaration previously filed on August 30, 2002 and October 17, 2002
as follows:
Item 1. Description of the Proposed Transaction
A. Introduction
This Application-Declaration ("Application") seeks approvals relating
to the proposed merger (the "Merger") of Concord Electric Company ("CECo") and
Exeter & Hampton Electric Company ("E&H"), the two New Hampshire retail electric
utility subsidiaries of Unitil Corporation ("Unitil", and together with CECo and
E&H, the "Applicants"), a registered public utility holding company. Applicants
propose that upon receipt of all the necessary regulatory approvals, E&H will
merge with and into CECo to form a single retail electric utility subsidiary of
Unitil, under the new name of Unitil Energy Systems, Inc. ("UES").
The Merger is one of the elements of the Unitil system restructuring
proposal before the New Hampshire Public Utilities Commission ("NHPUC"), which
was adopted pursuant to and as required by the New Hampshire Electricity
Restructuring Law, codified at RSA 374-F. Unitil's restructuring proposal
contains four principal elements: (l) the merger of CECo and E&H into a single
distribution company, UES, that will be subject to the jurisdiction of the
NHPUC; (2) divestiture of the power supply portfolio of Unitil Power Corp.,
Unitil's power supply subsidiary, and the solicitation and acquisition by UES of
replacement sources of energy necessary for it to meet its obligation to provide
transition service and default service to its retail customers; (3)
implementation by UES of new unbundled rates to be approved by the NHPUC that
reflect the Merger and the implementation of the restructuring requirements of
New Hampshire RSA374-F; and (4) introduction of customer choice for UES's New
Hampshire customers.
On October 18, 2002, the Commission issued a notice of the filing of
the Application-Declaration in this proceeding and an order authorizing the
Applicants to solicit proxies from the holders of the outstanding shares of
E&H's preferred stock (the "Solicitation"), in favor of the Merger and related
transactions and the solicitation of consents from bondholders of E&H and CECo
in connection with a proposed indenture amendment.
B. General Request
Applicants request authorization under Sections 9(a)(2) and 10 of the
Act to effect the Merger. Applicants request authorization to amend and combine
CECo's and E&H's debt indentures into a single UES indenture and revise the
existing authorization for the Unitil system money pool, in each case to reflect
the Merger. The proposed form of amended indenture for UES is included in
Exhibit B-3 hereto.
C. Background
In 1984, Unitil was formed through a statutory share exchange under
New Hampshire law as a result of which CECo and E&H became subsidiaries of
Unitil. At that time, Unitil Power Corp. ("UPC") and Unitil Service Corp.
("USC") were also formed as subsidiaries of Unitil. Fitchburg Gas and Electric
Light Company ("FG&E"), a Massachusetts combination gas and electric utility,
became a subsidiary of Unitil in 1992 as a result of a merger of a subsidiary of
Unitil into FG&E. As a result of this transaction, Unitil became a registered
holding company under the Act.
CECo is a public utility company within the meaning of the Act. CECo
is engaged in the transmission and distribution of electric energy at regulated
rates to approximately 28,000 customers in Concord and the capital region of New
Hampshire. CECo is regulated as a public utility in New Hampshire. As of June
30, 2002, CECo reported net utility plant of $37,417,000 and operating revenues
for the 12 months ended June 30, 2002 of $52,263,000.
E&H is a public utility company within the meaning of the Act. E&H is
engaged in the transmission and distribution of electric energy at regulated
rates to approximately 41,000 customers in Exeter and the seacoast region of New
Hampshire. E&H is regulated as a public utility by the New Hampshire Public
Utilities Commission. As of June 30, 2002, E&H reported net utility plant of
$43,221,000 and operating revenues for the 12 months ended June 30, 2002 of
$58,053,000.
While the utility operations of CECo and E&H are administered and
coordinated through Unitil's centralized service company, USC, and each company
has, since 1986, secured all of its requirements for electric energy from UPC,
the companies have different retail tariffs,
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rates and rate bases. The Merger will result in a new unified rate structure and
a single rate base, and the elimination of any inefficiencies and duplicative
costs resulting from the operation of the companies as two separate entities.
D. Summary of the Proposed Transaction
To accomplish the Merger, the companies entered into a Merger
Agreement that has been approved by their respective boards of directors.
Consummation of the transactions contemplated by the Merger Agreement will be
subject to the receipt of all necessary regulatory approvals and to the approval
of the shareholders of each company. Under the terms of the Merger Agreement,
E&H will be merged with and into CECo with CECo as the surviving corporation. In
connection with the Merger, CECo will change its name to Unitil Energy Systems,
Inc. ("UES"). As a result of the Merger, all of E&H's assets and liabilities
will, by operation of law, become the assets and liabilities of CECo.
1. Description of Outstanding Equity Securities of CECo and E&H.
CECo currently has 250,000 authorized shares of common stock (the
"CECo Common Stock"), of which 131,745 shares are issued and outstanding and
owned both of record and beneficially by Unitil; 2,250 authorized shares of
non-cumulative preferred stock (the "CECo Non-Cumulative Preferred Stock"), all
of which are issued and outstanding and none of which is owned, of record or
beneficially, by Unitil; and 15,000 authorized shares of cumulative preferred
stock (the "CECo Cumulative Preferred Stock"), of which 2,150 shares are issued
and outstanding in a single series designated the "8.70% Series," none of which
is owned, of record or beneficially, by Unitil. The CECo Non-Cumulative
Preferred Stock is entitled to vote on all matters brought before the
shareholders of CECo together with the CECo Common Stock, with each outstanding
share entitled to one vote. The CECo Non-Cumulative Preferred Stock is not
entitled to vote as a separate class. The CECo Cumulative Preferred Stock is not
entitled to vote on any matter, except as may otherwise be authorized or
required by the Business Corporation Act. Under the Business Corporation Act,
the CECo Cumulative Preferred Stock is not entitled to vote on the Merger and
related transactions.
E&H currently has 197,417 authorized shares of common stock (the "E&H
Common Stock"), of which 195,000 shares are issued and outstanding and owned
both of record and beneficially by Unitil; and 25,000 authorized shares of
cumulative preferred stock (the
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"E&H Cumulative Preferred Stock"), of which a total of 9,704 shares are issued
and outstanding in four series as follows: 840 shares of the "5% Dividend
Series", 1,680 shares of the "6% Dividend Series", 3,331 shares of the "8.75%
Dividend Series" and 3,853 shares of the "8.25% Dividend Series". None of the
E&H Cumulative Preferred Stock is owned, of record or beneficially, by Unitil.
The E&H Cumulative Preferred Stock is not entitled to vote as a separate class,
unless such a class vote is otherwise authorized or required by the Business
Corporation Act. Under the Business Corporation Act, each series of the E&H
Cumulative Preferred Stock is entitled to vote as a separate class on the
proposed Merger with CECo, since, as described below, the terms of the Merger
Agreement provide for the issuance to the holders of the E&H Cumulative
Preferred Stock in exchange for their shares of E&H Cumulative Preferred Stock
of an equal number of shares of CECo Cumulative Preferred Stock in four new
series which will have the same terms and conditions as the existing series of
the E&H Cumulative Preferred Stock for which they will be exchanged.
The authorized and unissued shares of CECo Cumulative Preferred Stock
may be issued in series by CECo from time to time upon authorization of its
board of directors, with the terms of each new series to be approved by the vote
of two-thirds of the outstanding shares of CECo Common Stock and CECo
Non-Cumulative Preferred Stock.
As part of the approval of the Merger Agreement, the board of
directors of CECo and the holders of the CECo Common Stock and CECo
Non-Cumulative Preferred Stock also approved an amendment to the CECo Articles
of Incorporation creating the four new series of CECo Cumulative Preferred Stock
to be issued in the Merger to the holders of the E&H Cumulative Preferred Stock.
As previously noted, these four new series will have the same terms as the four
series of E&H Cumulative Preferred Stock for which they will be exchanged.
2. Terms of the Merger Agreement.
Pursuant to the Merger Agreement, upon the effectiveness of the
Merger, all of the issued and outstanding shares of E&H Common Stock will be
converted into a single share of CECo Common Stock, and each share of E&H
Cumulative Preferred Stock will be converted into a share of a new series of
CECo Cumulative Preferred Stock, each such new series of CECo Cumulative
Preferred Stock to have the same terms and conditions as the existing series of
the E&H Cumulative Preferred Stock for which they will be exchanged. The shares
of CECo
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Common Stock, CECo Non-Cumulative Preferred Stock and CECo Cumulative Preferred
Stock issued and outstanding immediately prior to the Merger will remain
outstanding and will not be affected by the Merger.
3. Amendments to Debt Indentures
E&H is party to an Indenture of Mortgage and Deed of Trust dated as of
December 1, 1952 (the "E&H Indenture"), and CECo is party to an Indenture of
Mortgage and Deed of Trust dated as of July 15, 1958 (the "CECo Indenture").
There are currently three series of bonds outstanding under each of the E&H
Indenture and the CECo Indenture.
While CECo and E&H could accomplish the Merger without combining the
two indentures, which requires the consent of bondholders under the CECo
Indenture and the E&H Indenture, doing so would result in the surviving company
having to administer two separate indentures with somewhat differing provisions.
Accordingly, in connection with the Merger, CECo and E&H are proposing to
combine, amend and restate the E&H Indenture and the CECo Indenture into a
single Indenture under which all of the currently outstanding bonds of E&H and
CECo would remain outstanding. Bondholders under the new Indenture would be
secured ratably in all of the real property assets of UES on the same terms on
which they are currently secured in the real property assets of CECo and E&H.
The consent of each bondholder under the E&H Indenture and the CECo
Indenture will be necessary to accomplish the proposed combination, amendment
and restatement of the two Indentures. Pursuant to the Commission's order dated
October 18, 2002, Applicants received authorization to seek such consent to the
extent required under Rule 62 of the Act.
While the CECo Indenture and the E&H Indenture are largely identical
instruments, there are differences between them. As part of the combination,
amendment and restatement process, CECo and E&H propose to conform the
provisions of the Indentures. Any special provisions applicable to the separate
series of bonds under each Indenture which are contained in the Supplemental
Indentures pursuant to which those series were issued will be preserved in the
combination, amendment and restatement of the two Indentures. The proposed
combination, amendment and restatement will not effect any material economic
change in the
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provisions applicable to the bonds or any series thereof, such as their
respective rates of interest, maturities, amounts outstanding or redemption
features.
However, in the process of amending, restating and combining the two
Indentures, there are certain differences which the companies are proposing to
conform the Indentures. The following list summarizes the only material
differences between the two Indentures, and the manner in which the differences
are proposed to be resolved:
a. Section 4.04 of each Indenture contains a test governing the
issuance of additional bonds under the Indenture, based upon a calculation of
"Net Bondable Expenditures" for property additions. The E&H Indenture currently
permits the issuance of additional bonds to the extent of 60% of Net Bondable
Expenditures for property additions, while the Concord Indenture permits the
issuance of additional bonds to the extent of 68% of Net Bondable Expenditures
for property additions. The Applicants are proposing that to use the 68% test in
the amended and restated Indenture.
b. Section 6.01 of each of Indenture contains a test for the issuance
of bonds against cash deposits, which is based on a multiple of earnings
available for interest charges. The multiple in the case of the E&H Indenture is
2; and in the case of the Concord Indenture it is 2 1/2. The Applicants are
proposing that the amended and restated Indenture use a multiple of 2 in this
provision. It should be noted that neither company has ever issued bonds under
this provision.
c. Section 10.04A of each Indenture permits the release of property
from the lien of the Indenture under certain circumstances, including an annual
exemption for non-utility property having a value of not more than $150,000. The
Applicants are proposing to increase this amount to $350,000 in the amended and
restated Indenture.
d. Rather than being secured in the separate property of CECo and E&H,
the CECo and E&H bondholders will be secured ratably in all of the property of
the combined entity upon the effectiveness of the Merger and the amendment and
restatement of the two Indentures into a single Indenture.
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As previously noted, the existing holders of outstanding bonds issued
by E&H and CECo must consent to the amended and restated Indenture in accordance
with the terms of the respective Indentures governing their bonds.
The holders of the bonds outstanding under both the CECo Indenture and
E&H Indenture have executed consents to the Merger of E&H into CECo, and the
assumption by CECo of the E&H Indenture upon consummation of the Merger. They
have also agreed to the amendment, restatement and combination of the E&H
Indenture and CECo Indenture into a single indenture pursuant to which all of
the bonds will remain outstanding, pending completion of definitive
documentation for such amendment, restatement and combination. It is anticipated
that the closing of the amendment, restatement and combination of the E&H and
CECo Indentures will occur prior to December 31, 2002, but subsequent to the
effective date of the Merger.
4. Boards of Directors and Shareholder Approvals.
The Merger Agreement and the transactions contemplated thereby are
subject to the approval of the boards of directors of each of CECo and E&H,
which was obtained on June 20, 2002 and September 27, 2002. In addition, the
Merger Agreement and related amendments to CECo's Articles of Incorporation are
subject to the approval of the holders of the CECo Common Stock and the CECo
Non-Cumulative Preferred Stock, voting together as a single class, and to the
approval of the E&H Common Stock and each series of the E&H Cumulative Preferred
Stock, each voting as a separate class. Because Unitil effectively controls the
boards of directors of each of E&H and CECo as the result of its ownership of
all of the issued and outstanding shares of common stock of each company, the
approval of the Merger Agreement and related amendments to CECo's Articles of
Incorporation by those boards of directors was assured. The approval of the
holders of the CECo Common Stock and the CECo Non-Cumulative Preferred Stock of
the Merger Agreement and related amendments to CECo's Articles of Incorporation
was also assured, since Unitil controls the vote of more than 99% of all such
shares. At a duly called meeting held on November 27, 2002, the CECo Common
Stock and the CECo Non-Cumulative Preferred Stock approved the Merger Agreement
and related amendments to CECo's Articles of Incorporation.
The approval of the Merger Agreement by the holders of the E&H Common
Stock was assured, since Unitil controls the vote of all of such shares, and was
obtained. Unitil does not, however, control the vote of any outstanding series
of the E&H Cumulative Preferred Stock. Unitil solicited written consents in
favor of the Merger Agreement and related transactions from the holders of each
outstanding series of the E&H Cumulative Preferred Stock pursuant to the
Solicitation. Because neither E&H nor any series of its capital stock is
registered under the Securities Exchange Act of 1934, the Solicitation was
subject only to the requirements of New Hampshire law and the terms of E&H's
governance documents. Under Section 7.04 of the New Hampshire Business
Corporation Act (RSA 293-A:7.04), the E&H Cumulative Preferred Stock can take
action by unanimous written consent. Such action would also be consistent with
the terms of E&H's governance documents. E&H has the right to call each
outstanding series for redemption pursuant to the terms of each such series and
Unitil currently intends to cause E&H
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to redeem the shares of any series which does not consent to the Merger
Agreement and related transactions in accordance with the terms of Rule 42 of
the Act. Each holder of the 8.75% Dividend Series and the 8.25% Dividend Series
executed a written consent in favor of the Merger Agreement and related
transactions effective November 1, 2002. The 5% Dividend Series and 6% Dividend
Series were redeemed.
5. Tax and Accounting Consequences of the Merger.
The Merger has been structured to qualify for tax purposes as a
tax-free "reorganization" under Section 368(a) of the Internal Revenue Code. As
a result, no gain or loss will be recognized by CECo or E&H or the holders of
the CECo Common Stock, the CECo Non-Cumulative Preferred Stock, the CECo
Cumulative Preferred Stock, the E&H Common Stock or the E&H Cumulative Preferred
Stock. CECo and E&H expect that the Merger will qualify as a common control
merger for accounting and financial reporting purposes. The accounting for a
common control merger is similar to a pooling of interests. Under this
accounting treatment, the combination of the ownership interests of the two
companies is recognized and the recorded assets, liabilities, and capital
accounts are carried forward at existing historical balances to the consolidated
financial statements of UES (as the surviving company) following the Merger.
On a pro forma basis, giving effect to the Merger as of June 30, 2002,
UES will have total assets of approximately $112,047,000, including net utility
plant of $80,638,000, and operating revenues for the 12 months ended June 30,
2002 of approximately $110,316,000. UES's pro forma consolidation capitalization
as of June 30, 2002 (assuming the exchange of all of the E&H Cumulative
Preferred Stock for new shares of UES Cumulative Preferred Stock) will be as
follows:
------------------------- ---------------------- -----------------
Security Amount Outstanding Percentage
------------------------- ---------------------- -----------------
Common Stock Equity 28,411,000 35%
------------------------- ---------------------- -----------------
Preferred Stock 1,195,000 1.5%
------------------------- ---------------------- -----------------
Short-Term Debt 1,550,000 1.9%
------------------------- ---------------------- -----------------
Long-Term Debt 50,000,000 61.6%
------------------------- ---------------------- -----------------
Total: 81,156,000 100%
------------------------- ---------------------- -----------------
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6. Money Pool Matters.
CECo and E&H participate in the Until system money pool arrangement
("Money Pool") that is funded, as needed, through bank borrowings and surplus
funds invested by the participants in the Money Pool. See Holding Co. Act
Release Nos. 35-26737 (June 30, 1997); 35-27182 (June 9, 2000); 35-27307 (Dec.
15, 2000) and 35-27345 (Feb. 14, 2001). Participation in the Money Pool,
including short-term debt borrowings, by CECo and E&H are authorized by the New
Hampshire Public Utility Commission, and therefore exempt under Rule 52.
However, borrowings by and loans to Unitil's other utility subsidiary, Fitchburg
Gas and Electric Light Company ("Fitchburg"), are not exempt. Following the
Merger, it is proposed that UES be authorized to make loans to Fitchburg on the
same terms as CECo's and E&H's current authorization to make such loans. All
other terms, conditions and limitations under the Money Pool orders will
continue to apply without change.
E. Intended Benefits from the Merger.
By merging E&H into CECo, the Applicants will simplify the corporate
structure of Unitil's holding company system. The Merger will also permit the
achievement of cost efficiency and service quality improvements. Based upon
Unitil's already centralized service company structure, the two New Hampshire
distribution operating companies may only achieve nominal operational gains as a
result of having a single New Hampshire operating entity. However, the combined
knowledge and experience of the two companies will benefit the remaining
stand-alone company. On October 28, 2002, the NHPUC approved the Merger, finding
that the transaction would be consistent with the public interest. Re: Concord
Electric Company, et al., DE 01-247, Order No. 24,046 (NHPUC 2002). The NHPUC
accepted Unitil's determination, without specific quantitative evidence, that
the Merger would lead to a simpler, more efficient and effective corporate
structure resulting in improved New Hampshire utilities operations, regulatory
oversight and financial reporting.
For example, the power contract management activities will become more
streamlined by eliminating one of the two New Hampshire retail operating
companies. Prior to restructuring, UPC provided a consolidated power supply
function for CECo and E&H. Under the New Hampshire restructuring scheme, and
Unitil settlement approved by the NHPUC, UPC will be divesting its power supply
portfolio and exiting the merchant function. Electric
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distribution companies such as CECo and E&H, however, will continue to have
responsibility for arranging for power supplies to provide both transition and
default services. The Merger will allow the Applicants to consolidate their
power supply planning, solicitation, contracting and administration activities,
resulting in savings by avoiding the cost of conducting two separate
solicitations, contract negotiations, and ongoing administration and reporting
functions.
In the Distribution Business Development (DBD) department, a benefit
will be a decrease in administrative tasks and reporting requirements. The
decrease in tasks will not be enough to decrease the employees assigned to this
function, but will allow the current employees additional time to work on other
tasks to improve the quality of support provided to the communities that Unitil
serves. Similarly, Customer Service operations, which are currently
consolidated, will be simplified by the consolidation of two tariffs and sets of
rates into one, leading to increased operating efficiency and improved service
to customers. A consolidated UES tariff will allow for more efficient regulatory
review, will be simpler for Unitil to administer and less confusing for
customers. The Operations Systems department views the Merger as a first step
towards the consideration of a consolidated meter reading system.
For the Finance and Treasury and Regulatory Services departments,
there will be a decrease in the number of required reports, analyses, and
filings, which will also lead to greater cost efficiencies and enhanced services
at the New Hampshire utilities. Currently CECo and E&H must plan, prepare and
file separate requests for rate changes, petitions for financings and other
mandated initiatives such as energy efficiency and low income programs. The two
companies must also separately arrange for long and short term debt, prepare tax
filings and file reports with various state and federal agencies. By
consolidating these activities under UES, the Applicants will avoid the cost and
expense of duplicative activities now being conducted independently by CECo and
E&H.
The Applicants believe that the Merger will generate cost efficiencies
which would not be available absent the Merger, with no adverse consequences for
either customers or shareholders. The consolidation of the planning, reporting,
tracking, finance and regulatory functions now required for two separate
corporate entities will allow the Applicants to achieve certain savings while
maintaining their quality of service. The Merger will not have a negative impact
on competition or on effective local regulation. In fact, the Merger is being
undertaken in
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the context of, and to ensure compliance with, a state-approved restructuring
plan designed to enhance competition and local regulation. Under the approved
Unitil restructuring settlement, UPC will be divesting its power supply
portfolio, and amending its FERC-regulated contractual relationship with the
Applicant's, to allow competitive suppliers to sell power directly to the
Applicants customers. At the same time, the Applicants will be undertaking the
Merger in order to consolidate their ongoing distribution and power supply
service activities, which will be primarily regulated by the NHPUC. Accordingly,
the Applicants believe that the Merger is in accordance with the applicable
standards of the Act and the rules and regulations thereunder.
Item 2. Fees, Commissions and Expenses
The total fees, commission and expenses paid or incurred in connection
with the Merger and related transactions are estimated to be not more than $1
million. These costs are expected to consist primarily of attorneys fees plus
additional miscellaneous fees.
Item 3. Applicable Statutory Provisions
A. Applicable Provisions
Sections 6, 7, 9, 10 and 12 of the Act, and Rules 43, 44, 45 and 54
thereunder are applicable to the Merger and related transactions, including the
amendment and combination of the debt indentures. The proposed transaction
involves the merger of two wholly-owned public utility subsidiaries of Unitil
Corporation and certain other related transactions. The electric utility
operations of the two companies will be unaffected by the Merger. The Merger
will allow the companies to achieve a greater level of coordination in
operations and will enable the companies to achieve greater cost efficiencies,
among other benefits. In addition, the Merger will simplify the Unitil corporate
structure. This merger of wholly-owned subsidiaries to simplify corporate
structure is consistent with existing Commission precedent (See Alliant Energy
Corporation, Holding Company Act Release No. 27456 (Oct. 24, 2001)), and is
designed to meet one of the primary goals of the Act, namely to facilitate state
regulation.
Following the Merger, the Unitil holding company system will remain an
integrated public utility system. In the 1992 order pursuant to which the
current Unitil holding company system was created (Holding Co. Act Release No.
25524 (Apr. 24, 1992)), the Commission found that CECo, E&H and Fitchburg
constitute an integrated public utility system
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within the meaning of the Act. The order noted that contract paths and, in
particular, the tight power pool system used in New England (to which all of
Unitil's subsidiaries belonged) created an interconnected system that was
located in the New England region. While the Merger will result in the
combination of two of the corporate entities in which the system's utility
operations are located, it will not change the fundamental fact that the same
assets will be operated as one coordinated system and will be a part of ISO-New
England. Therefore, the same analysis used by the Commission, and favorably
cited in recent cases remains applicable./1 Indeed, as a result of the
efficiencies and service quality improvements discussed above, Applicants
believe that the Merger tends to the even more economic and efficient
development of an integrated public utility system.
Section 12(e) of the Act and Rule 62 are applicable to the
Solicitation as well as obtaining the consent of bondholders under the two
indentures. As indicated, the Commission has granted Applicants authorization to
solicit the holders of each outstanding series of E&H Cumulative Preferred Stock
for approval the Merger as a separate class and the bondholders of the CECo
Indenture and E&H Indenture to consent to the amendment and combination of those
indentures.
B. Rule 54 Analysis
Neither Unitil nor any subsidiary thereof presently has, or as a
consequence of the proposed transactions will have, an interest in any exempt
wholesale generator ("EWG") or foreign utility company ("FUCO"), as those terms
are defined in Sections 32 and 33 of the Act, respectively. None of the proceeds
from the proposed transactions will be used to acquire any securities of, or any
interest in, an EWG or FUCO. Moreover, neither Unitil nor any of the
subsidiaries is, or as a consequence of the proposed transactions will become, a
party to, and such entities do not and will not have any rights under, a
service, sales or construction contract with any affiliated EWGs or FUCOs except
in accordance with the rules and regulations promulgated by the Commission with
respect thereto. Consequently, all applicable requirements of Rule 53(a)-(c)
under the Act are satisfied as required by Rule 54 under the Act.
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1 Nat'l Rural Elec. Coop. Ass'n, v. SEC, 2002 U.S. App. LEXIS 777 (D.C. Cir.
Jan. 18, 2002).
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Item 4. Regulatory Approvals
The federal and state regulatory requirements described below must be
complied with before the Applicants can complete the Merger and related
transactions. The Applicants have received all of these regulatory approvals.
Except as set forth below, no additional approvals from federal or state
regulatory commissions are required to complete the Merger and related
transactions.
State Approvals
New Hampshire
CECo and E&H are subject to the jurisdiction of the New Hampshire
Commission as public utilities, and the approval of the New Hampshire Commission
is required to implement the Merger and the related transfer of all existing
franchises, rights, works and systems of CECo and E&H to UES, pursuant to RSA
374:33, 374:30 and 369:1. The NHPUC will also approve the issuance of the four
new series of preferred stock by UES in connection with the Merger. On January
25, 2001, CECo and E&H filed an application seeking the approval of the New
Hampshire Commission consistent with these requirements. The New Hampshire
proceeding is being conducted in phases: Phase I addresses the divestiture of
Unitil's power supply portfolio and acquisition of transition service and
default service and Phase II relates to the Merger and the realignment of
Unitil's rate structure.
The NHPUC issued a written order approving Phase I settlement, with
conditions, on September 4th. The parties subsequently filed a first Amendment
to the Phase I Settlement Agreement on September 11th, which the Commission
approved in oral deliberation on September 13th.
The Parties filed the Phase II Settlement on September 3rd. The
Commission held hearings on September 10, 11, 12 and 13 and approved the Merger
Agreement in oral deliberations on September 18th. Copies of the initial
petition to the NHPUC and the Phase II settlement agreement are filed herewith
as exhibits C-1 and C-1.1, respectively. A copy of the Oral Deliberations of the
NHPUC relating to Phase II is filed herewith as exhibit C-3.1. The NHPUC's
written order approving the Phase II Settlement Agreement and the amendment to
the Phase I Settlement Agreement, dated October 25, 2002, is attached as Exhibit
C-3.
-13-
Federal Approvals
Federal Power Act
The FERC must approve the Merger. Under Section 203 of the Federal
Power Act, the FERC is directed to approve a merger if it finds such merger
consistent with the public interest. In reviewing a merger, the FERC generally
evaluates:
o whether the merger will adversely affect competition;
o whether the merger will adversely affect rates; and
o whether the merger will impair the effectiveness of
regulation.
On August 30, 2002, the parties filed an application with the FERC
requesting approval of the Transaction under Section 203 of the Federal Power
Act. A copy of the application filed with the FERC is filed herewith as exhibit
C-2. The FERC order approving the Merger was issued on October 23, 2002 and is
attached hereto as Exhibit C-4.
In addition, the Applicants will file a Notice of Succession for UES
to succeed to the rate schedules and tariffs of CECo and E&H.
Item 5. Procedure
The requisite notice under Rule 23 with respect to the filing of this
Application-Declaration was issued and published by the Commission on October
18, 2002, and specified a date not later than November 12, 2002 by which
comments may be entered and an order of the Commission granting and permitting
this Application to become effective may be entered by the Commission. The
Applicants are unaware of any comments having been time filed with respect to
this Application-Declaration. The Applicants expect to close the proposed Merger
on or about December 1, 2002. The Applicants request that the Commission's order
with respect to the Merger and related matters be issued as soon as practicable
and that such order remain effective through February 28, 2003.
The Applicants waive a recommended decision by a hearing or other
responsible officer of the Commission for approval of the Merger and consent to
the Division of Investment Management's assistance in the preparation of the
Commission's decision. There should not be a waiting period between the issuance
of the Commission's order and the date on which it is to become effective.
-14-
Item 6. Exhibits and Financial Statements
A. EXHIBITS
A-1 Articles of Incorporation of CECo. (Previously filed in
paper format on Form SE)
A-2 Bylaws of CECo, as amended. (Previously filed)
A-3 Articles of Incorporation of E&H. (Previously filed in paper
format on Form SE)
A-4 Bylaws of E&H, as amended. (Previously filed)
B-1. Proposed form of Agreement and Plan of Merger between CECo
and E&H. (Previously filed)
B-2 Proposed form of Solicitation material. (Previously filed)
B-3 Proposed form of Indenture for UES.
C-1 Copy of Petition to the New Hampshire Public Utilities
Commission. (Previously filed)
C-1.1 Settlement Agreement dated September 3, 2002 as filed with
the NHPUC. (Previously filed)
C-2 Copy of Petition to the FERC. (Previously filed)
C-3 Order of NHPUC.
C-3.1 Oral Deliberations of the NHPUC. (Previously filed)
C-4 Copy of Order of the FERC.
C-5 Order of the NHPUC with respect to CECo short-term debt
authority. (Previously filed)
C-6 Order of the NHPUC with respect to E&H short-term debt
authority. (Previously filed)
D Map of CECo and E&H Service Areas. (Previously filed in
paper format on Form SE)
E Opinion of Counsel
F Form of Federal Register Notice. (Previously filed)
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B. FINANCIAL STATEMENTS
FS-1 Unaudited Statement of Income of CECo for the twelve months
ended June 30, 2002. (Previously filed)
FS-2 Unaudited Balance Sheet of CECo as of June 30, 2002.
(Previously filed)
FS-3 Unaudited Statement of Income of E&H for the twelve months
ended June 30, 2002. (Previously filed)
FS-4 Unaudited Balance Sheet of E&H as of June 30, 2002.
(Previously filed)
FS-5 Unaudited Pro Forma Combined Balance Sheet of UES as of June
30, 2002. (Previously filed)
FS-6 Unaudited Pro Forma Combined Statement of Income of UES for
the twelve months ended June 30, 2002. (Previously filed)
Item 7. Information as to Environmental Effects
The Merger and related transactions do not involve a "major federal
action" nor does it "significantly affect the quality of the human environment"
as those terms are used in section 102(2)(C) of the National Environmental
Policy Act. The Merger and related transactions will not result in changes in
the operation of the Applicants that will have an impact on the environment. The
Applicant are not aware of any federal agency that has prepared or is preparing
an environmental impact statement with respect to the transactions that are the
subject of this Applicant-Declaration.
-16-
SIGNATURE
Pursuant to the requirements of the Public Utility Holding Company Act
of 1935, Applicants have duly caused this Pre-Effective Amendment No. 2 to the
Application-Declaration to be signed on their behalf by the undersigned
thereunto duly authorized.
UNITIL CORPORATION
CONCORD ELECTRIC COMPANY
EXETER & HAMPTON ELECTRIC COMPANY
By: /s/ Mark H. Collin
________________________
Name: Mark H. Collin
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Draft
================================================================================
FORM OF
TWELFTH SUPPLEMENTAL INDENTURE
UNITIL ENERGY SYSTEMS, INC.
(successor to Concord Electric Company)
to
STATE STREET BANK AND TRUST COMPANY,
TRUSTEE
Dated as of December 1, 2002
Supplementing, 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
================================================================================
CONCORD ELECTRIC COMPANY
TWELFTH SUPPLEMENTAL INDENTURE
Dated as of December 1, 2002
TABLE OF CONTENTS
SECTION HEADING PAGE
Recitals.......................................................................1
PART I RESTATEMENT OF INDENTURE...................................3
ARTICLE I DEFINITIONS................................................7
Section 1.01. Definitions................................................7
ARTICLE II GENERAL PROVISIONS AS TO THE BONDS................................14
Section 2.01. General Limitations.......................................14
Section 2.02. General Designation.......................................15
Section 2.03. Series of Bonds...........................................15
Section 2.04. Form and Denomination.....................................15
Section 2.05. Supplemental Indenture Creating New Series................16
Section 2.06. Request for Authentication and Delivery of Bonds..........16
Section 2.07. Execution, Authentication, Delivery.......................17
Section 2.08. Registration of Holders...................................17
Section 2.09. Persons Deemed Owners.....................................18
Section 2.10. Mutilated, Destroyed, Lost and Stolen Bond................18
Section 2.11. Temporary Bond............................................18
ARTICLE III BONDS OF THE OUTSTANDING SERIES...........................19
ARTICLE IV BONDS AGAINST PROPERTY ADDITIONS..........................20
Section 4.01. Definitions for Issuing Bonds Against Property Additions..20
A--Fixed Property, Property Additions..................................20
B--Purchased Property..................................................21
C--Gross Expenditures for Property Additions, Gross Expenditures.......21
D--Retirements.........................................................22
E--Net Retirements.....................................................22
F--Net Expenditures for Property Additions, Net Expenditures...........22
G--Bonded Expenditures.................................................23
H--Net Bondable Expenditures for Property Additions, Net Bondable
Expenditures........................................................23
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I--Certificate of Net Bondable Expenditures, New Gross Expenditures,
New Property Additions..............................................24
Section 4.02. Definitions for Earnings Test...............................24
A--Gross Operating Revenues............................................24
B--Earnings Available for Interest Charges.............................24
C--Earnings Available for Interest Charges Certificate,
Annual Interest Requirements........................................24
Section 4.03. General Provisions........................................25
Section 4.04. Additional Bonds Against Property Additions Issuance
Tests.....................................................26
Section 4.05. Documents Required for Authentication of Bonds............26
ARTICLE V BONDS FOR REFUNDING PURPOSES..............................28
Section 5.01. General Provisions........................................28
Section 5.02. Issuance Requirements.....................................28
ARTICLE VI BONDS AGAINST CASH........................................28
Section 6.01. General Provisions........................................28
Section 6.02. Cash Withdrawal Requirements..............................29
ARTICLE VII REDEMPTION OF BONDS.......................................30
Section 7.01. Manner of Redemption......................................30
Section 7.02. Selection of Bonds to Be Redeemed.........................30
Section 7.03. Notice of Redemption......................................30
Section 7.04. Redemption Price..........................................31
Section 7.05. Partial Redemption of Bond................................31
Section 7.06. Deposited Moneys for Redemption...........................31
Section 7.07. Cancellation of Bonds.....................................31
Section 7.08. Payment of Redemption.....................................31
ARTICLE VIII GENERAL COVENANTS.........................................32
Section 8.01. Further Actions...........................................32
Section 8.02. Payment...................................................32
Section 8.03. Maintain Title of Property................................33
Section 8.04. Taxes and Assessment; Liens...............................33
Section 8.05. Conduct Business and Maintain Properties..................33
Section 8.06. Compliance with Underlying Mortgages......................34
Section 8.07. Acquisition of Property Subject to Underlying Mortgages...34
Section 8.08. Records of Accounts and Certificate.......................35
Section 8.09. Annual Certificate of Compliance..........................36
Section 8.10. Insurance.................................................36
Section 8.11. Maintenance of Corporate Existence and Rights.............37
Section 8.12. Eminent Domain............................................37
Section 8.13. Records at Trustee........................................39
Section 8.14. No Extensions for Claims of Interest......................39
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Section 8.15. Restricted Payments.......................................39
Section 8.16. Transactions with Affiliates..............................40
ARTICLE IX SUPPLEMENTAL INDENTURES AND INDENTURE MODIFICATIONS.......40
Section 9.01. Supplemental Indentures without Consent of Bondholders....40
Section 9.02. Modification of Indenture.................................41
Section 9.03. Execution of Supplemental Indenture.......................41
Section 9.04. Effect of Supplemental Indenture..........................41
ARTICLE X POSSESSION, USE AND RELEASE OF MORTGAGED PROPERTY.........42
Section 10.01. Possession and Use of Mortgaged Property..................42
Section 10.02. Alterations to Mortgaged Property.........................42
Section 10.03. Dispositions of Mortgaged Property without Release........42
Section 10.04. Release of Mortgaged Property.............................43
Section 10.04A. Application for Release of Mortgaged Property.............45
Section 10.05. Purchaser Protected.......................................46
Section 10.06. Company's Covenant Regarding Disposition..................46
Section 10.07. Powers Exercisable by Receiver or Trustee.................46
ARTICLE XI HOLDING AND APPLICATION OF TRUST MONEYS...................46
Section 11.01. "Trust Moneys" Defined....................................46
Section 11.02. Withdrawal or Redemption of Outstanding Bonds.............47
Section 11.03. Redemption Procedures.....................................47
Section 11.04. Redemption When Trust Estate is Released..................48
Section 11.05. Redeemed Bonds............................................48
ARTICLE XII CONSOLIDATIONS, MERGERS AND SALES.........................49
Section 12.01. Consolidation, Merger and Sales Permitted on
Certain Terms.............................................49
Section 12.02. Successor Corporation Substituted.........................50
Section 12.03. Opinion of Counsel Required...............................51
ARTICLE XIII DISCHARGE OF INDENTURE....................................51
ARTICLE XIV DEFAULT PROVISIONS AND REMEDIES...........................52
Section 14.01. Events of Default Defined.................................52
Section 14.02. Acceleration of Maturity; Rescission and Annulment........53
Section 14.03. Interest on Overdue Payments..............................54
Section 14.04. Entry Upon Mortgaged Property.............................54
Section 14.05. Power of Sale.............................................55
Section 14.06. Suits for Enforcement; Remedies...........................55
Section 14.07. Right of Bondholders to Direct Trustee....................56
Section 14.08. Receiver..................................................56
Section 14.09. Bonds Due and Payable Following Sale......................56
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Section 14.10. Bondholders Right to Bid at Sale..........................56
Section 14.11. Purchaser Not Responsible for Proceeds Application........57
Section 14.12. Company Divested of Title.................................57
Section 14.13. Application of Moneys by Trustee..........................57
Section 14.14. Waiver of Appraisement and Other Laws.....................58
Section 14.15. Payment Event of the Default Suits to Protect
Trust Estate..............................................58
Section 14.16. Trustee May Enforce Claims Without Possession of Bonds....59
Section 14.17. Limitation on Bondholder Suits............................59
Section 14.18. Restoration of Positions..................................60
Section 14.19. Voluntary Relinquishment of Trust Estate..................60
ARTICLE XV THE TRUSTEE...............................................60
Section 15.01. Certain Duties and Responsibilities.......................60
Section 15.02. Certain Rights of the Trustee.............................61
Section 15.03. Trustee's Compensation....................................63
Section 15.04. Notice of Events of Default...............................64
Section 15.05. Intervention in Judicial Proceedings......................64
Section 15.06. Conversion, Merger, Consolidation or Sale of
Business of Trustee.......................................64
Section 15.07. Resignation of Trustee....................................64
Section 15.08. Removal of Trustee........................................64
Section 15.09. Resignation and Removal Becoming Effective................65
Section 15.10. Successor or Temporary Trustee............................65
Section 15.11. Acceptance of Appointment by Successor....................65
Section 15.12. Separate Trustee or Co-Trustees...........................66
Section 15.13. Payment of Certain Charges................................66
Section 15.14. Instruments Accepted as Conclusive Evidence...............66
ARTICLE XVI ADDITIONAL PROVISIONS.....................................67
Section 16.01. Immunity of Incorporations, Stockholders, Officers,
Directors and Employees...................................67
Section 16.02. Evidence of Action by Bondholders; Proof of Execution.....67
Section 16.03. Exclusive Benefit of Indenture............................68
Section 16.04. Separability of Indenture Provisions......................68
Section 16.05. Service of Notices to the Company and the Trustee.........68
Section 16.06. Repayment of Unclaimed Money..............................68
Section 16.07. Certificates or Opinions to Trustee.......................69
Section 16.08. Successors and Assigns....................................69
Section 16.09. Counterparts..............................................69
Section 16.10. Effect of Headings and Table of Contents..................69
Section 16.11. New Hampshire Law Applicable..............................69
Signature.....................................................................71
-iv-
Part Two Amendment of Prior Supplemental Indentures for Outstanding Bonds
originally issued under the Original Company Indenture.
Part Three Restatement of Prior Supplemental Indentures for Outstanding Bonds
originally issued under the Exeter Indenture.
SCHEDULE A -- List of Property
EXHIBIT A -- Form of Bond
EXHIBIT B -- Form of Officer's Certificate
EXHIBIT C -- Terms and Provisions of Series L, 8.49% Bonds
EXHIBIT D -- Terms and Provisions of Series M, 6.96% Bonds
EXHIBIT E -- Terms and Provisions of Series N, 8.00% Bonds
-v-
This Twelfth Supplemental Indenture is dated as of December 1, 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 Concord, County
of Merrimack in the State of New Hampshire (hereinafter sometimes referred to as
the "Company"), and STATE STREET BANK AND TRUST COMPANY (successor to Old Colony
Trust Company), a Massachusetts trust company and having its principal 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, as
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 & Hamption Electric Company ("Exeter") has executed and delivered
to State Street Bank and Trust Company (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 are wholly-owned subsidiaries of Unitil Corporation, a registered holding
company under the Public Utility Holding Company Act of 1935, as amended. On the
Merger Date, Unitil Corporation will combine 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 ___________, 2002
between the Company and Exeter (the "Merger Agreement"). Simultaneously with the
Merger, (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;
F. 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 this Twelfth Supplemental Indenture
(hereinafter sometimes referred to as the "Twelfth Supplemental Indenture") in
order to amend and restate the Indenture which will become effective
concurrently with the consummation of the Merger;
-2-
G. 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;
H. 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;
I. 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 I
RESTATEMENT OF INDENTURE
The first WHEREAS paragraph and all provisions of the Original Indenture as
heretofore amended and supplemented which follows such paragraph including,
without limitation, the Granting Clauses and Articles I through XVI of such
Original Indenture, are hereby 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 or in the supplemental indenture
pursuant to which such Bonds were issued 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
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
-3-
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 $10 duly paid to the Company by the Trustee, and of
other good and valuable considerations, 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 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
-4-
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 Section 10.01 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, 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
-5-
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 in
so far 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 Thirteen 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 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
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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.
"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 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 Five, or
delivered
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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.
"Annual Interest Requirements" has the meaning set forth in Section
4.02(C).
"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).
"Certificate of Net Bondable Expenditures" has the meaning set forth in
Section 4.01(I).
"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 Twelve 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).
"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).
-8-
"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, may be an employee of
the Company) appointed by the Board of Directors of the Company.
"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.
"Exchange Bonds" has the meaning set forth in Article III.
"Exeter" means Exeter & Hampton Electric Company.
"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).
-9-
"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.
"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 Premium " 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.
-10-
"Merger Date" shall mean _____________, 2002.
"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).
"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;
-11-
(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;
(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;
-12-
(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).
"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 State Street Bank and Trust Company is acting as Trustee, any Vice
President or any officer in the Corporate Trust department, or (ii) when any
successor is acting as Trustee, any Vice President or any officer in the
department of such successor which is responsible for the administration of the
trust under the Indenture.
"Restated Indenture" means the Twelfth Supplemental Indenture which
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.
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"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 State Street Bank and Trust Company and, subject to the
provisions of Article Fifteen hereof, its successors as trustee in the trust
hereby created.
"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
-14-
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. 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.
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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 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;
(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.
-16-
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 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
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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.
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, and of indemnity satisfactory to them 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.
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ARTICLE III
BONDS OF THE MERGER DATE SERIES
The Bonds of each Merger Date Series shall have the terms, rates and other
provisions specified in the respective supplemental indenture pursuant to which
such Merger Date Series was issued which shall remain the same except as
otherwise herein or hereinafter modified. 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 provided. As
used herein, a "Merger Date Series" of Bonds shall mean Bonds of each of the
following series of the Company's First Mortgage Bonds issued under the
Indenture on or prior to the Merger Date 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 on 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;
(ii) $10,000,000 aggregate principal amount of the Company Series
J, 6.96% Bonds due September 1, 2028;
(iii) $7,500,000 aggregate principal amount of the Company Series
K, 8.00% Bonds due May 1, 2031;
(iv) $9,000,000 aggregate principal amount of the Company Series
L, 8.49% Bonds due October 14, 2024, in the form and containing the
terms and conditions set forth in Exhibit C attached hereto, issued on
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, in the form and containing the
terms and conditions set forth in Exhibit D attached hereto, issued on
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, in the form and containing the terms
and conditions set forth in Exhibit D attached hereto, issued on 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 on or prior to the Merger Date shall be payable at the principal office
and place of business of the Trustee in Concord, County of Merrimack in the
State of New Hampshire (or, if there be a successor to said Trustee, at its
principal office), in coin or currency of the United States of America which at
the time of payment is legal tender for public and private debts.
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Exchange Bonds shall be issued on the Merger Date under Article IV without
the requirement of using any Net Bondable Expenditures for such issuance but
otherwise in compliance with Article IV.
The Bonds of each Merger Date Series shall be redeemable at the price and
on the conditions stated in the supplemental indenture to this Indenture
pursuant to which such Merger Date Series was issued, any such redemption to be
effected in accordance with the provisions of Article Fourteen 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 business and
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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 the 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 A 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 A 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; 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 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.
(C) Earnings Available for Interest Charges Certificate, Annual
Interest Requirements. The term "Earnings Available for Interest Charges
Certificate" shall mean an officers' certificate:
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(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 Five and Six 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 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;
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(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;
(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:
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(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 after deducting proper depreciation, if any, 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;
(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
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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 from which it shall appear
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.
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
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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;
(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.
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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.
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, unless otherwise provided in the
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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 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 may pay interest, premium (if
any) and principal upon any Bond without surrender or presentation thereof if
any holder which is a bank, trust company or insurance company that the Trustee
deems responsible 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.
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. 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
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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, (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 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, without
presentation or surrender of such Bond, 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
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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 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.
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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 Trustee 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 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 as the Trustee may deem reasonable, the Trustee may in its discretion
appoint another Independent Engineer 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 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 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
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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; nor will it 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.
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;
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(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 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
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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 the 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, 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 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
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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 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.
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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, 2001, plus the amount of all dividends declared or accrued on
any class of preferred stock of the Company subsequent to December 31, 2001, and
any amounts charged to net income after December 31, 2001 in connection with the
purchase or retirement of any shares of preferred stock of the Company would
exceed an amount equal to net income of the Company available for dividends
after December 31, 2001, plus the sum of $__________.
The term "net income", as applied to any period shall mean the net income
(or deficit) of the Company 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 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.
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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.
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 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;
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(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.
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
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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;
(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
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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;
(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
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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;
(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;
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(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, 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
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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, with the approval of the Trustee, and if
the Trustee shall be in possession of the Mortgaged Property under any provision
of this 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,
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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.
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
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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) 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 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
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(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, 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
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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.
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
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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 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.
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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 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,
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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 Premium (as hereinafter defined) immediately
due and payable, and such principal, interest and Make Whole Premium 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.
For purposes of this Section 14.02, the "Make Whole Premium" 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 Premium:
"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) 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
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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 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 Premium 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 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 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
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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 Premium.
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 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
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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.
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 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
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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 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;
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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 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
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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 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
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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 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.
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(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 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
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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;
(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
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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;
(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 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
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reimburse 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 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 trust business and assets as a whole or substantially as a whole,
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.
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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 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,
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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.
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 _____________ 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.
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ARTICLE XVI
ADDITIONAL PROVISIONS
Section 16.01. Immunity of Incorporations, 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 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.
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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 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 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 State Street Bank and Trust
Company, 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
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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 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
AMENDMENT OF PRIOR SUPPLEMENTAL
INDENTURES FOR OUTSTANDING BONDS ORIGINALLY ISSUED UNDER THE ORIGINAL COMPANY
INDENTURE
ARTICLE ONE
EIGHTH SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 14, 1994
Section 1.01. Amendments to Eighth Supplemental Indenture. As a result of
the Restated Indenture set forth in the Twelfth Supplemental Indenture, the
following references in the Eight Supplemental Indenture are corrected as
follows:
(a)
-69-
ARTICLE TWO
NINTH SUPPLEMENTAL INDENTURE DATED AS OF SEPTEMBER 1, 1998
Section 1.01. Amendments to Ninth Supplemental Indenture. As a result of
the Restated Indenture set forth in the Twelfth Supplemental Indenture, the
following references in the Ninth Supplemental Indenture are corrected to read
as follows:
(a)
ARTICLE THREE
ELEVENTH SUPPLEMENTAL INDENTURE DATED AS OF APRIL 20, 2001
Section 1.01. Amendments to Eleventh Supplemental Indenture. As a result of
the Restated Indenture set forth in the Twelfth Supplemental Indenture, the
following references in the Eleventh Supplemental Indenture are corrected to
read as follows:
(a)
PART THREE
ISSUANCE OF NEW BONDS TO BE EXCHANGED FOR EXETER BONDS
ARTICLE I
NEW BONDS ISSUED IN EXCHANGE FOR EXETER SERIES K, 8.49% BONDS DUE 2024
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
Twelfth Supplemental Indenture, are being exchanged on the Merger Date for new
Series L, 8.49% Bonds of the Company, the terms and provisions for which are set
forth in Exhibit C attached hereto.
ARTICLE II
NEW BONDS ISSUED IN EXCHANGE FOR EXETER SERIES L, 6.96% BONDS DUE 2028
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
Twelfth Supplemental Indenture, are being exchanged on the Merger Date for new
Series M, 6.96% Bonds of the Company, the terms and provisions for which are set
forth in Exhibit D attached hereto.
ARTICLE III
NEW BONDS ISSUED IN EXCHANGE FOR EXETER SERIES M, 8% BONDS DUE 2031
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
Twelfth Supplemental Indenture, are being exchanged on the Merger Date for new
Series N, 8.00% Bonds of the Company, the terms and provisions for which are set
forth in Exhibit E attached hereto.
-70-
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 STATE STREET BANK AND
TRUST COMPANY, to evidence its acceptance of the trust hereby created, 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 Secretary or by one of its Assistant Secretaries, all as of
the day and year first above written.
UNITIL ENERGY SYSTEMS, INC.
By:________________________(CORPORATE
Its: President SEAL)
Attest:
_________________________________
Treasurer
Signed, sealed and delivered
by Unitil Energy Systems, Inc.
in the presence of:
_________________________________ _____________________________________
Name: Name:
STATE STREET BANK AND TRUST COMPANY
By:________________________(CORPORATE
Its: Vice-President SEAL)
Attest:
_________________________________
Assistant Secretary
Signed, sealed and delivered by
State Street Bank and Trust
Company in the presence of:
_________________________________ _____________________________________
Name: Name:
-71-
SCHEDULE A
[Company to list all Real Property]
__________ OF __________ )
) ss.:
COUNTY OF __________ )
On this ____ day of _________, _____, before me personally appeared
______________ and _________, to me personally known, who being by me duly
sworn, did say that they are President and Treasurer, respectively, of Concord
Electric Company, that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed by them on behalf of said corporation by authority of its Board of
Directors; and the said _________ and _________ acknowledged said instrument to
be the free act and deed of said corporation.
_____________________ (NOTARIAL
SEAL)
_____________________
Notary Public
My commission expires ___________________
__________ OF __________ )
) ss.:
COUNTY OF __________ )
On this ____ day of ________, ____, before me personally appeared
______________ and ______________, to me personally known, who, being by me duly
sworn, did say that they are Vice-President and Assistant Secretary,
respectively, of Old Colony Trust Company, that the seal affixed to the
foregoing instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed by them on behalf of said corporation by
authority of its Board of Directors; and the said ______________ and
______________ acknowledged said instrument to be the free act and deed of said
corporation.
_____________________ (NOTARIAL
SEAL)
_____________________
Notary Public
My commission expires ___________________
ENDORSEMENT
[Old Colony Trust Company, Trustee, being the mortgagee in the foregoing
Indenture, hereby consents to the cutting of any timber standing upon any of the
lands covered by said Indenture and the sale of any such timber so cut and of
any personal property covered by said Indenture to the extent, but only to the
extent, that such sale is permitted under the provisions of the Indenture.
Dated: Boston, Massachusetts
(CORPORATE OLD COLONY TRUST COMPANY,
SEAL)
By: _____________________
Its Vice-President.
Signed, sealed and
acknowledged on behalf
of Old Colony Trust
Company in the presence
of us:
_____________________ _____________________]
Name Name
AFFIDAVIT
[We, the undersigned, _____________________ and _____________________,
being respectively President and Treasurer of Concord Electric Company, the
mortgagor in the foregoing Indenture (being an indenture of mortgage), and being
the persons authorized by said mortgagor to execute said instrument, and J. J.
Walsh, being a Vice-President of Old Colony Trust Company as Trustee, the
mortgagee in the foregoing Indenture, and being the person authorized by said
mortgagee to execute and to receive on behalf of said Old Colony Trust Company
the foregoing Indenture, as Trustee, for the benefit of the holders of the Bonds
therein referred to, severally swear that the foregoing Indenture is made for
the purpose of securing the debt specified in the condition of the Indenture and
the Bonds issued and to be issued under said Indenture and the performance and
observance of the agreements and conditions specified in said Indenture, and for
no other purpose whatever; that the said existing debt was not created for the
purpose of enabling the mortgagor to execute said Indenture, but is a just debt,
honestly due and owing from the mortgagor to the holders thereof; that the said
agreements are valid, true and just obligations of the mortgagor; and that the
Bonds hereafter to be issued under said Indenture and other expectant future
obligations hereafter to arise thereunder and to be secured thereby will be just
obligations, honestly due and owing, when and as they are issued or come into
existence; and
-2-
said _____________________ on behalf of said Old Colony Trust Company, swears
that said Old Colony Trust Company, as Trustee, received said Indenture in good
faith for the purposes therein stated.
____________________________________________________
____________________________________________________
____________________________________________________
__________ OF __________ )
) ss.:
COUNTY OF __________ )
Subscribed and sworn to by the said ______________, ______________, and
______________, this ____ day of __________, ______. Before me,
_____________________ (NOTARIAL
SEAL)
_____________________
Notary Public
My commission expires ___________________
-3-
[FORM OF BOND]
UNITEL ENERGY SYSTEMS, INC.
First Mortgage Bond, Series ___, _____%
Due _______________
No. ____ $____________
Unitel Energy Systems, Inc., a corporation organized under the laws of the
State of New Hampshire (hereinafter called the "Company"), for value received,
hereby promises to pay to _____________ or registered assigns, on the _____ day
of _____________, ______, the principal sum of _____________ Dollars
($___________) 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 principal corporate trust office of State Street Bank and Trust Company, in
Boston, Massachusetts, or at the principal 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 ____ of the _____
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 ____, 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 (State Street Bank and
Trust Company 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 ________ Supplemental Indenture (the "_____
Supplemental Indenture") dated as of _____________ (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.
EXHIBIT A
(to Twelfth Supplemental Indenture)
[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 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
A-2
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, Unitel 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
______________.
UNITEL 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.
STATE STREET BANK AND TRUST COMPANY,
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
UNITEL ENERGY SYSTEMS, INC.
CERTIFICATE OF NET BONDABLE EXPENDITURES
Certificate of Net Bondable Expenditures filed with STATE STREET BANK AND
TRUST COMPANY (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 supplemented (the "Indenture").
The undersigned, _________________ and ________________, being President
and Treasurer, respectively, of Unitel 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 Four 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, ___________
(the "Merger Date") for Exeter and Hampton ("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,............................................... $_________
(ii) Company Pre-Merger Gross Expenditures for Property
Additions, and........................................... $_________
(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.................... $_________
(ii) Company Pre-Merger Net Retirements, and............. $_________
(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............ $_________
[(1)(i) minus (2)(i)]
(ii) Company Pre-Merger Net Expenditures.......... $_________
[(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........ $_________
(from Line 3 of Annex B)
(ii) Company Pre-Merger Bonded Expenditures...... $_________
(from Line 5 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...... $_________
[(3)(i) minus (5)(i)]
(ii) Company Pre-Merger Bondable Expenditures.... $_________
[(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 Four $_______; and aggregate
amount of cash now to be withdrawn under Article Six
$_______................................................... $________
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 Nine....................... $________
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 16.11 of the Indenture.
Dated _______________________
________________________________
President
Unitel Energy Systems, Inc.
________________________________
Treasurer
Unitel Energy Systems, Inc.
Subscribed and sworn to by _______________, President, and _______________,
Treasurer, of Unitel 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 (11) of said
certificate for a total of Net Bondable Expenditures of
Exeter bonded using a 60% ratio......................... $_________
(2) Amount of Bonds previously issued or cash withdrawn or
other credit taken under the Exeter Indenture equals
(1) above multiplied by 60%............................. $_________
(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..................................... $_________
[insert in (5)(i) of the Certificate of Net Bondable
Expenditures]
ANNEX B TO EXHIBIT B
(to Twelfth Supplemental Indenture of Mortgage and Deed of Trust)
[Letterhead of LeBoeuf, Lamb, Greene & MacRae, L.L.P. - Boston office]
November 27, 2002
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: Unitil Corporation, et al. (File No. 70-10084)
Ladies and Gentlemen:
This opinion is furnished to the Securities and Exchange Commission
(the "Commission") in connection with the filing with the Commission of the
Application/Declaration on Form U-1 (File 70-10084) of Unitil Corporation (the
"Company"), a New Hampshire corporation and a registered public utility holding
company under the Public Utility Holding Company Act of 1935, as amended, and
its public utility subsidiaries, Concord Electric Company ("CECo") and Exeter &
Hampton Electric Company ("E&H") (the "Application-Declaration"). The
Application-Declaration relates to the request by the Company, CECo, and E&H
(the "Applicants") for Commission authorization of the proposed merger of E&H
with and into CECo (the "Merger"), in connection with which, (i) all of the
issued and outstanding shares of E&H common stock will be converted into a
single share of CECo common stock, and (ii) each share of E&H cumulative
preferred stock will be converted into a share of a new series of CECo
cumulative preferred stock, with each new series of CECo cumulative preferred
stock having the same terms and conditions as the existing series of E&H
cumulative preferred stock for which they will be exchanged. Following
consummation of the Merger, CECo will change its name to Unitil Energy Systems,
Inc. ("UES"). The Applicants also request Commission authorization to amend and
combine the debt indentures of CECo and E&H into a single UES indenture (the
"UES Indenture") and revise the existing authorization for the Unitil system
money pool, in each case, to reflect the Merger.
In connection with this opinion, we have examined originals, or copies
certified to our satisfaction, of the Application-Declaration, the agreement and
plan of merger between CECo and E&H dated November 27, 2002, the draft dated
November 27, 2002 of
Securities and Exchange Commission
November 27, 2002
Page 2
the amended and restated articles of incorporation of CECo (the "UES Charter"),
the draft dated November 6, 2002 of the UES Indenture, various state commission
applications and orders, and such other exhibits, documents, agreements,
instruments, and/or other materials as we considered necessary or advisable in
order to render the opinions set forth below. In such examination, we have
assumed the legal capacity of all natural persons, the genuineness of all
signatures on all documents examined by us, the authenticity of all documents
submitted to us as originals, the conformity to the original documents of all
such documents submitted to us as copies and the authenticity of the originals
of such latter documents. As to any facts material to our opinion, we have, when
relevant facts were not independently established, relied upon the aforesaid
agreements, instruments, certificates, and documents. In addition, we have
examined such questions of law as we considered necessary or appropriate for the
purpose of rendering this opinion.
Based on the foregoing, and subject to the final paragraph hereof, we
are of the opinion that when the Commission has taken the action requested in
the Application-Declaration:
(1) All state laws applicable to the transactions described in the
Application-Declaration will have been complied with.
(2) (a) CECo and E&H are each validly organized and duly existing
under the laws of the State of New Hampshire; (b) the common
stock and cumulative preferred stock of CECo to be issued in the
Merger will be validly issued, fully paid and nonassessable, and
the holders thereof will be entitled to the rights and privileges
appertaining thereto set forth in the UES Charter; and (c)
following the consummation of the Merger, the notes issued under
the UES Indenture will be valid and binding obligations of UES,
enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium, or other
similar laws now or hereafter in effect relating to creditors'
rights generally, and to general principles of equity, regardless
of whether such principles are considered at a proceeding at law
or in equity, and further subject to the qualification that the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to certain equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought.
(3) CECo will legally acquire the assets and liabilities and succeed
to the business of E&H through the Merger.
(4) The consummation of the Merger and related transactions will not
violate the legal rights of the holders of any securities issued
by CECo or E&H or any associate company thereof.
The opinions expressed above in respect of the approval of the
transactions described in the Application-Declaration are subject to the
following assumptions or conditions:
Securities and Exchange Commission
November 27, 2002
Page 3
a. The Commission shall have duly entered an appropriate order or
orders granting and permitting the Application-Declaration to
become effective with respect to the Merger and all transactions
connected therewith.
b. No act or event other than as described herein shall have
occurred subsequent to the date hereof, which would change the
opinions expressed above.
We hereby consent to the use of this opinion as an exhibit to the
Application-Declaration. This opinion is intended solely for the use of the
Commission and may not be relied upon by any other person or used for any other
purpose. We are not, in this opinion, opining on laws other than the laws of the
State of New Hampshire and the federal laws of the United States.
Very truly yours,
/s/ LeBoeuf, Lamb, Greene & MacRae, L.L.P.
DE 01-247
CONCORD ELECTRIC COMPANY AND EXETER & HAMPTON
ELECTRIC COMPANY
Notice of Intent to File Rate Schedules
And Proposal to Restructure
Order Approving Phase II Settlement Agreement; Amendment to
Phase I Settlement Agreement; and, Denying Motion for Rehearing
of Order No. 24,046
ORDER NO. 24,072
October 25, 2002
APPEARANCES: Scott J. Mueller, Esq. and Meabh Purcell, Esq. of
LeBoeuf, Lamb, Greene & MacRae, L.L.P. for Concord Electric Co., Exeter &
Hampton Electric Co. and Unitil Power Corp.; Wynn Arnold, Esq. of the New
Hampshire Attorney General's Office and James K. Brown, Esq. for the Governor's
Office of Energy and Community Services; Michael W. Holmes, Esq. for the New
Hampshire Office of Consumer Advocate; Michael Giaimo for the Business and
Industry Association of New Hampshire; Alan Linder, Esq. of New Hampshire Legal
Assistance for Wendy Page; and Edward N. Damon, Esq. for the Staff of the New
Hampshire Public Utilities Commission.
I. PROCEDURAL HISTORY
On January 25, 2002, Concord Electric Company (CEC), Exeter and Hampton
Electric Company (E&H), and Unitil Power Corp. (UPC) (collectively, Unitil, the
Unitil Companies or the Companies) filed with the New Hampshire Public Utilities
Commission (Commission) a petition for approval of an offer of settlement for
restructuring the three Unitil Companies.
In order to deal with the numerous issues raised by the filing in an
efficient way, the proceedings were divided into three phases. The focus of the
Phase I proceedings was on how Unitil will implement electric industry
restructuring pursuant to RSA 374-F.
On May 31, 2002, a Phase I Settlement Agreement for Restructuring the
Unitil Companies (Phase I Settlement Agreement) was filed on behalf of Unitil,
Commission Staff, the New Hampshire Office of Consumer Advocate (OCA), the
Governor's Office of Energy and
DE 01-247
Community Services (GOECS), the Business & Industry Association of New Hampshire
(BIA) and Representative Jeb Bradley. Among other things, the Phase I Settlement
Agreement set forth a plan for the divestiture of Unitil's resource portfolio
and the solicitation of transition and default service.
Following a hearing before the Commission on June 6, 2002, the Commission
conducted its oral deliberations and conditionally approved the Phase I
Settlement Agreement on August 16, 2002. Subsequently, the Commission issued its
written order. Concord Electric Company and Exeter & Hampton Electric Company,
Order No. 24,046 (August 28, 2002) (Phase I Order)./1 The Phase I Order recites
details of the procedural 1 history of this docket particularly relevant to the
Phase I proceedings which will not be repeated here.
After the hearing on June 6, 2002, the parties turned their attention to
completion of discovery, filing of testimony by the non-Unitil parties and
settlement negotiations regarding the Phase II issues, which included the
consolidation and reorganization of the operations of the Unitil Companies and
the setting of new, unbundled rates for the two retail electric utilities.
On June 28, 2002, the OCA filed the direct testimony of its witness,
Kenneth E. Traum. On July 3, 2002, New Hampshire Legal Assistance filed the
testimony of Wendy Page, a low income customer of E&H who had been granted leave
to intervene in the Phase II proceedings. Also on July 3, 2002, Commission Staff
filed the direct testimony of Staff witnesses James J. Cunningham, Maureen
Sirois, Henry Bergeron and Steve Mullen and Staff consultants George McCluskey,
Lee Smith and Michael Cannata, Jr. On July 19, 2002, Commission Staff filed the
substituted direct testimony of Henry Bergeron.
- -------------
1 On the same day the Commission issued its written Phase I Order, a letter was
filed with the Commission on behalf of the Phase I settling parties (not
including Commission Staff) which expressed concerns with the Commission's oral
deliberations.
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The procedural schedule for Phase II was modified several times. On July
19, 2002, the Commission issued a secretarial letter rescheduling the Phase II
hearings from July 22 through July 26, 2002, to September 3 through September
13, 2002. In a later secretarial letter dated September 6, 2002, the Commission
established September 11 through September 13, 2002 as the dates for the
hearings.
On September 3, 2002, a Phase II Settlement Agreement was filed with the
Commission on behalf of the Phase I parties and Wendy Page. On September 6,
2002, the Unitil Companies filed with the Commission copies of its Federal
merger-related filings./2
Hearings on the Phase II Settlement Agreement were held on September 11-13,
2002. On September 12, Commission Staff, on behalf of the Phase I parties, filed
with the Commission a First Amendment to the Phase I Settlement Agreement
addressing the Commission's conditions set forth in its Phase I Order (Amendment
to Phase I Settlement Agreement, or, as the context allows, the Amendment)./3
The cover letter accompanying the Amendment noted that GOECS intended to file a
separate motion for rehearing on the Phase I Order. Also on September 12, 2002,
the Unitil Companies filed with the Commission Tabs A and B of the Amendment,
together with a motion for protective order requesting confidential treatment of
that information.
At the conclusion of the hearing on the Phase II issues on September 12,
2002, the Commission notified the parties present/4 of the hearing to be held on
the following day regarding the Amendment; the Unitil Companies undertook to
provide actual notice to Representative
- -------------
2 These merger-related filings were Unitil's Section 203 Application filed with
the Federal Energy Regulatory Commission (FERC) on August 30, 2002 and its U-1
Application filed with the Securities and Exchange Commission also on August 30,
2002.
3 The Amendment was signed by representatives of the Unitil Companies,
Commission Staff, OCA, GOECS and the BIA.
4 The BIA, OCA, GOECS, Commission Staff and the Unitil Companies, as well as New
Hampshire Legal Assistance on behalf of Wendy Page, received actual notice in
this way. See Hearing Transcript of September 12, 2002 (Day II Tr.) at pages
79-80.
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DE 01-247
Bradley./5 The Commission heard testimony on the Amendment following the
conclusion of the hearings on the Phase II issues, and the Commission approved
the Amendment in a ruling made from the bench on September 13.
On September 18, 2002, the Commission orally deliberated the Phase II
Settlement Agreement and approved it.
On September 26, 2002, GOECS filed a motion for rehearing of the Phase I
Order. On September 27, 2002, New Hampshire Legal Assistance, filed a letter in
support of GOEC's motion on behalf of Wendy Page, a party to the Phase II
proceedings.
On October 1, 2002, Unitil filed supplemental testimony of David K. Foote
regarding certain contract negotiations pursuant to section 3.3 of the Amendment
to Phase I Settlement Agreement, together with a motion for protective order
requesting confidential treatment of Mr. Foote's testimony containing the
economic analysis of UPC's restructuring of its purchased power agreement with
Great Bay Power Corporation (GBPC). The contract negotiations resulted in an
agreement to amend a purchased power agreement between UPC and GBPC, originally
dated April 26, 1993, for the purchase of power from the Seabrook nuclear unit,
as well as amendments and restatements of two unit power contracts between UPC
and New England Power Company for the purchase of approximately five megawatts
from the Vermont Yankee nuclear plant.
On October 17, 2002, pursuant to section 3.3.4 of the Phase II Settlement
Agreement, CEC and E&H filed a cost analysis in support of Unitil's imposition
of a one percent per month late payment fee on residential customers.
- -------------
5 Unitil confirmed that it gave actual notice of the hearing to Representative
Bradley and that he supported the Amendment. See Hearing Transcript of September
13, 2002 (Day III Tr.) at page 5.
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DE 01-247
II. AMENDMENT TO PHASE I SETTLEMENT AGREEMENT AND UNITIL'S MOTION FOR
PROTECTIVE ORDER REGARDING TABS A AND B
As specified in section 1.3 of the Amendment,
[t]he purpose of this Phase I Settlement Amendment is to address the
concerns and conditions announced in the Phase I Order in a manner
that will allow a successful bidding process by proposing an
alternative solicitation and evaluation process. These modified
procedures are designed to provide for a robust solicitation that
preserves the original timelines and effective date of May 1, 2003,
proposed by the Parties. The revised procedures are also intended to
establish guidelines for the Commission's evaluation of pricing
alternatives in order to expedite the review process and mitigate
regulatory risk that may inadvertently increase bid prices. The Phase
I Settlement Amendment also seeks to clarify and resolve certain
issues of the Parties in order to avoid the need for pursing motions
for rehearing on such issues. The Phase I Settlement Amendment
supplements, and incorporates, the Phase I Settlement except as
specifically modified herein.
DE 01-247 - 7 - Among other things, the Phase I Order required Unitil to
solicit bids for transition service for Non-G-1 customers under four pricing
options for alternative dates for implementing customer choice./6 The Phase I
Order also required a delay in the execution of contracts for the divestiture of
the Unitil power supply portfolio and the acquisition of transition service
pending the Commission's review and determination of which pricing alternative
is in the public interest. Additionally, the Phase I Order required Unitil to
provide the Commission with information on any contract renegotiations during
the restructuring proceeding and to seek approval of those renegotiations, as
provided for contract buyouts in section 3.2.2 of the Phase I Settlement
Agreement.
Under the Amendment to Phase I Settlement Agreement, the following
revisions to the request for proposal (RFP) specifications, procedures and
schedules are proposed:
- -------------
6 The alternative dates for implementation of customer choice were (i)
coincident with the start of transition service; (ii) one year following the
start of transition service; (iii) two years following the start of transition
service; and (iv) at the end of the three year transition service term. Phase I
Order, at page 41.
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DE 01-247
o The portfolio divestiture and supply solicitation RFPs will be modified
to state that the Commission has reserved the right to determine the customer
choice date for Non-G-1 customers, with such determination to be made after all
bids are received based on the evaluation of bid prices for immediate choice and
delayed choice alternatives for transition service. Amendment, section 2.1.
o The supply solicitation RFP will require that initial round bids for
Non-G-1 transition service supply must state separate prices for each of four
possible alternative dates for implementation of customer choice. Further, the
RFP will reserve to the Company the right to revise these bid specifications
prior to the solicitation of final round bids. Upon receipt of the indicative
bids, the Company will prepare and file information with the Commission and a
hearing will be conducted in accordance with the previously filed Confidential
Agreed-Upon Selection Procedures and Criteria, as amended by the Revisions to
Confidential Agreed-Upon Selection Procedures and Criteria (collectively, the
Agreed-Upon Procedures), attached to the Amendment as Tab A. The parties
requested an order from the Commission by January 30, 2003, on decisions
required as a result of the initial bidding. Amendment, section 2.2.
o The Company will solicit final bids in a form consistent with the
Commission's orders and will evaluate the bids received in accordance with the
Agreed-Upon Procedures. Based on that evaluation, the Company will execute a
contract with the winning bidder, with the effectiveness of such contract to be
subject to receipt of final regulatory approvals. Amendment, section 2.3.
o The proposed supply RFP will be amended to state that retail choice will
be governed by the retail tariff approved in this proceeding, as that tariff may
be subsequently amended, whether choice begins coincident with transition
service or at a later date. Finally, the proposed
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DE 01-247
Non-G-1 transition service supply contract shall also be amended to the extent
necessary to accommodate alternative dates for the commencement of customer
choice. Amendment, section 3.4.
o The schedule of milestones will remain in effect, as modified and
proposed in the Phase II Settlement Agreement, with the following exceptions:
--------------------- --------------------------------------------------
PHASE III
--------------------- --------------------------------------------------
November 5, 2002 Commencement of Portfolio Divestiture RFP
--------------------- --------------------------------------------------
November 12, 2002 Commencement of Supply Solicitation RFP
--------------------- --------------------------------------------------
January 17, 2003 Indicative Bids Due under both RFPs
--------------------- --------------------------------------------------
January 21, 2003 Potential adjustments to Monthly
Payment Stream, if any, and recommendations
of final round bid specifications filed with
Commission
--------------------- --------------------------------------------------
January 24, 2003 NHPUC Hearings on issues raised in January 21
filing
--------------------- --------------------------------------------------
January 24, 2003 Commission Order on Stranded Cost
Charges and final round specifications for
both RFPs requested.
--------------------- --------------------------------------------------
All subsequent dates As indicated in Phase II Settlement, except that
the date for implementation of Choice for Non-G-1
customers may be delayed past May 1, 2003
--------------------- --------------------------------------------------
In addition to such revisions, the Amendment to Phase I Settlement
Agreement clarified that the proposed supply contracts will be amended to
include the following provisions regarding distribution losses:
o each supplier of transition and/or default service will be responsible
for supplying all energy necessary for the total of end-use consumption by the
customers in the respective customer group taking such service(s) and the
associated distribution losses; and
o payment for energy consumption and distribution losses will be based on
the contract price for all such energy measured at the contract delivery points.
Amendment, section 3.1.
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DE 01-247
On the other hand, Unitil Energy Systems, Inc. (UES), the proposed
successor to CEC and E&H, will bear all responsibility for uncollectible
accounts among customers of transition and/or default service, and will so
indicate in the RFP. Amendment, section 3.2.
Finally, Unitil agreed to file detailed information with the Commission
regarding any renegotiations of any supply contract in the UPC portfolio,
including an explanation of why the renegotiated contract will benefit
customers, and to seek the Commission's approval of the corresponding change to
the portfolio sale RFP. Such information will be filed by no later than October
1, 2002, with respect to the Great Bay contract renegotiation and the two NEP-VT
Yankee contract amendments, and as soon as practicable with respect to
subsequent contract renegotiations, if any. Amendment, section 3.3.
Unitil's motion for protective order filed with the Commission on September
12, 2002 seeks to prevent public disclosure of Tabs A and B to the Amendment to
Phase I Settlement Agreement. These Tabs contain the specific procedures and
criteria to be used to evaluate the bids in the transition service solicitation.
According to Unitil, the purpose of protective treatment of such confidential
business information is to avoid a detrimental impact on the proposed transition
service solicitation. Unitil states that public disclosure of such materials
could provide an unfair advantage to some bidders and thus potentially reduce
the value to be attained for Unitil's customers in the acquisition of transition
service supply. No party opposed this motion.
III. MOTION FOR REHEARING OF PHASE I ORDER
In its motion for rehearing, GOECS requests that the Commission reconsider
the condition in the Phase I Order that bids for Non-G-1 transition service
include alternative pricing
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DE 01-247
for various scenarios. Specifically, the Commission is asked to "refrain from
delaying competitive choice" for Unitil's Non-G-1 customers.
The motion argues that any delay in customer choice for Unitil's Non-G-1
customers is not supported by substantial record evidence and is not in the
public interest. GOECS states that it signed the Amendment to the Phase I
Settlement Agreement because the Amendment allows for an expeditious review and
approval of the bids for transition service in a manner that may render its
expressed concerns moot.
The motion is characterized as a "protective filing" and it strongly urges
that after the indicative bid phase of the transition service solicitation
process is completed, the Commission reconsider the use of migration pricing
data as a basis for delaying competitive choice and allow choice to proceed
without delay for all of Unitil's customers. As a policy matter, the motion
states it would be unwise to pick and choose between customer classes as to who
is and who is not entitled to choice. The motion further states that it would be
inappropriate and unfair to deny the Non-G-1 customers the benefits of
competition, while allowing similar customers of the utilities that have
restructured the very same benefits.
The motion recognizes there is not yet a robust competitive market in New
Hampshire; it expresses concern that competition is less likely to become a
reality if potential competitors believe that the State has changed its mind
about competition and is calling a halt to the process. According to the motion,
delay would have a chilling effect on the development of competition in Unitil's
service territories and the areas of the State currently eligible for choice.
Alternatively, the motion contends that opening Unitil's service territory to
competition will benefit the electric customers in the rest of the State by
encouraging the development of this nascent market.
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DE 01-247
The motion asserts that the Commission relied on the near term rate relief
principle as its basis for imposing the alternative bid condition in the Phase I
Order. Such reliance, it is argued, is misplaced for two reasons.
First, the motion states that Unitil has already satisfied the near term
rate relief principle by virtue of having the lowest rates in the State, and
concludes that it would not be sound policy to delay choice due to the fear that
a migration premium might be imposed, especially where, according to GOECS, the
alternative bid condition could diminish rather than enhance the number of
bidders and thus adversely affect the price. Second, it would take a significant
migration premium for Non-G-1 customers to raise Unitil's rates above the
regional average, a premium which, according to the motion, no one contends is
remotely likely. The motion asserts that it is not sound policy to threaten
delay of competition in order to accommodate the possibility that a migration
premium might defeat the near term rate relief goal.
Apart from the issue of near term rate relief, the motion states that the
policy question becomes whether the costs of delay are outweighed by the
benefits of avoiding the migration premium. The analytical value of the
alternative pricing mechanism is questioned in light of testimony by David
Foote.
Referring to sections 3.2.4 and 3.3.5 of the Phase I Settlement Agreement,
the motion notes that the Phase I parties agreed that if there is a significant
increase in customer rates as a result of the solicitation and/or divestiture
processes, the Commission has the power to halt Unitil's restructuring. Absent
such an increase, the motion concludes that the Commission should provide
Unitil's customers with the same opportunity for customer choice that has
already been made available to over 80% of electric service customers in New
Hampshire.
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In its cover letter accompanying its motion, GOECS reported that the Unitil
Companies and the OCA take no position on the motion and the BIA indicated it
needed further time to review the motion. Furthermore, Commission Staff has
taken no position on the motion. As noted above, however, Wendy Page supports
the motion.
IV. TERMS OF THE PHASE II SETTLEMENT AGREEMENT
In the Phase II Settlement Agreement, the parties seek approvals and
findings by the Commission on a broad range of matters, including those related
to the combination of Unitil's New Hampshire utility operations, the amendment
of the Unitil System Agreement, the establishment and implementation of
unbundled rates for UES, the reclassification of distribution and transmission
plant, and the obligations of UES upon the commencement of retail choice. The
summary of the terms of the Phase II Settlement Agreement set forth below
generally follows the sequence in which these matters are set forth in the
Agreement.
A. Combination of Unitil's New Hampshire Operations
In accordance with section 3.1.1, the "utility operations" of CEC, E&H, and
UPC are proposed to be combined into a single distribution company to be called
Unitil Energy Systems (UES). UES will provide its customers with unbundled
distribution services and will have the obligation to provide transition and
default service from the competitive market. However, except for transition and
default service, UES will have no obligations with respect to the assurance of
adequate and reliable electric energy supply for its customers as of Choice
Date./7 Section 3.5.
The combination of utility operations involves a corporate merger of the
two retail utilities and a rearrangement of operations between UPC and the
surviving retail utility. UPC
- -------------
7 Choice Date is defined as the date on which all UES customers are allowed to
choose competing electric energy suppliers, targeted for May 1, 2003. Section
1.3.1.
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DE 01-247
will continue as a corporate entity, although its functions will be
significantly different than they are now.
Tab B attached to the Phase II Settlement Agreement summarizes how the
proposed corporate merger will be accomplished E&H will be merged into CEC in
accordance with RSA 374:33 and RSA 369:1, and CEC will be renamed UES. In
connection with the merger, UES will issue four new series of preferred stock in
exchange for E&H preferred stock pursuant to RSA 369:1; Unitil Corporation will
contribute $528,170 of common equity capital to UES which is currently included
in UPC's net worth; UES will obtain short term borrowing authority in an amount
up to $16,000,000 to replace the total existing short term borrowing authority
of CEC and E&H; UES will issue a restated First Bond Indenture to replace the
existing First Mortgage Bond Indentures of CEC and E&H; and UES will be allowed
to participate in the Unitil System money pool. Subject to the receipt of
Federal regulatory approvals, the merger will be accomplished in time for the
proposed UES tariff to take effect on December 1, 2002.
Unitil characterizes the merger of CEC and E&H resulting in the creation of
UES as an internal corporate reorganization./8 As a result of the merger, all of
E&H's assets and liabilities will by operation of law become the assets and
liabilities of CEC.
Upon the effectiveness of the merger, all of the issued and outstanding
shares of E&H common stock will be converted into a single share of CEC common
stock and each share of E&H cumulative preferred stock will be converted into a
share of a new series of CEC cumulative preferred stock with the same terms and
conditions as the existing series of E&H cumulative preferred stock. The common
and preferred shares of CEC will remain outstanding and will not be affected by
the merger.
- -------------
8 The description of the merger plan is based in part on the details provided in
Unitil's Section 203 FERC filing made on August 30, 2002, included in the record
of this docket as Exhibit 22.
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DE 01-247
The merger is subject to the approval of the boards of directors of CEC and
E&H. In addition, Unitil intends to solicit the necessary written consents in
favor of the merger from common and preferred shareholders with the right to
vote on the merger, including the holders of the outstanding series of E&H
cumulative preferred stock. Unitil states that it currently intends to cause E&H
to redeem the shares of any series of its cumulative preferred stock which does
not consent to the merger. In any event, Unitil controls the outcome of these
votes and consents.
The merger has been structured to qualify as a tax free reorganization. The
accounting for the merger will be similar to a pooling of interests under which
the combination of ownership interests of the two companies is recognized and
the recorded assets, liabilities and capital accounts are carried forward at
existing historical balances to the consolidated financial statements of UES.
The Phase II Settlement Agreement reflects the rearrangement of utility
operations in several sections. For example, under section 3.1.3, all charges of
Unitil Service Corporation (USC)/9 for New Hampshire utility operations,
including certain charges now allocated to UPC, will be charged to UES. A
portion of the USC costs allocated to UPC in the test year is proposed to be
included in UES' test year costs for establishing base distribution rates./10
Such costs relate to services provided by USC to UPC, which include (i)
regulatory, finance and accounting services; (ii) information technology; (iii)
engineering operations; (iv) energy services; (v) customer services; and (vi)
corporate and administrative services. However, the proposed test year costs
have been reduced to reflect the anticipated mitigation of costs related to the
energy services function, resulting in a $220,000 decrease below test year
levels. The parties agreed that
- -------------
9 At present, USC provides services for CEC, E&H and UPC, as well as Fitchburg
Gas & Electric Light Company, an affiliated utility operating in Massachusetts.
10 In their testimony at hearing, the parties refer to this as the "UPC roll in"
of Administrative and General costs.
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DE 01-247
UES will be allowed to recover reasonable severance costs in the event any of
the six energy services employees of USC are severed as a result of
restructuring.
Section 3.2.1 provides for an Amended Unitil System Agreement (Amended
System Agreement) between UPC and the retail utilities. The Amended System
Agreement, which is described in further detail below in the next subsection,
reflects changes being made in the obligations for the procurement of power
supply resulting from restructuring.
Section 3.3.5.2 is another provision dealing with the rearrangement of
utility operations. Pursuant to this section, UES' ongoing, internal company
administrative costs of providing transition and default service will be
recovered in base distribution rates. Another example is contained in the Hydro
Quebec Mitigation Plan, also described below, providing that all time charges
for Unitil employees involved in the H-Q marketing and administration efforts
will be classified as "Energy Services" related and charged to UES.
B. Establishment of the Amended System Agreement and Certain Aspects of
Stranded Cost Mitigation
The Commission is asked to approve the Amended System Agreement between UPC
and CEC and E&H (and later UES as the successor to CEC and E&H) as a replacement
for the existing Unitil System Agreement (System Agreement) between UPC, CEC,
and E&H. Section 3.2.1 et seq. Approval of the Amended System Agreement by FERC
will be sought after its approval by the Commission. Section 3.2.3.
The existing System Agreement, which is subject to FERC regulation as a
wholesale power contract, provides for the supply of wholesale power by UPC to
the two retail utilities on a firm, all requirements basis and contains a
comprehensive formula for the charges to be paid to UPC.
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Under the Amended System Agreement, UPC will agree to waive the minimum 7.5
year notice of termination provision, terminate its power supply service, and
divest most of its power supply portfolio. In exchange, UES will agree to pay to
UPC so-called Contract Release Payments (CRP) and Administrative Service Charges
(ASC). CRP include (i) monthly Portfolio Sale Charges payable to the successful
portfolio bidder; (ii) Residual Contract Obligations for power contract
obligations not included in the portfolio sale; (iii) Hydro Quebec support
payments; and (iv) prior period true-ups./11 ASC include specified third party
and regulatory charges incurred by UPC relative to its fulfillment of its duties
under the System Agreements. The Amended System Agreement, which will also be
subject to FERC regulation, is to take effect on the Divestiture Date./12
As further described below, UES will recover the CRP it pays to UPC through
the Stranded Cost Charge (SCC). The parties have agreed that the recovery of CRP
by UES reflects an equitable, appropriate, and balanced recovery of the stranded
costs of its predecessors, CEC and E&H. Section 3.2.1. UES will recover the ASC
it pays to UPC as part of the External Transmission Charge, a charge which is
being renamed, with the parties' permission, as the External Delivery Charge
(EDC) in this Order.
Pursuant to section 3.2.2, in order to ensure the full mitigation of
stranded costs, Unitil proposes to implement the Hydro Quebec Mitigation Plan
set forth in Tab C. This Plan requires Unitil to continue to undertake efforts
to market the HQ-II resource in order to offset the costs of that obligation and
include a report to the Commission on these mitigation efforts as part of UES'
annual SCC reconciliation filing.
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11 True-ups include the balance in the fuel and purchased power account at the
beginning of the transition service period together with the balance in the
transition service account at the end of that period.
12 The Divestiture Date is defined as the date when Unitil's existing power
supply and associated contracts are disposed of through sale or otherwise to one
or more third parties, targeted for May 1, 2003. Section 1.3.4.
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Finally, the parties seek the Commission's approval to exclude the power
supply contract with the Massachusetts Municipal Wholesale Electric Company
(MMWEC) from the portfolio sale RFP. Section 3.2.4. As more fully described in
Unitil's filing with the Commission on July 15, 2002, Unitil negotiated a buyout
of that contract in an effort to achieve customer savings from lower cost UPC
purchases following termination and also to mitigate stranded costs.
C. Establishment and Implementation of Unbundled Rates for UES, Including
New Base Distribution Rates
The Commission is asked to approve UES' new tariff, under which UES' rates
for electric service will be unbundled into separate components related to
distribution service costs, external transmission and other outside services
costs, stranded costs, systems benefits costs, transition or default service
costs, New Hampshire electricity consumption tax, and, on an interim basis, fuel
and purchased power costs and restructuring costs. Although the consolidated UES
tariff is to become effective on December 1, 2002, the various charges and
surcharges under the tariff do not all take effect at the same time. The New
Hampshire electricity consumption tax is already a separate charge on CEC's and
E&H's bills. The proposed distribution charges, interim fuel and purchased power
charges, and restructuring surcharge would take effect on December 1, 2002, with
the rest of the charges to take effect on Choice Date. Sections 3.3.1 and 3.3.2.
1. Base Distribution Rates, Including Revised Cost of Service and
Rate Design Features
The base distribution rates for UES will be reflected in a Customer Charge
and a Distribution Charge. See e.g., Tab D at page 4. The Commission is asked to
approve new distribution rates reflecting a total revenue deficiency of
$1,985,324, of which $1,871,324 is to be included in distribution service rate
design and $114,000 is to be attributable to residential late
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payment fees. See Section 3.3.3 and Tab E./13 The total revenue deficiency
represents an increase of approximately 1.6% over total 2001 test year revenues
of CEC and E&H, or approximately 7.2% over their test year distribution
revenues.
Under section 3.3.4, the residential late payment fees would be recoverable
subject to a demonstration by Unitil that the late payment fee charged complies
with the Commission's recently revised rule. However, the late payment fee for
low income customers who provide evidence of eligibility for certain low income
assistance programs would be waived.
The cost of service is calculated with an overall allowed rate of return of
8.59%, including a return on equity of 9.67% applied to a hypothetical capital
structure of 42% equity and 58% debt. Section 3.3.3.1. Until UES' next rate
case, the cash dividends paid on an annual basis by UES will be limited to an
amount no higher than the cash dividends paid by CEC and E&H during the test
year. The parties acknowledge that the use of a hypothetical capital structure
and the dividend limitation reflects a commitment to increase the equity
component of UES' capital structure over time in order to ensure continued
financial flexibility and access to capital at reasonable rates.
The cost of service also includes a test year depreciation expense of
$5,038,718, which reflects an overall net salvage rate of negative 20% and an
overall average service life of approximately 31 years. Section 3.3.3.2. The
test year depreciation expense amount consists of two components depreciation
expense on test year Utility Plant as of December 21, 2001, of $4,465,756 and
amortization of the depreciation reserve indicated imbalance, $2,864,805, over
five years at the rate of $572,961. In addition, UES will continue with the
existing depreciation systems for General Plant. Regarding the Transportation
Plant account, UES will extend the
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13 Exhibit 20-S is the completely printed version of Tab E. See Hearing
Transcript of September 11, 2002 (Day I Tr.) at pages 73-74.
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lives of classes which comprise the account to reflect a composite of
approximately ten years and will use a net salvage rate of a positive 12%.
Under section 3.6, UES agrees to file a general base rate case and an
updated depreciation study using the whole life methodology no later than five
years from the issuance of the Commission's final order. According to Unitil,
its commitment to file a new rate case within five years includes a commitment
to file a fully allocated cost study for rate design purposes. See Day II Tr. at
page 28.
The distribution charges are designed, among other things, to (i) reduce by
one-third the differential between Block 1 and Block 2 of the residential rate
from an average of $0.01401 per kilowatt hour (kWh) to $0.00934 per kWh based on
rate continuity principles; (ii) adjust the bill impacts for the G-1 and G-2
customers halfway from the proposed rate impact to the overall rate impact for
G-1 and G-2 classes, with the resulting revenue reconciled in the OL class;
(iii) eliminate time of use (TOU) rates, with the provision that metering fees
will be waived for current TOU customers who take TOU service from competitive
suppliers; (iv) moderate bill impacts for the largest G-2 kWh meter customers
(over 1,000 kWh per month) by installing demand metering; and (v) maintain the
distribution energy charge at current levels for G-1 and G-2 customers. Section
3.3.10.
2. Rate Design of Other Unbundled Charges and Surcharges
Other charges for which approval is sought include:
o Interim Fuel and Purchased Power Charge (IFPPC). The IFPPC is designed to
reflect the merger of CEC and E&H into UES, implement the revised rate designs
agreed to by the parties for the fully restructured rates, and offset the
increase in the distribution charges through a corresponding decrease in power
supply charges. Section 3.3.2; see Tab D at page 69. In part,
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the IFPPC will be based on the Fuel Adjustment Charge and Purchased Power
Adjustment Charges (FAC-PPAC) for CEC and E&H scheduled to take effect on
November 1, 2002./14 See Day I Tr. at pages 31-33; see also Day III Tr. at pages
37-38. The IFPPC is scheduled to end on the last day before Choice Date.
o Transition Service Charges (TSC) and Default Service Charges (DSC). The
TSC and DSC are fully reconciling mechanisms for UES to recover the costs of
providing transition service and default service to its customers. Section
3.3.5; see Tab D at pages 76-83. The rate levels established for effect on
Choice Date will be calculated on the basis of the transition and default
service solicitation in Phase III and will be filed as a compliance filing at
the end of Phase III. The parties recite their agreement that the target level
for the initial wholesale costs upon which the retail SCC and the retail Non-G-1
transition service prices are based should be $0.625 per kWh./15 Section
3.3.5.1. In accordance with section 3.3.5.2, the parties have agreed that the
ongoing administrative costs of transition and default service will not be
recovered as part of the TSC and DSC but will be recovered partly in base
distribution rates (internal company costs) and partly in the EDC (cost of
outside services).
o Stranded Cost Charge (SCC). The SCC is a fully reconciling charge which
will be billed to all customers of UES taking delivery service. Section 3.3.6;
see Tab D at pages 70-71. The SCC recovers CRP billed to UES by UPC under the
Amended System Agreement and also includes the TSC balance at the end of the
transition period and the final fuel and purchased power balances including any
prior period adjustments. The actual rate levels established for effect on
Choice Date will be calculated on the basis of the portfolio sale auction in
Phase III and will be filed as a compliance rate schedule at the end of Phase
III.
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14 The Commission will determine the FAC-PPAC rates before November 1, 2002 in a
separate docket.
15 This target level is the same as the level established in the Phase I
Settlement Agreement and Order.
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o External Transmission (Delivery) Charge (EDC). The EDC recovers on a
fully reconciling basis the costs billed to UES by Other Transmission Providers
as well as third party costs billed to UES for energy and transmission related
services specified in the Phase II Settlement Agreement and Tab D. Section
3.3.7; see Tab D at pages 72-73. The EDC includes (i) charges billed to UES by
Other Transmission Providers as well as any charges relating to the stability of
the transmission system which UES is authorized to recover by order of the
regulatory agency having jurisdiction over such charges; (ii) transmission-based
assessments or fees billed by or through regulatory agencies; (iii) costs billed
by third parties for load estimation and reconciliation and data and information
services necessary for allocation and reporting of supplier loads, and for
reporting to and from ISO New England; (iv) legal and consulting outside
services charges incurred in the future acquisition of transition service and
default service supplies and related to UES' transmission and energy obligations
and responsibilities, including legal and regulatory activities associated with
the independent system operator, New England Power Pool, regional transmission
organization and FERC; (v) the costs of ASC billed to UES by UPC under the
Amended System Agreement; and (vi) the Restructuring Surcharge (RS) balance on
its termination. The parties agreed that the initial rate for the EDC should be
$0.00156 per kWh.
o System Benefits Charge (SBC). The establishment and implementation of the
SBC is the subject of other dockets. See Section 3.3.8; see also Tab D at page
74.
o Restructuring Surcharge (RS). The parties seek approval for the RS
mechanism, to become effective December 1, 2002. Section 3.3.9; see Tab D at
page 75. The parties propose a reconciling RS rate of $0.00100 per kWh which
will be billed to all customers of UES taking delivery service. The RS is a
temporary rate intended to recover the costs over a period of
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approximately two years. Restructuring costs incurred following the formation of
UES will be allocated to UES and recovered through the RS. The RS recovers the
costs of legal, consulting and outside services associated with the planning,
development and implementation of the restructuring of the Unitil Companies,
including (i) the transaction costs of the merger and combination of the
Companies into a single distribution utility; (ii) the rate case costs,
including the development of new unbundled rates and tariffs for UES; and (iii)
the restructuring costs, including the restructuring of the Companies' power
supply portfolio to allow for retail choice, the divestiture of the UPC resource
portfolio and the initial solicitation acquisition of transition service and
default service. The initial estimate of the costs to be recovered is
$2,761,000./16 Final costs included in the RS will be subject to the final
review and audit of the Commission, including the demonstration by the Company
of net customer benefits with respect to the merger and combination referenced
in item (i) above.
o The process for determining the rates applicable to Qualifying Facilities
is also set forth in the proposed UES tariff. See Tab D at pages 84-86.
D. Other Matters Related to Restructuring
As set forth after page 87 in Tab D, the parties propose a form agreement
to govern the general relationship between UES and competitive electricity
suppliers providing electricity supply to UES' customers.
Pursuant to section 3.4, the Commission is asked to make an affirmative
finding and recommendation to FERC that FERC adopt for ratemaking purposes the
Commission's determination of the reclassification of the transmission
facilities currently owned by CEC and E&H to distribution.
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16 Exhibit 20-S, Schedule MHC-7 contains a breakdown of the costs.
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Pursuant to section 3.7 and consistent with the Phase I Settlement
Agreement, the parties request that the Commission's Phase II Order contain
assurances to potential bidders that the costs incurred under, and defined in,
the portfolio sale agreement and the G-1 and Non-G-1 transition and default
service agreements, which will be subject to final Commission approval in Phase
III, will be fully recoverable in retail rates.
Upon receipt of all requested approvals in this proceeding by the
Commission, including the Phase III portion of the proceedings, Unitil will
withdraw its intervention in the Federal court case enjoining the implementation
of electric industry restructuring in CEC's and E&H's service territories, with
prejudice. Section 1.1.
V. COMMISSION ANALYSIS
A. AMENDMENT TO PHASE I SETTLEMENT AGREEMENT AND UNITIL'S MOTION FOR
PROTECTIVE ORDER REGARDING TABS A AND B
The Amendment to Phase I Settlement Agreement was thoroughly explained,
discussed and supported by testimony presented at the hearing on September 13,
2002. The Amendment sets forth a thoughtful method and an appropriate schedule
for implementing the requirement in the Phase I Order that bids for transition
service for Non-G-1 customers include specified alternative prices. In addition,
the Amendment establishes reasonable guidelines for our evaluation of pricing
alternatives in order to expedite the bid review process and mitigate regulatory
risk. Although the Amendment proposes to vary the terms of the Phase I Order
which specify that the contract execution for both the contract divestiture and
supply solicitation processes should be delayed until after a hearing on the
respective recommended winning bids, we are persuaded that the proposed changes
to the Phase III process incorporated in the Amendment will allow the collection
of the required price information in a less disruptive
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manner than would have been the case under the Phase I Order. We are also
persuaded that the Amendment will allow us to make the necessary decisions in
Phase III in a timely manner. Based on the testimony presented, we are satisfied
that the Amendment will achieve the purposes of allowing a successful bidding
process and providing a robust solicitation that preserves the original
timelines.
The other provisions set forth in the Amendment, and specifically the
clarifications regarding distribution line losses and uncollectible accounts and
the modified requirements for filings and approvals relating to portfolio
contracts, are acceptable. We will therefore approve the Amendment as filed.\
For the same reasons we granted protective, confidential treatment in our
Phase I Order for Tab B to the Phase I Settlement Agreement, namely the
protection of the integrity of the bidding process and protection of ratepayer
interests in the outcome of the transition service solicitation, we will also
grant Unitil's motion for protective treatment of Tabs A and B attached to the
Amendment to Phase I Settlement Agreement.
B. MOTION FOR REHEARING OF PHASE I ORDER
The motion for rehearing objects to the condition set forth in our Phase I
Order requiring that bids for transition service for Non-G-1 customers include
specified alternative prices. As we understand the motion, disagreement over the
inclusion of the requirement is based on an evidentiary and/or policy rationale,
rather than on an argument that the Commission lacks authority under Laws of
2002, Chapter 212:6 and 7/17 or otherwise to impose the requirement.
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17 Laws of 2002, Chapter 212:6 and 7 amend RSA 374-F:3,XV and 4,I, respectively,
and authorize the Commission to delay implementation of electric restructuring
in the service territory of an electric utility when implementation would be
"inconsistent with the goal of near-term rate relief, or would otherwise not be
in the public interest."
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As described above, in our Phase I Order we modified the contract
divestiture process and the supply solicitation process, as set forth in the
Phase I Settlement Agreement, to require Unitil to solicit bids for transition
service for Non-G-1 customers under four pricing options providing for
alternative dates for implementation of customer choice for Non-G-1 customers:
(i) coincident with the start of transition service; (ii) one year following the
start of transition service; (iii) two years following the start of transition
service; and (iv) at the end of the three-year transition service term.
Our requirement for Unitil to obtain alternative prices in the bidding
process for transition service for Non-G-1 customers was intended to provide us
with information collected under actual market conditions regarding possible
unmerited or inflated migration premiums, as well as information about the
projected effect of such premiums on UES' rates, if any, as a means of better
informing our Phase III decisions. We believe that obtaining such information is
not only consistent with Laws of 2002, Chapter 212:6 and 7, but also with sound
public policy and our traditional statutory obligation under RSA 363:17-a to act
as an informed arbiter.
As we made clear at the end of the hearing on Day III,/18 our Phase I Order
upholds our full commitment to unbundling, restructuring, and customer choice
for Unitil's large commercial and industrial customers from the Choice Date
targeted by the parties. We further noted that we were not inclined to delay
choice for other Unitil customers beyond one year. We said that if there is
persuasive information showing that rates would be appreciably lower for those
customers by delaying choice, and thus obviating a migration premium, then that
is something we are obliged to consider.
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18 See Day III Tr. at pages 144-147.
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With respect to arguments against a delay for even one year for Non-G-1
customers, no one disputes that such customers are unlikely to have real choice
in the first year and that the prospects for competition in other service
territories over the same period will not be affected by the inquiry conducted
pursuant to our Order. Accordingly, the assertion that delay in choice for such
customers in Unitil's service territory would have a chilling effect on the
development of competition in other parts of the State now eligible for choice
is unfounded. In fact, the opposite is more accurate inasmuch as Unitil's
service territory is being opened to competition and this will benefit all New
Hampshire customers by encouraging the development of the nascent competitive
market.
We take this opportunity to again emphasize that, as recognized in the
motion at paragraph 8, we are committed to move to customer choice and
competition expeditiously consistent with legislative directives. We would only
consider delay of choice for Non-G-1 customers if there is substantial and
persuasive evidence that an unwarranted migration premium would cause
appreciable rate increases for those customers. Such rate increases would be
consistent with legislative directives. It is incorrect to conclude, as
suggested in paragraph 10 of the motion, that the Commission has changed its
mind about competition and has called a halt to the process of implementing
customer choice and competition. Our decision demonstrates the opposite to be
true. It merely reflects our obligation to protect residential and small
business customers from higher rates that could result from an unwarranted
migration premium, if the facts show that to be the case.
Furthermore, the motion explicitly recognizes that our modification to the
Phase I Settlement Agreement will not necessarily result in any delay of
competitive choice for Unitil's
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Non-G-1 customers. That is, our Phase I Order on its face does not delay
competitive choice for these customers.
It is also suggested in paragraph 11A of the motion that the existence of
the alternative bid condition could diminish, rather than enhance, the number of
bidders and could thus adversely affect the prices obtained. This assertion is
inconsistent with the testimony presented at hearing. Moreover, the Amendment to
Phase I Settlement Agreement states in section 1.3 that the Amendment will allow
a successful bidding process and provide for a robust solicitation.
After careful review of the motion, we are not persuaded to reconsider our
modification to the Phase I Settlement Agreement. By collecting the migration
premium data, we are fulfilling our obligation to make informed decisions. The
Amendment has allowed us to do it in a non-disruptive way, whereas granting the
motion for rehearing would have a disruptive effect on this proceeding insofar
as timing is concerned. Accordingly, we will deny the motion for rehearing.
C. PHASE II SETTLEMENT AGREEMENT
Our general approach to reviewing and considering the numerous elements of
the Phase II Settlement Agreement is the same one we employed in our Phase I
Order:
[t]he Commission has general authority under RSA 541-A:31, V(a) to
resolve contested matters through consideration of settlement
agreements. In general, the Commission encourages parties to attempt
to reach settlement of issues through negotiation and compromise, as
it is an opportunity for creative problem-solving, allows the parties
to reach a result more in line with their expectations, and is often a
more expedient alternative to litigation.
As we have stated in previous dockets, the Commission has an
independent statutory duty to resolve matters before it in a manner
consistent with the public interest and all applicable specific
statutory requirements. Thus, even where, as in the present case, all
parties join the settlement agreement, the Commission cannot approve
it without independently determining that the result comports with the
applicable standards. Moreover, the issues must be reviewed,
considered and ultimately judged according to standards that provide
the public with the
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assurance that a just and reasonable result has been reached. Concord
Electric Company and Exeter & Hampton Electric Company, Order No.
24,046 (August 28, 2002), slip op. at 25, citing Granite State
Electric Company, Order No. 23,966 (May 8, 2002), slip op. at 10-11.
1. Combination of Unitil's New Hampshire Operations
Regarding the merger of CEC and E&H, Unitil states that (i) the merger in
and of itself will not have an adverse effect on rates; (ii) the rates under
which UES will acquire electricity will not change solely as a result of the
merger; and (iii) total retail rates for UES customers following the entire
restructuring plan are expected to be substantially the same as the existing
total retail rates. Moreover, no acquisition premium is payable, no additional
debt is being incurred in connection with the transaction, and no new facilities
are being acquired. The combined retail utilities will remain under the control
of the existing parent of CEC and E&H.
On a qualitative basis, Unitil states that the merger is designed to lead
to a simpler, more efficient and effective corporate structure resulting in
improved New Hampshire utility operations, regulatory oversight and financial
reporting. Section 3.1.1. However, the parties did not present any quantitative
information demonstrating customer savings resulting from the merger. For
example, no customer savings from the merger were reflected in the cost of
service supporting the proposal for UES' distribution rates. Unitil indicates
that under its current mode of operation, CEC and E&H have already realized most
of the economies and efficiencies of a business combination, even though their
operations have not yet been merged on the corporate level. See e.g., Day I Tr.
at pages 139, 149.
Among other things, the proposed RS, effective December 1, 2002, includes
the transaction costs associated with the merger and combination of the
companies into a single distribution utility. Merger related costs recovered
through the RS, to the extent they are allowed, would impose costs on
ratepayers, estimated to be $439,000. See Exhibit 20-S,
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Schedule MHC-7. The parties have agreed that the final costs included in the RS
will be subject to our final review and audit, including the demonstration by
the company of net customer benefits with respect to the transaction costs of
the merger and combination referenced above.
Commission approval for the merger is sought under several statutes,
including RSA 369:1 (authorizing utility's issuance of securities for lawful
purposes upon a Commission finding that the same is "consistent with the public
good"); RSA 374:33 (prohibiting utility's acquisition of another utility's
stocks or bonds in certain cases without a Commission finding that such
acquisition is "lawful, proper and in the public interest"); and RSA 374:30
(authorizing utility's transfer of its franchise, works or system in this State
upon a Commission finding that the transfer will be for the "public good").
Considering the terms and nature of the proposed merger as well as the
specific provision for our review and approval of recovery of merger related
costs from ratepayers, we are able to make the requisite findings and approve
the merger plans. At the same time, however, the parties should be cautioned
that internal, corporate restructuring costs are typically borne by shareholders
and the evidence presented to date for treating Unitil's costs any differently
is not persuasive.
The Phase II Settlement Agreement does not specify the timing or the
procedural mechanics applicable to the RS filing. These matters, as well as
similar unspecified details applicable to Unitil's other reconciliation filings,
will be the subject of a supplemental order or secretarial letter./19
Regarding the rearrangement of utility operations between UPC and UES, the
Phase II Settlement Agreement reflects, among other things, Unitil's retention
of an in-house energy
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19 We do agree with the concept of annual filings for UES' reconciling charges.
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services function. The activities related to energy services, and the
reimbursement system for such activities, will, however, be different than they
are today./20 Unitil's objectives include both power supply restructuring, where
UPC's power supply portfolio will be sold and future power supply
responsibilities (i.e., for transition and default service) will be shifted from
UPC to UES, and also the shifting of a significant component of Unitil's cost
structure from FERC jurisdiction to State jurisdiction through the UPC "roll
in." See Day I Tr. at pages 138-140. Under the existing arrangement, UPC's costs
are billed to CEC and E&H under the System Agreement and then recovered from
ratepayers through the FAC-PPAC mechanism; in the future, such costs will be
recovered as part of base distribution rates. We discuss another aspect of the
proposed rearrangement in the next subsection.
2. Amended System Agreement and Certain Aspects of Stranded Cost
Mitigation
The Amended System Agreement is an appropriate mechanism to account for and
recover the stranded costs associated with UPC's existing power supply portfolio
after such costs have been fixed through the portfolio auction process, and
certain on-going power supply related costs and charges incurred by UPC in
accordance with the restructuring plan. UES' payment of the CRP and the ASC to
UPC under the Amended System Agreement will in turn be recovered from ratepayers
through the SCC and a portion of the EDC.
The proposed Amended System Agreement inevitably raises issues regarding
the scope of State and Federal regulatory jurisdiction over certain of Unitil's
operations because it will be a FERC-approved contract that provides for FERC
review of sales and billing" transactions under
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20 Section 3.1.4 allows UES to recover reasonable severance costs in the event
any of the six energy services employees of USC are severed as a result of
restructuring. However, according to Unitil, it does not expect at this time to
sever any employees. See Day I Tr. at page 146.
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the contract./21 This is not a new situation. For example, we considered and
discussed the State-Federal jurisdictional concerns even before the existing
System Agreement became effective in 1986, when CEC and E&H requested Commission
approval in 1984 for a comprehensive corporate reorganization into a holding
company system, including the formation of UPC. See Concord Electric Company, 69
NH PUC 701 (1984). As recently as last April, we were again confronted with a
jurisdictional issue raised in a FAC-PPAC proceeding involving the existing
Unitil System Agreement. See Concord Electric Company and Exeter & Hampton
Electric Company, Order No. 23,947 (April 8, 2002).
Under the existing System Agreement, all of UPC's power supply costs are
paid by CEC and E&H, as provided for in a FERC- approved formula rate. Under the
proposed Amended System Agreement, the formula rate will be replaced by two
charges, CRP and ASC, which will be billed to UES by UPC. These charges are more
circumscribed, and the dollar amounts of the charges will be less than the
charges billed under the existing Unitil System Agreement. As a result, the
Commission will have greater control over the costs incurred by Unitil on behalf
of its retail customers. In addition, the amount of the Portfolio Sales Charge
will be determined by the Commission in Phase III of this proceeding. Looking
ahead, we expect to carefully monitor UPC's use of outside services providers to
be certain that New Hampshire ratepayers pay no more than is reasonable and to
ensure that the ASC is not used for purposes other than those for which it was
intended.
While the Amended System Agreement does not fully eliminate FERC
jurisdiction over power procurement matters, it is a positive development in the
sense that it enhances the Commission's regulatory oversight authority over
Unitil's New Hampshire utility operations.
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21 See Tab A attached to the Phase II Settlement Agreement at pages 28-29.
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We find the Hydro Quebec Mitigation Plan presented in the Phase II
Settlement Agreement a reasonable approach for mitigating stranded costs
associated with the transmission support obligation. We also rule on two other
matters related to stranded cost mitigation which arise in connection with the
settlement agreements.
First, we have reviewed the testimony in support of the buyout of the MMWEC
power contract and will approve the buyout in accordance with section 3.2.2 of
the Phase I Settlement Agreement.
Second, we have reviewed Unitil's October 1, 2002 filing which requests
approval of certain changes to several contracts included in UPC's power supply
portfolio to be sold pursuant to the Phase I Settlement Agreement and we will
approve the changes as provided in the Amendment to Phase I Settlement
Agreement. We will also approve Unitil's related motion for a protective order
filed on October 1, 2002 which requests confidential treatment of Unitil's
economic analysis of its restructuring of the Great Bay Power Corp. power
contract. We are persuaded that public disclosure of the information could
compromise UPC's negotiating position or provide an unfair advantage to bidders
in the portfolio auction and therefore this is a sufficient basis for granting
the motion.
3. Unbundled Rates for UES, Including New Base Distribution Rates
The revenue requirement for UES is derived from summing the CEC and E&H
rate bases and test year revenues and expenses, rolling in certain of UPC's test
year expenses and then making certain agreed upon adjustments, see Day I Tr. at
pages 77-80./22 The revised cost of service reflects a total revenue deficiency
of $1,985,324 negotiated by the parties for purposes of determining UES'
distribution rates. This deficiency amount is reasonable. The final amount
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22 The summing process is consistent with how the financial accounting for the
merger of CEC and E&H will be handled.
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agreed upon is both less than Unitil's initial position and more than the
Staff's initial position. It is an amount on which the parties agreed after
Commission Staff conducted a full on site audit of the Unitil Companies,
including USC, and after an intensive negotiation process engaged. Day I Tr. at
pages 23, 84-85. Although the resulting distribution rates do represent an
increase in the distribution portion of Unitil's bundled rates, this result
appears to be reasonable given that CEC has not requested an increase in its
base rates since 1984 and E&H has not requested an increase since 1981. See Day
I Tr. at page 78.
Moreover, even after such a rate increase and the completion of the other
aspects of restructuring, Unitil showed that UES' overall rates for residential
and general service customers, as well as the distribution component for these
customer categories and UES' average distribution operating cost per customer,
will be the lowest in New Hampshire and the region. See Exhibit 26; Day I Tr. at
pages 40, 42, 53-55. Indeed, UES' overall rates projected as of May 1, 2003
represent an approximately 1% decrease over the rates in effect before December
1, 2002. See Schedule DJD-3, attached as the first page of Tab G of the
Settlement Agreement. From Unitil's perspective, the Phase II Settlement
Agreement provides UES with a reasonable financial result, one that will
adequately support its ongoing financial needs, including the financing of a
distribution construction budget of approximately $60 million over the next five
years. See testimony of George Gantz, Day I Tr. at pages 60-61.
In this Order we do not rule on the issue of Unitil's imposition of a one
percent per month late payment fee on residential customers, but we will do so
at a later date.
In light of the testimony presented at hearing, we are satisfied that the
final, negotiated revenue requirement represents a just and reasonable result,
and is appropriate for setting UES' distribution rates.
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The concern that UES' capital structure will be too highly leveraged is
addressed in an acceptable way through the use of a hypothetical capital
structure to determine the company's revenue requirement/23 and Unitil's
agreement to limit the cash dividends paid by UES on an annual basis to an
amount no higher than the cash dividends paid by CEC and E&H in the 2001 test
year. It does appear appropriate that, as set forth in the Settlement Agreement,
the company seek to increase the equity component of its capital structure over
time in order to ensure that it has continued financial flexibility and
continued access to capital at reasonable rates.
We have carefully considered the bill impact data included in the Phase II
Settlement Agreement and the rate design testimony presented at hearing. From
this it appears that the merger of the rate classes of CEC and E&H into a single
UES tariff can be accomplished without significant rate discontinuity problems
since the major rate classes of the two utilities are closely matched in terms
of the class composition, rate structure and the relative rate levels of the two
utilities. See Day II Tr. at pages 7-8.
Moderation of the distribution rate impact for low usage customers as
proposed in the settlement is appropriate. Consequently, the parties' proposal
to reduce by 1/3 the differential between Block 1 and Block 2 of the residential
rate from an average of 1.401 (cent)/kWh to 0.934 (cent)/kWh based on rate
continuity principles is acceptable.
Similarly, the proposal with respect to the G-1 and G-2 classes is an
appropriate solution, inspired by rate continuity principles, to the problem
created by moving from cost-based FAC-PPAC rates that vary according to class to
a system where the new charges for EDC, SCC and TSC are uniform. See Day II Tr.
at pages 24-26 and Exhibit 30. It is true the Commission has
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23 The New Hampshire Supreme Court has upheld our authority to use an
appropriate, rather than an actual, capital structure because the object of the
process is to strike a fair balance between the interests of the customer and
the investor. See Appeal of Conservation Law Foundation of New England, Inc.,
127 N.H. 606, 636 (1986).
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DE 01-247
not typically looked favorably upon the elimination of TOU rates. However,
particularly since the Phase II Settlement Agreement provides for the waiver of
metering fees for current TOU customers who take TOU service from competitive
suppliers, elimination of TOU rates is acceptable under the particular
circumstances present here.
UES Tariff No. 1 filed with the Phase II Settlement Agreement provides for
unbundled charges consistent with RSA 374-F and with our approved approaches to
unbundling in other restructuring dockets. The schedule for implementing the
charges is complicated and we expect CEC, E&H and UES to keep their customers
informed about the various changes resulting from unbundling and the schedule
for implementing the changes.
There are many cost components comprising the so-called "External
Transmission Charge," not just the cost of transmission. This rate component
should be renamed. In the absence of another alternative offered by the parties,
the charge is renamed the "External Delivery Charge" as suggested by Unitil.
Based on the testimony presented at the hearing, the parties' proposal to
set the target level for the initial wholesale costs upon which to base the
retail stranded cost charge and the retail Non-G-1 Transition Service prices at
6.25 (cent)/kWh is reasonable.
4. Other Matters
We will grant the parties' request for an affirmative finding that Unitil's
34.5 kV facilities currently classified as transmission should be reclassified
as distribution facilities based on the undisputed testimony on this issue at
hearing. Unitil's witness, Mr. Meisner, testified that the CECo and E&H systems
meet each factor of the FERC Seven Factor Test. Day III Tr. at pages 8-10. Mr.
Cannata, testifying on behalf of Staff, agreed with Unitil's characterizations
and analysis of the components of the Unitil systems. Day III Tr. at page 7. For
these reasons, we
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DE 01-247
fully support a request that FERC adopt the reclassification of Unitil's
transmission facilities to distribution facilities for ratemaking purposes.
The proposed form agreement to govern the general relationship between UES
and competitive electricity suppliers providing electricity supply to UES'
customers is acceptable.
We will approve the Phase II Settlement Agreement as presented. In light of
this and our approval of the Amendment to the Phase I Settlement Agreement, we
are able, in accordance with section 3.7, and consistent with the Phase I
Settlement Agreement, to give assurances to potential bidders that the costs
incurred under, and defined in, the portfolio sale agreement and the G-1 and
Non-G-1 transition and default service agreements, which will be subject to
final Commission approval in Phase III, will be fully recoverable in retail
rates.
Based upon the foregoing, it is hereby
ORDERED, that the First Amendment to the Phase I Settlement Agreement for
Restructuring the Unitil Companies is approved; and it is
FURTHER ORDERED, that the Motion for Rehearing filed by the Governor's
Office of Energy and Community Services is denied; and it is
FURTHER ORDERED, that the Phase II Settlement Agreement for Restructuring
the Unitil Companies is approved subject to the provisions of any future orders
in Phase III of this docket deemed necessary for achieving consistency with the
implementation of Order No. 24,046 and the Phase I provisions of this order; and
it is
FURTHER ORDERED, that Unitil shall file with the Commission copies of all
divestiture and supply bidding documentation, including request for proposal and
contract forms, reflecting the changes necessary to conform to the Order No.
24,046 and this order, on or before November 1, 2002; and it is
FURTHER ORDERED, that (i) in accordance with section 3.2.2 of the Phase I
Settlement Agreement, the buyout of the Massachusetts Municipal Wholesale
Electric Company power contract and (ii) as provided in the Amendment to Phase I
Settlement Agreement, the amendments to the Great Bay Power Corporation and New
England Power Company power contracts, are approved; and it is
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DE 01-247
FURTHER ORDERED, that Unitil's Motion for Protective Order filed on
September 12, 2002 and its Motion for Protective Order filed on October 1, 2002
are granted, subject to the on-going authority of the Commission, on its own
motion or on the motion of Staff, any party or any other member of the public,
to reconsider in light of RSA 91-A, should circumstances so warrant.
By order of the Public Utilities Commission of New Hampshire this
twenty-fifth day of October, 2002.
- ------------------------- ----------------------- -----------------------
Thomas B. Getz Susan S. Geiger Nancy Brockway
Chairman Commissioner Commissioner
Attested by:
- --------------------------------
Debra A. Howland
Executive Director & Secretary
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UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Concord Electric Company Docket No. EC02-111-000
Exeter & Hampton Electric Company
Unitil Energy Systems, Inc.
ORDER AUTHORIZING DISPOSITION OF
JURISDICTIONAL FACILITIES
(Issued October 23, 2002)
On August 30, 2002, Concord Electric Company (Concord), Exeter & Hampton
Electric Company (Exeter & Hampton), and Unitil Energy Systems, Inc. (Unitil
Energy) (collectively, Applicants) filed a joint application pursuant to section
203 of the Federal Power Act (FPA)/1 requesting Commission authorization for an
intra-corporate reorganization. Applicants are wholly-owned subsidiaries of
Unitil Corporation (Unitil), which is a public utility holding company./2
Unitil's principal business is the retail sale and distribution of electricity
in New Hampshire, and the retail sale and distribution of electricity and gas in
Massachusetts through its retail distribution subsidiaries, which are Concord,
Exeter & Hampton, and Fitchburg. Applicants indicate that Concord, Exeter &
Hampton, Fitchburg and Unitil Power are public utilities regulated by the
Commission.
Concord is a New Hampshire corporation and public utility primarily engaged
in the retail sale and distribution of electricity to customers in the City of
Concord and twelve surrounding towns, all in the New Hampshire.
Exeter & Hampton is a New Hampshire corporation and public utility
primarily engaged in the retail sale and distribution of electricity to
customers in the towns of Exeter and Hampton and in all or part of sixteen
surrounding towns, all in New Hampshire.
Unitil Energy will be formed after receipt of all regulatory approvals of
the merger of Concord and Exeter & Hampton. Unitil Energy will succeed Concord
and Exeter & Hampton in all agreements and schedules on file with the
Commission.
According to the application, the proposed transaction involves the merger
of Concord and Exeter & Hampton into a single distribution utility, Unitil
Energy. Applicants propose to enter into an Agreement and Plan of Merger (Merger
Agreement) under which Exeter & Hampton will be merged with and into Concord
with Concord as the surviving corporation. In connection with the merger,
Concord will change its name to Unitil Energy.
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1 16 U.S.C.ss.824b (1994).
2 The following companies are also wholly-owned subsidiaries of Unitil:
Fitchburg Gas and Electric Light Company (Fitchburg), Unitil Power Corp.(Unitil
Power), Unitil Service Corp., and its non-regulated business unit, Unitil
Resources, Inc.
Docket No. EC02-111-000
Applicants state that the proposed transaction is consistent with the
public interest and will not adversely affect competition, rates or regulation.
With respect to competition, Applicants state that the proposed transaction will
not adversely affect competition because the reorganization is an
intra-corporate transaction. Applicants maintain that the transaction will not
increase the Unitil Companies' ownership or control of transmission or
generation facilities, nor result in any change in the operation of the
Applicants' facilities, or other inputs that could be used as barriers to entry.
Applicants state that the proposed reorganization will not have an adverse
effect on rates. The rates at which Concord's wheeling customers obtain
transmission service will not change. Concord and Exeter & Hampton's Open Access
Transmission Tariff (OATT) will be combined into one, Unitil Energy's OATT. The
rates under which Unitil Energy will acquire electricity will not change and the
total rate for Until Energy's customers following implementation of the entire
restructuring plan are expected to be substantially the same as the existing
total rates.
Applicants state that nothing in the reorganization will affect the manner
or the extent to which the Commission or state commission regulate transactions
and facilities of the Applicants. The resulting company, Unitil Energy, will be
regulated at retail by the New Hampshire Public Utility Commission and at
wholesale by the Commission.
The filing was noticed on September 19, 2002, with comments, protests, or
interventions due on or before October 4, 2002. No protests or comments were
filed. Notices of intervention and unopposed timely filed motions to intervene
are granted pursuant to the operation of Rule 214 of the Commission's Rules of
Practice and Procedure (18 C.F.R. ss. 385.214). Any opposed or untimely filed
motion to intervene is governed by the provisions of Rule 214.
After consideration, it is concluded that the proposed transaction is
consistent with the public interest and is authorized subject to the following
conditions:
(1) The proposed transaction is authorized upon the terms and conditions
and for the purposes set forth in the application;
(2) The foregoing authorization is without prejudice to the authority of
the Commission or any other regulatory body with respect to rates,
service, accounts, valuation, estimates or determinations of cost, or
any other matter whatsoever now pending or which may come before the
Commission;
(3) Nothing in this order shall be construed to imply acquiescence in any
estimate or determination of cost or any valuation of property claimed
or asserted;
(4) The Commission retains authority under sections 203(b) and 309 of the
FPA to issue supplemental orders as appropriate;
(5) Applicants shall make appropriate filings under section 205 of the
FPA, as necessary, to implement the transactions; and
(6) Applicants shall notify the Commission within 10 days of the date that
the intra-corporate restructuring has been completed.
2
Docket No. EC02-111-000
This action is taken pursuant to the authority delegated to the Director,
Division of Tariffs and Market Development - West under 18 C.F.R. ss. 375.307.
This order constitutes final agency action. Requests for rehearing by the
Commission may be filed within 30 days of the date of issuance of this order,
pursuant to 18 C.F.R. ss. 385.713.
Michael A. Coleman
Director
Division of Tariffs and Market Development - West
3