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Exhibit 4.3
DUQUESNE LIGHT COMPANY
TO
JPMORGAN CHASE BANK
TRUSTEE
----------
SUPPLEMENTAL INDENTURE NO.__
Dated as of __________, 200_
Supplemental to the Indenture of Mortgage
and Deed of Trust dated as of April 1, 1992
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Establishing a series of Securities designated
First Mortgage Bonds, Series __
and
Amending certain provisions of said
Indenture of Mortgage and Deed of Trust
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SUPPLEMENTAL INDENTURE NO. __ dated as of _____, 200_, between DUQUESNE
LIGHT COMPANY, a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania (hereinafter sometimes called the "Company"), and
JPMORGAN CHASE BANK, a New York banking corporation and successor by merger to
The Chase Manhattan Bank, successor in trust to Mellon Bank, N.A., trustee
(hereinafter sometimes called the "Trustee"), under the Indenture of Mortgage
and Deed of Trust, dated as of April 1, 1992 (hereinafter called the "Original
Indenture"), this Supplemental Indenture No. __ being supplemental thereto. The
Original Indenture and any and all indentures and instruments supplemental
thereto are hereinafter sometimes collectively called the "Mortgage."
RECITALS OF THE COMPANY
The Original Indenture was authorized, executed and delivered by the
Company to provide for the issuance from time to time of its Securities (such
term and all other capitalized terms used herein without definition having the
meanings assigned to them in the Original Indenture), to be issued in one or
more series as contemplated therein, and to provide security for the payment of
the principal of and premium, if any, and interest, if any, on the Securities.
The Original Indenture has been recorded in the Recorders' Offices of the
various counties of Pennsylvania as follows:
In Allegheny County in Mortgage Book Vol. 12068, page 8;
In Beaver County in Mortgage Book Vol. 1208, page 520;
In Xxxxxx County in Mortgage Book Vol. 100, page 174;
In Washington County in Mortgage Book Vol. 1873, page 1;
In Xxxxxxxxxxxx County in Mortgage Book Vol. 2862, page 221;
and has also been recorded in the Office of the Clerk of County Commission of
Monongahela County, West Virginia, in Deed of Trust Book Vol. 672, page 129, the
Office of the Clerk of County Commission of Xxxxxxx County, West Virginia, in
Deed of Trust Book Vol. 293, page 46, the Recorder's Office of Belmont County,
Ohio, in Mortgage Book Vol. 586, page 273, the Recorder's Office of Columbiana
County, Ohio, in Mortgage Book Vol. 318, page 289, the Recorder's Office of
Jefferson County, Ohio, in Mortgage Book Vol. 65, page 675, the Recorder's
Office of Lake County, Ohio, in Mortgage Book Vol. 711, page 217, and the
Recorder's Office of Monroe County, Ohio, in Mortgage Book Vol. 129, page 301.
The Company has heretofore executed and delivered to the Trustee
Supplemental Indentures for the purposes recited therein and for the purpose of
creating series of Securities as set forth in Schedule A hereto.
The Company desires to establish a series of Securities to be designated
"First Mortgage Bonds, Series _", such series of Securities to be hereinafter
sometimes called "Series No. __."
By virtue of Section 2 of Article Two of Supplemental Indenture No. 15,
dated as of November 1, 1999, the Holders of the Securities of Series Nos. 10
through 22 are deemed to have consented to the amendments to the Original
Indenture set forth therein, the Outstanding Securities of such series having an
aggregate principal amount of $417,985,000; by virtue of Article Two of
Supplemental Indenture No. 18, dated as of April 1, 2002, the Holders of the
Securities of Series No. 23 are deemed to have consented to such amendments to
the Original Indenture, the Outstanding Securities of such series having an
aggregate principal amount of $200,000,000; by virtue of Article Two of
Supplemental Indenture No. 19, dated as of April 15, 2002, the Holders of the
Securities of Series No. 24 are deemed to have consented to such amendments to
the Original Indenture, the Outstanding Securities of such series having an
aggregate principal amount of $100,000,000; at the date of the execution and
delivery of this Supplemental Indenture No. 20, the aggregate principal amount
of Securities of all series Outstanding under the Indenture is $757,985,000; and
the aggregate principal amount of the Securities of Series Nos. 10 through 24 is
$717,985,000, which is more than a majority in principal amount of all
Securities Outstanding. Accordingly, the Company now desires to effect the
amendments to the Original Indenture set forth in Section 2 of Article Two of
Supplemental Indenture No. 15 in accordance with Sections 1402 and 1403 of the
Original Indenture.
The Company has duly authorized the execution and delivery of this
Supplemental Indenture No. __ to establish the Securities of Series No. __ and
has duly authorized the issuance of such Securities and to make the amendments
to the Original Indenture referred to above; and all acts necessary to make this
Supplemental Indenture No. __ a valid agreement of the Company, and to make the
Securities of Series No. __ valid obligations of the Company, have been
performed.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE NO. __ WITNESSETH, that, in
consideration of the premises and of the purchase of the Securities by the
Holders thereof, and in order to secure the payment of the principal of and
premium, if any, and interest, if any, on all Securities from time to time
Outstanding and the performance of the covenants contained therein and in the
Mortgage and to declare the terms and conditions on which such Securities are
secured, the Company hereby grants, bargains, sells, releases, conveys, assigns,
transfers, mortgages, pledges, sets over and confirms to the Trustee, and grants
to the Trustee a security interest in, the following:
GRANTING CLAUSE FIRST
All right, title and interest of the Company in and to property (other
than Excepted Property), real, personal and mixed and wherever situated, in
any case used or to be used in or in connection with the generation,
purchase, transmission, distribution or sale by the Company of electric
energy (whether or not such use is the sole use of such property),
including, without limitation, (a) all lands, easements, servitudes,
licenses, permits, rights of way and other rights and interests in or
relating to real property or the occupancy or use of the same; (b) all
plants, generators, turbines, engines, boilers, fuel handling and
transportation facilities, air and water pollution control and sewage and
solid waste disposal facilities and other machinery and facilities for the
generation of electric energy; (c) all switchyards, lines, towers,
substations, transformers and other machinery and facilities for the
transmission of electric energy; (d) all lines, poles, conduits,
conductors, meters, regulators and other machinery and facilities for the
distribution of electric energy; (e) all buildings, offices, warehouses and
other structures; and (f) all pipes, cables, insulators, ducts, tools,
computers and other data processing and/or storage equipment and other
equipment, apparatus and
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facilities and all other property, of whatever kind and nature, ancillary
to or otherwise used or to be used in conjunction with any or all of the
foregoing or otherwise, directly or indirectly, in furtherance of the
generation, purchase, transmission, distribution or sale by the Company of
electric energy;
GRANTING CLAUSE SECOND
Subject to the applicable exceptions permitted by Section 810, Section
1303 and Section 1305 of the Original Indenture, all property (other than
Excepted Property) of the kind and nature described in Granting Clause
First which may be hereafter acquired by the Company, it being the
intention of the Company that all such property acquired by the Company
after the date of the execution and delivery of this Supplemental Indenture
No. __ shall be as fully embraced within and subjected to the Lien hereof
as if such property were owned by the Company as of the date of the
execution and delivery of this Supplemental Indenture No. __;
GRANTING CLAUSE FOURTH
All other property of whatever kind and nature subjected or intended
to be subjected to the Lien of the Mortgage by any of the terms and
provisions thereof;
EXCEPTED PROPERTY
Expressly excepting and excluding, however, from the Lien and
operation of the Mortgage all Excepted Property of the Company, whether now
owned or hereafter acquired;
TO HAVE AND TO HOLD all such property, real, personal and mixed, unto the
Trustee forever;
SUBJECT, HOWEVER, to Permitted Liens and to Liens which have been granted
by the Company to other Persons prior to the date of the execution and delivery
of the Original Indenture and subject also, as to any property acquired by the
Company after the date of execution and delivery of the Original Indenture, to
vendors' Liens, purchase money mortgages and other Liens thereon at the time of
the acquisition thereof (including, but not limited to, the Lien of any Class
"A" Mortgage), it being understood that with respect to any of such property
which was at the date of execution and delivery of the Original Indenture or
thereafter became or hereafter becomes subject to the Lien of any Class "A"
Mortgage, the Lien of the Mortgage shall at all times be junior and subordinate
to the Lien of such Class "A" Mortgage;
IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of all Outstanding Securities without
any priority of any such Security over any other such Security;
PROVIDED, HOWEVER, that if, after the right, title and interest of the
Trustee in and to the Mortgaged Property shall have ceased, terminated and
become void in accordance with Article Nine of the Original Indenture, the
principal of and premium, if any, and interest, if any,
3
on the Securities shall have been paid to the Holders thereof, or shall have
been paid to the Company pursuant to Section 603 of the Original Indenture, then
and in that case the Mortgage and the estate and rights thereby granted shall
cease, terminate and be void, and the Trustee shall cancel and discharge the
Mortgage and execute and deliver to the Company such instruments as the Company
shall require to evidence the discharge thereof; otherwise the Mortgage shall be
and remain in full force and effect; and
THE PARTIES HEREBY FURTHER COVENANT AND AGREE as follows:
ARTICLE ONE
TWENTY-_____ SERIES OF SECURITIES
There is hereby created a series of Securities designated "First Mortgage
Bonds, Series _", which series shall constitute Series No. __. The form and
terms of the Securities of Series No. __ shall be established in or pursuant to
an Officer's Certificate. The Securities of Series No. __ shall be initially
authenticated and delivered in the aggregate principal amount of $_________, but
shall not be limited in aggregate principal amount.
ARTICLE TWO
AMENDMENTS
The Original Indenture is hereby amended as set forth in Schedule B hereto.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
This Supplemental Indenture No. __ is a supplement to the Mortgage. As
supplemented by this Supplemental Indenture No. __, the Mortgage is in all
respects ratified, approved and confirmed, and the Mortgage and this
Supplemental Indenture No. __ shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. __ to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
DUQUESNE LIGHT COMPANY
By:
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VICE PRESIDENT AND TREASURER
Attest:
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SECRETARY
JPMORGAN CHASE BANK, Trustee
By:
-----------------------------------
VICE PRESIDENT
Attest:
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AUTHORIZED OFFICER
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COMMONWEALTH OF PENNSYLVANIA )
)ss.:
COUNTY OF ALLEGHENY )
On the day of _____, 200_, before me personally came Xxxxxxx X. Xxxxxx, to
me known, who, being by me duly sworn, did depose and say that he is a Vice
President and the Treasurer of Duquesne Light Company, the corporation described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
---------------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OF ALLEGHENY )
On the day of _____, 200_, before me personally came Xxxx X. Xxxxxxxxx,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of JPMorgan Chase Bank, the banking corporation described in and which
executed the foregoing instrument; that he knows the seal of said banking
corporation; that the seal affixed to said instrument is the seal of said
banking corporation; that it was so affixed by authority of the Board of
Directors of said banking corporation, and that he signed his name thereto by
like authority.
---------------------------
Notary Public
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CERTIFICATE OF PRECISE RESIDENCE
I hereby certify that the precise residence of JPMorgan Chase Bank is Xxx
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxxxxxx.
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Authorized Signatory of JPMorgan Chase Bank
_____ , 200__
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SCHEDULE A
Securities
Supplemental of Series Principal Amount
Indenture No. Dated as of Series No. Designation Authorized Issued(1) Outstanding(1)
------------- ---------------- ----------- ------------------ -------------- ---------------- -----------------
1 April 1, 1992 1 Secured $ 400,000,000 $ 400,000,000 None
Medium-Term
Notes, Series B
2 October 1, 1992 2 First Collateral $ 400,000,000 $ 400,000,000 $ 40,000,000
Trust Bonds,
Series C
3 December 1, 1992 3 First Collateral $ 47,925,000 $ 47,925,000 None
Trust Bonds,
Pollution Control
Series X
0 Xxxxx 00, 0000 Xxxx Xxxx Xxxx Xxxx Xxxx
5 June 1, 1993 4 First Collateral $ 300,000,000 $ 300,000,000 None
Trust Bonds,
Series E
6 June 1, 1993 5 First Collateral $ 25,000,000 $ 25,000,000 None
Trust Bonds,
Pollution Control
Series F
7 August 1, 1993 6 First Collateral $ 20,500,000 $ 20,500,000 None
Trust Bonds,
Pollution Control
Series X
0 Xxxxx 00, 0000 Xxxx Xxxx Xxxx Xxxx Xxxx
9 October 1, 1994 7 First Collateral $ 75,500,000 $ 75,500,000 None
Trust Bonds,
Pollution Control
Series X
00 Xxxxx 00, 0000 Xxxx Xxxx Xxxx Xxxx Xxxx
11 June 1, 1995 8 First Collateral $ 923,000,000 $ 923,000,000 None
Trust Bonds,
Series I
12 September 1, 1995 9 First Mortgage $ 685,000,000 $ 685,000,000 None
Bonds, Series J
00 Xxxxx 00, 0000 Xxxx Xxxx Xxxx Xxxx Xxxx
00 Xxxxx 00, 0000 Xxxx Xxxx Xxxx Xxxx Xxxx
15 November 1, 1999 10 First Mortgage $ 49,500,000 $ 49,500,000 $ 49,500,000
Bonds, Pollution
Control Series K1
15 November 1, 1999 11 First Mortgage $ 13,500,000 $ 13,500,000 $ 13,500,000
Bonds, Pollution
Control Series K2
15 November 1, 1999 12 First Mortgage $ 33,955,000 $ 33,955,000 $ 33,955,000
Bonds, Pollution
Control Series K3
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(1) As of December 31, 2003.
A-1
Securities
Supplemental of Series Principal Amount
Indenture No. Dated as of Series No. Designation Authorized Issued(1) Outstanding(1)
------------- ---------------- ----------- ------------------ -------------- ---------------- -----------------
15 November 1, 1999 13 First Mortgage $ 21,500,000 $ 21,500,000 $ 21,500,000
Bonds, Pollution
Control Series L1
15 November 1, 1999 14 First Mortgage $ 20,500,000 $ 20,500,000 $ 20,500,000
Bonds, Pollution
Control Series L2
15 November 1, 1999 15 First Mortgage $ 4,655,000 $ 4,655,000 $ 4,655,000
Bonds, Pollution
Control Series L3
15 November 1, 1999 16 First Mortgage $ 25,000,000 $ 25,000,000 $ 25,000,000
Bonds, Pollution
Control Series M1
15 November 1, 1999 17 First Mortgage $ 13,700,000 $ 13,700,000 $ 13,700,000
Bonds, Pollution
Control Series M2
15 November 1, 1999 18 First Mortgage $ 18,000,000 $ 18,000,000 $ 18,000,000
Bonds, Pollution
Control Series M3
15 November 1, 1999 19 First Mortgage $ 44,250,000 $ 44,250,000 $ 44,250,000
Bonds, Pollution
Control Series M4
15 November 1, 1999 20 First Mortgage $ 75,500,000 $ 75,500,000 $ 75,500,000
Bonds, Pollution
Control Series M5
15 November 1, 1999 21 First Mortgage $ 50,000,000 $ 50,000,000 $ 50,000,000
Bonds, Pollution
Control Series N1
15 November 1, 1999 22 First Mortgage $ 47,925,000 $ 47,925,000 $ 47,925,000
Bonds, Pollution
Control Series N2
00 Xxxx Xxxx Xxxx Xxxx Xxxx
00 April 0, 0000 Xxxx Xxxx Xxxx Xxxx Xxxx
00 April 1, 2002 23 First Mortgage $ 200,000,000 $ 200,000,000 $ 200,000,000
Bonds, Series O
19 April 15, 2002 24 First Mortgage $ 100,000,000 $ 100,000,000 $ 100,000,000
Bonds Series P
Totals $3,594,910,000 $ 3,594,910,000 $ 757,985,000
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(1) As of December 31, 2003.
A-2
SCHEDULE B
AMENDMENTS TO ORIGINAL INDENTURE
SECTION 1. "STATED INTEREST RATE".
The definition of "Stated Interest Rate" in Section 101 of the
Original Indenture is hereby amended to read as follows:
"STATED INTEREST RATE" means a rate (whether fixed or variable) at
which an obligation by its terms is stated to bear simple interest. Any
calculation or other determination to be made under this Indenture by
reference to the Stated Interest Rate on an obligation shall be made (a) if
the Company's obligations in respect of any other indebtedness shall be
evidenced or secured in whole or in part by such obligation, by reference
to the lower of the Stated Interest Rate on such obligation and the Stated
Interest Rate on such other indebtedness and (b) without regard to the
effective interest cost to the Company of such obligation or of any such
other indebtedness.
SECTION 2. "COST".
The definition of "Cost" in Section 104 of the Original Indenture is
hereby amended to read as follows:
Except as otherwise provided in Section 803, the term "COST" with
respect to Property Additions shall mean the sum of (i) any cash delivered
in payment therefor or for the acquisition thereof, (ii) an amount
equivalent to the fair market value in cash (as of the date of delivery) of
any securities or other property delivered in payment therefor or for the
acquisition thereof, (iii) the principal amount of any obligations secured
by prior Lien (other than a Class A Mortgage) upon such Property Additions
outstanding at the time of the acquisition thereof, (iv) the principal
amount of any other obligations incurred or assumed in connection with the
payment for such Property Additions or for the acquisition thereof and (v)
any other amounts which, in accordance with generally accepted accounting
principles, are properly charged or chargeable to the plant or other
property accounts of the Company with respect to such Property Additions as
part of the cost of construction or acquisition thereof, including, but not
limited to, any allowance for funds used during construction or any similar
or analogous amount; PROVIDED, HOWEVER, that, notwithstanding any other
provision of this Indenture,
(x) with respect to Property Additions owned by a successor
corporation immediately prior to the time it shall have become such by
consolidation or merger or acquired by a successor corporation in or
as a result of a consolidation or merger (excluding, in any case,
Property Additions owned by the Company immediately prior to such
time), Cost shall mean the amount or amounts at which such Property
Additions are recorded in the plant or other property accounts of such
successor corporation, or the predecessor corporation
B-1
from which such Property Additions are acquired, as the case may be,
immediately prior to such consolidation or merger;
(y) with respect to Property Additions which shall have been
acquired (otherwise than by construction) by the Company without any
consideration consisting of cash, securities or other property or the
incurring or assumption of indebtedness, no determination of Cost
shall be required, and, wherever in this Indenture provision is made
for Cost or fair value, Cost with respect to such Property Additions
shall mean an amount equal to the fair value to the Company thereof
or, if greater, the aggregate amount reflected in the Company's books
of account with respect thereto upon the acquisition thereof; and
(z) in no event shall the Cost of Property Additions be
required to reflect any depreciation or amortization in respect of
such Property Additions, or any adjustment to the amount or amounts at
which such Property Additions are recorded in plant or other property
accounts due to the non-recoverability of investment or otherwise.
SECTION 3. "PURCHASE MONEY MORTGAGE".
Section 101 of the Original Indenture is hereby amended to add a
definition of the term "purchase money mortgage" as follows:
"PURCHASE MONEY MORTGAGE" means, with respect to any property
being acquired or disposed of by the Company or being released from
the Lien of this Indenture, a Lien on such property which
a. is taken or retained by the transferor of such property to
secure all or part of the purchase price thereof;
b. is granted to one or more Persons other than the
transferor which, by making advances or incurring an obligation, gives
value to enable the grantor of such Lien to acquire rights in or the
use of such property;
c. is granted to any other Person in connection with the
release of such property from the Lien of this Indenture on the basis
of the deposit with the Trustee or the trustee or other holder of a
Lien prior to the Lien of this Indenture of obligations secured by
such Lien on such property (as well as any other property subject
thereto);
d. is held by a trustee or agent for the benefit of one or
more Persons described in clause (a), (b) and/or (c) above, provided
that such Lien may be held, in addition, for the benefit of one or
more other Persons which shall have theretofore given, or may
thereafter give, value to or for the benefit or account of the grantor
of such Lien for one or more other purposes; or
e. otherwise constitutes a purchase money mortgage or a
purchase money security interest under applicable law;
B-2
and, without limiting the generality of the foregoing, for purposes of this
Indenture, the term "purchase money mortgage" shall be deemed to include
any Lien described above whether or not such Lien (x) shall permit the
issuance or other incurrence of additional indebtedness secured by such
Lien on such property, (y) shall permit the subjection to such Lien of
additional property and the issuance or other incurrence of additional
indebtedness on the basis thereof and/or (z) shall have been granted prior
to the acquisition, disposition or release of such property, shall attach
to or otherwise cover property other than the property being acquired,
disposed of or released and/or shall secure obligations issued prior and/or
subsequent to the issuance of the obligations delivered in connection with
such acquisition, disposition or release.
SECTION 4. LIMITATIONS ON PURCHASE MONEY MORTGAGES.
(a) The proviso to clause (d) in Section 803 of the Original
Indenture is hereby amended to:
(1)(A) delete therefrom clause (x) and
(B) redesignate clauses (y) and (z) therein as clauses
(x) and (y), respectively; and
(2) delete therefrom clause (y); and
(b) Section 803 is further amended in accordance with Section
1401 of the Original Indenture, to:
(1) add thereto a new clause (y) reading as follows:
"(y) no obligations secured by purchase money mortgage
shall be used as a credit in connection with the release of
property hereunder, if the aggregate credit in respect of such
obligations to be used by the Company pursuant to subclause (i)
and subclause (iv) of this clause (d) plus the aggregate credits
used by the Company pursuant to said subclause (i) and subclause
(iv) in connection with all previous releases of property from
the Lien hereof on the basis of purchase money obligations
theretofore delivered to and then held by the Trustee or the
trustee or other holder of a Lien prior to the Lien of this
Indenture shall, immediately after the release then being
applied for, exceed forty per centum (40%) of the sum of (A) the
aggregate principal amount of Securities then Outstanding and
(B) the aggregate principal amount of Class "A" Bonds then
Outstanding other than Class "A" Bonds delivered to and then
held by the Trustee;" and
(2) add the following paragraph immediately after the
second full paragraph of such Section:
Anything herein to the contrary notwithstanding, there
shall not be taken into account for purposes of the calculation
contemplated in clause (y) in the proviso to clause (d) of the
first paragraph of this Section any obligations secured
B-3
by purchase money mortgage with respect to which there shall have been
delivered to the Trustee:
(x) an Officer's Certificate (i) if any obligations shall then
be outstanding under such purchase money mortgage and/or additional
obligations are permitted to be issued thereunder, either (A) stating
that the terms of such purchase money mortgage, as then in effect, do
not permit the issuance of obligations thereunder on the basis of
property additions in a principal amount exceeding seventy per centum
(70%) of the balance of the cost or fair value of such property
additions to the issuer thereof (whichever shall be less) after making
deductions and additions similar to those provided for in Section 104,
or (B) in the event that the statements contained in clause (A) above
cannot be made, stating that such issuer has irrevocably waived its
right to the authentication and delivery of obligations under such
purchase money mortgage (1) on any basis, in a principal amount equal
to the excess of (I) the aggregate principal amount of obligations, if
any, then outstanding under such purchase money mortgage which were
issued on the basis of property additions or on the basis of the
retirement of obligations which were issued (whether directly or
indirectly when considered in light of the successive issuance and
retirement of obligations) on the basis of property additions over
(II) an amount equal to seventy per centum (70%) of the aggregate
Dollar amount of property additions certified as the basis for the
issuance of such obligations then outstanding and (2) on the basis of
property additions, in a principal amount exceeding seventy per centum
(70%) of the balance of the cost or fair value thereof to such issuer
(whichever shall be less) after making deductions and additions
similar to those provided for in Section 104 and (ii) stating either
(A) that the obligations secured by such purchase money mortgage
delivered to the Trustee or to the trustee or other holder of a Lien
prior to the Lien of this Indenture as the basis for such release of
property contain a provision for mandatory redemption upon the
acceleration of the maturity of all Outstanding Securities following
an Event of Default (whether or not such redemption may be rescinded
upon the rescission of such acceleration) or (B) that so long as such
obligations are held by the Trustee or the trustee or other holder of
such a prior Lien, an Event of Default under this Indenture
constitutes a matured event of default under such purchase money
mortgage (PROVIDED, HOWEVER, that the waiver or cure of such Event of
Default hereunder and the rescission and annulment of the consequences
thereof may constitute a cure of the corresponding event of default
under such purchase money mortgage and a rescission and annulment of
the consequences thereof); and
(y) an Opinion or Opinions of Counsel to the effect that (i)
if any obligations shall then be outstanding under such purchase money
mortgage and/or additional obligations are permitted to be issued
thereunder, to the effect either (A) that the terms of such purchase
money
B-4
mortgage, as then in effect, do not permit the issuance of obligations
thereunder upon the basis of property additions in a principal amount
exceeding seventy per centum (70%) of the balance of the cost or the
fair value thereof to the issuer of such obligations (whichever shall
be less) after making deductions and additions similar to those
provided for in Section 104, or, if such is not the case, (B) that the
waivers contemplated by clause (x)(i)(B) above have been duly made and
(ii) to the effect either (A) that the obligations secured by such
purchase money mortgage delivered to the Trustee or to the trustee or
other holder of a Lien prior to the Lien of this Indenture as the
basis for such release of property contain a provision for mandatory
redemption upon an acceleration) of the maturity of all Outstanding
Securities following an Event of Default (whether or not such
redemption may be rescinded upon the rescission of such acceleration)
or (B) that, so long as such obligations are held by the Trustee or
the trustee or other holder of such a prior Lien, an Event of Default
under this Indenture constitutes a matured event of default under such
purchase money mortgage (PROVIDED, HOWEVER, that the waiver or cure of
such Event of Default hereunder and the rescission and annulment of
the consequences thereof may constitute a cure of the corresponding
event of default under such purchase money mortgage and a rescission
and annulment of the consequences thereof).
B-5
SECTION 5. "FAIR VALUE".
Section 101 of Original Indenture is hereby amended to add a
definition of the term "fair value" as follows:
"FAIR VALUE", with respect to property, means the fair value of such
property as may be determined by reference to (a) the amount which would be
likely to be obtained in an arm's-length transaction with respect to such
property between an informed and willing buyer and an informed and willing
seller, under no compulsion, respectively, to buy or sell, (b) the amount
of investment with respect to such property which, together with a
reasonable return thereon, would be likely to be recovered through ordinary
business operations or otherwise, (c) the Cost, accumulated depreciation
and replacement cost with respect to such property and/or (d) any other
relevant factors; PROVIDED, HOWEVER, that (x) the fair value of property
shall be determined without deduction for any Liens on such property prior
to the Lien of this Indenture (except as otherwise provided in Section 803)
and (y) the fair value to the Company of Property Additions shall not
reflect any reduction relating to the fact that such Property Additions may
be of less value to a Person which is not the owner or operator of the
Mortgaged Property or any portion thereof than to a Person which is such
owner or operator. Fair value may be determined, without physical
inspection, by the use of accounting and engineering records and other data
maintained by the Company or otherwise available to the Engineer certifying
the same.
SECTION 6. LIMITATIONS ON REQUIREMENTS FOR NET EARNINGS CERTIFICATE.
(i) The proviso to clause (i) of subsection (b) of Section 404 of the
Original Indenture is hereby amended to read as follows:
PROVIDED, HOWEVER, that no Net Earnings Certificate shall be required
to be delivered; and
(ii) The proviso to clause (ii) of subsection (b) of Section 402 of the
Original Indenture is hereby amended to read as follows:
PROVIDED, HOWEVER, that no Net Earnings Certificate shall be required
to be delivered if there shall be delivered an Officer's Certificate
to the effect that such Class "A" Bonds were authenticated and
delivered under the related Class "A" Mortgage on the basis of retired
Class "A" Bonds; and
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B-6
RECORDING INFORMATION
Allegheny County, Pennsylvania
Office of Recorder of Deeds
Recorded
Mortgage Book Volume
Beaver County, Pennsylvania
Office of Recorder of Deeds
Recorded
Mortgage Book Volume
Xxxxxx County, Pennsylvania
Office of Recorder of Deeds
Recorded
Mortgage Book Volume
Washington County, Pennsylvania
Office of Recorder of Deeds
Recorded
Mortgage Book Volume
Xxxxxxxxxxxx County, Pennsylvania
Office of Recorder of Deeds
Recorded
Mortgage Book Volume
Belmont County, Ohio
Office of Recorder
Received
Recorded
Mortgage Book Volume
Columbiana County, Ohio
Office of Recorder
Recorded
Official Records Volume
Jefferson County, Ohio
Office of Recorder
Received
Recorded
Official Records Volume
Lake County, Ohio
Office of Recorder
Recorded
Official Records Volume
Monroe County, Ohio
Office of Recorder
Received
Recorded
Official Records Volume
Xxxxxxx County, Xxxx Xxxxxxxx
Xxxxxx xx Xxxxx xx Xxxxxx Commission
Recorded
Deed of Trust Book
Xxxxxxxxxxx Xxxxxx, Xxxx Xxxxxxxx
Xxxxxx xx Xxxxx xx Xxxxxx Commission
Recorded
Deed of Trust Book
