<PAGE>
As filed with the Securities and Exchange Commission on June 13, 1995
Registration No. 33-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
BOSTON GAS COMPANY
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-1103580
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
ONE BEACON STREET, BOSTON, MASSACHUSETTS 02108, (617) 742-8400
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
____________________
J.F. Bodanza
Senior Vice President and Treasurer
Boston Gas Company
One Beacon Street
Boston, Massachusetts 02108
(617) 742-8400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Please send copies of all communications to:
David B. Walek, Esq. Donald R. Crawshaw, Esq.
Ropes & Gray Sullivan & Cromwell
One International Place 125 Broad Street
Boston, Massachusetts 02110 New York, New York 10004
____________________
Approximate date of commencement of proposed sale to the public:
From time to time or at one time after the effective date of this Registration
Statement.
____________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_] ________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] _________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================
Title of each class of | Amount to | Proposed maximum | Proposed maximum | Amount of
securities to be | be | offering price per | aggregate offering | registration
registered | registered | share (1)(2) | price (1)(2) | fee
- ----------------------------------------------------------------------------------------------------
<S> | <C> | <C> | <C> | <C>
Debt Securities | $100,000,000 | 100% | $100,000,000 | $34,482.76
====================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Or, if any Debt Securities are issued at an original issue discount, such
greater principal amount as shall result in an aggregate offering price
equal to $100,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
Subject to completion, dated June 13, 1995
$100,000,000
[BOSTON GAS LOGO]
Debt Securities
-------------
Boston Gas Company (the "Company") from time to time may offer and sell its
debt securities in one or more series in an aggregate principal amount not to
exceed $100,000,000 (the "Debt Securities"). The Debt Securities may be offered
as separate series in amounts, at prices and on terms to be determined at the
time of sale. The specific designation, aggregate principal amount,
denominations, maturity, premium (if any), interest rate, time of payment of any
interest, terms for any redemption at the option of the Company or the holder,
terms for any sinking fund payments, the initial public offering price and
certain other terms of and in connection with the offering and sale of the Debt
Securities in respect of which this Prospectus is being delivered will be set
forth in an accompanying supplement to this Prospectus (each a "Prospectus
Supplement"). In addition, all or a portion of the Debt Securities may be
issued in permanent global form.
The Company may sell Debt Securities to or through underwriters or dealers,
and also may sell Debt Securities directly to other purchasers or through
agents. See "Plan of Distribution." Such underwriters may include Salomon
Brothers Inc., Donaldson, Lufkin & Jenrette Securities Corporation and/or J.P.
Morgan Securities Inc. or may be a group of underwriters represented by them or
other firms. Such firms may also act as agents. The Prospectus Supplement will
set forth the names of any underwriters or agents involved in the sale of the
Debt Securities and any applicable commissions or discounts.
--------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE
SALES OF DEBT SECURITIES UNLESS ACCOMPANIED
BY A PROSPECTUS SUPPLEMENT.
--------
The date of this Prospectus is June 13, 1995
<PAGE>
No dealer, salesman or other person has been authorized to give any
information or to make any representation not contained in this Prospectus or
any Prospectus Supplement and, if given or made, such information or
representation must not be relied upon as having been authorized by the Company
or any underwriter or agent. This Prospectus and any Prospectus Supplement do
not constitute an offer to sell or a solicitation of any offer to buy any of the
securities offered hereby and thereby in any jurisdiction to any person to whom
it is unlawful to make such offer in such jurisdiction. Neither the delivery of
this Prospectus or any Prospectus Supplement nor any sale made hereunder and
thereunder shall, under any circumstances, create any implication that the
information herein or therein is correct as of any time subsequent to their
respective dates.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "1934 Act"), and in accordance therewith
files reports and other information with the Securities and Exchange Commission
(the "Commission"). Such reports and other information may be inspected and
copied at the public reference facilities of the Commission at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549, and at its regional offices at 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661; and 7 World Trade Center,
13th Floor, New York, New York 10048, and copies of such material may be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates.
The Company has filed with the Commission a Registration Statement under
the Securities Act of 1933, as amended (the "1933 Act"), with respect to the
Debt Securities offered hereby. For further information with respect to the
Company and the Debt Securities offered hereby, reference is made to such
Registration Statement and to the exhibits thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1994 and the Quarterly Report on Form 10-Q for the quarter ended March 31, 1995,
each heretofore filed with the Commission pursuant to the 1934 Act, are hereby
incorporated by reference in this Prospectus.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference and to be a part hereof from the date of filing of
such documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any
subsequently filed incorporated document modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus has been delivered, on the written or oral
request of any such person, a copy of any or all of the documents referred to
above which have been or may be incorporated by reference in this Prospectus,
other than exhibits to such documents (unless such exhibits have been
specifically incorporated by reference therein). Requests for such copies
should be directed to J. L. Miller, Esq., General Counsel, Clerk and Secretary,
Boston Gas Company, One Beacon Street, Boston, Massachusetts 02108, phone (617)
742-8400.
2
<PAGE>
The Company does not prepare annual or quarterly reports for shareholders
and no such reports will be furnished to holders of Debt Securities.
3
<PAGE>
SUMMARY INFORMATION
The following summary information is qualified in its entirety by the
information appearing elsewhere in this Prospectus and in the documents,
financial statements and information incorporated by reference in this
Prospectus.
<TABLE>
<CAPTION>
THE OFFERING
<S> <C>
Issuer.......................................................Boston Gas Company
Securities Offered....................$100,000,000 of unsecured Debt Securities
Use of Proceeds................Financing of capital expenditures and payment of
obligations incurred in connection therewith,
and other general corporate purposes, which may
include the refinancing of outstanding
indebtedness.
</TABLE>
THE COMPANY
<TABLE>
<CAPTION>
<S> <C>
Founded....................................................................1822
Franchise area...............Boston and 73 additional Massachusetts communities
Area served..................................................1,656 square miles
Area population.......................................................2,335,000
Employees............................................................... 1,700
Sole Common Stockholder.....................................Eastern Enterprises
</TABLE>
SUMMARY OF FINANCIAL INFORMATION
(Dollars in thousands)
<TABLE>
<CAPTION>
Twelve Months Year Ended December 31,
Ended -------------------------------
March 31, 1995 1994 1993 1992
-------------- --------- --------- ---------
<S> <C> <C> <C> <C>
Operating Revenues....................... $640,097 $660,158 $614,294 $594,330
Net Earnings Applicable to Common Stock.. $ 19,614 $ 25,222 $ 18,025 $ 27,303
Ratio of Earnings to Fixed Charges (A)... 2.29 2.69 2.40 3.07
March 31, 1995
--------------
Long-term obligations (excluding current
portion)................................ $216,041
Variable term preferred stock............ 29,237
Common stockholder's investment.......... 216,589
--------
Total capitalization.................... 461,867
========
Notes payable............................ 9,000
- ---------------
</TABLE>
Notes:
(A) Ratios of Earnings to Fixed Charges for the years ended December 31,
1990 and 1991 were 2.23 and 2.13, respectively. Fixed charges include the
financing costs of the Company's gas inventories which the Massachusetts
Department of Public Utilities allows to be fully recovered through the Cost of
Gas Adjustment Clause and which are reported in the Company's consolidated
statement of earnings as cost of gas sold. Fuel financing costs were $2,329,
$2,061, $1,532, $1,465, $1,611 and $2,274 for the twelve months ended March 31,
1995 and for the years ended December 31, 1994, 1993, 1992, 1991 and 1990,
respectively.
4
<PAGE>
OPERATING STATISTICS
<TABLE>
<CAPTION>
Twelve Months Year Ended December 31,
Ended -------------------------------
March 31, 1995 1994 1993 1992
-------------- ------- ------- -------
<S> <C> <C> <C> <C>
Gas Sales and Transportation (Millions of Cubic
Feet @ 1,000 B.T.U.)
Firm: Sales............................................. 76,173 81,716 82,907 78,918
Transportation.................................... 14,083 13,791 12,351 7,369
------- ------- ------- -------
Total Firm Throughput............................. 90,256 95,507 95,258 86,287
Non-Firm: Sales.......................................... 17,225 14,001 10,189 18,702
Transportation................................. 26,139 34,919 39,304 27,270
------- ------- ------- -------
Total Non-Firm Throughput...................... 43,364 48,920 49,493 45,972
Total Throughput.......................................... 133,620 144,427 144,751 132,259
======= ======= ======= =======
Actual Billing Degree Days as a Percentage of Normal (B).. 91% 101% 99% 104%
Average Number of Customers............................... 512,329 511,493 507,196 501,912
Average Annual Firm Gas Use per Customer (MCF)............ 176 187 188 172
- --------------
</TABLE>
Notes:
(B) Normal Billing Degree Days represent the difference between 65 degrees
and the 20 year average of Boston temperatures adjusted for the current year's
meter reading schedule.
5
<PAGE>
THE COMPANY
The Company is engaged in the distribution, sale and transportation of
natural gas to residential, commercial and industrial customers in its service
area, which includes the City of Boston, Massachusetts, and 73 other eastern
Massachusetts communities. The Company has been in business for 173 years and
is the second oldest gas company in the United States. The Company's principal
executive offices are located at One Beacon Street, Boston, Massachusetts
02108 and its telephone number is (617) 742-8400. Since 1929 all of the
common stock of the Company has been owned by Eastern Enterprises ("Eastern"),
headquartered in Weston, Massachusetts. Eastern is a Massachusetts voluntary
association and its common stock is listed on the New York, Boston and Pacific
stock exchanges. The Debt Securities offered hereby are not guaranteed by
Eastern.
RECENT DEVELOPMENTS
In response to increasing competition in energy markets, the Company has
initiated a comprehensive corporate reengineering project focused on improving
customer service and lowering operating costs over the longer term. The
Company expects to complete implementation of a new organizational structure
designed to achieve these objectives by the end of 1995. The Company completed
an early retirement offer to a group of employees in the second quarter of 1995
at a cost of $1.1 million, and expects that lower salary expense will offset
this cost by the end of 1995. Certain details of the reengineering have not
yet been determined and additional costs may be incurred. Such costs are
expected to be offset over time by corresponding lower expenditures.
USE OF PROCEEDS
The net proceeds from the sale of Debt Securities offered from time to time
hereby will be used to finance capital expenditures and for the payment of
obligations incurred in connection therewith, and for other general corporate
purposes, which may include the refinancing of outstanding indebtedness
including the Company's 8 3/4% Debentures due 2001 and the Company's 9%
Debentures due 2001.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
and the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating
to such Debt Securities.
The Debt Securities are to be issued under the Indenture dated as of
December 1, 1989 (the "Indenture"), between the Company and The Bank of New
York, as Trustee (the "Original Trustee"). On November 18, 1992, the Company
and the Original Trustee entered into an Agreement of Resignation, Appointment
and Acceptance with The First National Bank of Boston pursuant to which the
Company appointed The First National Bank of Boston (the "Trustee") as
successor Trustee under the Indenture and the Original Trustee assigned, and
the Trustee accepted, all rights, powers, duties and trusts of the Original
Trustee under the Indenture. The following summary of certain provisions of
the Indenture does not purport to be complete and is subject to, and is
qualified in its entirety by express reference to, all the provisions of the
Indenture, including the definitions therein of certain terms. Certain terms
defined in the Indenture are capitalized herein. Particular section numbers
refer to sections in the Indenture.
GENERAL
The Debt Securities will be unsecured obligations of the Company and will
rank on a parity with all other unsecured and unsubordinated indebtedness of
the Company.
6
<PAGE>
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the Debt
Securities offered thereby for the following terms thereof, among others: (1)
the title of the Debt Securities; (2) any limit on the aggregate principal
amount of the Debt Securities; (3) the person to whom any interest on the Debt
Securities shall be payable if other than the registered holder; (4) the date
or dates on which the principal of the Debt Securities will be payable; (5) the
rate or rates at which the Debt Securities will bear interest, if any, or the
method by which such rate or rates shall be determined; (6) the date or dates
from which any such interest shall accrue, or the method by which such date or
dates shall be determined and the date on which payment of any such interest
will be payable and the Record Dates for such interest payment dates; (7) the
place or places where the principal of, and premium (if any) and interest on
Debt Securities of the series shall be payable; (8) the period or periods
within which, the price or prices at which, and the terms and conditions upon
which, the Debt Securities may be redeemed in whole or in part, at the option
of the Company; (9) the obligation, if any, of the Company to redeem, repay, or
purchase such Debt Securities pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof and the period or periods within
which, the price or prices at which, and the terms and conditions upon which,
such Debt Securities shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation; (10) whether the provisions of the Indenture
under "Defeasance" will not be applicable to the Debt Securities; (11) whether
any of the Debt Securities are to be issuable in temporary or, in whole or in
part, permanent global form; (12) any additional restrictive covenants included
for the benefit of Holders of the Debt Securities; (13) any additional Events
of Default with respect to the Debt Securities; and (14) any other terms of the
Debt Securities not inconsistent with the provisions of the Indenture.
(Sections 301 and 901)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
principal of, and any premium (if any) or interest on, the Debt Securities will
be payable and the Debt Securities will be exchangeable and transfers thereof
will be registerable, at the Corporate Trust Office of the Trustee at 150
Royall Street, Canton, Massachusetts or at the office of the New York registrar
and paying agent, BancBoston Trust Company of New York, 55 Broadway, New York,
New York, provided that, at the option of the Company, payment of interest may
be made by check mailed to the address of the Person entitled thereto as it
appears in the Security Register. (Sections 202, 305 and 1002)
Unless otherwise indicated in any Prospectus Supplement relating thereto,
the Debt Securities will be issued in fully registered form, without coupons,
in denominations of $1,000 or any integral multiple thereof. (Section 302) No
service charge will be made for any transfer or exchange of the Debt
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith. (Section
305) The Indenture also provides that the Debt Securities of any series, if so
specified with respect to a particular series, may be issued in permanent
global form. See "Permanent Global Securities."
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a discount from the principal
amount thereof. Special federal income tax, accounting and other
considerations applicable to any such Original Issue Discount Securities and
not described in this Prospectus will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Security" is defined in the
Indenture as any security which provides for an amount less than the principal
amount thereof to be due and payable upon the declaration of acceleration of
the Maturity thereof upon the occurrence of an Event of Default and during the
continuation thereof. (Section 101)
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the Prospectus Supplement relating thereto will describe the circumstances, if
any, under which beneficial owners of interest in any such permanent global
Debt Security may exchange such interests for Debt Securities of such series
and like tenor
7
<PAGE>
of any authorized form and denomination. A Person having a beneficial interest
in a permanent global Debt Security will, except with respect to payment of
principal of, and any premium and interest on, such permanent global Debt
Security, be treated as a holder of such principal amount of Outstanding Debt
Securities represented by such permanent global Debt Security as shall be
specified in a written statement of the Holder of such permanent global Debt
Security. Principal of and any premium and interest on a permanent global Debt
Security will be payable in the manner described in the Prospectus Supplement
relating thereto. (Section 204)
RESTRICTIVE COVENANTS
Limitations upon Liens.
The Indenture provides that, so long as any of the Debt Securities of any
series remain outstanding, the Company will not, and will not permit any
Subsidiary to, create or suffer to be created or to exist any mortgage on,
pledge of, or other lien on or security interest in, any of its properties or
assets now owned or hereafter acquired to secure any indebtedness, without
making effective provision whereby the Debt Securities shall be equally and
ratably secured with any and all such indebtedness and with any other
indebtedness similarly entitled to be equally and ratably secured; except that
this restriction does not apply to or prevent (a) the Indenture of First
Mortgage from the Company to The National Shawmut Bank of Boston, as Trustee,
dated as of September 1, 1971 (the "First Mortgage Indenture"), securing the
Company's First Mortgage Bonds issued prior to the date of the Indenture, or
any indenture supplemental to the First Mortgage Indenture subjecting any
property to the lien thereof or confirming the lien thereof upon any property,
whether owned before or acquired after the date of the Indenture; (b) mortgages
on property existing at the time of acquisition of such property, whether by
purchase, merger or otherwise (or on the property of a Subsidiary at the date
it became a Subsidiary), or to secure the payment of all or any part of the
purchase price thereof including the extension of any such mortgages to
repairs, renewals, replacements, substitutions, betterment, additions,
extensions and improvements then or thereafter made on the property subject
thereto; (c) any extensions, renewals or replacements (or successive
extensions, renewals or replacements), in whole or in part, of mortgages
permitted by the foregoing clauses (a) and (b); (d) the pledge of any bonds at
any time issued under any of the mortgages permitted by clauses (a), (b) and
(c) above; or (e) Permitted Encumbrances. (Section 1004) "Permitted
Encumbrances" includes, among other items, the pledge or assignment in the
ordinary course of business of accounts receivable, or customers' installment
paper, representing part or all of the purchase price of appliances or
equipment. (Section 101)
Limitation on First Mortgage Bonds.
The Indenture provides that, so long as any of the Debt Securities remain
outstanding, the Company will not issue any additional First Mortgage Bonds
under the First Mortgage Indenture or any indenture supplemental thereto,
except in connection with transfers, exchanges, replacements, substitutions or
reissues of First Mortgage Bonds of any series issued by the Company prior to
the date of the Indenture. (Section 1006)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay any interest on any Debt
Security of that series when due, and such failure has continued for 30 days;
(b) failure to pay principal of, or premium, if any, on any Debt Security of
that series when due; (c) failure to deposit any sinking fund payment in
respect of any Debt Security of that series when due, and such failure has
continued for 30 days; (d) failure to perform any other covenant of the Company
in the Indenture (other than a covenant included in the Indenture solely for
the benefit of series of Debt Securities other than that series), and such
failure has continued for 90 days after written notice as provided in the
Indenture; (e) certain events of bankruptcy, insolvency or reorganization
relating to the Company; and (f) any other Event of Default provided with
respect to Debt Securities of that series. (Section 501)
8
<PAGE>
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding shall occur and be continuing, either the Trustee or the
Holders of at least 25% in principal amount of the Outstanding Debt Securities
of that series may declare the principal amount (or, if the Debt Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) to be due and
payable immediately. However, at any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree based on such acceleration has been obtained, the Holders of
a majority in principal amount of Outstanding Debt Securities of that series
may, subject to certain conditions, rescind and annul such acceleration.
(Section 502) For information as to waiver of defaults, see "Modification and
Waiver." Reference is made to the Prospectus Supplement relating to any series
or portion of any series of Debt Securities which are Original Issue Discount
Securities for the particular provisions relating to acceleration of the
Maturity of a portion of the principal amount of such Original Issue Discount
Securities upon the occurrence of an Event of Default and the continuation
thereof.
The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable security or indemnity. (Sections 601 and
603) Subject to such provisions for security or indemnification of the
Trustee, the Holders of a majority in principal amount of the Outstanding Debt
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Debt
Securities of that series. (Section 512)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt Securities
of that series and unless also the Holders of at least 25% in principal amount
of the Outstanding Debt Securities of that series shall have made written
request, and offered reasonable security or indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series a direction inconsistent with such request and shall
have failed to institute such proceeding within 60 days. (Section 507)
However, the Holder of any Debt Security will have an absolute right to receive
payment of the principal of (and premium, if any) and any interest on such Debt
Security on or after the due dates expressed in such Debt Security and to
institute suit for the enforcement of any such payment. (Section 508)
The Indenture requires the Company to furnish to the Trustee annually a
statement as to whether there is a default in the performance or observance of
certain covenants. (Section 1007)
SATISFACTION AND DISCHARGE OF THE INDENTURE
The Indenture provides that when, among other things, all Debt Securities
not previously delivered to the Trustee for cancellation (i) have become due
and payable, or (ii) will become due and payable at their Stated Maturity
within one year, or (iii) are to be called for redemption within one year and
the Company deposits or causes to be deposited with the Trustee as trust funds
in trust for the purpose an amount in money or the equivalent in U.S.
Government Obligations (as defined) (or a combination thereof) sufficient to
pay and discharge the entire indebtedness on the Debt Securities not previously
delivered to the Trustee for cancellation, for the principal (and premium, if
any) and interest to the date of the deposit or to the Stated Maturity or
Redemption Date, as the case may be, then the Indenture will cease to be of
further effect (except as to the Company's obligations to compensate, reimburse
and indemnify the Trustee pursuant to the Indenture and certain other
obligations), and the Company will be deemed to have satisfied and discharged
the Indenture. (Section 401)
DEFEASANCE
9
<PAGE>
The Indenture also provides that the Company will be discharged from any
and all obligations in respect of the Debt Securities of any series (except for
certain obligations to register the transfer or exchange of Debt Securities of
such series, to replace stolen, lost or mutilated Debt Securities of such
series, to maintain paying agencies and to hold monies for payment in trust),
upon the deposit with the Trustee, in trust, of money and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of and each installment of interest on the Debt
Securities of such series on its Stated Maturity in accordance with the terms
of the Indenture and the Debt Securities of such series. (Section 1302)
Under current income tax law, defeasance would likely be treated as a
taxable exchange of such Debt Securities for interest in the defeasance trust.
As a consequence a Holder would recognize gain or loss equal to the difference
between the Holder's cost or other tax basis for such Debt Securities and the
value of the Holder's proportionate interest in the defeasance trust, and
thereafter would be required to include in income a proportionate share of the
income, gain and loss of the defeasance trust. Purchasers of Debt Securities
should consult their own advisors with respect to the more detailed tax
consequences to them of such defeasance, including the applicability and effect
of tax laws other than Federal income tax law.
The Prospectus Supplement relating thereto may further describe the
provisions, if any, applicable to defeasance with respect to the Debt
Securities of a particular series.
MODIFICATION AND WAIVER
Modification and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Debt Securities of each series affected
thereby and 66 2/3% in aggregate principal amount of the Outstanding Debt
Securities of all series affected thereby; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby: (a) change the Stated Maturity of
the principal of, or any installment or principal of or interest on, any Debt
Security; (b) reduce the principal amount of, or any premium or interest on,
any Debt Security; (c) reduce the amount of principal of an Original Issue
Discount Security payable upon acceleration of the Maturity thereof; (d) change
the place or currency of payment of principal of, or premium, if any, or
interest on, any Debt Security; (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security after the
Stated Maturity (or, in the case of redemption, on or after the Redemption
Date); or (f) reduce the percentage in principal amount of Outstanding Debt
Securities of any series, the consent of the Holders of which is required for
modification or amendment of the Indenture, for waiver of compliance with
certain provisions of the Indenture or for waiver of certain defaults.
(Section 902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of each series and 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of all series may on behalf of the Holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by the Company with certain restrictive covenants of the Indenture.
(Section 1008) The Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series may on behalf of the Holders of
all Debt Securities of that series waive any past default under the Indenture
with respect to that series of Debt Securities, except a default in the payment
of the principal of or premium, if any, or any interest on any Debt Security of
that series or in respect of a provision which under the Indenture cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of that series affected. (Section 513)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Nothing in the Indenture or in the Debt Securities of any series shall
prevent the consolidation or merger of the Company with or into any other
Person, or the merger into the Company of any other Person, or the sale by the
Company of its property and assets as, or substantially as, an entirety, or
otherwise, provided, however, that (i) any consolidation, merger, sale or
transfer shall be on terms that fully preserve
10
<PAGE>
and do not impair the rights or powers of the Trustee or the Holders of the
Debt Securities; (ii) (x) the corporation resulting from such consolidation,
(y) any corporation other than the Company into which such merger shall be
made, or (z) the corporation to which such property and assets shall be sold
shall expressly assume the due and punctual payment of the principal of, and
interest on, all the Debt Securities then outstanding and the performance and
observance of all covenants and conditions of the Indenture on the part of the
Company to be performed or observed, to the same extent that the Company is
bound and liable; and (iii) certain other conditions are met. (Section 801)
TRUSTEE
The Trustee is The First National Bank of Boston which has from time to
time and may continue to provide loans to the Company and its affiliates in the
ordinary course of business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) through underwriters or
dealers; (ii) through agents; (iii) directly to purchasers; or (iv) through a
combination of any such methods of sale. Any such underwriter, dealer or agent
may be deemed to be an underwriter within the meaning of the Securities Act.
The Prospectus Supplement relating to any Debt Securities will set forth their
offering terms, including the name or names of any underwriters, the purchase
price of such Debt Securities and the proceeds to the Company from such sale,
any underwriting discounts, commissions and other items constituting
underwriters' compensation, any initial public offering price and any
securities exchanges on which such Debt Securities may be listed.
If underwriters are used in the sale, the Debt Securities will be acquired
by the underwriters for their own accounts and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
price or prices, which may be changed, or at market prices prevailing at the
time of sale, or at prices related to such prevailing market prices, or at
negotiated prices. The Debt Securities may be offered to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. Unless otherwise set
forth in the Prospectus Supplement relating thereto, the obligations of the
underwriters to purchase any Debt Securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all
such Debt Securities if any are purchased. Any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time, any such concession not to be in excess of the
discount received by the Agent from the Company unless otherwise specified in
the applicable Pricing Supplement.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of any Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement relating thereto. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a
reasonable efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement relating thereto, the Company
will authorize underwriters, dealers or agents to solicit offers by certain
specified institutions to purchase Debt Securities from the Company at the
public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject to any conditions set forth
in the Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts. The underwriters and
other persons soliciting such contracts will have no responsibility for the
validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled to indemnification under
agreements entered into with the Company against civil liabilities, including
liabilities under the 1933 Act, or to contribution by the Company to payments
they may be required to make in respect thereof.
11
<PAGE>
VALIDITY OF DEBT SECURITIES
The validity of the Debt Securities will be passed upon for the Company by
Ropes & Gray, One International Place, Boston, Massachusetts, and for any
Agents or Underwriters by Sullivan & Cromwell, 125 Broad Street, New York, New
York. Proceedings before the Massachusetts Department of Public Utilities will
be passed upon by J.L. Miller, Esq., General Counsel, Boston Gas Company, One
Beacon Street, Boston, Massachusetts. In rendering their opinion, Sullivan &
Cromwell will rely as to matters of Massachusetts law on Ropes & Gray and J.L.
Miller, Esq.
EXPERTS
The consolidated financial statements and schedules included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1994
incorporated by reference herein have been audited by Arthur Andersen, LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated by reference in this Prospectus in reliance upon
the authority of said firm as experts in accounting and auditing in giving said
report.
12
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Expenses of the registrant in connection with the issuance and distribution
of the securities being registered, other than underwriting discounts and
commission, are estimated (except as noted below) to amount to the following:
<TABLE>
<CAPTION>
<S> <C>
Registration fee (actual)......................... $ 34,483
Printing ......................................... 7,500
Legal services and expenses....................... 60,000
Accounting fees and expenses...................... 18,000
Blue Sky fees and expenses........................ 5,000
Rating agency fees................................ 62,500
Charges of trustee, transfer agent and registrar.. 35,000
Miscellaneous..................................... 6,517
--------
Total........................................... $229,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 67 of Chapter 156B of the Massachusetts General Laws (made
applicable to the registrant by Section 4 of Chapter 164) provides that
indemnification of directors and officers of the registrant may be provided to
the extent specified or authorized by its Articles of Organization or a By-law
provision adopted by the stockholders.
Section 9 of the Company's By-laws, provides as follows:
"The corporation shall, to the extent legally permissible, indemnify
each of its directors and officers (including persons who serve at its
request as directors, officers, or trustees of another organization in
which it has any interest, as a shareholder, creditor or otherwise) against
all liabilities and expenses, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees,
reasonably incurred by him in connection with the defense or disposition of
any action, suit or other proceeding, whether civil or criminal, in which
he may be involved or with which he may be threatened, while in office or
thereafter, by reason of his being or having been such a director or
officer except with respect to any matter as to which he shall have been
adjudicated in any proceeding not to have acted in good faith in the
reasonable belief that his action was in the best interests of the
corporation; provided, however, that as to any matter disposed of by a
compromise payment by such director or officer, pursuant to a consent
decree or otherwise, no indemnification either for said payment or for any
other expenses shall be provided unless such compromise shall be approved
as in the best interests of the corporation, after notice that it involves
such indemnification, (a) by a disinterested majority of the directors then
in office; or (b) by a majority of the disinterested directors then in
office, provided that there has been obtained an opinion in writing of
independent legal counsel to the effect that such director or officer
appears to have acted in good faith in the reasonable belief that his
action was in the best interests of the corporation; or (c) by the holders
of a majority of the outstanding stock at the time entitled to vote for
directors, voting as a single class, exclusive of any stock owned by an
interested director or officer. In discharging his duty any such director
or officer, when acting in good faith, may rely upon the books of account
of the corporation or of such other organization, reports made to the
corporation or to such other organization by any of its officers or
employees or by counsel, accountants, appraisers or other experts selected
with reasonable care by the board of directors or trustees, or upon
II-1
<PAGE>
other records of the corporation or of such other organization. Expenses,
including counsel fees incurred with respect to any such action, suit or
proceeding may be paid by the corporation prior to the final disposition of
such action, suit or proceeding, upon receipt of an undertaking by or on
behalf of the recipient to repay such amount if it is ultimately determined
that indemnification for such expenses is not authorized under this
Section. The right of indemnification hereby provided shall not be
exclusive of or affect any other right to which any director or officer may
be entitled. As used in this Section, the terms "director" and "officer"
include their respective heirs, executors and administrators, and an
"interested" director or officer is one against whom in such capacity the
proceedings in question or another proceeding on the same or similar
grounds is then pending. Nothing contained in this Section shall affect any
rights to indemnification to which corporate personnel other than directors
and officers may be entitled by contract or otherwise under law."
Eastern Enterprises, the parent of the registrant, maintains an insurance
policy on behalf of itself and its subsidiaries, and on behalf of their
respective directors and officers, covering certain liabilities which may arise
as a result of the actions or omissions of said directors and officers.
The Agency Agreement provides that the agents thereunder will indemnify the
registrant's directors, officers and controlling persons against certain
liabilities, including certain liabilities under the Securities Act of 1933, as
amended.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- ----------------------
<C> <S>
1.1. -- Form of Agency Agreement.
4.1. -- Form of Debt Security (included in Exhibit 4.3).
4.2. -- Form of Floating Rate Note.
4.3. -- Indenture dated as of December 1, 1989 between Boston Gas Company
and The Bank of New York, as Trustee is incorporated herein by
reference to the Registration Statement on Form S-3 of the
Company (File No. 33-53858) filed on October 28, 1992.
4.4. -- Agreement of Resignation, Appointment and Acceptance dated as of
November 18, 1992 among Boston Gas Company, The Bank of New York,
as Resigning Trustee, and The First National Bank of Boston, as
Successor Trustee is incorporated herein by reference to the
Registration Statement on Form S-3 of the Company (File No.
33-53858) filed on October 28, 1992.
5.1. -- Opinion of Ropes & Gray.
5.2. -- Opinion of J.L. Miller, Esq.
12.1 -- Statement re Computation of Ratio of Earnings to Fixed Charges.
23.1. -- Consent of Arthur Andersen, LLP.
23.2. -- The consent of Ropes & Gray is contained in Exhibit 5.1.
23.3. -- The consent of J.L. Miller, Esq. is contained in Exhibit 5.2.
24.1. -- Power of Attorney.
25.1. -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are being made of
the securities registered hereby a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
II-2
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for the purpose of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered hereby,
the registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 13th
day of June, 1995.
Boston Gas Company
By /s/ J.F. Bodanza
-------------------------------
J.F. Bodanza
Senior Vice President and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 13th day of June, 1995.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ C.R. Messer President (Principal Executive
- ------------------------------- Officer) and Director
C.R. Messer
/s/ A.J. DiGiovanni Senior Vice President and Director
- --------------------------------
A.J. DiGiovanni
/s/ J.F. Bodanza
- -------------------------------- Senior Vice President, Treasurer
J.F. Bodanza (Principal Financial and Accounting
Officer) and Director
/s/ J.A. Ives
- -------------------------------- Director
J.A. Ives
/s/ R.R. Clayton
- -------------------------------- Director
R.R. Clayton
/s/ W.J. Flaherty
- -------------------------------- Director
W.J. Flaherty
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page
- ----------- ----------- ----
<C> <S>
1.1. -- Form of Agency Agreement.
4.1. -- Form of Debt Security (included in Exhibit 4.3).
4.2. -- Form of Floating Rate Note.
4.3. -- Indenture dated as of December 1, 1989 between Boston Gas Company
and The Bank of New York, as Trustee is incorporated herein
by reference to the Registration Statement on Form S-3 of the
Company (File No. 33-53858) filed on October 28, 1992.
4.4. -- Agreement of Resignation, Appointment and Acceptance dated as of
November 18, 1992 among Boston Gas Company, The Bank of New York,
as Resigning Trustee, and The First National Bank of Boston, as
Successor Trustee is incorporated herein by reference to the
Registration Statement on Form S-3 of the Company (File No.
33-53858) filed on October 28, 1992.
5.1. -- Opinion of Ropes & Gray.
5.2. -- Opinion of J.L. Miller, Esq.
12.1 -- Statement re Computation of Ratio of Earnings to Fixed Charges.
23.1. -- Consent of Arthur Andersen, LLP.
23.2. -- The consent of Ropes & Gray is contained in Exhibit 5.1.
23.3. -- The consent of J.L. Miller, Esq. is contained in Exhibit 5.2.
24.1. -- Power of Attorney.
25.1. -- Statement of Eligibility of Trustee on Form T-1.
</TABLE>
<PAGE>
Exhibit 1.1
$100,000,000
BOSTON GAS COMPANY
Medium-Term Notes, Series C
AGENCY AGREEMENT
----------------
July __, 1995
Salomon Brothers Inc,
Seven World Trade Center,
New York, New York 10048.
Donaldson, Lufkin & Jenrette,
Securities Corporation,
140 Broadway,
New York, New York 10005-1285.
J.P. Morgan Securities Inc.,
60 Wall Street,
New York, New York 10260-0060.
Dear Sirs:
1. Introduction. Boston Gas Company, a Massachusetts corporation (the
"Issuer"), confirms its agreement with each of you with respect to the issue and
sale from time to time by the Issuer of its medium-term notes registered under
the registration statement referred to in Section 2(a) (any such medium-term
notes being hereinafter referred to as the "Securities", which expression shall,
if the context so admits, include any permanent global Security). Securities may
be sold pursuant to Section 3 of this Agreement in an aggregate amount not to
exceed the amount of Registered Securities (as defined in Section 2(a) hereof)
registered pursuant to such registration statement reduced by the aggregate
amount of any other Registered Securities sold otherwise than pursuant to
Section 3 of this Agreement. The Securities will be issued under an indenture,
dated as of December 1, 1989 between the Company and The Bank of New York, as
Trustee (the "Original Trustee"). On October 18, 1992, the Issuer and the
Original Trustee entered into an Agreement of Resignation, Appointment and
Acceptance (the "Agreement of Resignation and Appointment") with The First
National Bank of Boston pursuant to which the Issuer appointed The First
National Bank of Boston (the "Trustee"), as successor Trustee under the
Indenture, and the Original Trustee assigned, and the Trustee accepted, all
rights, powers, duties and trusts of the Original Trustee under the Indenture.
<PAGE>
The Securities shall have the terms described in the Prospectus
referred to in Section 2(a) as it may be amended or supplemented from time to
time, including any supplement to the Prospectus that sets forth only the terms
of a particular issue of Securities (a "Pricing Supplement"). Securities will
be issued, and the terms thereof established, from time to time by the Issuer in
accordance with the Indenture and the Procedures (as defined in Section 3(a)
hereof). For purposes of this Agreement, the term "Agent" shall refer to any of
you acting solely in the capacity as agent for the Issuer pursuant to Section
3(a) and not as principal (collectively, the "Agents"), the term "Purchaser"
shall refer to one of you acting solely as principal pursuant to Section 3(b)
and not as agent, and the term "you shall refer to you collectively whether at
any time any of you is acting in both such capacities or in either such
capacity. In acting under this Agreement, in whatever capacity, each of you is
acting individually and not jointly.
2. Representations and Warranties of the Issuer. The Issuer
represents and warrants to, and agrees with, you as follows:
(a) A registration statement (No. 33-_____), including a prospectus,
relating to debt securities of the Issuer, including the Securities
("Registered Securities"), has been filed with the Securities and Exchange
Commission ("Commission") and has become effective under the Securities Act
of 1933 ("Act"). Such registration statement, as amended as of the Closing
Date (as defined in Section 3(c) hereof), is hereinafter referred to as the
"Registration Statement", and the prospectus included in such Registration
Statement, as supplemented as of the Closing Date, including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to amending or supplementing
the Prospectus shall be deemed to include the filing of materials
incorporated by reference in the Prospectus after the Closing Date and any
reference in this Agreement to any amendment or supplement to the
Prospectus shall be deemed to include any such materials incorporated by
reference in the Prospectus after the Closing Date.
(b) On the effective date of the registration statement relating to
the Registered Securities, such registration statement conformed in all
respects to the requirements of the Act, the Trust Indenture Act of 1939
("Trust Indenture Act") and the rules and regulations of the Commission
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and on
the Closing Date, the Registration Statement and the Prospectus, and at
each of the times of acceptance and of delivery referred to in Section 6(a)
hereof and at each of the times of amendment or supplementing referred to
in Section 6(b) hereof (the Closing Date
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<PAGE>
and each such time being herein sometimes referred to as a "Representation
Date"), the Registration Statement and the Prospectus as then amended or
supplemented will conform in all respects to the requirements of the Act,
the Trust Indenture Act and the Rules and Regulations, and neither of such
documents will include any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, except that the foregoing does
not apply to statements in or omissions from any of such documents based
upon written information furnished to the Issuer by any Agent specifically
for use therein.
3. Appointment as Agents; Agreement of Agents; Solicitations as
Agents; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions stated herein, the Issuer
hereby appoints each of the Agents as an agent of the Issuer for the purpose of
soliciting or receiving offers to purchase the Securities from the Issuer by
others. So long as this Agreement shall remain in effect with respect to any
Agent, the Issuer shall not, without the consent of any such Agent, solicit or
accept offers to purchase Securities otherwise than through one of the Agents
(except as contemplated by Section 3(b) hereof); provided, however, that,
subject to all of the terms and conditions of this Agreement and any agreement
contemplated by Section 3(b) hereof, the foregoing shall not be construed to
prevent the Issuer from selling at any time any Registered Securities in a firm
commitment underwriting pursuant to an underwriting agreement that does not
provide for a continuous offering of such Registered Securities.
On the basis of the representations and warranties contained herein,
but subject to the terms and conditions herein set forth, each Agent agrees, as
agent of the Issuer, to use reasonable efforts when requested by the Issuer to
solicit offers to purchase the Securities upon the terms and conditions set
forth in the Prospectus, as from time to time amended or supplemented.
Upon receipt of notice from the Issuer as contemplated by Section 4(b)
hereof, each Agent shall suspend its solicitation of offers to purchase
Securities until such time as the Issuer shall have furnished it with an
amendment or supplement to the Registration Statement or the Prospectus, as the
case may be, contemplated by Section 4(b) and shall have advised such Agent that
such solicitation may be resumed.
The Issuer reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Securities commencing at any time for any
period of time or permanently. Upon receipt of at least one Business Day's
prior notice from the Issuer, the Agents will forthwith suspend solicitation of
offers to purchase Securities from the Issuer until such time as the Issuer has
advised the Agents that such solicitation may be resumed. For the purpose of
the foregoing sentence, "Business Day" shall mean any day that is not a Saturday
or Sunday, and
-3-
<PAGE>
that in The City of New York or the City of Boston is not a day on which banking
institutions generally are authorized or obligated by law or executive order to
close.
The Agents are authorized to solicit offers to purchase Securities as
described in the Prospectus, as amended or supplemented, and only in a minimum
aggregate amount of $1,000 and only in fully registered form in denominations of
$1,000 (unless otherwise indicated in the applicable Pricing Supplement) and
integral multiples of $1,000 and at a purchase price which, unless otherwise
specified in the applicable Pricing Supplement, shall be equal to 100% of the
principal amount thereof. Each Agent shall communicate to the Issuer, orally or
in writing, each reasonable offer to purchase Securities received by it as
agent. The Issuer shall have the sole right to accept offers to purchase the
Securities and may reject any such offer, in whole or in part. Each Agent shall
have the right, in its discretion reasonably exercised, without notice to the
Issuer, to reject any offer to purchase Securities received by it, in whole or
in part, and any such rejection shall not be deemed a breach of its agreement
contained herein.
No Security which the Issuer has agreed to sell pursuant to this
Agreement shall be deemed to have been purchased and paid for, or sold by the
Issuer, until such Security shall have been delivered to the purchaser thereof
against payment by such purchaser.
At the time of delivery of, and payment for, any Securities sold by
the Issuer as a result of a solicitation made by, or offer to purchase received
by, an Agent, the Issuer agrees to pay such Agent a commission in accordance
with the schedule set forth in Exhibit A hereto.
Administrative procedures respecting the sale of Securities (the
"Procedures") shall be agreed upon from time to time by you and the Issuer. The
initial Procedures, which are set forth in Exhibit B hereto, shall remain in
effect until changed by agreement among the Issuer and you. Each of you and the
Issuer agree to perform the respective duties and obligations specifically
provided to be performed by them herein and in the Procedures. The Issuer will
furnish to the Trustee a copy of the Procedures as from time to time in effect.
(b) Subject to the terms and conditions stated herein, whenever the
Issuer and any of you determines that the Issuer shall sell Securities directly
to any of you as principal, each such sale of Securities shall be made in
accordance with the terms of this Agreement and a supplemental agreement
relating to such sale. Each such supplemental agreement (which may be oral or
written) is herein referred to as a "Purchase Agreement." Each Purchase
Agreement shall describe the Securities to be purchased by the Purchaser
pursuant thereto and shall specify the aggregate principal amount of such
Securities, the price to be paid to the Issuer for such Securities, the maturity
date of such Securities, the rate at which interest will be paid on such
-4-
<PAGE>
Securities, the dates on which interest will be paid on such Securities and the
record date with respect to each such payment of interest, the delivery of the
Securities and payment therefor, the method of payment and any requirements for
the delivery of opinions of counsel, certificates from the Issuer or its
officers or a letter from the Issuers independent public accountants as
described in Section 6(b), (c) and (d). Any written Purchase Agreement may be
in the form attached hereto as Exhibit C. The Purchaser's commitment to
purchase Securities shall be deemed to have been made on the basis of the
representations and warranties of the Issuer herein contained and shall be
subject to the terms and conditions herein set forth.
The Issuer agrees that during the period, if any, specified (whether
orally or in writing) in any Purchase Agreement, it will not offer or sell, or
enter into any agreement to sell, any debt securities of the Issuer in the
United States, other than sales of Securities, borrowings under the Issuer's
revolving credit agreements and lines of credit, the private placement of
securities and issuance of the Issuer's commercial paper.
Delivery of the certificates for Securities sold to the Purchaser
pursuant to a Purchase Agreement shall be made not later than the closing date
agreed to in such Purchase Agreement, against payment of funds to the Issuer in
the net amount due to the Issuer for such Securities by the method and in the
form set forth in the Procedures unless otherwise agreed to between the Issuer
and the Purchaser in such Purchase Agreement.
Unless otherwise agreed to between the Issuer and the Purchaser in a
Purchase Agreement, any Security sold to a Purchaser (i) shall be purchased by
such Purchaser at a price equal to 100% of the principal amount thereof less a
percentage equal to the commission applicable to an agency sale of a Security of
identical maturity and (ii) may be resold by such Purchaser at varying prices
from time to time or, if set forth in the applicable Purchase Agreement and
Pricing Supplement, at a fixed public offering price. In connection with any
resale of Securities purchased, a Purchaser may use a selling or dealing group
and may reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
(c) The documents required to be delivered by Section 5 hereof shall
be delivered at the office of Ropes & Gray, One International Place, Boston,
Massachusetts, not later than 10:00 A.M., New York City time, on the date of
this Agreement or at such later time as may be mutually agreed by the Issuer and
you, which in no event shall be later than the time at which you commence
solicitation of purchases of Securities hereunder, such time and date being
herein called the "Closing Date".
4. Certain Agreements of the Issuer. The Issuer agrees with you that
it will furnish to Sullivan & Cromwell, counsel for you,
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one signed copy of the Registration Statement, including all exhibits, in the
form it became effective and of all amendments thereto and that, in connection
with each offering of Securities,
(a) If the Issuer proposes to amend or supplement the Registration
Statement or the Prospectus at a Marketing Time (as defined in paragraph
(b) below), the Issuer will afford each of you a reasonable opportunity to
comment on any such proposed amendment or supplement (other than any
Pricing Supplement that relates to Securities not purchased through or by
such of you); and if such proposed amendment or supplement does not occur
at a Marketing Time, the Issuer will provide copies of any such amendment
or supplement to the Registration Statement or the Prospectus to you
promptly after such amendment or supplement is filed with the Commission;
and the Issuer will also advise each of you of the institution by the
Commission of any stop order proceedings in respect of the Registration
Statement or of any part thereof and will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(b) If, at any time when (i) a prospectus relating to the Securities
is required to be delivered under the Act and (ii) no suspension of
solicitation of offers to purchase Securities pursuant to Section 3(a) or
this Section 4(b) shall be in effect (any such time referred to in this
clause (ii) and any time when any of you shall own any Securities with the
intention of reselling them or the Issuer has accepted an offer to purchase
Securities but the related settlement has not occurred being referred to
herein as a "Marketing Time"), any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or
if it is necessary at any time to amend the Prospectus to comply with the
Act, the Issuer will promptly notify each of you to suspend solicitation of
offers to purchase the Securities; and if the Issuer shall decide to amend
or supplement the Registration Statement or the Prospectus, it will
promptly advise each of you by telephone (with confirmation in writing)
and, subject to the provisions of subsection (a) of this Section, will
promptly prepare and file with the Commission an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Notwithstanding the foregoing, if, at the time any
such event occurs or it becomes necessary to amend the Prospectus to comply
with the Act, any of you shall own any of the Securities with the intention
of reselling them, or the Issuer has accepted an offer to purchase
Securities but the related settlement has not occurred, the Issuer, subject
to the provisions of subsection (a) of this Section, will promptly
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prepare and file with the Commission an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the consent by any of you to nor the delivery of any
such amendment or supplement referred to in this subsection shall
constitute a waiver of any of the conditions set forth in Section 5 hereof
or of any of the Issuer's obligations set forth in Section 6 hereof.
(c) The Issuer will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 ("Exchange Act"). In addition, on or prior
to the date on which the Issuer makes any announcement to the general
public concerning earnings or concerning any other event which is required
to be described, or which the Issuer proposes to describe, in a document
filed pursuant to the Exchange Act, the Issuer will furnish the information
contained or to be contained in such announcement to each of you, confirmed
in writing and, subject to the provisions of subsections (a) and (b) of
this Section, will cause the Prospectus to be amended or supplemented to
reflect the information contained in such announcement. The Issuer also
will furnish each of you with copies of all press releases or announcements
to the general public. The Issuer will immediately notify each of you of
any downgrading in the rating of any debt securities of the Issuer or any
proposal to downgrade the rating of any debt securities of the Issuer by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Issuer (other than an announcement with positive
implications of a possible upgrading and no implication of a possible
downgrading, of such rating), as soon as the Issuer learns of such
downgrading or proposal to downgrade or public announcement.
(d) As soon as practicable, but no later than 16 months after the
date of each acceptance by the Issuer of an offer to purchase Securities
hereunder, the Issuer will make generally available to its securityholders
an earnings statement covering a period of at least 12 months beginning
after the later of (i) the effective date of the registration statement
relating to the Registered Securities, (ii) the effective date of the most
recent post-effective amendment to the Registration Statement to become
effective prior to the date of such acceptance and (iii) the date of the
Issuer's most recent Annual Report on Form 10-K filed with the Commission
prior to the date of such acceptance, which will satisfy the provisions of
Section 11(a) of the Act.
(e) The Issuer will furnish to each of you copies of the Registration
Statement, including all exhibits, any related preliminary prospectus, any
related preliminary prospectus
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supplement, the Prospectus and all amendments and supplements to such
documents (including any Pricing Supplement), in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Issuer will arrange for the qualification of the Securities
for sale and the determination of their eligibility for investment under
the laws of such jurisdictions as you designate and will continue such
qualifications in effect so long as required for the distribution, provided
that the Issuer shall not be required for this purpose to qualify to do
business or consent to service of process in any jurisdiction otherwise
than in connection with the offer and sale of the Securities.
(g) So long as any Securities are outstanding, the Issuer will furnish
to you, (i) as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year, (ii) as soon as
available, a copy of each report or definitive proxy statement of the
Issuer filed with the Commission under the Exchange Act or mailed to
stockholders, and (iii) from time to time, such other information
concerning the Issuer as you may reasonably request.
(h) The Issuer will pay all expenses incident to the performance of
its obligations under this Agreement and will reimburse each of you for any
expenses (including fees and disbursements of counsel) incurred by such of
you in connection with qualification of the Securities for sale and
determination of their eligibility for investment under the laws of such
jurisdictions as such of you may designate and the printing of memoranda
relating thereto, for any fees charged by investment rating agencies for
the rating of the Securities, for any filing fee of the National
Association of Securities Dealers, Inc. relating to the Securities, for
expenses incurred by each of you in distributing the Prospectus and all
supplements thereto, any preliminary prospectuses and any preliminary
prospectus supplements to such of you, for costs incurred by each of you in
advertising any offering of Securities and for each of your reasonable
expenses (including the reasonable fees and disbursements of counsel to
you) incurred in connection with the establishment or maintenance of the
program contemplated by this Agreement or otherwise in connection with the
activities of you under this Agreement.
5. Conditions of Obligations. The obligation of each of you under
this Agreement at any time to solicit offers to purchase the Securities is
subject to the accuracy, on the date hereof, on each Representation Date and on
the date of each such solicitation, of the representations and warranties of the
Issuer herein, to the accuracy, on each such date, of the statements of the
Issuer's officers made pursuant to the provisions hereof, to the performance, on
or prior to each such
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<PAGE>
date, by the Issuer of its obligations hereunder, and to each of the following
additional conditions precedent:
(a) The Prospectus, as amended or supplemented as of any
Representation Date or the date of such solicitation, as the case may be,
shall have been filed with the Commission in accordance with the Rules and
Regulations and no stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Issuer or any of you, shall be contemplated by the
Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended
or supplemented as of any Representation Date or date of such solicitation,
as the case may be, shall contain any untrue statement of fact which, in
the opinion of any of you, is material or omits to state a fact which, in
the opinion of any of you, is material and is required to be stated therein
or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any change, or any development
involving a prospective change, in or affecting particularly the business
or properties of the Issuer or its subsidiaries which, in the judgment of
such of you, materially impairs the investment quality of the Securities;
(ii) any downgrading in the rating of any debt securities of the Issuer by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any debt
securities of the Issuer (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of trading
in securities generally on the New York Stock Exchange, or any setting of
minimum prices for trading on such exchange, or any suspension of trading
of any securities of the Issuer on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if,
in the judgment of such of you, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with solicitations of purchases of, or sales of,
Securities.
(d) At the Closing Date, you shall have received an opinion, dated the
Closing Date, of Ropes & Gray, counsel for the Issuer, to the effect that:
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(i) The Issuer is a corporation duly organized and validly
existing under the laws of The Commonwealth of Massachusetts, with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by the Issuer and has been duly qualified under the Trust
Indenture Act and constitutes a valid and legally binding obligation
of the Issuer enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iii) The Agreement of Resignation and Appointment has been
duly authorized, executed and delivered by the Issuer and has been
duly qualified under the Trust Indenture Act and constitutes a valid
and legally binding obligation of the Issuer enforceable in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles;
(iv) Any series of Securities established on or prior to
date of such opinion has been duly authorized and established in
conformity with the Indenture, and, when the terms of a particular
Security and of its issuance and sale have been duly authorized and
established by all necessary corporate action in conformity with the
Indenture, and such Security has been duly completed, executed,
authenticated and issued in accordance with the Indenture and
delivered against payment as contemplated by this Agreement, such
Security will constitute a valid and legally binding obligation of the
Issuer enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles, it being
understood that such counsel may (A) assume that at the time of the
issuance, sale and delivery of each Security the authorization of such
series will not have been modified or rescinded and there will not
have occurred any change in law affecting the validity, legally
binding character or enforceability of such Security and (B) assume
that neither the issuance, sale and delivery of any Security, nor any
of the terms of such Security, nor compliance by the Issuer with such
terms, will violate any applicable law, any agreement or instrument
then binding upon the Issuer or any
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<PAGE>
restriction imposed by any court or governmental body having
jurisdiction over the Issuer;
(v) The Registration Statement has become effective under
the Act, the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) under the Act specified in such opinion on
the date specified therein, and, to the best of the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and the registration statement relating to
the Registered Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the Closing Date, and any
amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel has no
reason to believe that such registration statement as of its effective
date, the Registration Statement or the Prospectus, as of the Closing
Date, or any such amendment or supplement, as of its date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; and such counsel do not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in the
Registration Statement or the Prospectus or as to any statements in or
omissions from any such documents made in reliance upon and conformity
with written information furnished to the Issuer by any Agent
specifically for use therein, or as to any statements in or omissions
from that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee under the Indenture;
(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any court is required
for the consummation of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Securities
by the Issuer, except such as have been obtained and made under the
Act and the Trust Indenture Act and such as may be required under
state
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<PAGE>
securities laws and Chapter 164 of the Massachusetts General Laws;
(vii) The execution, delivery and performance of the
Indenture, the Agreement of Resignation and Appointment, this
Agreement and the issuance and sale of the Securities, and compliance
with the terms and provisions thereof, will not result in, to the best
of our knowledge, a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over the Issuer or any such subsidiary or any of
their properties or any agreement or instrument to which the Issuer or
any such subsidiary is a party or by which the Issuer or any such
subsidiary is bound or to which any of the properties of the Issuer or
any such subsidiary are subject, or the Restated Articles of
Organization or By-laws of the Issuer or any such subsidiary and the
Issuer has full power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement; and
(viii) This Agreement has been duly authorized, executed
and delivered by the Issuer.
(e) You shall have received an opinion from J.L. Miller, General
Counsel of the Issuer, dated the Closing Date, to the effect that:
(i) The descriptions in the Registration Statement and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel does not know of
any legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as required;
it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in the
Registration Statement or the Prospectus or as to any statements in or
omissions from any such documents made in reliance upon and conformity
with written information furnished to the Issuer by any Agent
specifically for use therein, or as to any statements in or omissions
from that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee under the Indenture;
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(ii) The Massachusetts Department of Public Utilities (the
"Department") has jurisdiction to approve the proposed issuance of the
Securities by the Issuer, the rate or rates at which the Securities
shall bear interest and the sale of the Securities pursuant to
negotiated agency and purchase agreements without prior public
invitation of proposals for the purchase thereof;
(iii) The Department has duly approved the issue of the
Securities and has granted an exemption from the provisions of
Sections 15 and 15A of Chapter 164 of the General Laws of
Massachusetts to the extent necessary to authorize the sale of the
Securities at less than or equal to the face amount thereof and
pursuant to negotiated agency and purchase agreements, without prior
invitation of proposals for the purchase thereof;
(iv) The decision of the Department approving the issuance
and sale of the Securities is in full force and effect, and no suit,
action or proceeding is pending or, to the knowledge of such counsel,
threatened in which an appeal from said decision is being sought; and
(v) The statements of law and legal conclusions with respect
to regulation by the Department and the description of the franchises,
grants of location, permits and licenses under the caption "Business"
incorporated by reference in the Registration Statement have been
reviewed by such counsel and are correct.
(f) At the Closing Date, you shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Issuer in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that (i) the representations and warranties of the Issuer in this Agreement
are true and correct, (ii) the Issuer has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, (iii) no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission, and (iv) subsequent to the date of the most
recent financial statements in the Prospectus, there has been no material
adverse change in the financial position or results of operations of the
Issuer and its subsidiaries, except as set forth in or contemplated by the
Prospectus or as described in such certificate.
(g) At the Closing Date, you shall have received a letter, dated the
Closing Date, of Arthur Andersen LLP confirming that
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they are independent public accountants within the meaning of the Act and
the applicable published Rules and Regulations thereunder and stating in
effect that:
(i) In their opinion, the financial statements and
schedules examined by them and included in the prospectus contained in
the Registration Statement comply in form in all material respects
with the applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) They have made a review of the unaudited financial
statements included in the Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants,
as indicated in their report or reports attached to such letter;
(iii) On the basis of the review referred to in (ii) above
and a reading of the latest available interim financial statements of
the Issuer, inquiries of officials of the Issuer who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) the unaudited financial statements, if any, included
in the Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the Act
and the related published Rules and Regulations or are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included in the Prospectus;
(B) the unaudited capsule information, if any, included in
the Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially
consistent with that of the audited financial statements
included in the Prospectus;
(C) at the date of the latest available consolidated
balance sheet read by such accountants, or at a subsequent
specified date not more than five days prior to the Closing
Date, there was any change in the capital stock, any increase
in short-term indebtedness or long-term debt of the Issuer or,
at the date of the latest available consolidated balance sheet
read by such accountants, there was any decrease in net current
assets or stockholder's investment as
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compared with amounts shown on the latest consolidated balance
sheet included in the Prospectus; or
(D) for the period from the date of the latest
consolidated income statement included in the Prospectus to the
closing date of the latest available income statement read by
such accountants, there were any decreases, as compared with
the corresponding period of the previous year, in operating
revenues, operating income, net income, or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Prospectus (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Issuer and its
subsidiaries subject to the internal controls of the Issuer's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included in
the Prospectus for purposes of this subsection.
(h) You shall have received from Sullivan & Cromwell, counsel for
you, such opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Issuer, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as they
may require, and the Issuer shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters. In rendering such opinion, Sullivan & Cromwell may rely as
to the incorporation of the Issuer and all other matters governed by
Massachusetts law upon the opinions of Ropes & Gray and J.L. Miller
referred to above.
The Issuer will furnish you with such conformed copies of such
opinions, certificates, letters and documents as they reasonably request.
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6. Additional Covenants of the Issuer. The Issuer agrees that:
(a) Each acceptance by the Issuer of an offer for the purchase of
Securities shall be deemed to be an affirmation that its representations
and warranties contained in this Agreement are true and correct at the time
of such acceptance and a covenant that such representations and warranties
will be true and correct at the time of delivery to the purchaser of the
Securities relating to such acceptance as though made at and as of each
such time, it being understood that such representations and warranties
shall relate to the Registration Statement and the Prospectus as amended or
supplemented at each such time. Each such acceptance by the Issuer of an
offer for the purchase of Securities shall be deemed to constitute an
additional representation, warranty and agreement by the Issuer that, as of
the date of delivery of such Securities to the Purchaser thereof, after
giving effect to the issuance of such Securities, of any other Securities
to be issued on or prior to such delivery date and of any other Registered
Securities to be issued and sold by the Issuer on or prior to such date,
the aggregate amount of Registered Securities (including any Securities)
which have been issued and sold by the Issuer will not exceed the amount of
Registered Securities registered pursuant to the Registration Statement.
(b) Each time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), the Issuer
shall, (A) concurrently with such amendment or supplement, if such
amendment or supplement shall occur at a Marketing Time, or (B) immediately
at the next Marketing Time if such amendment or supplement shall not occur
at a Marketing Time, furnish you with a certificate, dated the date of
delivery thereof, which date is referred to herein as the "Representation
Date", of the President or any Vice President and a principal financial or
accounting officer of the Issuer, in form satisfactory to you, to the
effect that the statements contained in the certificate covering the
matters set forth in Section 5(f) hereof which was last furnished to you
pursuant to this Section 6(b) are true and correct at the time of such
amendment or supplement, as though made at and as of such time, or, in lieu
of such certificate, a certificate of the same tenor as the certificate
referred to in Section 5(f); provided, however, that any certificate
furnished under this Section 6(b) shall relate to the Registration
Statement and the Prospectus as amended or supplemented at the time of
delivery of such certificate and, in the case of the matters set forth in
clause (ii) of Section 5(f), to the time of delivery of such certificate.
(c) At each Representation Date referred to in Section 6(b), the
Issuer shall (A) concurrently if such Representation Date shall occur at a
Marketing Time, or
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(B) immediately at the next Marketing Time if such Representation Date
shall not occur at a Marketing Time, furnish you with written opinions,
dated the date of such Representation Date, of counsel for the Issuer, in
form satisfactory to you, to the effect set forth in Sections 5(d) and 5(e)
hereof; provided, however, that to the extent appropriate such opinions may
reconfirm matters set forth in prior opinions delivered under Sections 5(d)
and 5(e) or this Section 6(c); provided, further, however, that any opinion
or opinions furnished under this Section 6(c) shall relate to the
Registration Statement and the Prospectus as amended or supplemented at
such Representation Date and, in the case of an opinion reconfirming a
prior opinion delivered under Section 5(d) hereof, shall state that the
Securities sold in the relevant Applicable Period (as defined below) have
been duly executed, authenticated, issued, delivered and constitute valid
and legally binding obligations of the Issuer enforceable in accordance
with their terms, subject only to the exceptions as to enforcement set
forth in clause (iii) of Section 5(d) hereof as to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and general equity
principles, and conform to the description thereof contained in the
Prospectus as amended or supplemented at the relevant date or dates for the
delivery of such Securities to the purchaser or purchasers thereof. For
the purpose of this Section 6(c), "Applicable Period" shall mean with
respect to any opinions delivered on a Representation Date the period
commencing on the date of the most recent prior opinion delivered under
Sections 5(d) and 5(e) or this Section 6(c) and ending on such
Representation Date.
(d) At each Representation Date referred to in Section 6(b) on which
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information, the Issuer shall
cause Arthur Andersen LLP (A) concurrently if such Representation Date
shall occur at a Marketing Time, or (B) immediately at the next Marketing
Time if such Representation Date shall not occur at a Marketing Time, to
furnish you with a letter, addressed jointly to the Issuer and you and
dated the date of such Representation Date, in form and substance
satisfactory to you, to the effect set forth in Section 5(g) hereof;
provided, however, that to the extent appropriate such letter may reconfirm
matters set forth in a prior letter delivered pursuant to Section 5(g) or
this Section 6(d); provided, further, however, that any letter furnished
under this Section 6(d) shall relate to the Registration Statement and the
Prospectus as amended or supplemented at such Representation Date, with
such changes as may be necessary to reflect changes in the financial
statements and other information derived from the accounting records of the
Issuer.
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(e) On each date for the delivery of Securities to the purchaser
thereof, the Issuer shall, if requested by any of you that solicited or
received the offer to purchase any Securities being delivered on such date,
furnish such of you with written opinions of counsel for the Issuer, dated
the date of delivery thereof, in form satisfactory to such of you, to the
effect set forth in clauses (i), (ii) and (iii) of Section 5(d) hereof and
clauses (i), (ii), (iii) and (iv) of 5(e) hereof; provided, however, that
any opinion furnished under this Section 6(e) shall relate to the
Prospectus as amended or supplemented at such delivery date and, in the
case of an opinion to the effect set forth in clause (iii) of Section 5(d)
hereof, shall state that the Securities being sold by the Issuer on such
delivery date, when delivered against payment therefor as contemplated by
this Agreement, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations of the
Issuer enforceable in accordance with their terms, subject only to the
exceptions as to enforcement set forth in clause (iii) of Section 5(d)
hereof as to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and general equity principles, and will conform
to the description thereof contained in the Prospectus as amended or
supplemented at such date.
(f) The Issuer agrees that any obligation of a person who has agreed
to purchase Securities (including, but not limited to, any of you
purchasing any Securities as principal pursuant to a Purchase Agreement) to
make payment for and take delivery of such Securities shall be subject to
(i) the accuracy, on the related delivery date fixed pursuant to the
Procedures, of the Issuer's representation and warranty deemed to be made
to you pursuant to the last sentence of subsection (a) of this Section 6,
and (ii) the satisfaction, on such date, of each of the conditions set
forth in Sections 5(a), (b) and (c), it being understood that under no
circumstances shall any of you have any duty or obligation to exercise the
judgment permitted under Section 5(b) or (c) on behalf of any such person.
7. Indemnification and Contribution.
(a) The Issuer will indemnify and hold harmless each of you against
any losses, claims, damages or liabilities, joint or several, to which such of
you may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
-18-
<PAGE>
statements therein not misleading, and will reimburse each of you for any legal
or other expenses reasonably incurred by such of you in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Issuer will not be
liable to such of you in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any of such
documents in reliance upon and in conformity with written information furnished
to the Issuer by such of you specifically for use therein, unless such loss,
claim, damage or liability arises out of the offer or sale of Securities
occurring after you have notified the Issuer in writing that such information
should no longer be used therein.
(b) Each of you will indemnify and hold harmless the Issuer against
any losses, claims, damages or liabilities to which the Issuer may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Issuer by such of you
specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by the Issuer in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
unless such loss, claim, damage or liability arises out of the offer or sale of
Securities occurring after you have notified the Issuer in writing that such
information should no longer be used therein.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to
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<PAGE>
such indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer on the one hand and any of you on the other from the offering
pursuant to this Agreement of the Securities which are the subject of the action
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Issuer on the one hand and any of you on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Issuer on the one hand and any of you on the
other shall be deemed to be in the same proportions as the total net proceeds
from the offering pursuant to this Agreement of the Securities which are the
subject of the action (before deducting expenses) received by the Issuer bear to
the total commissions received by such of you from the offering of such
Securities pursuant to this Agreement. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Issuer or such of you and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), you shall not be required to contribute any amount in excess of
the amount by which the total price at which the Securities which are the
subject of the action and which were distributed to the public through it
pursuant to this Agreement or upon resale of Securities purchased by it from the
Issuer exceeds the amount of any damages which such of you has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of you in this subsection (d) to contribute are several, in
the same proportion which the amount of the Securities which
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<PAGE>
are the subject of the action and which were distributed to the public through
such of you pursuant to this Agreement bears to the total amount of such
Securities distributed to the public through each of you pursuant to this
Agreement, and not joint.
(e) The obligations of the Issuer under this Section 7 shall be in
addition to any liability which the Issuer may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls each of
you within the meaning of the Act; and the obligations of each of you under this
Section 7 shall be in addition to any liability which each of you may otherwise
have and shall extend, upon the same terms and conditions, to each director of
the Issuer, to each officer of the Issuer who has signed the Registration
Statement and to each person, if any, who controls the Issuer within the meaning
of the Act.
8. Status of Each of You. In soliciting offers to purchase the
Securities from the Issuer pursuant to this Agreement and in assuming its other
obligations hereunder (other than offers to purchase pursuant to Section 3(b)),
each of you is acting individually and not jointly and is acting solely as agent
for the Issuer and not as principal. Each of you will make reasonable efforts
to assist the Issuer in obtaining performance by each purchaser whose offer to
purchase Securities from the Issuer has been solicited by such of you and
accepted by the Issuer, but such of you shall have no liability to the Issuer in
the event any such purchase is not consummated for any reason. If the Issuer
shall default on its obligations to deliver Securities to a purchaser whose
offer it has accepted, the Issuer (i) shall hold you harmless against any loss,
claim or damage arising from or as a result of such default by the Issuer, and
(ii) in particular, shall pay to you any commission to which they would be
entitled in connection with such sale.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Issuer or its officers and of you set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any of you, the Issuer or any of their respective representatives, officers
or directors or any controlling person and will survive delivery of and payment
for the Securities. If this Agreement is terminated pursuant to Section 10 or
for any other reason, the Issuer shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 4(h) and the obligations of the
Issuer under Sections 4(d) and 4(g) and the respective obligations of the Issuer
and you pursuant to Section 7 shall remain in effect. In addition, if any such
termination shall occur either (i) at a time when any of you shall own any of
the Securities with the intention of reselling them or (ii) after the Issuer has
accepted an offer to purchase Securities and prior to the related settlement,
the obligations of the Issuer under the last sentence of Section 4(b), under
Sections 4(a),
-21-
<PAGE>
4(c), 4(e) and 4(f) and, in the case of a termination occurring as described in
(ii) above, under Sections 3(a), 6(a), 6(e) and 6(f) under the last sentence of
Section 8, shall also remain in effect.
10. Termination. This Agreement may be terminated for any reason at
any time by the Issuer as to any of you or, in the case of any of you, by such
of you insofar as this Agreement relates to such of you, upon the giving of one
day's written notice of such termination to the other parties hereto. Any
settlement with respect to Securities placed by any of you occurring after
termination of this Agreement shall be made in accordance with the Procedures
and each of you agrees, if requested by the Issuer, to take the steps therein
provided to be taken by such of you in connection with such settlement.
11. Notices. Except as otherwise provided herein, all notices and
other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to Salomon Brothers Inc shall be directed to it at
Seven World Trade Center, 31st Floor, New York, New York 10048, Attention:
Medium-Term Notes; notices to Donaldson, Lufkin & Jenrette Securities
Corporation shall be directed to it at 140 Broadway, New York, New York 10005,
Attention: Carlos Sanchez; notices to J.P. Morgan Securities Inc. shall be
directed to it at 60 Wall Street, New York, New York 10260, Attention: Medium-
Term Trading Desk; and notices to the Issuer shall be directed to it at One
Beacon Street, Boston, Massachusetts 02108, Attention: Treasurer and to Eastern
Enterprises, 9 Riverside Road, Weston, Massachusetts 02193, Attention:
Treasurer; or in the case of any party hereto, to such other address or person
as such party shall specify to each other party by a notice given in accordance
with the provisions of this Section 11. Any such notice shall take effect at
the time of receipt.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, their respective successors, the officers and
directors and controlling persons referred to in Section 7 and, to the extent
provided in Section 6(f), any person who has agreed to purchase Securities from
the Issuer, and no other person will have any right or obligation hereunder.
13. Governing Law; Counterparts. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such executed counterparts shall together
constitute one and the same Agreement.
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<PAGE>
If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
BOSTON GAS COMPANY
By:_____________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
SALOMON BROTHERS INC
By:__________________________
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:__________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By:__________________________
Name:
Title:
-23-
<PAGE>
EXHIBIT A
The Issuer agrees to pay each of you a commission equal to the
following percentage of the principal amount of Securities sold to purchasers
solicited by such of you:
<TABLE>
<CAPTION>
Commission Rate
(as a percentage of
Term principal amount)
---- -------------------
<S> <C>
9 months to less than 12 months .125%
12 months to less than 18 months .150
18 months to less than 24 months .200
24 months to less than 30 months .250
30 months to less than 3 years .300
3 years to less than 4 years .350
4 years to less than 5 years .450
5 years to less than 7 years .500
7 years to less than 10 years .550
10 years to less than 20 years .600
20 years to less than 30 years .725
30 years .750
Greater than 30 years Negotiated at
time of sale
</TABLE>
<PAGE>
EXHIBIT B
ADMINISTRATIVE PROCEDURES
-------------------------
The Medium-Term Notes (the "Notes") are to be offered on a continuing
basis by Boston Gas Company (the "Issuer"). Salomon Brothers Inc, Donaldson,
Lufkin & Jenrette Securities Corporation and J.P. Morgan Securities Inc., as
agents (individually, an "Agent" and collectively, the "Agents"), have each
agreed to use reasonable efforts to solicit offers to purchase the Notes. None
of the Agents will be obligated to purchase Notes for its own account. The
Notes are being sold pursuant to an Agency Agreement, dated July __, 1995 (the
"Agency Agreement"), among the Issuer and the Agents, and will be issued
pursuant to the Indenture referred to in the Agency Agreement (the "Indenture"),
between the Issuer and The First National Bank of Boston, as trustee (the
"Trustee"). The Notes will rank equally and ratably with all other unsecured
and unsubordinated indebtedness of the Issuer and will have been registered with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended. For a description of the terms of the Notes and the
offering and sale thereof, see the sections entitled "Description of Notes" and
"Plan of Distribution of Notes" in the Prospectus Supplement relating to the
Notes, dated July __, 1995, attached hereto and hereinafter referred to as the
"Prospectus Supplement", and the sections entitled "Description of Debt
Securities" and "Plan of Distribution" in the Prospectus relating to the Notes,
dated June __, 1995, attached hereto and hereinafter referred to as the
"Prospectus".
The Notes will be represented by either book-entry notes delivered to
The Depository Trust Company ("DTC") or its nominee and recorded in the book-
entry system maintained by DTC ("Book-Entry Notes") or by certificates delivered
to the Holders thereof or a Persons designated by such Holders ("Certificated
Notes"). Owners of Book-Entry Notes will not be entitled to receive a
certificate representing such Notes.
Administrative procedures and specific terms of the offering are
explained below -- Part I indicating specific procedures for Certificated Notes,
Part II indicating specific procedures for Book-Entry Notes, and Part III
indicating procedures applicable to all Notes. Administrative and record
keeping responsibilities will be handled for the Issuer by its Treasury
Department. The Issuer will advise the Agents in writing of those persons
handling administrative responsibilities with whom the Agents are to communicate
regarding offers to purchase Notes and the details of their delivery.
Unless otherwise defined herein, terms defined in the Indenture (or
any applicable Board Resolution referred to therein related to the Notes) shall
be used herein as therein defined.
<PAGE>
PART I: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
- ---------------------------------------------------------
Issue Date
- ----------
Each Certificated Note will be dated the date of its authentication.
Each Certificated Note will also bear an original issue date (the "Issue Date")
which, with respect to any such Note (or portion thereof), shall mean the date
of its original issuance and shall be specified therein. The Issue Date will
remain the same for all Notes subsequently issued upon transfer, exchange or
substitution of a Certificated Note, regardless of their dates of
authentication.
Price to Public; Denominations; Registration
- --------------------------------------------
Except as otherwise specified in a Pricing Supplement, each
Certificated Note will be issued at 100% of principal amount. The
denominations of the Certificated Notes will be $1,000 and any larger
denomination which is an integral multiple of $1,000 (unless otherwise specified
in a Pricing Supplement). Certificated Notes will be issued only in fully
registered form.
Interest Payments
- -----------------
Each Certificated Note will bear interest from the later of its Issue
Date or the most recent interest payment date to which interest has been paid at
the annual rate stated on the face thereof, payable on the Interest Payment
Dates (described below) and at Maturity, except as may otherwise be provided in
such Note. Interest will be payable to the person in whose name the
Certificated Note is registered at the close of business on the Regular Record
Date (described below) next preceding the Interest Payment Date; provided,
however, that interest payable at Maturity or redemption will be payable to the
person to whom principal shall be payable. All interest payments (excluding
interest payments made at Maturity or redemption) will be made by check mailed
to the person entitled thereto as provided above, except that interest payments
may be made by wire transfer to the person entitled thereto as provided above if
arrangements satisfactory to the Issuer, the Trustee and such person have been
made.
On the fifth Business Day (as hereinafter defined) immediately
preceding each Interest Payment Date, the Trustee will furnish the Issuer with
the total amount of the interest payments to be made on such Interest Payment
Date. The Trustee will provide monthly to the Issuer's Treasury Department a
list of the principal and interest to be paid on Certificated Notes maturing in
the next succeeding month. The Trustee will assume responsibility for
withholding taxes on interest paid as required by law to the extent Holders have
not produced a taxpayer identification number ("TIN").
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<PAGE>
Redemption
- ----------
Each Certificated Note will provide either that it cannot be redeemed
prior to Maturity or that it will be redeemable at the option of the Issuer on
or after a specified date prior to Maturity at prices specified therein.
Payment at Maturity or Redemption
- ---------------------------------
Upon presentation of each Certificated Note at Maturity or redemption,
the Trustee (or a duly authorized Paying Agent) will pay the principal amount
thereof, together with any premium and accrued interest due at Maturity or
redemption. Such payment will be made in immediately available funds, provided
that the Certificated Note is presented in time for the Trustee (or any such
Paying Agent) to make payment in such funds in accordance with its normal
procedures. The Issuer will provide the Trustee (and any such Paying Agent)
with funds available for immediate use for such purpose. Certificated Notes
presented at Maturity or redemption will be cancelled by the Trustee as provided
in the Indenture.
Determination of Settlement Date
- --------------------------------
The receipt of immediately available funds by the Issuer in payment
for a Certificated Note and the authentication and issuance of such Note shall,
with respect to such Note, constitute "settlement." All offers accepted by the
Issuer will be settled on the third Business Day next succeeding the date of
acceptance unless otherwise agreed by any purchaser and the Issuer. The
settlement date shall be specified upon acceptance of an offer. Prior to 11:00
a.m., New York City time, on the settlement date, the Issuer will instruct the
Trustee to authenticate and deliver the Certificated Notes no later than 2:15
p.m., New York City time, on that date.
Details for Settlement
- ----------------------
For each offer for Certificated Notes accepted by the Issuer, the
Agent who presented such offer (the "Presenting Agent") will communicate to the
Issuer's Treasury Department and the Trustee, prior to 3:00 p.m., New York City
time, on the Business Day preceding the settlement date, by facsimile
transmission or other acceptable means, the following information (the "Purchase
Information"):
1. Exact name in which the Certificated Note or Notes are to be
registered ("registered owner").
2. Exact address of registered owner and, if different, the address for
delivery, notices and payment of principal, premium and interest.
3. TIN of registered owner.
<PAGE>
4. Principal amount of each Certificated Note in authorized denominations
to be delivered to the registered owner.
5. In the case of Fixed Rate notes, the interest rate of each such Note;
in the case of Floating Rate Notes, the interest rate formula, the
spread or spread multiplier (if any), the maximum or minimum interest
rate limitation (if any), the calculation agent, the calculation
dates, the initial interest rate, the interest payment dates, the
regular record dates, the index maturity, the interest determination
dates and the interest reset dates, in each case, to the extent
applicable with respect to each Note.
6. Stated Maturity of each Certificated Note.
7. Redemption provisions, if any, of each Certificated Note.
8. If an Original Issue Discount Note, the yield to Maturity and the
initial accrual period of original issue discount.
9. Issue Date of each Certificated Note.
10. Settlement date for each Certificated Note.
11. Presenting Agent's Commission (to be paid in the form of a discount
from the proceeds remitted to the Issuer upon settlement).
12. Delivery address for each Certificated Note.
13. Trade date of each Certificated Note.
14. Price.
15. Any additional applicable terms of each Certificated Note.
The Issue Date of, and the settlement date for, Certificated Notes
will be the same. Before accepting any offer to purchase Certificated Notes to
be settled in less than three Business Days, the Issuer will verify that the
Trustee will have adequate time to prepare and authenticate the Certificated
Notes.
Immediately after receiving the details for each offer from the
Presenting Agent, the Issuer will, after recording the details and any necessary
calculations, communicate the Purchase Information by telephone, facsimile
transmission or other acceptable means, to the Trustee. Prior to preparing the
Notes for delivery, the Trustee will confirm the Purchase Information by
telephone with the Issuer. The Trustee will assign to and enter on each
Certificated Note a transaction number.
<PAGE>
Confirmation
- ------------
For each accepted offer, the Presenting Agent will issue a
confirmation to the purchaser, with a copy to the Issuer's Treasury Department,
setting forth the Purchase Information and delivery and payment instructions;
provided, however, that, in the case of the confirmation issued to the
purchaser, no confirmation shall be delivered to the purchaser prior to the
delivery of the Prospectus referred to in Part III.
Settlement; Note Deliveries and Cash Payment
- --------------------------------------------
The Issuer will deliver to the Trustee at the commencement of the
program and from time to time thereafter a supply of duly executed Certificated
Notes with pre-printed serial numbers adequate to implement the program. All
such Certificated Notes will be identical except as to denomination. Upon the
receipt of appropriate documentation and instructions from the Issuer in
accordance with the applicable Company Order and verification thereof, the
Trustee will cause the Certificated Notes to be completed and authenticated and
hold the Certificated Notes for delivery against payment.
The Trustee will deliver the Certificated Notes in accordance with
instructions from the Issuer, to the Presenting Agent, as the Issuer's agent,
for the benefit of the purchaser only against receipt. The Presenting Agent
will acknowledge receipt of the Certificated Notes through a broker's receipt.
Delivery of the Certificated Notes by the Trustee will be made only against such
acknowledgement of receipt from the Presenting Agent. Upon the Presenting
Agent's determination that such Certificated Note has been authenticated,
delivered and completed as aforesaid, the Presenting Agent will make, or cause
to be made, payment to the Issuer at such account of the Issuer as it may
specify in writing, in immediately available funds, of an amount equal to the
principal amount of such Certificated Notes, less the applicable commission. If
the Presenting Agent in any instance advances its own funds, the Issuer shall
not use any of the proceeds of such sale to acquire securities.
The Presenting Agent, as the Issuer's agent, will deliver the
Certificated Notes (with the written confirmation provided for above) to the
purchaser thereof against payment therefor by such purchaser. Delivery of any
confirmation or Certificated Note will be made in compliance with "Delivery of
Prospectus" in Part III.
Fails
- -----
In the event that a purchaser shall fail to accept delivery of and
make payment for a Certificated Note on the settlement date, the Presenting
Agent will notify the Trustee and the Issuer by telephone, confirmed in writing.
If such Certificated Note has been delivered to the Presenting Agent, as the
Issuer's agent, the Presenting Agent will
<PAGE>
return such Certificated Note to the Trustee. If funds have been advanced by
the Presenting Agent for the purchase of such Certificated Note, the Trustee
will, immediately upon receipt of such Certificated Note, debit the account of
the Issuer for the amount so advanced and the Issuer will refund the payment
previously made by the Presenting Agent in immediately available funds. Such
payment will be made on the settlement date, if possible, and in any event not
later than the Business Day following the settlement date. If such fail shall
have occurred for any reason other than the failure of the Presenting Agent to
provide the Purchase Information to the Trustee and the Issuer or to provide a
confirmation to the purchaser, the Issuer will reimburse the Presenting Agent on
an equitable basis for its loss of the use of funds during the period when they
were credited to the account of the Issuer.
Immediately upon receipt of the Certificated Note in respect of which
the fail occurred, the Trustee will cause the Security Registrar to make
appropriate entries to reflect the fact that the Certificated Note was never
issued and the Certificated Note will be cancelled and disposed of as provided
in the Indenture.
PART II: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
- --------------------------------------------------------
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will perform
the custodial, document control and administrative functions described below, in
accordance with its obligations under a Letter of Representation (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC dated as of
April 15, 1991, and its obligations as a participant in DTC, including DTC's
Same-Day Funds Settlement System ("SDFS").
Issuance
- --------
All Book-Entry Notes having the same Issue Date, interest rate, Stated
Maturity and redemption terms, if any, will be represented initially by a single
depository note (a "Global Note") in fully registered form without coupons.
Each Global Note will be dated and issued as of the date of its authentication
by the Trustee. Each Global Note will bear an "Original Issue Date", which will
be (i) with respect to an original Global Note (or any portion thereof), its
Issue Date, and (ii) following a consolidation of Global Notes, the most recent
Interest Payment Date to which interest has been paid or duly provided for on
the predecessor Global Notes, regardless of the date of authentication of such
subsequently issued Global Note. No Global Note will represent any Certificated
Note.
Identification Numbers
- ----------------------
The Issuer has arranged with the CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP Service Bureau") for the
<PAGE>
reservation of a series of CUSIP numbers (including tranche numbers), such
series consisting of approximately 900 CUSIP numbers and relating to Global
Notes representing Book-Entry Notes. The Issuer has obtained from the CUSIP
Service Bureau a written list of such reserved CUSIP numbers and has delivered
it to the Trustee and DTC. The Trustee will assign CUSIP numbers serially to
Global Notes as described below under Settlement Procedure "C". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP numbers that the Trustee has
assigned to Global Notes. The Trustee will notify the Issuer at any time when
fewer than 100 of the reserved CUSIP numbers remain unassigned to Global Notes;
and the Issuer will reserve an additional 900 CUSIP numbers for assignment to
Global Notes representing Book-Entry Notes. Upon obtaining such additional
CUSIP numbers, the Issuer shall deliver a list of such additional CUSIP numbers
to the Trustee and DTC.
Registration
- ------------
Each Global Note will be registered in the name of Cede & Co., as
nominee for DTC, on the Security Register maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one or more indirect participants in
DTC designated by such owner) will designate one or more participants in DTC
(with respect to such Note, the "Participants") to act as agent or agents for
such owner in connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions provided by such
Participants, a credit balance with respect to such Note in the account of such
Participants. The ownership interest of such beneficial owner in such Note will
be recorded through the records of such Participants or through the separate
records of such Participants and one or more indirect participants in DTC.
Transfers
- ---------
Transfers of a Book-Entry Note will be accomplished by book entries
made by DTC and, in turn, by Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of beneficial transferors and
transferees of such Note.
Exchanges
- ---------
The Trustee may deliver to DTC and the CUSIP Service Bureau at any
time a written notice of consolidation (a copy of which shall be attached to the
Global Note resulting from such consolidation) specifying (i) the CUSIP numbers
of two or more outstanding Global Notes that represent Book-Entry Notes having
the same interest rate and Stated Maturity, and for which interest has been paid
to the same date, (ii) a date, occurring at least thirty days after such written
notice is delivered and at least thirty days before the next Interest Payment
Date for such Notes, on which such Global Notes shall be exchanged for a single
replacement Global Note and (iii) a new CUSIP number to be assigned to such
replacement Global Note. Upon receipt of such a
<PAGE>
notice, DTC will send to its Participants (including the Trustee) a written
reorganization notice to the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will deliver to the CUSIP
Service Bureau a written notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange date, the CUSIP numbers of
the Global Notes to be exchanged will no longer be valid. On the specified
exchange date, the Trustee will exchange such Global Notes for a single Global
Note bearing the new CUSIP number and a new Original Issue Date and the CUSIP
numbers of the exchanged Global Notes will, in accordance with CUSIP Service
Bureau procedures, be cancelled and not immediately reassigned.
Redemption
- ----------
The Trustee will comply with the terms of the Letter with regard to
redemptions of the Book-Entry Notes. If a Global Note is to be redeemed in
part, the Trustee will cancel such Global Note and issue a Global Note which
shall represent the remaining portion of such Global Note and shall bear the
CUSIP number of the cancelled Global Note.
Denominations
- -------------
The denominations of the Book-Entry Notes will be $1,000 or any larger
denomination which is an integral multiple of $1,000. Global Notes will be
denominated in principal amounts not in excess of $200,000,000 (unless otherwise
specified in a Pricing Supplement).
Interest
- --------
Each Book-Entry Note will bear interest from the most recent date to
which interest has been paid or made available for payment on the Global Note
representing such Book-Entry Note or, if no interest has been paid or made
available for payment, from the Issue Date of the Global Note representing such
Note, until the principal thereof is paid or made available for payment.
Interest payable at the maturity of a Book-Entry Note will be payable to the
Person to whom the principal of such Note is payable. Standard & Poor's
Corporation will use the information received in the pending deposit message
described under Settlement Procedure "C" to include the amount of any interest
payable and certain other information regarding the related Global Note in the
appropriate daily bond report published by Standard & Poor's Corporation.
<PAGE>
Notice of Interest Payment Dates and Regular Record Dates
- ---------------------------------------------------------
To the extent then known, on the first Business Day of March, June,
September and December of each year, the Trustee will deliver to the Issuer and
DTC a written list of Record Dates and Interest Payment Dates that will occur
with respect to Floating Rate Book-Entry Notes during the six-month period
beginning on such first Business Day.
Payments of Principal and Interest
- ----------------------------------
(a) Payments of Interest Only. Promptly after each Regular Record
Date, the Trustee will deliver to the Issuer and DTC a written notice specifying
by CUSIP number the amount of interest to be paid on each Global Note on the
following Interest Payment Date (other than an Interest Payment Date coinciding
with Maturity) and the total of such amounts. The Issuer will confirm with the
Trustee the amount payable on each Global Note on such Interest Payment Date.
DTC will confirm the amount payable on each Global Note on such Interest Payment
Date by reference to the daily bond reports published by Standard & Poor's
Corporation. The Issuer will pay to the Trustee the total amount of interest
due on such Interest Payment Date (other than at Maturity), and the Trustee will
pay such amount to DTC at the times and in the manner set forth below under
"Manner of Payment". If any Interest Payment Date for a Book-Entry Note is not
a Business Day, the payment due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such payment for the period from
and after such Interest Payment Date.
(b) Payments at Maturity. Promptly after each Record Date for an
issue of Notes, the Trustee will deliver to the Issuer and DTC a written list of
principal and interest to be paid on each Global Note maturing in the following
month. The Issuer, the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each such Global Note on or
about the fifth Business Day preceding the Maturity of such Global Note. The
Issuer will pay to the Trustee, as the paying agent, the principal amount of
such Global Note, together with interest due at such Maturity. Upon surrender
of a Global Note, the Trustee will pay such amounts to DTC at the times and in
the manner set forth below under "Manner of Payment". If any Maturity of a
Global Note representing Book-Entry Notes is not a Business Day, the payment due
on such day shall be made on the next succeeding Business Day and no interest
shall accrue on such payment for the period from and after such Maturity.
Promptly after payment to DTC of the principal and interest due at the Maturity
of such Global Note, the Trustee will cancel such Global Note and return such
Global Note to the Issuer in accordance with the terms of the Indenture.
(c) Manner of Payment. The total amount of any principal and
interest due on Global Notes on any Interest Payment Date or at
<PAGE>
Maturity shall be paid by the Issuer to the Trustee in funds available for use
by the Trustee as of 9:30 a.m., New York City time, or as soon as practicable
thereafter on such date. The Issuer will make such payment on such Global Notes
by wire transfer to the Trustee. The Issuer will confirm instructions regarding
payment in writing to the Trustee. Prior to 10:00 a.m., New York City time, on
each maturity date or as soon as possible thereafter, following receipt of such
funds from the Issuer, the Trustee will pay by separate wire transfer (using
Fedwire message entry instructions in a form previously specified by DTC) to an
account at the Federal Reserve Bank of New York previously specified by DTC, in
funds available for immediate use by DTC, each payment of principal (together
with interest thereon) due on Global Notes on any maturity date. On each
Interest Payment Date, interest payment shall be made to DTC in same day funds
in accordance with existing arrangements between the Trustee and DTC.
Thereafter, on each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds available for
immediate use to the respective Participants in whose names the Book-Entry Notes
represented by such Global Notes are recorded in the book-entry system
maintained by DTC. NEITHER THE ISSUER NOR THE TRUSTEE SHALL HAVE ANY DIRECT
RESPONSIBILITY OR LIABILITY FOR THE PAYMENT BY DTC TO SUCH PARTICIPANTS OF THE
PRINCIPAL OF AND ANY PREMIUM AND INTEREST ON THE BOOK-ENTRY NOTES.
(d) Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a Book-Entry Note
will be determined and withheld by the Participant, indirect participant in DTC
or other person responsible for forwarding payments and materials directly to
the beneficial owner of such Note.
Settlement
- ----------
The receipt by the Issuer of immediately available funds in payment
for a Book-Entry Note and the authentication and issuance of the Global Note or
Global Notes representing such Note shall constitute "settlement" with respect
to such Note. All orders accepted by the Issuer will be settled from one to
three Business Days from the date of the sale pursuant to the timetable for
settlement set forth below unless the Issuer and the purchaser agree to
settlement on a later date.
<PAGE>
Settlement Procedures
- ---------------------
Settlement Procedures with regard to each Book-Entry Note sold by the Issuer
through an Agent shall be as follows:
A. Such Agent will advise the Issuer by telephone of the following settlement
information:
1. Registered owner.
2. Address of registered owner and, if different, the address for
delivery, notices and payment of principal and interest.
3. TIN of registered owner.
4. Principal amount.
5. Stated Maturity.
6. In the case of Fixed Rate notes, the interest rate of each such Note;
in the case of Floating Rate Notes, the interest rate formula, the
spread or spread multiplier (if any), the maximum or minimum interest
rate limitation (if any), the calculation agent, the calculation
dates, the initial interest rate, the interest payment dates, the
regular record dates, the index maturity, the interest determination
dates and the interest reset dates, in each case, to the extent
applicable with respect to each Note.
7. Redemption provisions, if any.
8. If an Original Issue Discount Note, the yield to Maturity and the
initial accrual period of original issue discount.
9. Settlement date (Issue Date).
10. Agent's commission (expressed as a percentage).
11. Trade date.
12. Price.
13. Any additional applicable terms.
B. The Issuer will advise the Trustee by telecopy or by another mutually
acceptable method of the settlement information set forth in Settlement
Procedure "A" above and the name of the applicable Agent.
C. The Trustee will assign a CUSIP number to the Global Note representing such
Book-Entry Note and will telephone the Issuer
<PAGE>
and advise the Issuer of such CUSIP number. The Trustee will enter a
pending deposit message through DTC's Participant Terminal System,
providing the following settlement information to DTC (which shall route
such information to Standard & Poor's Corporation) and the relevant Agent.
1. The applicable information set forth in Settlement Procedure "A".
2. Initial Interest Payment Date for such Note, number of days by which
such date succeeds the Regular Record Date and the amount of interest
payable on such Interest Payment Date per $1,000 principal amount of
Book-Entry Notes.
3. CUSIP number of the Global Note representing such Note.
4. Whether such Global Note will represent any other Book-Entry Note (to
the extent known at such time).
5. Interest payment periods.
6. Numbers of the participant accounts maintained by DTC on behalf of the
Trustee and the Agents.
D. The Issuer will deliver to the Trustee a Global Note representing such
Note.
E. The Trustee will complete and authenticate the Global Note representing
such Note.
F. DTC will credit such Note to the Trustee's participant account at DTC.
G. The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Note to the Trustee's
participant account and credit such Note to such Agent's participant
account and (ii) debit such Agent's settlement account and credit the
Trustee's settlement account for an amount equal to the price of such Note
less such Agent's commission. The entry of such a deliver order shall
constitute a representation and warranty by the Trustee to DTC that (i) the
Global Note representing such Note has been executed, delivered and
authenticated and (ii) the Trustee is holding such Global Note pursuant to
the Medium-Term Note Certificate Agreement between the Trustee and DTC.
H. Such Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to such Agent's
participant account and credit such Note to the participant accounts of the
Participants with respect to such Note and (ii) to debit the settlement
accounts of such Participants and
<PAGE>
credit the settlement account of such Agent for an amount equal to the
price of such Note.
I. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
J. The Trustee, upon confirming receipt of such funds, will wire transfer the
amount transferred to the Trustee in accordance with Settlement Procedure
"G", in funds available for immediate use, for the account of Boston Gas
Company Financing Proceeds", to account no. 532-65575 at The First National
Bank of Boston, Boston, Massachusetts, (ABA No. 011-000-390).
K. Such Agent will confirm the purchase of such Note to the purchaser either
by transmitting to the Participants with respect to such Note a
confirmation order or orders through DTC's institutional delivery system or
by mailing a written confirmation to such purchaser.
Settlement Procedures Timetable
- -------------------------------
For orders of Book-Entry Notes solicited by an Agent, and accepted by
the Issuer for settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "K" set forth above shall be completed as soon
as possible but not later than the respective times (New York City time) set
forth below:
Settlement
Procedure Time
- ------------ ----
A 11:00 a.m. on the sale date
B 12:00 Noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before
settlement date
E 9:00 a.m. on settlement date
F 10:00 a.m. on settlement date
G-H 2:00 p.m. on settlement date
I 4:45 p.m. on settlement date
J-K 5:00 p.m. on settlement date
If a sale is to be settled two Business Days after the sale date,
Settlement Procedures "A", "B" and "C" shall be completed as soon as practicable
but not later than 11:00 a.m., Noon and 2:00 p.m., as the case may be, on the
first Business Day after the sale date.
If a sale is to be settled more than two Business Days after the sale
date, Settlement Procedure "A" shall be completed as soon as
<PAGE>
practicable but no later than 11:00 a.m. on the first Business Day after the
sale date and Settlement Procedures "B" and "C" shall be completed as soon as
practicable but no later than 12 Noon and 2:00 p.m., as the case may be, on the
second Business Day after the sale date. Settlement Procedure "I" is subject to
extension in accordance with any extension of Fedwire closing deadlines and in
the other events specified in the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled, the
Company shall notify the Trustee, and upon receipt of such notice, the Trustee
will deliver to DTC, through DTC's Participant Terminal System, a cancellation
message to such effect by no later than 2:00 p.m., New York City time, on the
Business Day immediately preceding the scheduled settlement date.
Failure to Settle
- -----------------
If the Trustee has not entered an SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure "G", then upon written request
(which may be evidenced by telecopy transmission) of the Issuer, the Trustee
shall deliver to DTC, through DTC's Participant Terminal System, as soon as
practicable, but no later than 2:00 p.m. on any Business Day, a withdrawal
message instructing DTC to debit such Note to the Trustee's participant account.
DTC will process the withdrawal message, provided that the Trustee's participant
account contains a principal amount of the Global Note representing such Note
that is at least equal to the principal amount to be debited. If withdrawal
messages are processed with respect to all the Book-Entry Notes represented by a
Global Note, the Trustee will mark such Global Note "cancelled", make
appropriate entries in the Trustee's records and send such cancelled Global Note
to the Issuer. The CUSIP number assigned to such Global Note shall, in
accordance with CUSIP Service Bureau procedures, be cancelled and not
immediately reassigned. If withdrawal messages are processed with respect to
one or more, but not all, of the Book-Entry Notes represented by a Global Note,
the Trustee will exchange such Global Note for two Global Notes, one of which
shall represent such Note or Notes and shall be cancelled immediately after
issuance and the other of which shall represent the remaining Book-Entry Notes
previously represented by the surrendered Global Note and shall bear the CUSIP
number of the surrendered Global Note.
If the purchase price for any Book-Entry Note is not timely paid to
the Participants with respect to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent for such Note may enter an
SDFS deliver order through DTC's Participant Terminal System debiting such Note
to such Agent's participant account and crediting such Note free to the
participant account of the Trustee and shall notify the Trustee and the Issuer
thereof. Thereafter, the Trustee, (i) will immediately notify the Issuer, once
the Trustee has confirmed that such Note has been credited
-38-
<PAGE>
to its participant account, and the Issuer shall immediately transfer by Fedwire
(immediately available funds) to such Agent an amount equal to the price of such
Note which was previously sent by wire transfer to the account of the Issuer
maintained at The First National Bank of Boston in accordance with Settlement
Procedure "J", and (ii) the Trustee will deliver the withdrawal message and take
the related actions described in the preceding paragraph. Such debits and
credits will be made on the settlement date, if possible, and in any event not
later than 5:00 p.m. on the following Business Day. If such failure shall have
occurred for any reason other than failure by the applicable Agent to perform
its obligations hereunder or under the Agency Agreement, the Issuer will
reimburse such Agent on an equitable basis for its loss of the use of funds
during the period when the funds were credited to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Note, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Notes to have been
represented by a Global Note, the Trustee will provide, in accordance with
Settlement Procedures "D" and "E", for the authentication and issuance of a
Global Note representing the other Book-Entry Notes to have been represented by
such Global Note and will make appropriate entries in its records.
Trustee Not to Risk Funds
- -------------------------
Nothing herein shall be deemed to require the Trustee to risk or
expend its own funds in connection with any payment made to the Issuer, or the
Agents, or DTC, or any Noteholder, it being understood by all parties that
payments made by the Trustee to the Issuer, or the Agents, or DTC, or any
Noteholder shall be made only to the extent that funds are provided to the
Trustee for such purpose.
PART III. ADMINISTRATIVE PROCEDURES APPLICABLE TO ALL NOTES
- ------------------------------------------------------------
Maturities; Minimum Purchase; Calculation of Interest
- -----------------------------------------------------
Each Note will mature on a date, selected by the purchaser and agreed
to by the Issuer, which will be at least 9 months after its Issue Date. The
minimum aggregate amount of Notes which may be offered to any purchaser will be
$1,000. Interest on each interest-bearing Note will be calculated and paid in
the manner described in such Note and in the Prospectus Supplement and the
applicable Pricing Supplement. Unless otherwise set forth therein, interest on
Fixed Rate Notes will be calculated on the basis of a 360-day year of twelve 30-
day months and will not accrue on the 31st day of any month. Interest on
Floating Rate Notes, except as otherwise set forth therein, will be calculated
on the basis of actual days elapsed and a year of 360 days, except that in the
case of a Floating Rate Note for which the Base Rate is the Treasury
-39-
<PAGE>
Rate or CMT Rate, interest will be calculated on the basis of the actual number
of days in the year.
Record and Payment Dates for Interest
- -------------------------------------
Regular Record Dates. Except as otherwise specified in a Pricing
Supplement, the Regular Record Date with respect to any Interest Payment Date
shall be March 15 or September 15.
Interest Payment Dates. Except as otherwise specified in a Pricing
Supplement, interest payments will be made on April 1 and October 1 of each year
and at Maturity; provided, however, that in the case of a Note originally issued
between a Regular Record Date and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date following the next succeeding
Regular Record Date.
Procedures for Establishing the Terms of the Notes
- --------------------------------------------------
The Issuer and the Agents will discuss from time to time the rates to
be borne by the Notes that may be sold as a result of the solicitation of offers
by the Agents. Once any Agent has recorded any indication of interest in Notes
upon certain terms, and communicated with the Issuer, if the Issuer plans to
accept an offer to purchase Notes upon such terms, it will prepare a Pricing
Supplement to the Prospectus, as then amended or supplemented, reflecting the
terms of such Notes and, after approval from the Agents, will arrange to have 10
copies of the Pricing Supplement filed with, or transmitted by a means
reasonably calculated to result in filing with, the Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933, as amended (the "Act"), no later
than the fifth Business Day following the date of determination of the
settlement information described below or the date such Pricing Supplement is
first used. The Issuer will supply at least 10 copies of the Prospectus, as
then amended or supplemented, and bearing such Pricing Supplement, to the Agent
who presented such offer (the "Presenting Agent"). No settlements with respect
to Notes upon such terms may occur prior to such transmitting or filing and the
Agents will not, prior to such transmitting or filing, mail confirmations to
customers who have offered to purchase Notes upon such terms. After such
transmitting or filing, sales, mailing of confirmations and settlements may
occur with respect to Notes upon such terms, subject to the provisions of
"Delivery of Prospectus" below.
If the Issuer decides to post rates and a decision has been reached to
change interest rates, the Issuer will promptly notify each Agent. Each Agent
will forthwith suspend solicitation of purchases. At that time, the Agents will
recommend and the Issuer will establish rates to be so "posted". Following
establishment of posted rates and prior to the transmitting or filing described
in the preceding paragraph, the Agents may only record indications of interest
in purchasing Notes at the posted rates. Once any Agent has recorded any
indication of interest in Notes at the posted rates and communicated with the
Issuer,
-40-
<PAGE>
if the Issuer plans to accept an offer at the posted rate, it will prepare a
Pricing Supplement reflecting such posted rates and, after approval from the
Agents, will arrange to have 10 copies of the Pricing Supplement filed with, or
transmitted by means reasonably calculated to result in filing with, the
Commission and will supply at least 10 copies of the Prospectus, as then amended
or supplemented, and bearing such Pricing Supplement, to the Presenting Agent.
No settlements at the posted rates may occur prior to such transmitting or
filing and the Agents will not, prior to such transmitting or filing, mail
confirmations to customers who have offered to purchase Notes at the posted
rates. After such transmitting or filing, sales, mailing of confirmations and
settlements may resume, subject to the provisions of "Delivery of Prospectus"
below.
Outdated Pricing Supplements, and copies of the Prospectus to which
they are attached (other than those retained for files), will be destroyed.
Suspension of Solicitation; Amendment or Supplement
- ---------------------------------------------------
As provided in the Agency Agreement, the Issuer may instruct the
Agents to suspend solicitation of offers to purchase at any time, and upon
receipt of at least one Business Day's prior notice from the Issuer, the Agents
will each forthwith suspend solicitation until such time as the Issuer has
advised them that solicitation of offers to purchase may be resumed.
If the Agents receive the notice from the Issuer contemplated by
Section 4(b) of the Agency Agreement, they will promptly suspend solicitation
and will only resume solicitation as provided in the Agency Agreement. If the
Issuer is required, pursuant to the last sentence of Section 4(b) of the Agency
Agreement, to prepare an amendment or supplement, it will promptly furnish each
Agent with the proposed amendment or supplement; if the Issuer decides to amend
or supplement the Registration Statement or the Prospectus relating to the
Notes, it will promptly advise each Agent and will furnish each Agent with the
proposed amendment or supplement in accordance with the terms of the Agency
Agreement. The Issuer will file such amendment or supplement with the
Commission, provide the Agents with copies of any such amendment or supplement,
confirm to the Agents that such amendment or supplement has been filed with the
Commission and advise the Agents that solicitation may be resumed.
Any such suspension shall not affect the Issuer's obligations under
the Agency Agreement; and in the event that at the time the Issuer suspends
solicitation of offers to purchase there shall be any offers already accepted by
the Issuer outstanding for settlement, the Issuer will have the sole
responsibility for fulfilling such obligations. The Issuer will in addition
promptly advise the Agents and the Trustee if such offers are not to be settled
and if copies of the
-41-
<PAGE>
Prospectus as in effect at the time of the suspension may not be delivered in
connection with the settlement of such offers.
Acceptance of Offers
- --------------------
Each Agent will promptly advise the Issuer, at its option orally or in
writing, of each reasonable offer to purchase Notes received by it, other than
those rejected by such Agent. Each Agent may, in its discretion reasonably
exercised, without notice to the Issuer, reject any offer received by it, in
whole or in part. The Issuer will have the sole right to accept offers to
purchase Notes and may reject any such offer, in whole or in part. If the
Issuer accepts or rejects an offer, the Issuer will promptly notify the Agent
involved.
Delivery of Prospectus
- ----------------------
A copy of the Prospectus as most recently amended or supplemented on
the date of delivery thereof (except as provided below) must be delivered to a
purchaser prior to or together with the earlier of the delivery of (i) the
written confirmation provided for above, and (ii) any Note purchased by such
purchaser. Subject to the foregoing, it is anticipated that delivery of the
Prospectus, confirmation and Notes to the purchaser will be made simultaneously
at settlement. The Issuer shall ensure that the Presenting Agent receives
copies of the Prospectus and each amendment or supplement thereto (including
appropriate Pricing Supplements) in such quantities and within such time limits
as will enable the Presenting Agent to deliver such confirmation or Note to a
purchaser as contemplated by these procedures and in compliance with the first
sentence of this paragraph. If, since the date of acceptance of a purchaser's
offer, the Prospectus shall have been supplemented solely to reflect any sale of
Notes on terms different from those agreed to between the Issuer and such
purchaser or a change in posted rates not applicable to such purchaser, such
purchaser shall not receive the Prospectus as supplemented by such new
supplement, but shall receive the Prospectus as supplemented to reflect the
terms of the Notes being purchased by such purchaser and otherwise as most
recently amended or supplemented on the date of delivery of the Prospectus.
Authenticity of Signatures
- --------------------------
The Issuer will cause the Trustee to furnish the Agents from time to
time with the specimen signatures of each of the Trustee's officers, employees
or agents who have been authorized by the Trustee to authenticate Notes, but no
Agent will have any obligation or liability to the Issuer or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Issuer or the Trustee on any Note or Global Note.
-42-
<PAGE>
Advertising Expenses
- --------------------
The Issuer will determine with the Agents the amount of advertising
that may be appropriate in offering the Notes. Advertising expenses will be
paid by the Issuer.
-43-
<PAGE>
EXHIBIT C
Boston Gas Company
Medium Term Notes, Series C
Due Nine Months or More
from Date of Issue
PURCHASE AGREEMENT
, 199
Attention:
Subject in all respects to the terms and conditions of the Agency
Agreement (the "Agreement") dated July __, 1995, between Salomon Brothers Inc.,
J.P. Morgan Securities Inc. and Donaldson, Lufkin & Jenrette Securities
Corporation, and you, the undersigned agrees to purchase the following Notes of
Boston Gas Company:
[Add additional terms as may be needed to identify Notes.]
[Specified Currency]:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount of Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus
accrued interest from
, 199 ]
Purchase Date and Time:
<PAGE>
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in the
requirements to deliver the
documents specified in
Section 6(b), (c) and (d)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 3(b) of the Agreement:
[Purchaser]
By:_______________________
Accepted:
Boston Gas Company
By:
____________________
Title
<PAGE>
Exhibit 4.2
FORM OF FLOATING RATE NOTE
[Form of Face of Security]
REGISTERED REGISTERED
- --------------------------------------------------------------------------------
BOSTON GAS COMPANY
No. FLRA-____ MEDIUM-TERM NOTE, SERIES ___ CUSIP ________
(Floating Rate)
[INSERT IF SECURITY IS TO BE RESET ANNUALLY -- If Securities which are reset
annually are issued between a Regular Record Date and the related Interest
Payment Date, such Securities will be considered issued at an original issue
discount and, as a consequence, cash basis holders generally will be required to
report interest in respect of the Securities on an accrual basis before the
receipt of cash attributable thereto for Federal income tax purposes.]
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY -- This Note is a Global
Security within the meaning of the Indenture hereinafter referred to and is
registered in the name of a Depositary or a nominee of a Depositary. This
Global Security is exchangeable for Notes registered in the name of a Person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Note (other than a transfer
of this Note as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in such limited circumstances.
Unless this Certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
Cede & Co., has an interest herein.]
<PAGE>
PRINCIPAL AMOUNT:
DENOMINATIONS:
DESIGNATED CMT TELERATE PAGE:
DESIGNATED CMT MATURITY
INDEX:
ISSUE DATE: STATED MATURITY OF SECURITY:
INTEREST RATE BASIS: COMPUTATION PERIOD:
INTEREST PAYMENT DATE(S): REGULAR RECORD DATE(S):
INDEX MATURITY: SPREAD (PLUS OR MINUS):
INITIAL INTEREST RATE: SPREAD MULTIPLIER:
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE:
INTEREST PAYMENT PERIOD INTEREST PAYMENT MONTH(S):
(daily, monthly, quarterly,
semi-annually or annually):
INTEREST RESET PERIOD INTEREST RESET MONTH(S):
(daily, monthly, quarterly,
semi-annually or annually):
INTEREST DETERMINATION DATE(S):
CALCULATION DATE: CALCULATION AGENT:
INTEREST RESET DATE(S):
REDEMPTION DATE(S): REDEMPTION PERCENTAGE(S):
REDEMPTION PERCENTAGE(S)
(OPTION OF HOLDER):
-2-
<PAGE>
REDEMPTION DATE(S)
(OPTION OF HOLDER):
NOTICE PERIOD:
ORIGINAL ISSUE DISCOUNT SECURITY:*
If applicable, the following will be
completed solely for the purpose of
applying the United States Federal
income tax original issue discount
("OID") rules:
TOTAL AMOUNT OF OID:
YIELD TO MATURITY:
INITIAL ACCRUAL PERIOD OID:
OTHER PROVISIONS:
BOSTON GAS COMPANY, a corporation duly organized under the laws of The
Commonwealth of Massachusetts (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [INSERT IF THE SECURITY IS TO BE A GLOBAL
SECURITY -- CEDE & Co., as nominee for The Depository Trust Company]
[______________________________________], or registered assigns, the principal
amount specified above on the Stated Maturity specified above and to pay
interest thereon, from and including the Issue Date specified above (the "Issue
Date") or from and including the most recent Interest Payment Date to which
interest on this Security (or any Predecessor Security) has been paid or duly
provided for to, but excluding, the Interest Payment Date (as hereinafter
defined) (or, if the Interest Reset Period specified above (the "Interest Reset
Period") is daily or weekly, from and including the Issue Date or from and
including the day following the most recent Regular Record Date
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with respect to which interest has been paid or duly provided for, as the case
may be, to but excluding the day following the Regular Record Date immediately
preceding such Interest Payment Date), at a rate per annum equal to the Initial
Interest Rate specified above (the "Initial Interest Rate") until the first
Interest Reset Date (as defined on the reverse hereof) following the Issue Date
and thereafter at a rate determined in accordance with the provisions on the
reverse hereof under the heading "Determination of Commercial Paper Rate",
"Determination of Prime Rate", "Determination of CD Rate", "Determination of
Federal Funds Effective Rate", "Determination of LIBOR", "Determination of
Treasury Rate", "Determination of CMT Rate", "Determination of 11th District
Cost of Funds Rate" or "Determination of J.J. Kenny Rate" depending upon whether
the Interest Rate Basis specified above is Commercial Paper Rate, Prime Rate, CD
Rate, Federal Funds Effective Rate, LIBOR, Treasury Rate, CMT Rate, 11th
District Cost of Funds Rate or J.J. Kenny Rate until the principal hereof is
paid or duly made available for payment; provided, however, that the Company
will make all such payments in respect of this Security in U.S. dollars in
amounts determined as set forth on the reverse hereof. Such interest shall be
payable by the Company monthly, quarterly, semi-annually or annually as
specified above under "Interest Payment Period" and, unless otherwise specified
above under "Interest Payment Date(s)", such interest shall be payable by the
Company on the third Wednesday of the month or months specified above under
"Interest Payment Month(s)" in each year (or if any such day is not a Market Day
(as defined on the reverse hereof) with respect to this Security, on the next
succeeding Market Day with respect to this Security or, if the Interest Rate
Basis specified above is LIBOR and the next succeeding such Market Day falls in
the next calendar month, the next preceding such Market Day) (each date so
specified above or, if none is so specified, determined as herein provided, an
"Interest Payment Date") and at Maturity. The interest so payable, and
punctually paid or duly provided for, on any such Interest Payment Date will be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the fifteenth day (whether
or not a Market Day) next preceding such Interest Payment Date, unless a
different Regular Record Date is specified above (the "Regular Record Date");
provided, however, that interest payable at Maturity will be payable to the
Person to whom principal shall be payable; and provided, further, that if the
Issue Date is after a Regular Record Date and before the next succeeding
Interest Payment Date the first payment of interest shall be payable on the
second Interest Payment Date following the Issue Date to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date immediately preceding such Interest
Payment Date. Any such interest which is payable, but not so punctually paid or
duly provided for, on any Interest Payment Date will forthwith cease to be
payable to the Holder on such Regular
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* NOTE: This form of security does not cover zero-coupon Securities.
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Record Date and such Defaulted Interest may either be paid to the Person in
whose name this Security (or one or more predecessor Securities) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which this Security may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of (and premium, if any) or interest on this
Security will be made at the corporate trust office of the Trustee at 150 Royall
Street, Canton, Massachusetts or at the office of the New York registrar and
paying agent, BancBoston Trust Company of New York, 55 Broadway, New York, New
York, or such other office or agency of the Company maintained by it for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that payment
of the principal of (and premium, if any) and interest on this Security due will
be made in immediately available funds at such corporate trust office or such
other office or agency if this Security is presented to the Paying Agent in time
for the Paying Agent to make such payments in accordance with its normal
procedures; [IF APPLICABLE INSERT -- and provided, further, that at the option
of the Company payment of interest (other than interest payable at Maturity) may
be made by check and mailed to the address of the Holder as such address shall
appear in the Security Register.]
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by the manual signature of an
authorized signatory, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by manual or facsimile signature under its corporate seal.
BOSTON GAS COMPANY
[CORPORATE SEAL] By______________________________
Name:
Title:
Attest:
_________________________________
Dated: __________________, 199_
TRUSTEE'S
CERTIFICATE OF
AUTHENTICATION
This is one of the Securities
of the series designated
therein referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON, as Trustee
By____________________________________
Authorized Signatory
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[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company
(the "Securities") issued and to be issued in one or more series under the
Indenture, dated as of December 1, 1989 (the "Indenture"), between the Company
and THE FIRST NATIONAL BANK OF BOSTON, as successor Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited to an aggregate principal amount not to exceed $100,000,000 (or, if
Securities of this series are to be Original Issue Discount Securities or with
the amount payable in respect of principal of or any premium or interest to be
determined by reference to the value, rate or price of one or more specified
indices ("Indexed Securities"), such principal amount as shall result in an
aggregate initial offering price of Securities equivalent to no more than
$100,000,000), which amount may be increased at the option of the Company if in
the future it determines that it may wish to sell additional Securities, which
may be offered or sold either in the United States or outside the United States
or both simultaneously. Except as otherwise may be stated on the face hereof,
the Securities of this series are issuable only as registered Securities,
without coupons, in denominations of $1,000 and integral multiples of $1,000.
The Securities of this series may be issued from time to time in various
principal amounts and may mature at different times, may bear interest at
different rates, may be subject to different redemption provisions, if any, and
may otherwise vary. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Securities are general, direct, unconditional and unsecured obligations
of the Company.
Accrued interest hereon shall be calculated by multiplying the principal
amount specified on the fact hereof by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated for
each day in the period for which accrued interest is being calculated. The
interest factor (expressed as a decimal rounded upwards, if necessary, as
described below) for each such day shall be computed by (i) dividing the
interest rate (expressed as a decimal rounded upwards, if necessary, as
described below) applicable to such day by 360, if the day count convention is
"Actual/360", (ii) dividing the interest rate applicable to such day by the
actual number of days in the year (365 or 366, as the case may be) if the day
count convention is "Actual/Actual" or (iii) multiplying the interest rate for
that day by the
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result of 30 divided by 360 and then dividing that number by the actual
number of days in the month in which such day falls if the day count convention
is "30/360". Except as otherwise provided herein, all percentages resulting
from any calculation with respect to this Security will be rounded, if
necessary, to the nearest one-hundred thousandth of a percentage point, with
five one-millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)
being rounded to 9.87654% (or .0987654)), and all dollar amounts used in or
resulting from such calculations will be rounded to the nearest cent.
The rate of interest on this Security will be reset daily, weekly, monthly,
quarterly, semi-annually or annually, as specified on the face hereof under
Interest Reset Period (each date upon which interest is so reset as provided
below being hereinafter referred to as an "Interest Reset Date"), and the
interest rate in effect on any day shall be (a) if such day is an Interest Reset
Date, the interest rate for such Interest Reset Date or (b) if such day is not
an Interest Reset Date the interest rate for the immediately preceding Interest
Reset Date; provided, however, that (i) the interest rate in effect from the
Issue Date of this Security (or one or more Predecessor Securities) to but
excluding the first Interest Reset Date will be the Initial Interest Rate and
(ii) the interest rate in effect for the ten calendar days immediately prior to
Maturity of this Security will be that in effect on the tenth calendar day
preceding such Maturity. Notwithstanding the foregoing, the interest rate
hereon shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, specified on the face hereof and in no event
shall be higher than the maximum rate permitted by New York law, as the same may
be modified by United States law of general application. Unless otherwise
specified on the face hereof and except as provided in the next succeeding
sentence, the Interest Reset Date with respect to this Security will be, if the
Interest Reset Period specified on the face hereof is daily, each Market Day (as
defined below); if the Interest Reset Period specified on the face hereof is
weekly (unless the Interest Rate Basis specified on the face hereof is the
Treasury Rate), the Wednesday of each week; if the Interest Reset Period
specified on the face hereof is weekly and the Interest Rate Basis specified on
the face hereof is the Treasury Rate, except as otherwise provided below, the
Tuesday of each week; if the Interest Reset Period specified on the face hereof
is monthly (unless the Interest Rate Basis specified on the face hereof is the
11th District Cost of Funds Rate), the third Wednesday of each month; if the
Interest Reset Period specified on the face hereof is monthly and the Interest
Rate Basis specified on the face hereto is the 11th District Cost of Funds Rate,
the first calendar day of each month; if the Interest Reset Period specified on
the face hereof is quarterly, the third Wednesday of each March, June, September
and December; if the Interest Reset Period specified on the face hereof is semi-
annually, the third Wednesday of two months in each year specified under
"Interest Reset Month(s)" on the face hereof; and if the Interest Reset Period
specified on the face hereof is annually, the third Wednesday of the month in
each year specified
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under "Interest Reset Month(s)" on the face hereof. If, pursuant to the
preceding sentence, any Interest Reset Date would otherwise be a day that is not
a Market Day with respect to this Security, the Interest Reset Date shall be the
next succeeding day that is a Market Day with respect to this Security, except
that if the Interest Rate Basis specified on the face hereof is LIBOR and the
next succeeding Market Day falls in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Market Day. Subject to
applicable provisions of law and except as specified herein, on each Interest
Reset Date the rate of interest on this Security shall be the rate determined in
accordance with the provisions of the applicable heading below.
"Market Day" means (i) in the case of a rate of interest which is determined
other than in accordance with the provisions of the heading "Determination of
LIBOR" above, any day that is a Business Day in The City of New York and (ii) in
the case of a rate of interest which is determined in accordance with the
provisions of the heading "Determination of LIBOR" above, any Business Day in
The City of New York on which dealings in deposits in U.S. dollars are
transacted in the London interbank market.
Determination of Commercial Paper Rate. If the Interest Rate Basis specified
on the face hereof is the Commercial Paper Rate, the interest rate with respect
to this Security for any Interest Reset Date shall equal (a) the Money Market
Yield (calculated as described below) of the rate on the second Market Day with
respect to this Security immediately preceding such Interest Reset Date (the
"Commercial Paper Interest Determination Date") for commercial paper having the
Index Maturity specified on the face hereof, (i) as published in "Statistical
Release H.15(519), Selected Interest Rates", or any successor publication
published by the Board of Governors of the Federal Reserve System ("H.15(519)"),
under the heading "Commercial Paper", or (ii) if such rate is not so published
prior to 9:00 A.M., New York City time, on the Calculation Date pertaining to
such Commercial Paper Interest Determination Date, then as published in
"Composite Quotations for U.S. Government Securities", or any successor
publication published by the Federal Reserve Bank of New York ("Composite
Quotations"), under the heading "Commercial Paper", or (b) if such rate is not
published in either H.15(519) or Composite Quotations by 3:00 P.M., New York
City time, on such Calculation Date, the Money Market Yield of the arithmetic
mean, as calculated by the Calculation Agent on such Calculation Date, of the
offered rates, as of 11:00 A.M., New York City time, on such Commercial Paper
Interest Determi nation Date, of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper
having the Index Maturity specified on the face hereof placed for an industrial
issuer whose bond rating is "AA", or the equivalent, from a nationally
recognized rating agency, in each of the above cases adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if fewer than three such dealers selected as aforesaid
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by the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate shall be the Commercial Paper Rate in effect on such
Commercial Paper Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded
upwards, if necessary, to the next higher one-hundred thousandth of a percentage
point), calculated in accordance with the following formula:
D x 360
Money Market Yield = ------------- X 100,
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual number
of days in the interest period for which interest is being calculated.
Determination of Prime Rate. If the Interest Rate Basis specified on the
face hereof is the Prime Rate, the interest rate with respect to this Security
for any Interest Reset Date shall equal (a) the rate on the second Market Day
with respect to this Security immediately preceding such Interest Reset Date
(the "Prime Interest Determination Date") as published in H.15(519) under the
heading "Bank Prime Loan"; (b) if such rate is not so published prior to 9:00
A.M., New York City time, on the Calculation Date pertaining to such Prime
Interest Determination Date, the arithmetic mean, as calculated by the
Calculation Agent on such Calculation Date, of the rates of interest publicly
announced by each bank that appears on the Reuters Screen NYMF Page as such
bank's prime rate or base lending rate as in effect for that Prime Interest
Determination Date, (c) if fewer than four such rates but more than one such
rate appear on the Reuters Screen NYMF Page for that Prime Interest
Determination Date, the arithmetic mean, as calculated by the Calculation Agent,
of the prime rates quoted on the basis of the actual number of days in the year
divided by a 360-day year as of the close of business on such Prime Interest
Determination Date by at least two of three major money center banks in The City
of New York selected by the Calculation Agent, and (d) if fewer than two
quotations are provided, the announced prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business in The City of New York by the appropriate number of substitute banks
or trust companies organized and doing business under the laws of the United
States, or any State thereof, having total equity capital of at least $500
million and being subject to supervision or examination by Federal or State
authority, selected by the Calculation Agent to provide such rate or rates, in
each of the above cases adjusted by the addition or subtraction of the Spread,
if any, specified on the face hereof, or by multiplication of the Spread
Multiplier, if any, specified on the face hereof; provided, however, that if an
appropriate number of such substitute banks or trust companies are not quoting
as mentioned in this sentence,
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the Prime Rate will be the Prime Rate in effect on such Prime Interest
Determination Date.
Determination of CD Rate. If the Interest Rate Basis specified on the face
hereof is the CD Rate, the interest rate with respect to any Interest Reset Date
shall equal (a) the rate on the second Market Day with respect to this Security
immediately preceding such Interest Reset Date (the "CD Interest Determination
Date") for negotiable certificates of deposit having the Index Maturity
specified on the face hereof, (i) as published in H.15(519) under the heading
"CDs (Secondary Market)", or (ii) if such rate is not published prior to 3:00
P.M., New York City time, on the Calculation Date pertaining to such CD Interest
Determination Date, then as published in Composite Quotations under the heading
"Certificates of Deposit", or (b) if such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on such
Calculation Date the arithmetic mean, as calculated by the Calculation Agent, of
the secondary market offered rates, as of 10:00 A.M., New York City time, on
such CD Interest Determination Date, of three leading nonbank dealers of
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent for negotiable certificates of deposit of major United
States money market banks with a remaining maturity closest to the Index
Maturity specified on the face hereof in a denomination of $5,000,000, in each
of the above cases adjusted by the addition or subtraction of the Spread, if
any, specified on the face hereof, or by multiplication of the Spread
Multiplier, if any, specified on the face hereof; provided, however, that if
fewer than three such dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate will be the CD Rate in
effect on such CD Interest Determination Date.
Determination of Federal Funds Effective Rate. If the Interest Rate Basis
specified on the face hereof is the Federal Funds Effective Rate, the interest
rate with respect to this Security for any Interest Reset Date shall equal (a)
the rate on the second Market Day with respect to this Security immediately
preceding such Interest Reset Date (the "Federal Funds Interest Determination
Date") for Federal Funds having the Index Maturity specified on the face hereof
(i) as published in H.15(519) under the heading "Federal Funds (Effective)" or
(ii) if such rate is not so published prior to 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Federal Funds Interest Determination
Date, then as published in Composite Quotations under the heading "Federal
Funds/ Effective Rate" or (b) if by 3:00 P.M., New York City time, on such
Calculation Date such rate is not yet published in either H.15(519) or Composite
Quotations, the arithmetic mean, as calculated by the Calculation Agent on such
Calculation Date, of the rates, as of 11:00 A.M., New York City time, on such
Federal Funds Interest Determination Date, for the last transaction in overnight
Federal Funds arranged by three leading brokers of Federal Funds transactions in
The City of New York selected by the Calculation Agent, in each of the above
cases adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, or by
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multiplication by the Spread Multiplier, if any, specified on the face hereof;
provided, however, that if fewer than three such brokers selected as aforesaid
by the Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Effective Rate will be the Federal Funds Effective Rate in effect
on such Federal Funds Interest Determination Date.
Determination of LIBOR. If the Interest Rate Basis specified on the face
hereof is LIBOR, the interest rate with respect to this Security for any
Interest Reset Date shall be determined by the Calculation Agent in accordance
with the following provisions:
(i) On the second London Business Day prior to such Interest Reset Date
(a "LIBOR Interest Determination Date"), the Calculation Agent will determine
LIBOR on the basis of (a) if LIBOR Telerate is specified on the face hereof,
the offered rate for deposits in U.S. dollars having the Index Maturity
specified on the face hereof, commencing on the second London Business Day
immediately following that LIBOR Interest Determination Date, that appears on
the Telerate Page 3750, as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date ("LIBOR Telerate"), or (b) if LIBOR Reuters is specified
on the face hereof, the arithmetic mean of the offered rates for deposits in
U.S. dollars having the Index Maturity specified on the face hereof,
commencing on the second London Business Day immediately after that LIBOR
Interest Determination Date, that appear on the Reuters Screen LIBO Page as
of 11:00 A.M., London time, on that LIBOR Interest Determination Date, if at
least two such offered rates appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"). "Telerate Page 3750" means the display designated as page "3750"
on the Telerate Service (or such other page as may replace the 3750 page on
that service or such other services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits). "Reuters Screen LIBO Page" means the display
designated as page "LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks). If neither LIBOR
Telerate nor LIBOR Reuters is specified on the face hereof, LIBOR will be
determined as if LIBOR Telerate had been specified. If no rate appears on the
Telerate Page 3750, or if fewer than two offered rates appear on the Reuters
Screen LIBO Page, as applicable, LIBOR in respect of that LIBOR Interest
Determination Date will be determined as if the parties had specified the
rate described in (ii) below.
(ii) If on any LIBOR Interest Determination Date LIBOR Telerate is
specified on the face hereof and no rate appears on Telerate Page 3750, as
specified in (i)(a) above, or if LIBOR Reuters is specified on the face
hereof
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and fewer than two offered rates appear on the Reuters Screen LIBO Page, as
specified in (i)(b) above, LIBOR will be determined on the basis of the rates
at which deposits in U.S. dollars having the Index Maturity specified on the
face hereof are offered at approximately 11:00 A.M., London time, on that
LIBOR Interest Determination Date by four major banks in the London interbank
market selected by the Calculation Agent ("Reference Banks") as prime banks
in the London interbank market, commencing on the second London Business Day
immediately following that LIBOR Interest Determination Date and in a
principal amount of not less than $1,000,000 that is representative for a
single transaction in such market at such time. The Calculation Agent will
request the principal London office of each of the Reference Banks to provide
a quotation of its rate. If at least two such quotations are provided, LIBOR
in respect of that LIBOR Interest Determination Date will be the arithmetic
mean of such quotations. If fewer than two quotations are provided, LIBOR in
respect of that LIBOR Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 A.M., New York City time, on that
LIBOR Interest Determination Date by three major banks in The City of New
York selected by the Calculation Agent for loans in U.S. dollars to leading
European banks having the Index Maturity specified on the face hereof
commencing on the second London Business Day following that LIBOR Interest
Determination Date and in a principal amount of not less than $1,000,000 that
is representative for a single transaction in such market at such time, in
each of the above cases adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof; provided, however,
that if the banks selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, LIBOR with respect to such LIBOR
Interest Determination Date will be LIBOR determined on the immediately
preceding LIBOR Interest Determination Date.
Determination of Treasury Rate. If the Interest Rate Basis specified on the
face hereof is the Treasury Rate, the interest rate with respect to this
Security for any Interest Reset Date shall equal (a) the rate for the most
recent auction of direct obligations of the United States ("Treasury bills")
having the Index Maturity specified on the face hereof as published in H.15(519)
under the heading "U.S. Government Securities - Auction Average (Investment)" on
the Treasury Interest Determination Date (as defined below) or (b) if such rate
is not so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Treasury Interest Determination Date, the auction average
rate (expressed as bond equivalent on the basis of a year of 365 or 366 days, as
applicable, and applied on a daily basis) for such auction as other wise
announced by the United States Department of the Treasury or (c) in the event
that the results of the auction of Treasury bills having the Index Maturity
specified on
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the face hereof are not published or reported as provided in (a) or (b) above by
3:00 P.M., New York City time, on such Calculation Date or if no such auction is
held in a particular week, the yield to maturity (expressed as a bond equivalent
on the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean, as calculated by the Calculation Agent on such
Calculation Date, of the secondary market bid rates as of approximately 3:30
P.M., New York City time, on such Treasury Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity specified on the face hereof, in each of the above
cases adjusted by the addition or subtraction of the Spread, if any, specified
on the face hereof, or by multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however, that if fewer than three such
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate shall be the Treasury Rate on such
Treasury Interest Determination Date.
The "Treasury Interest Determination Date" pertaining to an Interest Reset
Date will be the day on which Treasury bills are auctioned for the week in which
such Interest Reset Date falls. If as a result of a legal holiday, an auction
is held on the preceding Friday, such Friday shall be the Treasury Interest
Determination Date pertaining to the Interest Reset Date occurring in the next
succeeding week. If an auction date shall fall on any Interest Reset Date for a
Treasury Rate Note, then such Interest Reset Date shall instead be the first
Business Day immediately following such auction date.
Determination of CMT Rate. If the Interest Rate Basis specified on the
face hereof is the CMT Rate, the interest rate with respect to this Security for
any Interest Reset Date shall equal the rate on the second Market Day with
respect to this Security immediately preceding such Interest Reset Date (the
"CMT Interest Determination Date") for treasury constant maturities having the
Designated CMT Maturity Index (as defined below) specified on the face hereof,
as displayed on the Designated CMT Telerate Page (as defined below) under the
caption "Treasury Constant Maturities ... Federal Reserve Board Release H.15 ...
Mondays Approximately 3:45 P.M.," under the column for such Designated CMT
Maturity Index for (i) if the Designated CMT Telerate Page is 7055, the rate on
such CMT Interest Determination Date and (ii) if the Designated CMT Telerate
Page is 7052, the week or the month, as applicable, ended immediately preceding
the week in which the related CMT Interest Determination Date occurs. If such
rate is no longer displayed on the relevant page, or if not displayed by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Interest Determination Date will be such treasury constant maturity
rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate for
such CMT Interest
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Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) as may then be published by either the Federal
Reserve Board or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly displayed on
the Designated CMT Telerate Page and published in the relevant H.15(519). If
such information is not available by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Interest Determination
Date will be calculated by the Calculation Agent and will be a yield to
maturity, based on the arithmetic mean of the secondary market closing offer
side prices as of approximately 3:30 P.M., New York City time, on the CMT
Interest Determination Date reported, according to their written records, by
three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent cannot obtain three such Treasury Note quotations, the CMT
Rate for such CMT Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on the CMT Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term of maturity closest to the Designated CMT Maturity
Index and in an amount of at least $100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of all the offer prices so obtained
and neither the highest nor lowest of such quotes will be eliminated, in each of
the above cases adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication by the Spread Multiplier, if
any, specified on the face hereof; provided, however, that if fewer than three
Reference Dealers selected by the Calculation Agent are quoting as described
herein, the CMT Rate for such CMT Interest Determination Date will be the CMT
Rate determined on the immediately preceding CMT Interest Determination Date.
If two Treasury Notes with an original maturity as described in the third
preceding sentence have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the quotes for the Treasury Note with the shorter
remaining term to maturity will be used.
-15-
<PAGE>
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified on the face hereof (or any other page that may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519)). If no such page is specified on
the face hereof, the Designated CMT Telerate Page shall be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity of the
Treasury Notes (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified on the face
hereof, with respect to which the CMT Rate will be calculated. If no such
maturity is specified on the face hereof, the Designated CMT Maturity Index
shall be 2 years.
Determination of 11th District Cost of Funds Rate. If the Interest Rate
Basis specified on the face hereof is the 11th District Cost of Funds Rate, the
interest rate with respect to this Security for any Interest Reset Date shall
equal the rate on the last working day of the month of the Federal Home Loan
Bank of San Francisco preceding the Interest Reset Date (the "11th District Cost
of Funds Interest Determination Date") equal to the monthly weighted
average cost of funds for the calendar month immediately preceding the month in
which such 11th District Cost of Funds Interest Determination Date falls, as set
forth under the caption "11th District" on Telerate Page 7058 as of 11:00 A.M.,
San Francisco time, on such 11th District Cost of Funds Interest Determination
Date. If such rate does not appear on Telerate Page 7058 on any related 11th
District Cost of Funds Interest Determination Date, the 11th District Cost of
Funds Rate for such 11th District Cost of Funds Interest Determination Date
shall be the monthly weighted average cost of funds paid by member institutions
in the Eleventh Federal Home Loan Bank District that was most recently announced
(the "Index") by the Federal Home Loan Bank of San Francisco as such cost of
funds for the calendar month immediately preceding such 11th District Cost of
Funds Interest Determination Date. If the Federal Home Loan Bank of San
Francisco fails to announce such rate on such 11th District Cost of Funds
Interest Determination Date for the calendar month immediately preceding such
11th District Cost of Funds Interest Determination Date, the 11th District Cost
of Funds Rate for such 11th District Cost of Funds Interest Determination Date
will be the 11th District Cost of Funds Rate for the immediately preceding 11th
District Cost of Funds Interest Determination Date. In each of the
aforementioned cases, the 11th District Cost of Funds Rate shall be adjusted by
the addition or subtraction of the Spread, if any, specified on the face hereof,
or by multiplication by the Spread Multiplier, if any, specified on the face
hereof.
Determination of J.J. Kenny Rate. If the Interest Rate Basis specified on
the face hereof is the J.J. Kenny Rate, the interest rate with respect to this
Security for any Interest Reset Date shall equal the rate on the second Market
Day with respect to this Security immediately preceding such Interest Reset Date
(the "J.J. Kenny Interest Determination Date") as published in the high grade
weekly index (the "Weekly Index") on such J.J. Kenny Interest Determination Date
made available by Kenny Information Systems ("Kenny") to the Calculation Agent.
The Weekly Index
-16-
<PAGE>
shall be based on a 30-day yield evaluations at par of bonds, the interest of
which is exempt from Federal income taxation under the Internal Revenue Code of
1986, as amended (the "Code"), of not less than five high grade component
issuers selected by Kenny, which shall include, without limitation, issuers of
general obligation bonds. The specific issuers to be included among the
component issuers may be changed from time to time by Kenny at its discretion.
The bonds on which the Weekly Index is based shall not include any bonds on
which the Interest is subject to a minimum tax or similar tax under the Code
unless all tax-exempt bonds are subject to such tax. In the event Kenny ceases
to make available such Weekly Index, a successor indexing agent will be selected
by the Calculation Agent, such index to reflect the prevailing rate for bonds
rated in the highest short-term rating category by Moody's Investors Service,
Inc. and Standard & Poor's Ratings Group in respect of issuers most closely
resembling the high grade component issuers selected by Kenny for its Weekly
Index, the interest on which is (a) variable on a weekly basis, (b) exempt from
Federal income taxation under the Code and (c) not subject to a minimum tax or
similar tax under the Code, unless all tax-exempt bonds are subject to such tax.
If such a successor indexing agent is not available, the rate for any J.J. Kenny
Interest Determination Date will equal 67% of the rate calculated using the
methodology set forth above under "Treasury Rate Notes". The Calculation Agent
shall calculate the J.J. Kenny Rate in accordance with the foregoing. In each
of the aforementioned cases, the J.J. Kenny Rate shall be adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof.
The "Calculation Date", where applicable, pertaining to an Interest
Determination Date will be the first to occur of either (a) the tenth calendar
day after such Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day or (b) the Business Day preceding the date
any payment is required to be made for any period following the applicable
Interest Reset Date or Maturity Date (or the date of redemption or repayment).
The Calculation Agent shall calculate the interest rate hereon in accordance
with the foregoing on or before each Calculation Date. At the request of the
Holder hereof, the Calculation Agent will provide to the Holder hereof the
interest rate hereon then in effect and, if determined, the interest rate which
will become effective as of the next Interest Reset Date. Unless otherwise
specified on the face hereof, the Calculation Agent shall be the Trustee.
If one or more Redemption Dates (or ranges of Redemption Dates) is specified
on the face hereof, this Security is subject to redemption upon not less than 30
days' notice by mail, on any such date (or during any such range) as a whole, or
from time to time in part, at the option of the Company, at a Redemption Price
determined as provided in the next succeeding sentence, together with accrued
interest to the Redemption Date; but interest installments whose Stated Maturity
is on or prior to the Redemption Date will be payable to the Holder hereof (or
one or more Predecessor Securities) of record at the close of business on the
Regular Record Dates referred to
-17-
<PAGE>
on the face hereof, all as provided in the Indenture. If applicable, the
"Redemption Price" for any such redemption shall be the amount determined by
multiplying the Redemption Percentage specified on the face hereof with respect
to the relevant Redemption Date (or range of such dates) by the portion of the
principal amount hereof (or, if this Security is an Original Issue Discount
Security, the portion of the Amortized Face Amount hereof) to be redeemed;
provided, however, that in no event shall the Redemption Price be less than 100%
of the portion of the principal amount hereof (or, if this Security is an
Original Issue Discount Security, the portion of the Amortized Face Amount
hereof) to be redeemed.
If this Security is designated on the face hereof as an Original Issue
Discount Security, the "Amortized Face Amount" shall be the amount equal to (a)
the issue price of this Security (as defined below), plus (b) that portion of
the difference between the issue price and the principal amount of this Security
that has been amortized at the Stated Yield (as defined below) of this Security
(computed in accordance with generally accepted United States bond yield
computation principles) at the date as of which the Amortized Face Amount is
calculated, but in no event shall the Amortized Face Amount exceed the principal
amount of this Security due at the Stated Maturity hereof. As used in the
previous sentence "issue price" means the principal amount due at the Stated
Maturity hereof less the Total Amount of OID specified on the face hereof and
the "Stated Yield" means the Yield to Maturity specified on the face hereof (or
if not so specified, the yield to maturity compounded semi-annually and computed
in accordance with generally accepted United States bond yield computation
principles) for the period from the Issue Date to the Stated Maturity on the
basis of the issue price and such principal amount.
Notice of redemption having been given as aforesaid, this Security (or the
portion of the principal amount hereof so to be redeemed) shall, on the
Redemption Date, become due and payable at the Redemption Price herein
specified, and from and after such date (unless the Company shall default in the
payment of the Redemption Price and accrued interest) shall cease to bear
interest. In the case of any partial redemption at the election of the Company
of Securities of this series, the Securities of a particular tenor to be
redeemed shall be selected by the Trustee not more than 60 days prior to the
Redemption Date by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions of the
principal amount of Securities. In the event of any redemption of this Security
in part only, a new Security or Securities of this series of like tenor for the
unredeemed portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof, provided that such unredeemed portion shall not be less
than the minimum denomination of this Security.
If one or more Redemption Dates (Option of Holder) (or ranges of such dates)
is specified on the face hereof, this Security is subject to redemption on any
such date (or
-18-
<PAGE>
during any such range) or, if such date is not a Market Day, on the first Market
Day following such date, as a whole or from time to time in part, at the
election of the Holder hereof at a Redemption Price determined as provided in
the fifth succeeding sentence together with accrued interest thereon to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to the Holder hereof of record at the
close of business on the Regular Record Date referred to on the face hereof, all
as provided in the Indenture. Such election shall be effected by the Holder
hereof delivering to the Company at the principal corporate trust office of the
Trustee at 150 Royall Street, Canton, Massachusetts or at the office of the New
York registrar and paying agent, BancBoston Trust Company of New York, 55
Broadway, New York, New York not less than 30 nor more than 60 days prior to the
date on which this Security is to be redeemed, or during such other Notice
Period specified on the face hereof, a notice requesting such redemption in the
form described below and specifying the date upon which this Security is to be
redeemed. Any notice given by a Holder pursuant to this paragraph shall consist
of either (i) this Security with the form entitled "Option to Elect Redemption"
set forth of the end of this Security duly completed or (ii) a telegram,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a
commercial bank or trust company in the United States setting forth the name of
the Holder hereof, the principal amount of this Security, the principal amount
of this Security to be redeemed, the certificate number or a description of the
terms of this Security, a statement that the option to elect redemption is being
exercised thereby and a guarantee that this Security, together with the duly
completed form entitled "Option to Elect Redemption" below, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, facsimile transmission or letter; provided, however, that such
telegram, facsimile transmission or letter shall only be effective if this
Security and form duly completed are received by the Trustee by such fifth
Business Day. Exercise of the redemption option by the Holder hereof will be
irrevocable. If applicable, the "Redemption Price" for any such redemption
shall be the amount determined by multiplying the Redemption Percentage (Option
of Holder), specified on the face hereof with respect to the relevant Redemption
Date (Option of Holder) (or range of such dates) specified on the date hereof by
the portion of the principal amount hereof (or, if this Security is an Original
Issue Discount Security, the portion of the Amortized Face Amount hereof) to be
redeemed, together with the interest accrued thereon to the Redemption Date;
provided, however, that in no event shall the Redemption Price be less than 100%
of the portion of the principal amount hereof (or, if this Security is an
Original Issue Discount Security, the portion of the Amortized Face Amount
hereof) to be redeemed.
The Indenture contains provisions for defeasance and covenant defeasance at
any time of the entire indebtedness on this Security upon compliance by the
Company with certain conditions set forth therein.
-19-
<PAGE>
If an Event of Default with respect to the Securities of this series shall
occur and be continuing, the principal of the Securities of this series (or, in
the case of Original Issue Discount Securities, the Amortized Face Amount
thereof) may be declared due and payable in the manner and with the effect
provided in the Indenture. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of the interest, if any, on the Securities of this
series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein set
forth, the Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different
authorized denomination, as
-20-
<PAGE>
requested by the Holder surrendering the same. In the event of any redemption
at the election of the Company, the Trustee shall not be required to (i) issue,
register the transfer of or exchange Securities of this series during a period
beginning at the opening of business 15 days before any selection of Securities
of this series to be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption, or (ii) register the transfer of
or exchange any Security, or portion thereof, called for redemption, except the
unredeemed portion of any Security being redeemed in part. Following the
exercise of any redemption option by the Holder hereof, the Trustee shall not be
required to issue, register the transfer of or exchange that portion of this
Security with respect to which such option has been exercised.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Notes of this series may be issued in the form of one or more Global
Securities to The Depository Trust Company as depositary for the Global
Securities of this series (the "Depositary") or its nominee and registered in
the name of the Depositary or such nominee. If the face of this Security
contains a legend indicating that this Security is a Global Security so
registered, the transfer and exchange hereof is subject to the additional
limitations set forth in such legend.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
__________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
-21-
<PAGE>
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - ______________ Custodian ________________
(Custodian) (Minor)
Under Uniform Gifts to Minors Act (___________)
(State)
Additional abbreviations may also be used though not in the above list.
__________________
-22-
<PAGE>
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
- --------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing __________________________________________________________
attorney to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:________________ X___________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within instrument in every particular, without
alteration or enlargement or any change whatever.
-23-
<PAGE>
OPTION TO ELECT REDEMPTION
The undersigned hereby irrevocably requests and instructs [INSERT NAME OF
COMPANY] to redeem the within Security (or portion thereof specified below)
pursuant to its terms at the Redemption Price, to the undersigned at
________________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF THE
UNDERSIGNED)
________________________________________________________________________________
________________________________________________________________________________
If less than the entire principal amount of the within Security is to be
redeemed, specify the portion thereof which the Holder elects to have redeemed:
________________________________________________________________________________
________________; and specify the denomination or denominations (which shall not
be less than the minimum authorized denomination) of the Securities to be issued
to the Holder for the portion of the within Security not being redeemed (in the
absence of any such specification, one such Security will be issued for the
portion not being redeemed):
________________________________________________________________________________
____________________.
Dated:___________________ X_______________________________
________________________________________________________________________________
NOTICE: This signature on this Option to
Elect Redemption must correspond with the
name as written upon the face of the within
instrument in every particular without
alteration or enlargement.
-24-
<PAGE>
[Ropes & Gray Letterhead]
Exhibit 5.1
June 12, 1995
Boston Gas Company
One Beacon Street
Boston, MA 02108
Re: Registration Statement on Form S-3
----------------------------------
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement (the "Registration Statement") on Form S-3 being filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
for the registration of $100,000,000 principal amount of debt securities (the
"Debt Securities") of Boston Gas Company (the "Company") to be issued from time
to time under an Indenture dated as of December 1, 1989 (the "Indenture")
between you and The Bank of New York, as Trustee (the "Trustee") (which has
assigned its rights and duties as Trustee to The First National Bank of Boston,
as Successor Trustee (the "Successor Trustee"), pursuant to an Agreement of
Resignation, Appointment and Acceptance dated November 18, 1992 between the
Company, the Trustee and the Successor Trustee).
We have acted as counsel for the Company in connection with the proposed
issue and sale of the Debt Securities and the preparation of the Registration
Statement. For purposes of this opinion, we have examined and relied upon the
information set forth in the registration statement and such other documents and
records as we have deemed necessary.
We have examined the opinion to you dated June 12, 1995 of J.L. Miller,
Esq., General Counsel of the Company, relating to proceedings before the
Massachusetts Department of Public Utilities (the "MDPU") and relating to the
jurisdiction of that Department over the issuance and sale of the Debt
Securities. We refer you to said opinion, upon which we have relied as to the
foregoing matters.
Basing our opinion on the foregoing, we are of the opinion that:
(1) when the Registration Statement relating to the Debt Securities being
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, has been declared effective and when the Indenture has been
qualified under the Trust Indenture Act of 1939
<PAGE>
Boston Gas Company -2- June 12, 1995
with respect to the Debt Securities, no further authorization, consent or
approval by any regulatory authority will be required for the valid issuance and
sale of the Debt Securities (except under the so-called "blue-sky" or securities
laws of the several states, as to the applicability of which we do not express
an opinion);
(2) when the Board of Directors of the Company or committee designated
thereby or other designee thereof have determined the price and other terms and
conditions relating to the issue and sale of the Debt Securities, the Debt
Securities will have been duly authorized by the Company;
(3) upon the execution and filing with the Trustee of the proper papers,
the Debt Securities will be issuable under the terms of the Indenture; and
(4) upon the execution, authentication and delivery of the Debt
Securities in accordance with the corporate and governmental authorizations
referred to above and in accordance with the Indenture, the Debt Securities will
be valid and legally binding obligations of the Company and the Debt Securities
will be entitled to the benefits and security provided by the Indenture together
with any other series of securities of the Company which have been and may
hereafter be issued thereunder pursuant to the terms thereof; except that
enforcement of the rights and remedies created thereby is subject to bankruptcy,
reorganization, insolvency or similar laws affecting creditors' rights
generally, as may from time to time be in effect, and by general principles of
equity.
We understand that this opinion is to be used in connection with the
Registration Statement relating to the Debt Securities to be filed with the
Securities and Exchange Act of 1933, as amended. We consent to the filing of
this opinion with and as a part of said Registration Statement and the use of
our name therein and in the related Prospectus under the caption "Validity of
Debt Securities".
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
<PAGE>
Exhibit 5.2
[BOSTON GAS COMPANY LETTERHEAD]
Salomon Brothers Inc.
Seven World Trade Center
New York, New York 10048
J. P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260-0060
Donaldson, Lufkin & Jenrette
Securities Corporation
140 Broadway
New York, New York 10005-1285
June 9, 1995
Ladies and Gentlemen:
You have asked my opinion concerning the jurisdiction of the Department of
Public Utilities of The Commonwealth of Massachusetts (the "Department") to
approve the proposed issuance by Boston Gas Company (the "Company") of
$100,000,000 principal amount of long-term debt to be issued from time to time
(the "Debt Securities"). You have also asked my opinion whether the Department
has duly approved the issuance and sale of the Debt Securities.
The Company is subject to certain statutes of The Commonwealth of
Massachusetts regulating utilities. Thus, the issuance of the Debt Securities
by the Company, including the interest rate applicable thereto and the manner of
sale of the Debt Securities, the Company's rates, accounting practices and
territorial limits of the Company's service area, as well as substantial
portions of its operations, financing, contracts, purchase of gas and relations
with competitive or affiliated interests, are regulated by the Department.
<PAGE>
Salomon Brothers Inc. -2- June 9, 1995
I have examined Chapter 164 of the General Laws of Massachusetts and the
docket of the Department in the proceeding before the Department numbered
D.P.U. 95-66, and other records of the Department. For purposes of this
opinion, I have assumed the due issuance by the Department of an Order (the
"Order") consistent with the requests of the Company in its petition in the
aforesaid proceeding.
Based on the foregoing, I am of the opinion that:
1. The Department has jurisdiction to approve the proposed issuance of the
Debt Securities by the Company, the rate or rates at which the Debt
Securities shall bear interest and the sale of the Debt Securities
pursuant to negotiated agency and purchase agreements without prior
public invitation of proposals for the purchase thereof.
2. Upon issuance of the Order and upon the expiration of any appeal period
relating thereto, the Department will have duly approved the issuance
of the Debt Securities in the amount of $100,000,000 at an interest
rate of no greater than 12% per annum and will have granted an
exemption from the provisions of Sections 15 and 15A of Chapter 164 of
the General Laws of Massachusetts to the extent necessary to authorize
the sale of the Debt Securities at less than the face amount thereof
and pursuant to negotiated agency and purchase agreements without prior
invitation of proposals for the purchase thereto.
I understand that this opinion is to be used in connection with the
Registration Statement (Form S-3) under the Securities Act of 1933 with respect
to the proposed issuance of the Debt Securities. I hereby consent to the filing
of this opinion as an exhibit to said Registration Statement and to the use of
my name therein and in the related Prospectus under the caption "Validity of
Debt Securities". I also consent to the reliance upon this opinion by Ropes &
Gray for purposes of their opinion also being filed as an exhibit to said
Registration Statement.
Very truly yours,
/s/ Jennifer L. Miller
Jennifer L. Miller
<PAGE>
Exhibit 12.1
BOSTON GAS COMPANY
COMPUTATION OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
<TABLE>
<CAPTION>
Twelve Months
Year Ended December 31, Ended
------------------------------------------- March 31,
Earnings 1990 1991 1992 1993 1994 1995
------- ------- ------- ------- ------- -----------
<S> <C> <C> <C> <C> <C> <C>
Income Before Interest Expenses $33,110 $32,148 $46,637 $38,767 $50,180 $45,549
Add:
Interest During Construction 1,343 2,537 823 583 894 791
Implied Interest Charges
in Certain Leases 957 788 681 601 515 492
1/3 of All Rentals 1,315 1,499 1,697 1,952 2,156 2,210
State & Federal Taxes
on Income 9,410 8,770 17,995 12,105 17,737 14,069
------- ------- ------- ------- ------- -------
Total Earnings $46,135 $45,742 $67,833 $54,008 $71,482 $63,111
------- ------- ------- ------- ------- -------
Fixed Charges:
Interest on Long-Term Debt $12,055 $14,228 $15,710 $15,447 $17,024 $17,442
Other Interest 6,360 4,971 4,042 4,489 6,902 7,358
Implied Interest Charges
in Certain Leases 957 788 681 601 515 492
1/3 of All Rentals 1,315 1,499 1,697 1,952 2,156 2,210
------- ------- ------- ------- ------- -------
Total Fixed Charges $20,687 $21,486 $22,130 $22,489 $26,597 $27,502
------- ------- ------- ------- ------- -------
- -----------------------------------------------------------------------------------------
Ratio of Earnings to
Fixed Charges 2.23 2.13 3.07 2.40 2.69 2.29
- -----------------------------------------------------------------------------------------
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 27, 1995
included in Boston Gas Company's Form 10-K for the year ended December 31, 1994
and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
June 12, 1995
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
We, the undersigned officers and directors of Boston Gas Company, hereby
generally constitute J.F. Bodanza, W.J. Flaherty, L. William Law, Jr. and David
B. Walek and each of them singly our true and lawful attorneys with full power
to them, and each of them singly, to sign for us in our names in the capacities
indicated below any and all amendments (including post-effective amendments) to
the Registration Statement on Form S-3 to be filed with the Securities and
Exchange Commission relating to the issue and sale of Debt Securities and
generally to do all such things in our names and behalf and in our capacities as
officers and directors as will enable Boston Gas Company to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission.
Witness our hand and common seal this 13th day of June, 1995.
Signature Title
--------- -----
/s/ C.R. Messer President (Principal Executive Officer)
- -------------------------- and Director
C.R. Messer
/s/ A.J. DiGiovanni Senior Vice President and Director
- --------------------------
A.J. DiGiovanni
/s/ J.F. Bodanza Senior Vice President, Treasurer (Principal
- -------------------------- Financial and Accounting Officer) and
J.F. Bodanza Director
/s/ J.A. Ives Director
- --------------------------
J.A. Ives
/s/ R.R. Clayton Director
- --------------------------
R.R. Clayton
/s/ W.J. Flaherty Director
- --------------------------
W.J. Flaherty
<PAGE>
Exhibit 25.1
SECURITIES ACT OF 1933 FILE NO: (IF APPLICATION TO DETERMINE ELIGIBILITY
OF TRUSTEE FOR DELAYED OFFERING PURSUANT TO SECTION 305(b)(2)
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)________
--------------------
THE FIRST NATIONAL BANK OF BOSTON
(Exact name of trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Adress of principal executive offices) (Zip Code)
Gary A. Speiss, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
(Name, address and telephone number of agent for service)
--------------------
BOSTON GAS COMPANY
(Exact name of obligor as specified in its charter)
Massachusetts 04-1103580
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE BEACON STREET 02108
BOSTON, MA (Zip Code)
(Address of principal executive offices)
Medium Term Notes
(Title of Indenture securities)
================================================================================
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency of the United States, Washington, D.C.
Board of Governors of the Federal Reserve System, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the Trustee.
(See Notes on page 2)
None with respect to Bank of Boston Corporation.
3. through 11. Not applicable.
12. Indebtedness of the Obligor to the Trustee
<TABLE>
<CAPTION>
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
<S> <C> <C>
$90,000 Revolving Credit Commercial Paper back-up 364 day facility with annual
for which BKB serves as facility. renewal. May be converted to
Agent Zero usage anticipated a two year term facility at the
option of the borrower.
</TABLE>
13. through 15. Not applicable.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility and
qualification.
1. A copy of the articles of association of the trustee as now in effect.
A certified copy of the Articles of Association of the trustee is filed as
Exhibit No. 1 to statement of eligibility and qualification No. 22-9514 and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
<PAGE>
A copy of the certificate of T. McLean Griffin, Cashier of the trustee, dated
February 3, 1978, as to corporate succession containing copies of the
Certificate of the Comptroller of the Currency that The Massachusetts Bank,
National Association, into which The First National Bank of Boston was merged
effective January 4, 1971, is authorized to commence the business of banking as
a national banking association, as well as a certificate as to such merger is
filed as Exhibit No. 2 to statement of eligibility and qualification No. 22-9514
and is incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents specified in
paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated February 6, 1978
is filed as Exhibit No. 3 to statement of eligibility and qualification No.
22-9514 and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated December 23,
1993 is filed as Exhibit No. 4 to statement of eligibility and qualification No.
22-25754 and is incorporated herein by reference thereto.
5. The consent of the trustee required by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is annexed
hereto and made a part hereof.
6. A copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee published pursuant to
law or the requirements of its supervising or examining authority is annexed
hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item in this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to it by the obligor and the underwriters, and the trustee disclaims
responsibility for the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
The First National Bank of Boston, a national banking association organized and
existing under the laws of The United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the Town of Canton and
Commonwealth of Massachusetts, on the 9th day of June, 1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: James Mogavero
--------------
James Mogavero
Authorized Officer
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939 in connection with the proposed issue by Boston Gas Company of Medium Term
Notes, we hereby consent that reports of examinations by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: James Mogavero
--------------
James Mogavero
Authorized Officer
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC AND FOREIGN SUBSIDIARIES,
OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on December
31, 1994. Published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161, Charter number 200. Comptroller
of the Currency Northeastern District.
<TABLE>
<CAPTION>
ASSETS
Dollar
Amounts in
Thousands
-----------
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin................................................... $ 1,862,093
Interest-bearing balances........................................................................ 1,551,280
Securities............................................................................................. 3,935,691
Federal funds sold and securities purchased under agreements to resell in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds sold................................................................................... 758,937
Securities purchased under agreements to resell...................................................... 0
Loans and lease financing receivables:
Loans and leases, net of unearned income..................... $25,796,462
LESS: Allowance for loan and lease losses.................... 534,630
LESS: Allocated transfer risk reserve........................ 0
Loans and leases, net of unearned income, allowance and reserve...................................... 25,261,832
Assets held in trading accounts........................................................................ 840,348
Premises and fixed assets (including capitalized leases)............................................... 398,475
Other real estate owned................................................................................ 48,504
Investments in unconsolidated subsidiaries and associated companies.................................... 103,670
Customers' liability to this bank on acceptances outstanding........................................... 304,031
Intangible assets...................................................................................... 651,394
Other assets........................................................................................... 1,170,251
-----------
Total Assets....................................................................................... $36,886,506
===========
LIABILITIES
Deposits:
In domestic offices.................................................................................. $14,924,310
Noninterest-bearing.......................................... $ 4,035,673
Interest-bearing............................................. 10,888,637
In foreign offices, Edge and Agreement subsidiaries, and IBF's......................................... 9,998,764
Noninterest-bearing.......................................... 570,582
Interest-bearing............................................. 9,428,182
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased.............................................................................. 2,464,904
Securities sold under agreements to repurchase....................................................... 277,077
Demand notes issued to the U.S. Treasury............................................................... 364,045
Trading Liabilities.................................................................................... 227,865
Other borrowed money................................................................................... 3,875,462
Mortgage indebtedness and obligations under capitalized leases......................................... 14,007
Bank's liability on acceptances executed and outstanding............................................... 305,512
Subordinated notes and debentures...................................................................... 979,167
Other liabilities...................................................................................... 1,022,105
Total Liabilities $34,453,218
===========
Limited-life preferred stock and equity capital 0
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus..................... $ 0
Common stock...................................................... 82,264
Surplus........................................................... 987,524
Undivided profits and capital reserves............................ 1,408,062
LESS: Net unrealized loss on marketable equity securities......... (39,027)
Cumulative foreign currency translation adjustments............... (5,535)
Total equity capital.............................................. 2,433,288
-----------
Total Liabilities, Limited-life preferred stock, and equity... $36,866,506
===========
</TABLE>
<PAGE>
I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Robert T. Jefferson
February 13, 1995
We, the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
Charles K. Gifford
Ira Stepanian
J. Donald Monan
Directors
February 13, 1995
