As filed with the Securities and Exchange Commission on
August 16, 1995.
REGISTRATION NO. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
______________________
COLONIAL GAS COMPANY
(Exact name of registrant as specified in its charter)
Massachusetts 04-1558100
(State or other (I.R.S. Employer
jurisdiction Identification Number)
of incorporation or
organization)
40 Market Street, Lowell, Massachusetts, 01852 (508) 458-3171
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
______________________
DENNIS W. CARROLL
Vice President and Treasurer
Colonial Gas Company
40 Market Street
Lowell, Massachusetts 01852
(508) 458-3171
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Please send copies of all communications to:
STANLEY KELLER, ESQ. DAVID P. FALCK, ESQ.
Palmer & Dodge Winthrop, Stimson, Putnam & Roberts
One Beacon Street One Battery Park Plaza
Boston, Massachusetts 02108 New York, New York 10004
______________________
Approximate date of commencement of proposed sale to the public:
As soon as possible after the Registration Statement becomes
effective.
______________________
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, 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
Title of each Amount to Proposed Proposed Amount of
class of be maximum maximum registration
securities to registered offering aggregate fee
be registered price per offering
unit price (1)
(1)(2)
Secured Medium $75,000,000 100% $75,000,000 $25,862.07
Term Notes
(1) Estimated solely for the purpose of calculating the
registration fee.
(2) Or, if any Secured Medium Term Notes are issued at an original
issue discount, such greater principal amount as shall result
in an aggregate offering price equal to $75,000,000.
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.
Subject to completion, dated August 16, 1995
PROSPECTUS
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES
HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE
SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR
TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS
PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF
THESE SECURITIES IN ANY JURISDICTION IN WHICH SUCH OFFER,
SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR
QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH JURISDICTION.
$75,000,000
COLONIAL GAS COMPANY
Secured Medium Term Notes, Series A
Due from 9 months to 40 years from Date of Issue
_________________________
Colonial Gas Company (the "Company") intends to offer, from time to
time, up to $75,000,000 aggregate principal amount of its Secured Medium
Term Notes, Series A (the "Notes") having various maturities from 9
months to 40 years from their dates of issue. The Notes will be issued
only in fully registered form, without coupons, and will be denominated
in U.S. dollars, in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The Notes will bear interest at
a fixed rate to be determined by the Company at or prior to the sale
thereof and set forth in a pricing supplement relating to the Notes (a
"Pricing Supplement"). Interest rates may vary with each Note issued by
the Company. Unless otherwise specified in the applicable Pricing
Supplement, interest on the Notes will be payable semiannually on
February 15 and August 15 of each year, and at maturity or, if
applicable, upon redemption at the option of the Company.
The Notes will be issued as a new series of First Mortgage Bonds under
the Company's Second Amended and Restated First Mortgage Indenture and,
pursuant to such Indenture, secured by a lien on certain property owned
by the Company. See "Description of Notes."
The aggregate principal amount, interest rate, purchase price,
maturity and redemption, if applicable, and any other material financial
terms not described herein of each Note will be set forth in the
applicable Pricing Supplement.
Each Note will be issued as a Book-Entry Note and will be represented
by a Global Note registered in the name of The Depository Trust Company,
as Depositary, or its nominee, unless otherwise specified in the
applicable Pricing Supplement. Beneficial interests in a Global Note
will be shown on, and transfers thereof will be effected only through,
records maintained by the Depositary and its participants. Owners of
beneficial interests in a Global Note will not be considered holders
thereof and will not be entitled to receive physical delivery of Notes
in definitive form, except under circumstances described herein. See
"Description of Notes - Book-Entry Notes."
________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS OR ANY PRICING SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Price to Agents' Proceeds to the
Public Commission Company (2)(4)
(1) (2)(3)
Per Note 100% .125% - .750% 99.875% - 99.250%
Total $75,000,000 $93,750 - $562,500 $74,906,250 - $74,437,500
(1) Unless otherwise indicated in a Pricing Supplement, the Notes will
be issued at 100% of their principal amount.
(2) The Company will pay to an Agent a commission ranging from .125%
to .750% of the principal amount of any Note, depending on its
stated maturity, sold through such Agent. The Company also
may sell the Notes to an Agent at a discount for resale to
one or more investors or other purchasers at varying prices
related to prevailing market prices at the time of resale,
as determined by such Agent. Unless otherwise indicated in a
Pricing Supplement, any Note sold to an Agent as principal
will be purchased by such Agent 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 Note of identical
maturity, and may be resold by such Agent. The Notes may also be
sold by the Company directly to investors, in which case no
commission will be payable to any Agent.
(3) The Company has agreed to indemnify the Agents against civil
liabilities, including liabilities under the Securities Act of 1933,
as amended.
(4) Before deduction of expenses payable by the Company estimated at
$180,000.
___________________________
The Notes are being offered on a continuing basis by the Company
through the Agents, each of which has agreed to use its reasonable
efforts to solicit purchases of the Notes. The Company reserves the
right to sell the Notes directly to purchasers on its own behalf. The
Company also may sell the Notes to the Agents acting as principal for
resale to one or more purchasers. The Notes will not be listed on any
securities exchange, and there can be no assurance that all or any
portion of the Notes offered by this Prospectus will be sold or that
there will be a secondary market for any of the Notes. The Company
reserves the right to withdraw, cancel or modify the offer made hereby
without notice. The Company or the Agent that solicits any offer may
reject such offer to purchase Notes, in whole or in part. See "Plan of
Distribution."
___________________________
Smith Barney Inc. A.G. Edwards & Sons, Inc. PaineWebber Incorporated
___________________________
The date of the Prospectus is __________ ___, 1995
IN CONNECTION WITH THE DISTRIBUTION OF NOTES UNDERWRITTEN BY AN
AGENT ACTING AS PRINCIPAL, SUCH AGENT MAY OVERALLOT OR EFFECT
TRANSACTIONS WITH A VIEW TO STABILIZING OR MAINTAINING THE MARKET
PRICE OF THE NOTES AT LEVELS OTHER THAN THOSE WHICH MIGHT
OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED IN ANY OVER-THE-COUNTER MARKET OR OTHERWISE AND, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and in accordance therewith files reports and other information
with the Securities and Exchange Commission (the "Commission").
Such reports and other information can be inspected and copied at
the public reference facilities maintained by the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following regional offices of the
Commission: New York Regional Office, 7 World Trade Center, Suite
1300, New York, New York 10048, and Chicago Regional Office, 500
W. Madison Street, Suite 1400, Chicago, Illinois 60661; and
copies of such material can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents heretofore filed with the Commission
pursuant to the Exchange Act are hereby incorporated in this
Prospectus by reference and made a part hereof:
1. The Company's Annual Report on Form 10-K for the year
ended December 31, 1994.
2. The Company's Quarterly Reports on Forms 10-Q for the
quarters ended March 31, 1995 and June 30, 1995.
All documents filed with the Commission by the Company pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Prospectus and prior to the termination of the
offering of the Notes shall be deemed to be incorporated in this
Prospectus by reference and to be part hereof from the date of
filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this
Prospectus shall be deemed to be modified or superseded, for
purposes of this Prospectus, to the extent that a statement
contained in this Prospectus or in any other subsequently-filed
document which also is or is deemed to be incorporated by
reference in this Prospectus modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
The information relating to the Company contained in this
Prospectus summarizes, is based upon, or refers to information
and financial statements contained in one or more of the
documents incorporated by reference herein. Accordingly, such
information contained herein is qualified in its entirety by
reference to such incorporated documents and should be read in
conjunction therewith.
The Company hereby undertakes to provide without charge to each
person to whom a copy of this Prospectus has been delivered,
including any beneficial owner, upon 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 in this
Prospectus by reference, other than certain exhibits to such
documents. Requests should be directed to Manager of Financial
Services, Colonial Gas Company, 40 Market Street, Lowell,
Massachusetts 01852 (Telephone: (508) 458-3171).
THE COMPANY
The Company, a Massachusetts corporation formed in 1849, is
primarily a regulated natural gas distribution utility that
serves approximately 136,000 customers in 24 cities and towns
located northwest of Boston, Massachusetts and on Cape Cod.
Through its wholly-owned energy trucking subsidiary, Transgas
Inc. ("Transgas"), the Company also provides over-the-road
transportation of liquified natural gas, propane and other
commodities. References in this Prospectus to the Company do
not, unless otherwise required by the context, refer to or
include Transgas.
The Company's combined natural gas distribution service areas
cover approximately 622 square miles and have a year-round
population of approximately 500,000. The Company is currently
serving approximately 48% of potential customers in its service
areas. Of its 136,000 customers, approximately 90% are
residential accounts. The Company added 4,456 firm customers in
1994. Approximately 55% of such growth resulted from new
construction in its service areas and approximately
45% resulted from conversions to gas from other energy sources
for existing homes and businesses.
The address of the Company's principal executive office is 40
Market Street, Lowell, Massachusetts 01852 (Telephone: (508)
458-3171).
SELECTED FINANCIAL INFORMATION
(Dollars in thousands)
Twelve Months
Year Ended Ended
December 31, June 30, 1995
1992 1993 1994 (Unaudited)
Operating Revenues $145,054 $166,261 $166,259 $154,216
Utility Operating Income $ 17,151 $ 18,890 $ 17,517(a) $ 17,152(a)
Net Income $ 10,643 $ 12,022 $ 11,009(a) $ 9,114(a)
Ratio of Earnings 3.08 3.18 2.92 2.38
to Fixed Charges(b)
June 30, 1995
(Unaudited)
Long-term Debt (excluding current portion) $ 75,035
Common Equity 104,566
Total Capitalization $179,601
__________________
(a) Includes effect of a restructuring charge recorded in
December 1994 in the amount of $1,965,000 after tax.
(b) Ratios of Earnings to Fixed Charges for the years ended
December 31, 1990 and 1991 were 1.74 and 2.31, 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 income as cost of gas sold. Fuel
financing costs were $1,078, $671, $433, $390, $504 and $636 for
the years ended December 31, 1990, 1991, 1992, 1993 and 1994, and
for the twelve months ended June 30, 1995, respectively.
USE OF PROCEEDS
The net proceeds from the sale of the Notes offered hereby will
be used for utility plant construction and, to the extent
described in a Pricing Supplement, refunding of maturing
long-term indebtedness, and for repayment of short-term bank debt
incurred for such purposes.
DESCRIPTION OF NOTES
The following statements are a summary only, do not purport to
be complete, and are subject to the detailed provisions of the
Second Amended and Restated First Mortgage Indenture dated as of
June 15, 1992 between the Company and The First National Bank of
Boston, as Trustee (the "Trustee"), and indentures supplemental
thereto, including the supplemental indenture creating the Notes,
the form of which is filed as an exhibit to the Registration
Statement of which this Prospectus is a part and to which
reference is hereby made (collectively, the "Indenture"). This
summary incorporates by reference the Indenture and is qualified
in its entirety by such reference. Certain of the terms used
below are used herein with the meanings ascribed to such terms by
the Indenture.
General
The Notes will be issued as a new series of additional First
Mortgage Bonds (the "Bonds") under the Indenture. The Notes will
be limited in aggregate principal amount to $75,000,000.
The Notes will be issued in fully registered form only, without
coupons. The Notes will be issued in book-entry form (the "Book-
Entry Notes"). The denominations of Notes will be $1,000 and
multiples thereof.
The Notes will be offered on a continuing basis and will mature
from nine months to forty years from their issue dates. Each
Note will bear interest at a fixed rate. The Notes will not have
any conversion rights.
The Pricing Supplement relating to the Notes will describe the
following terms: (i) the purchase price of such Notes which may
be expressed as a percentage of the principal amount at which
such Notes will be issued; (ii) the date on which such Notes will
be issued; (iii) the date on which the principal of such Notes
will become due and payable; (iv) the rate per annum at which
such Notes will bear interest; (v) the date or dates from which
any such interest shall accrue; (vi) the terms for redemption, if
any; and (vii) any other terms of such Notes not inconsistent
with the Indenture.
Payment of Principal and Interest
The Notes will bear interest at a fixed rate from the later of
their date of issue or the most recent date on which any interest
has been paid or duly provided for at the fixed rate per annum
specified therein and in the applicable Pricing Supplement, until
the principal of such Notes is paid or made available for
payment. Interest on the Notes will be payable semi-annually
each February 15 and August 15 (unless otherwise indicated in the
applicable Pricing Supplement) and at maturity or redemption.
Each payment of interest will include interest accrued to but
excluding the interest payment date. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
Principal of and interest on Notes will be paid in immediately
available funds in the manner described below under "Book-Entry
Notes." The principal of and premium, if any,
and interest at maturity on all Notes will be paid in immediately
available funds to the holders of record of such Notes (which, in the
case of a Global Note (as defined herein) representing Book-Entry
Notes, will be the Depositary (as defined herein) or its nominee)
on the date of such payment as provided in the Indenture, provided that,
in the case of Notes not represented by a Global Note, such Notes
are presented to the Trustee in time for the Company to make such
payments in such funds in accordance with its and the Trustee's normal
procedures. The Company may use one or more paying agents.
Redemption
To the extent set forth in the applicable Pricing Supplement,
the Notes may be redeemable, at the option of the Company, in
whole or in part, at the redemption prices set forth therein.
The Notes are also subject to redemption at the principal amount
thereof, in whole or in part, through the application of eminent
domain moneys or proceeds of insurance arising from loss or
casualty.
Except as may otherwise be specified in the applicable Pricing
Supplement, notice of redemption shall be published or mailed to
the registered owners of the Notes to be redeemed at least 30
days but not more than 60 days prior to the redemption date.
Security
The Indenture constitutes a first mortgage lien upon
substantially all of the fixed property and franchises of the
Company, consisting principally of gas distribution property,
real estate and buildings, subject to permitted liens. The lien
of the Indenture secures all Bonds (including the Notes) from
time to time issued and outstanding under the Indenture, equally
and ratably and without distinction as to series (except as to
sinking funds and other analogous funds established for the
exclusive benefit of a particular series). At June 30, 1995, the
Company had $82,363,636 aggregate principal amount of Bonds
outstanding, consisting of five separate series. These
outstanding series of Bonds, and any future series of Bonds to
the extent so designated at the time of their issue, are referred
to in the Indenture as Prior Series Bonds, and as such are
entitled, so long as they are outstanding, to approve certain
actions and to waive certain restrictions under the Indenture.
Except to the extent described below under "Restrictive
Covenants" or specified in a Pricing Supplement, the Notes will
not be designated as Prior Series Bonds.
The Indenture subjects to the lien thereof property of the
character initially mortgaged which is subsequently acquired by
the Company. Such after-acquired property may be subject to
prior liens which are outstanding or created at the time of such
acquisition in an amount not in excess of 60% of the cost or fair
value, whichever is less, of such after-acquired property,
subject to an overall limit on debt secured by such prior liens.
The property excepted from the lien of the Indenture consists
principally of: cash and securities (unless deposited with the
Trustee); contracts, accounts receivable, leases and operating
agreements; equipment, spare parts, tools, materials, supplies
and fuel held for sale, lease, use or distribution in the
ordinary course of business of the Company; vehicles; leasehold
interests and leasehold improvements; and other real and personal
property which is not an integral part of the gas distribution
operations of the Company. Neither the capital stock of Transgas
nor any assets of Transgas are subject to the lien of the
Indenture.
The Company's principal plants and properties, insofar as they
constitute real estate, are owned in fee; certain other
facilities of the Company are located on premises held by the
Company under leases, permits or easements; and the Company's gas
distribution systems (which constitute a substantial portion of
the Company's investment in physical property) are for the most
part located under highways, streets, other public places or
property owned by others for which permits, grants, easements,
licenses or franchises (deemed satisfactory but without
examination of underlying land titles) have been obtained.
The Indenture provides that the Trustee shall have a lien on
the mortgaged property, prior to the Bonds, for the payment of
its reasonable compensation and expenses and for indemnity
against certain liabilities.
Issuance of Additional Bonds
The maximum principal amount of Bonds which may be issued under
the Indenture is not limited. Additional Bonds of any series may
be issued from time to time, upon meeting the requirements of the
Indenture, in principal amounts equal to:
(1) 60% of the lesser of the cost or fair value of the net
amount of additional property not previously funded, which
means, in general terms, the fixed assets of the Company
constituting "gas utility property" less any retirements;
(2) the principal amount of Bonds which have been or are
then being retired, and which have not previously been
funded, plus certain excess sinking fund and similar
payments; or
(3) the amount of cash deposited with the Trustee for such
purpose up to a maximum of $2,000,000 of cash held by the
Trustee at any time.
In order to issue Bonds based on additional property or cash,
the Company must have net earnings during a 12 month period equal
to at least twice the annual interest payments on all outstanding
Bonds (including the Bonds proposed to be issued) and any other
debt secured by a lien equal or superior to the lien of the
Indenture, and at least 90% of the required net earnings must be
from the Company's gas utility operations. This net earnings
requirement also must be met for the issue of Bonds based on
retired Bonds unless the Bonds being issued bear interest at a
rate no higher than the retired Bonds or are issued no later than
3 years after the stated maturity of the retired Bonds.
In addition to the foregoing, without the approval of the
holders of 66 2/3% of the outstanding principal amount of each
series of Prior Series Bonds, secured long-term debt of the
Company, which would include Bonds with a maturity of more than
one year, may not exceed 55% of the total capitalization of the
Company. Total capitalization consists of long-term debt,
preferred stock and common equity of the Company.
The Company expects to issue the Notes primarily on the basis
of additional property. At July 31, 1995, the Company had
approximately $69,920,000 net amount of additional property and
$10,548,864 of retired Bonds, entitling it in accordance with the
provisions of the Indenture to issue approximately $52,500,000 of
additional Bonds.
Release of Property
The Indenture provides for the release of property of the
Company from the lien of the Indenture under various
circumstances, so long as no default exists, based, in most
circumstances, on the net proceeds received in connection with
the disposition of the property being applied to acquire other
gas utility property of at least equal value which becomes
subject to the lien of the Indenture on being deposited with the
Trustee.
Restrictive Covenants
The Indenture contains the following covenants for the benefit
of the holders of all Bonds:
Limitation on Encumbrances. The Company will not create or
suffer any other encumbrance or lien upon the property subject
to the lien of the Indenture except (i) certain routine
permitted liens; (ii) liens on after-acquired property which
do not exceed 60% of the cost or fair value, whichever is
less, of the acquired property and which existed at the time
of acquisition or were contemporaneously created to secure the
purchase price, provided that such liens may not, except in
certain circumstances, exceed 15% of the principal amount of
outstanding Bonds without the consent of the holders of at
least 66 2/3% of the principal amount of outstanding Bonds;
and (iii) liens on after-acquired property acquired through a
sale and leaseback transaction which complies with the debt
restrictions described below.
Reserve for Depreciation. The Company will maintain an
annual reserve for depreciation of not less than 2% of its
depreciable property (excluding certain discontinued gas
manufacturing facilities).
The Indenture also provides that, so long as any Prior Series
Bonds are outstanding, the Company will not, without the consent
of the holders of at least 66 2/3% of the principal amount of each
series of Prior Series Bonds then outstanding:
Dividend Restrictions. Make any restricted distributions to
common stockholders unless the sum of restricted payments made
on or after January 1, 1992 will not exceed 100% of the
Company's net income available for common dividends from that
date (reduced by certain stock repurchases in excess of net
proceeds of stock sales), plus an amount which starts at
$8,000,000 and increases to $12,500,000 when certain series of
Prior Series Bonds cease to be outstanding.
Debt Restrictions. Incur (i) any indebtedness for money
borrowed unless all indebtedness for money borrowed (taking
into account the proposed transaction) would not exceed 63% of
the sum of short-term debt plus total capitalization of the
Company or (ii) any secured long-term debt unless all secured
long-term debt (taking into account the proposed transaction)
would not exceed 55% of total capitalization. The foregoing
restrictions would apply to the issuance of additional Bonds
under the Indenture.
Operating Lease Restrictions. Become liable as lessee or
purchaser under any operating lease or installment purchase
contract having a term of more than 3 years if the aggregate
payments under all such operating leases and contracts in any
12 month period would exceed 3% of total capitalization of the
Company. The determination of the status of leases in
existence on December 31, 1991 as operating or capital leases
is made as of that date.
For purposes of the debt restrictions above, but not otherwise,
the Notes will be considered Prior Series Bonds.
Events of Default
The Indenture provides generally that the following events
constitute a default: (i) failure by the Company to pay the
principal of any Bond when due; (ii) failure by the Company to
pay interest on any Bond for a period of ten days after such
payment is due; (iii) failure of the Company to pay any sinking,
replacement or analogous fund installment when due; (iv) breach
of certain representations, warranties and covenants of the
Company (in the case of certain covenants, after a 30 day grace
period); (v) failure to pay certain other indebtedness or failure
to perform any covenant with respect to such indebtedness after
any applicable grace period, the effect of which causes, or
permits the holders thereof to cause, such indebtedness in an
amount in excess of 3/4 of 1% of tangible net worth of the
Company to become due prior to its stated maturity or permits the
holders of such indebtedness to elect a majority of the board of
directors of the Company; (vi) failure to perform any covenant
relating to preferred stock of the Company, the effect of which
would require, or permit the holders thereof to require, the
Company to redeem such preferred stock prior to any mandatory
redemption date; (vii) a final judgment against the Company in a
specified material amount which remains unstayed for more than 60
days; and (viii) certain events of bankruptcy, insolvency and
reorganization of the Company. The failure of the Company to
redeem the Series CE Bonds at the request of the original owner
of those Bonds in the event of a change of control of the Company
(as defined in the supplemental indenture providing for the issue
of Series CE Bonds) is also a default under the Indenture.
If a default exists, the Trustee may and, at the request of the
holders of at least 25% of the principal amount of the
outstanding Bonds, shall declare all of the Bonds to be
immediately due and payable, subject to the right of the holders
of a majority of the principal amount of the outstanding Bonds to
rescind such declaration if the default has been cured. The
holders of at least 66 2/3% of the principal amount of the
outstanding Bonds (including at least 60% in principal amount of
Bonds of any Prior Series specially affected) may waive any
default except a payment default or a lien default. Upon a
default, all outstanding Bonds generally share ratably in
accordance with the principal, premium, if any, and interest then
owing on such outstanding Bonds. In addition to principal and
interest, the Indenture provides that the holders of the Series CE
and CH Bonds are entitled to receive upon default, a make-whole
premium.
Subject to provision for indemnification of the Trustee, the
holders of a majority in principal amount of outstanding Bonds
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 under the
Indenture. No holder of any Bond 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 an existing default and unless
also the holders of at least 25% in principal amount of the
outstanding Bonds shall have made written request, and offered
reasonable security or indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall have failed to
institute such proceeding within 30 days. However, the holder of
any Bond will have an absolute right to receive payment of the
principal of and premium, if any, and interest on such Bond on or
after the due dates and to institute suit for the enforcement of
any such payment.
The Indenture requires the Company to certify to the Trustee at
the time of the issuance of any Bonds whether there is a default
in the performance or observance of any provision of the
Indenture. The Indenture also requires an annual opinion of
counsel as to the maintenance of the lien of the Indenture.
Modification of the Indenture
Modification and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the holders of at
least 66 2/3% in principal amount of the outstanding Bonds of all
series affected thereby and of each series affected thereby in a
manner different than other affected series; provided, however,
that no such modification or amendment may (i) without the
consent of the holder of a Bond, affect or impair the obligation
of the Company in respect of the principal of or premium and
interest on such Bond or change the amount or rate or extend the
time of such payment, or (ii) without the consent of the holders
of all Bonds outstanding, reduce the percentage required for a
modification or amendment or the creation, except as authorized,
of a lien prior to or on a parity with the lien of the Indenture.
The Company and the Trustee may agree to certain routine
modifications and amendments of the Indenture without the consent
of the holders of the Bonds, including modifications in regard to
matters arising under the Indenture as may be necessary or
desirable and not inconsistent with the security and protection
intended to be conferred upon the Trustee and the Bondholders.
Satisfaction and Discharge of the Indenture
The Indenture provides that when, among other things, all Bonds
not previously delivered to the Trustee for cancellation (i) have
become due and payable, (ii) will become due and payable at
their stated maturity within seven months, or (iii) are to be
called for redemption within seven months, and the Company
deposits or causes to be deposited with the Trustee a sum
sufficient to pay the whole amount of the principal of and
premium, if any, and interest due or to become due on the Bonds,
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.
Consolidation, Merger and Sale of Assets
The Indenture does not prevent the consolidation or merger of
the Company with or into any other corporation, or the merger
into the Company of any other corporation, or the sale or lease
by the Company of its assets substantially as an entirety,
provided that (i) any consolidation, merger, sale or transfer
shall be on terms that do not impair the lien of the Indenture or
any of the rights or powers of the Trustee or the holders of the
Bonds; (ii) the successor corporation shall expressly assume the
due and punctual payment of the Bonds and the observance and
performance of all covenants, conditions and provisions of the
Indenture; (iii) immediately after a merger or consolidation, the
surviving corporation shall be in compliance with the provisions
of the Indenture in all material respects; and (iv) so long as
the Series CH Bonds are outstanding, the successor corporation
shall be able to incur $1.00 of additional indebtedness for
borrowed money. See "Restrictive Covenants."
Book-Entry Notes
Unless otherwise specified in the applicable Pricing
Supplement, the Notes will be issued in book-entry form
("Book-Entry Notes"). Upon issuance, all Book-Entry Notes having
identical terms and provisions will be represented by a single
global security (each, a "Global Note"). Unless otherwise
specified in a Pricing Supplement, each Global Note representing
Book-Entry Notes will be deposited with, or on behalf of, The
Depository Trust Company (the "Depositary"), and registered in
the name of a nominee of the Depositary. Except as set forth
below, a Global Note may not be transferred except 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 or any nominee to a successor of the Depositary or a
nominee of such successor.
The Depositary has advised the Company and the Agents that it
is a limited-purpose trust company organized under the laws of
the State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the Uniform
Commercial Code and a "clearing agency" registered pursuant to
the provisions of Section 17A of the Exchange Act. The
Depositary was created to hold securities of its participants and
to facilitate the clearance and settlement of securities
transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants,
thereby eliminating the need for physical movement of securities
certificates. The Depositary's participants include securities
brokers and dealers (including the Agents), banks, trust
companies, clearing corporations and certain other organizations,
some of whom (and/or their representatives) own the Depositary.
Access to the Depositary's book-entry system is also available to
others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a
participant, either directly or indirectly. Persons who are not
participants may beneficially own securities held by the
Depositary only through participants.
Upon the issuance of Book-Entry Notes by the Company
represented by a Global Note, the Depositary will credit, on its
book-entry registration and transfer system, the respective
principal amounts of the Book-Entry Notes represented by such
Global Note to the accounts of participants. The accounts to be
credited shall be designated by the Agent through or by which
such Book-Entry Notes are sold. Ownership of beneficial
interests in a Global Note will be limited to participants or
persons that may hold interests through participants. In
addition, ownership of beneficial interests by participants in a
Global Note will be evidenced only by, and the transfer of any
such ownership interest will be effected only through, records
maintained by the Depositary or its nominee for such Global Note.
Ownership of beneficial interests in such a Global Note by
persons that hold through participants will be evidenced only by,
and the transfer of any such ownership interest within such
participant will be effected only through, records maintained by
such participant. The laws of some states require that certain
purchasers of securities take physical delivery of such
securities in certificated form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global
Note.
So long as the Depositary, or its nominee, is the registered
owner of a Global Note, the Depositary or its nominee, as the
case may be, will be considered the sole owner or holder of the
Book-Entry Notes represented by such Global Note for all purposes
under the Indenture. Except as provided below, owners of
beneficial interests in a Global Note representing Book-Entry
Notes will not be entitled to have such Book-Entry Notes
registered in their names, will not receive or be entitled to
receive physical delivery of Notes in certificated form and will
not be considered the owners or holders thereof under the
Indenture. Accordingly, each person owning a beneficial interest
in a Global Note must rely on the procedures of the Depositary
and, if such person is not a participant, on the procedures of
the participant through which such person owns its interest, to
exercise any rights of a holder under the Indenture or such
Global Note. The Company understands that, under existing
industry practice, in the event that the Company requests any
action of holders of Book-Entry Notes or an owner of a beneficial
interest in a Global Note desires to take any action that the
Depositary, as the holder of such Global Note, is entitled to
take, the Depositary would authorize the participants to take
such action and that the participants would authorize beneficial
owners owning through such participants to take such action or
would otherwise act upon the instructions of beneficial owners
owning through them.
Payments of principal, interest and premium, if any, on the
Book-Entry Notes represented by one or more Global Notes will be
made by the Company through the Trustee to the Depositary, or its
nominee, as the case may be, as the registered owner of such
Global Note or Notes. Neither the Company nor the Trustee will
have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
ownership interests. The Company expects that the Depositary,
upon receipt of any payment of principal, interest and premium,
if any, in respect of a Global Note, will credit immediately the
accounts of the related participants with payment in amounts
proportionate to their respective holdings in principal amount of
beneficial interests in such Global Note as shown on the records
of the Depositary. The Company also expects that payments by
participants to owners of beneficial interests in a Global Note
will be governed by standing customer instructions and customary
practices, as is now the case with securities held for the
accounts of customers in bearer form or registered in "street
name," and will be the responsibility of such participants.
The Company will issue Notes in certificated form in exchange
for Global Notes representing Book-Entry Notes only if (i) the
Depositary is at any time unwilling or unable to continue as
depositary and a successor depositary is not appointed by the
Company within 90 days, (ii) the Company at any time determines
not to have Book-Entry Notes represented by one or more Global
Notes, or (iii) a default under the Indenture has occurred and is
continuing. In any such instance, an owner of a beneficial
interest in any Global Note will be entitled to physical delivery
of Notes in certificated form which are equal in principal amount
to such beneficial interest and to have such Notes registered in
its name. Such Notes so issued will be issued in registered form
only without coupons and in denominations of $1,000 and multiples
thereof. If notes are issued in certificate form, the Company will
execute a supplemental indenture providing for such certificates and,
among other things, establishing appropriate record dates for the
payment of interest.
The information above concerning the Depositary and the
Depositary's book-entry system has been obtained from the
Depositary. None of the Company, the Trustee or the Agents
takes responsibility for the accuracy or completeness thereof.
None of the Company, the Trustee or any agent for payment on or
registration of transfer or exchange of any Global Note will have
any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial interests
in such Global Note or for maintaining, supervising or reviewing
any records relating to such beneficial interests.
Concerning the Trustee
The First National Bank of Boston, as Trustee under the
Indenture, is the trustee for Bonds of the Company currently
outstanding under the Indenture. It has from time to time and
may continue to provide loans to the Company in the ordinary
course of business.
CERTAIN TAX CONSIDERATIONS
The following summarizes certain United States Federal income
tax considerations that may be relevant to a holder of Notes and
is based on laws, existing Treasury regulations, rulings,
judicial decisions and other authorities as of the date hereof,
all of which are subject to change. Prospective investors should
consult their own tax advisors in determining their tax
consequences from purchasing, holding or disposing of Notes,
including the application to their particular situations of the
tax considerations discussed below, and in determining the
application of state, local or other tax laws as well as
prospects for changes in Federal income tax laws or
interpretations.
Payments of interest on a Note (other than an OID Note, as
discussed below) will generally be taxable to a holder as gross
income at the time it is paid or accrued in accordance with the
holder's method of tax accounting. A Note may be issued for an
amount less than its stated redemption price at stated maturity,
and that difference may give rise to original issue discount
("OID"). Notes issued with OID are referred to as "OID Notes."
Holders of OID Notes should be aware that they must, in general,
include OID income on an accrual method, i.e., in advance of the
related cash payments. Notice will be given in the applicable
Pricing Supplement when the Company determines that a particular
Note will be an OID Note.
PLAN OF DISTRIBUTION
Under the terms of a Distribution Agreement between the Agents
and the Company, the Notes are being offered on a continuing
basis by the Company through the Agents, which have agreed to use
their reasonable efforts to solicit offers to purchase the Notes.
The Notes will be issued at 100% of the principal amount thereof,
unless otherwise indicated in the applicable Pricing Supplement.
The Company will pay to the Agents a commission of from .125% to
.750% of the principal amount of each Note, depending on its
maturity, sold through the Agents. The Company has reserved the
right to appoint other agents, upon 30 days' prior written notice
to the Agents, but only if such other agent agrees to be bound by
the terms of the Distribution Agreement; any such other agents
will be named in the appropriate Pricing Supplement. The Company
and the Agents will have the right to accept offers to purchase
Notes and may reject any such offer, in whole or in part.
The Company also may sell Notes to any Agent, acting as
principal, at a discount to be agreed upon at the time of sale,
for resale to one or more investors or to another broker-dealer
(acting as principal for purposes of resale) at varying prices
related to prevailing market prices at the time of such resale,
as determined by such Agent. An Agent may resell a Note
purchased by it as principal to another broker-dealer at a
discount, provided such discount does not exceed the commission
or discount received by such Agent from the Company in connection
with the original sale of such Note. The Company may also sell
Notes directly to investors on its own behalf at a price to be
agreed upon at the time of sale. In the case of sales made
directly by the Company, no commission or discount will be paid
or allowed.
The Notes will not have an established trading market when
issued and will not be listed on any securities exchange. The
Agents may make a market in the Notes but are not obligated to do
so and may discontinue any market-making at any time without
notice. There can be no assurance of a secondary market for any
Notes or that any Notes will be sold.
The Agents, whether acting as agent or principal, and dealers
to which the Agents may sell for resale to investors or other
purchasers may be deemed to be "underwriters" within the meaning
of the Securities Act of 1933, as amended (the "Securities Act").
The Company has agreed to indemnify the Agents against certain
civil liabilities, including liabilities under the Securities Act,
or to contribute to payments the Agents may be required to make
in respect thereof. The Company also has agreed to reimburse the
Agents for certain expenses.
The Agents have in the past performed, and in the future may
perform, various services for the Company in the ordinary course
of business.
LEGAL OPINIONS
The validity of the Notes will be passed upon for the Company
by Palmer & Dodge, counsel to the Company, One Beacon Street,
Boston, Massachusetts, and certain legal matters will be passed
upon for the Agents by Winthrop, Stimson, Putnam & Roberts, One
Battery Park Plaza, New York, New York.
EXPERTS
The 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 in this Prospectus and in the
Registration Statement, have been audited by Grant Thornton LLP,
independent auditors, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance
upon the authority of said firm as experts in giving said
reports.
No dealer, salesperson or any
other person has been
authorized to give any
information or to make any $75,000,000
representation not contained
in this Prospectus (including
any accompanying Pricing Colonial Gas
Supplement) and, if given or Company
made, such information or
representation must not be ________________
relied upon as having been
authorized by the Company or
by any of the Agents. This
Prospectus (including any SECURED MEDIUM TERM
accompanying Pricing NOTES, SERIES A
Supplement) does not
constitute an offer to sell or
a solicitation of any offer to ________________
buy any of the securities
offered hereby or thereby in
any jurisdiction to any person PROSPECTUS
to whom it is unlawful to make
such offer in such
jurisdiction. Neither the _______ __, 1995
delivery of this Prospectus by
the Company or any of the
Agents nor any sale made Smith Barney Inc.
hereunder shall, under any
circumstances, create any A.G. Edwards & Sons, Inc.
implication that there has
been no change in the affairs PaineWebber Incorporated
of the Company since the date
hereof or that the information
contained or incorporated by
reference herein is correct as
of any time subsequent to its
date.
_______________
TABLE OF CONTENTS
Page
Available Information
Incorporation of Certain
Information by Reference
The Company
Selected Financial Information
Use of Proceeds
Description of Notes
Certain Tax Considerations
Plan of Distribution
Legal Opinions
Experts
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:
Registration Fee (actual) $ 25,862
Printing 2,000
Legal services and expenses 70,000
Accounting fees and expenses 12,000
Blue Sky fees and expenses 3,000
Rating agency fees 57,500
Charges of trustee, transfer agent and registrar 5,000
Miscellaneous 4,638
Total $180,000
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)
authorizes the registrant to indemnify directors and officers to
the extent provided by its articles of organization or a by-law
or vote adopted by the stockholders. Pursuant to that authority,
the registrant's By-laws provide that, subject to the limitations
of Section 67, the Company will indemnify each person who may
serve or who has served at any time as a director or officer of
the Company or of any of its subsidiaries, or who at the request
of the Company may serve or at any time has served as a director,
officer or trustee of, or in a similar capacity with, another
organization or an employee benefit plan, against all expenses
and liabilities (including counsel fees, judgments, fines, excise
taxes, penalties and amounts payable in settlements) reasonably
incurred by or imposed upon such person in connection with any
threatened, pending or completed action, suit or other
proceeding, whether civil, criminal, administrative or
investigative, in which he may become involved by reason of his
serving or having served in such capacity (other than a
proceeding voluntarily initiated by such person unless he is
successful on the merits, the proceeding was authorized by the
Company or the proceeding seeks a declaratory judgment regarding
his own conduct); provided that as to any matter disposed of by a
compromise payment by such person, pursuant to a consent decree
or otherwise, the payment and indemnification thereof have been
approved by the Company, which approval shall not unreasonably be
withheld, or by a court of competent jurisdiction. Such
indemnification includes payment by the Company of expenses
incurred in defending a civil or criminal action or proceeding in
advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to
indemnification, which undertaking may be accepted without regard
to the financial ability of such person to make repayment. The
indemnification provided by the Company's By-laws is expressly
not exclusive of any other rights to which a director or officer
may be entitled by contract or otherwise under law, and inures to
the benefit of the heirs, executors and administrators of such a
person.
The Company's Restated Articles of Organization eliminate
directors' personal liability to the Company and its stockholders
for monetary damages for breaches of fiduciary duty, except in
circumstances involving (i) breach of the director's duty of
loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) violations of the
corporate statutory limitations on distributions to stockholders
or loans to insiders, and (iv) transactions from which the
director derived an improper personal benefit.
The Company maintains an insurance policy for itself and its
directors and officers covering certain liabilities which may
arise as a result of actions or omissions of such directors and
officers.
The Distribution Agreement provides that each of the Agents
named therein will indemnify the Company's directors, the
officers who sign this Registration Statement and certain
controlling persons against certain liabilities, including
certain liabilities under the Securities Act of 1933.
Item 16. Exhibits
The following designated exhibits are, as indicated below, either
filed herewith or have been heretofore filed with the Securities
and Exchange Commission and are incorporated herein by reference.
Exhibit Exhibit
Number Reference
1 Form of Distribution Agreement. Filed herewith as
Exhibit 1.
4a Restated Articles of Organization Incorporated herein
Colonial Gas Company, dated April by reference.
19, 1989, as amended on July 16,
1992 and supplemented by a
certificate of vote of Directors
establishing a series of a class of
stock filed on November 30, 1993,
filed as Exhibit 3(a) to Form 10-K
of the Registrant for the year ended
December 31, 1993.
4b By-Laws of Colonial Gas Company, as Incorporated herein
amended to date, filed as Exhibit by reference.
3(b) to Form 10-K of the Registrant
for the year ended December 31,
1993.
4c Second Amended and Restated First Incorporated herein
Mortgage Indenture, dated as of June by reference.
15, 1992, filed as Exhibit 4(b) to
Form 10-Q of the Registrant for the
quarter ended June 30, 1992.
4d First Supplemental Indenture, dated Incorporated herein
as of June 15, 1992, filed as by reference.
Exhibit 4(c) to Form 10-Q of the
Registrant for the quarter ended
June 30, 1992.
4e Action substituting The First Filed herewith as
National Bank of Boston as Trustee. Exhibit 4e.
4f Form of Second Supplemental Filed herewith as
Indenture, dated as of August 1, Exhibit 4f.
1995 relating to the Secured Medium
Term Notes, Series A.
4g Form of Secured Medium Term Note, Included in Exhibit
Series A. 4f.
5 Opinion of Palmer & Dodge as to the Filed herewith as
legality of the securities. Exhibit 5.
12 Statement re: Computation of Ratio Filed herewith as
of Earnings to Fixed Charges. Exhibit 12.
23a Consent of Grant Thornton LLP. Filed herewith as
Exhibit 23a.
23b Consent of Palmer & Dodge. Included in Exhibit
5.
25 Statement of Eligibility of Trustee Filed herewith as
on Form T-1. Exhibit 25.
Item 17. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, 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) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the registration statement;
notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in
the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 section
15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the 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.
(b) The undersigned registrant hereby undertakes that, for
purposes 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 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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 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 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.
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 Lowell, Commonwealth of Massachusetts, on this 16th day of
August, 1995.
COLONIAL GAS COMPANY
F. L. Putnam, III, President
and Chief Executive Officer
Power of Attorney
We, the undersigned officers and directors of Colonial Gas
Company, hereby severally constitute and appoint Dennis W. Carroll
and Timothy A. Clark and each of them singly, our true and lawful
attorneys-in-fact, with full power of substitution, to them in any
and all capacities, to sign any amendments to this Registration
Statement on Form S-3, including any post-effective amendments
thereto, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each
of said attorneys-in-fact may do or cause to be done by virtue
hereof. Witness our hands and common seal on the dates set forth
below.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following
persons in the capacities and on the dates indicated.
Officers:
Principal Executive Officer: Date:
F. L. Putnam, III, President and August 16, 1995
Chief Executive Officer
Principal Financial Officer:
Nickolas Stavropoulos, August 16, 1995
Executive Vice President-Finance,
Marketing and Chief Financial Officer
Principal Accounting Officer:
Dennis W. Carroll, Vice President August 16, 1995
and Treasurer
FORM S-3
Directors: Date:
V.W. Baur August 16, 1995
A.C. Dudley August 16, 1995
J.P. Harrington August 16, 1995
H.C. Homeyer August 16, 1995
R.L. Hull August 16, 1995
D.H. LeVan, Jr. August 16, 1995
K.R. Lydecker August 16, 1995
F.L. Putnam, Jr. August 16, 1995
F.L. Putnam, III August 16, 1995
J.F Reilly, Jr. August 16, 1995
A.B. Sides, Jr. August 16, 1995
M.M. Stapleton August 16, 1995
N. Stavropoulos August 16, 1995
C.O. Swanson August 16, 1995
G.E. Wik August 16, 1995
EXHIBIT INDEX
Exhibit Page
No. Description
1 Form of Distribution Agreement
4a Restated Articles of Organization of Colonial
Gas Company, dated April 19, 1989, as amended
on July 16, 1992 and supplemented by a
certificate of vote of Directors establishing
a series of class stock filed on November 30,
1993, filed as Exhibit 3(a) to Form 10-K of
the Registrant for the year ended December
31, 1993
4b By-Laws of Colonial Gas Company, as amended
to date, filed as Exhibit 3(b) to Form 10-K
of the Registrant for the year ended December
31, 1993
4c Second Amended and Restated First Mortgage
Indenture, dated as of June 15, 1992, filed
as Exhibit 4(b) to Form 10-Q of the
Registrant for the quarter ended June 30,
1992
4d First Supplemental Indenture, dated as of
June 15, 1992, filed as Exhibit 4(c) to Form
10-Q of the Registrant for the quarter ended
June 30, 1992
4e Action substituting the First National Bank
of Boston as Trustee
4f Form of Second Supplemental Indenture, dated
as of August 1, 1995, related to the Secured
Medium Term Notes, Series A
4g Form of Secured Medium Term Note, Series A
5 Opinion of Palmer & Dodge as to the legality
of the securities
12 Statement re: Computation of Ratio of
Earnings to Fixed Charges
23a Consent of Grant Thornton LLP
23b Consent of Palmer & Dodge
25 Statement of Eligibility of Trustee on Form T-
1
[END OF FORM S-3]
[EXHIBIT 1 TO FORM S-3]
COLONIAL GAS COMPANY
Secured Medium Term Notes, Series A
Due Not Less Than 9 Months from Date of Issue
DISTRIBUTION AGREEMENT
________ ___, 1995
SMITH BARNEY INC.
388 Greenwich Street
New York, New York 10013
A.G. EDWARDS & SONS, INC.
One North Jefferson Avenue
St. Louis, Missouri 63103
PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
14th Floor
New York, New York 10019
Ladies and Gentlemen:
Colonial Gas Company, a Massachusetts corporation (the
"Company"), confirms its agreement with Smith Barney Inc., A.G.
Edwards & Sons, Inc. and PaineWebber Incorporated (each referred
to as an "Agent" and collectively referred to as the "Agents")
with respect to the issue and sale by the Company of its Secured
Medium Term Notes, Series A (the "Notes"). The Notes are to be
issued as a new series of first mortgage bonds under the
Company's Second Amended and Restated First Mortgage Indenture to
The First National Bank of Boston (as successor to State Street
Bank and Trust Company), as trustee (the "Trustee"), dated as of
June 15, 1992, as heretofore supplemented and as it is to be
further supplemented by a Second Supplemental Indenture, dated as
of August 1, 1995 (the "Supplemental Indenture"), (said
Indenture, as heretofore supplemented and as it is to be further
supplemented, being hereinafter referred to as the "Mortgage").
As of the date hereof, the Company has authorized the issuance
and sale of up to $75,000,000 aggregate principal amount of Notes
through the Agents pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time
authorize the issuance of additional Notes and that such
additional Notes may be sold through or to the Agents pursuant to
the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the
Company directly to purchasers, in which case the Agents will act
as agents of the Company in soliciting Note purchases, and (as
may from time to time be agreed to by the Company and the
applicable Agent) to an Agent as principal for resale to
purchasers.
On August ___, 1995, the Company filed with the Securities
and Exchange Commission (the "SEC") a registration statement on
Form S-3 (No. 33-_____) under the Securities Act of 1933, as
amended (the "1933 Act"), relating to $75,000,000 aggregate
principal amount of the Notes and the offering thereof from time
to time in accordance with Rule 415 of the rules and regulations
of the SEC under the 1933 Act (the "1933 Act Regulations"). Such
registration statement has been declared effective by the SEC and
the Mortgage has been qualified under the Trust Indenture Act of
1939, as amended (the "1939 Act"). Such registration statement
(and any further registration statements which may be filed by
the Company for the purpose of registering additional Notes and
in connection with which this Agreement is included or
incorporated by reference as an exhibit) and the prospectus
constituting a part thereof, and any prospectus or pricing
supplements relating to the Notes, including all documents
incorporated therein by reference pursuant to Item 12 of Form S-3
under the 1933 Act, as from time to time amended or supplemented
by the filing of documents pursuant to the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the 1933 Act or
otherwise, are referred to herein as the "Registration Statement"
and the "Prospectus", respectively, except that if any revised
prospectus shall be provided to the Agents by the Company for use
in connection with the offering of the Notes which is not
required to be filed by the Company pursuant to Rule 424(b) of
the 1933 Act Regulations, the term "Prospectus" shall refer to
such revised prospectus from and after the time it is first
provided to an Agent for such use.
Section 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and
conditions stated herein and subject to the reservation by the
Company of the right to sell Notes directly on its own behalf,
the Company hereby appoints the Agents as its agents for the
purpose of soliciting purchases of the Notes from the Company by
others and agrees that, except as otherwise contemplated herein,
whenever the Company determines to sell Notes directly to an
Agent as principal for resale to others, it will enter into a
Terms Agreement (as defined herein) relating to such sale in
accordance with the provisions of Section 3(b) hereof. The
Agents are authorized to appoint a sub-agent or to engage the
services of any other broker or dealer in connection with the
offer or sale of the Notes. The Company agrees that, during the
period the Agents are acting as the Company's agents hereunder,
the Company will not contact or solicit potential investors
introduced to it by an Agent to purchase the Notes. The Company
may appoint, upon 30 days'prior written notice to the Agents,
additional persons to serve as Agents hereunder, but only if
each such additional person agrees to be bound by all of the
terms of this Agreement as an Agent.
(b) Reasonable Efforts Solicitations; Right to Reject
Offers. Upon receipt of instructions from the Company, each
Agent will use its reasonable efforts to solicit purchases of
such principal amount of the Notes as the Company and such Agent
shall agree upon from time to time during the term of this
Agreement, it being understood that the Company shall not approve
the solicitation of purchases of Notes in excess of the amount
which shall be authorized by the Company from time to time or in
excess of the principal amount of Notes registered pursuant to
the Registration Statement. The Agents will have no
responsibility for maintaining records with respect to the
aggregate principal amount of Notes sold, or of otherwise
monitoring the availability of Notes for sale under the
Registration Statement. Each Agent will communicate to the
Company, orally or in writing, each offer to purchase Notes,
other than those offers rejected by such Agent. Each Agent shall
have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any
such rejection shall not be deemed a breach of such Agent's
agreement contained herein. The Company may accept or reject any
proposed purchase of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In
soliciting purchases of the Notes on behalf of the Company, the
Agents shall act solely as agents for the Company and not as
principal. An Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by
the Company. The Agents shall not have any liability to the
Company in the event any such purchase is not consummated for any
reason. An Agent shall not have any obligation to purchase Notes
from the Company as principal, but each Agent may agree from time
to time to purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made pursuant to a Terms
Agreement in accordance with Section 3(b) hereof.
(d) Reliance. The Company and each Agent agree that any
Notes the placement of which such Agent arranges shall be placed
by such Agent, and any Notes purchased by such Agent shall be
purchased, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on
the terms and conditions and in the manner provided herein.
Section 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of
the date hereof, as of the date of each acceptance by the Company
of an offer for the purchase of Notes (whether through an Agent
as agent or to an Agent as principal), as of the date of each
delivery of Notes (whether through such Agent as agent or to the
Agent as principal) (the date of each such delivery to an Agent
as principal being hereafter referred to as a "Settlement Date"),
and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed
with the SEC any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of Notes under the Registration
Statement, unless the Agents shall otherwise specify) (each of
the times referenced above being referred to herein as a
"Representation Date") as follows:
(i) Due Incorporation and Qualification. The Company has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of the Commonwealth of
Massachusetts with corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus; and
the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify and be in good standing
would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered
as one enterprise.
(ii) Subsidiaries. Each subsidiary of the Company which is
a significant subsidiary (each, a "Significant Subsidiary") as
defined in Rule 405 of Regulation C of the 1933 Act Regulations
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good
standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and all of the issued and
outstanding capital stock of each Significant Subsidiary has been
duly authorized and validly issued, is fully paid and
non-assessable and, except for directors' qualifying shares, is
owned by the Company, directly or through subsidiaries, free and
clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iii) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration
Statement complied, and as of the applicable Representation Date
will comply, in all material respects with the requirements of
the 1933 Act, the 1933 Act Regulations, the 1939 Act and the
rules and regulations of the SEC promulgated thereunder (the
"1939 Act Regulations"). The Registration Statement, at the time
it became effective, did not, and at each time thereafter at
which any amendment to the Registration Statement becomes
effective, any Annual Report on Form 10-K is filed by the Company
with the SEC and as of each Representation Date, will not,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, as of the
date hereof, does not, and as of each Representation Date, will
not, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the representations
and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information
furnished to the Company in writing by the Agents expressly for
use in the Registration Statement or Prospectus or to any
statements in or omissions from the Statement of Eligibility of
the Trustee under the Mortgage on Form T-1 (the "Form T-1")
(iv) Incorporated Documents. The documents incorporated
by reference in the Prospectus, at the time they were or
hereafter are filed with the SEC, complied or when so filed will
comply, as the case may be, in all material respects with the
requirements of the 1934 Act and the rules and regulations
promulgated thereunder (the "1934 Act Regulations"), and, when
read together and with the other information in the Prospectus,
did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were or are made,
not misleading.
(v) Accountants. Grant Thornton LLP, the accountants who
certified the financial statements included or incorporated by
reference in the Prospectus, are independent public accountants
with respect to the Company and its subsidiaries within the
meaning of the 1933 Act and the 1933 Act Regulations
(hereinafter, the "Accountants").
(vi) Financial Statements. The financial statements and any
supporting schedules of the Company and its consolidated
subsidiaries incorporated by reference in the Registration
Statement and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the consolidated
results of their operations for the periods specified; and,
except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis;
and the supporting schedules included in the Registration
Statement present fairly the information required to be stated
therein.
(vii) Authorization and Validity of this Agreement, the
Mortgage and the Notes. This Agreement has been duly authorized
and, upon execution and delivery by the Agents, will be a valid
and binding agreement of the Company; the Mortgage has been duly
authorized and qualified under the 1939 Act and constitutes a
valid and binding obligation of the Company enforceable in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of mortgagees' and other
creditors' rights and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in
equity or at law); the Notes have been duly and validly
authorized for issuance, offer and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the Mortgage against
payment of the consideration therefor specified in the Prospectus
or pursuant to any Terms Agreement in accordance with Section
3(b) hereof, the Notes will constitute valid and legally binding
obligations of the Company enforceable in accordance with their
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws
affecting enforcement of mortgagees' and other creditors' rights
and by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); the Notes and the Mortgage will be substantially in the
form heretofore delivered to the Agents and conform in all
material respects to all statements relating thereto contained in
the Prospectus; and the Notes will be entitled to the benefits
provided and security afforded by the Mortgage.
(viii) Material Changes or Material Transactions. Since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may
otherwise be stated therein or contemplated thereby, (a) there
has been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business and (b) there have been no transactions entered into by
the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material to the Company
and its subsidiaries considered as one enterprise.
(ix) No Defaults. Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter or in
default in the performance or observance of any material
obligation, agreement, covenant or condition contained in the
Mortgage or any other material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a
party or by which it or any of them or their properties is bound;
the execution and delivery of this Agreement and the Supplemental
Indenture and the consummation of the transactions contemplated
herein, therein and pursuant to any applicable Terms Agreement
have been duly authorized by all necessary corporate action and
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
or any of its Significant Subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or to which
any of the property or assets of the Company or any such
subsidiary is subject (except pursuant to the Mortgage), nor will
such action result in any violation of the provisions of the
charter or by-laws of the Company or any such subsidiary or any
applicable law, administrative regulation or administrative or
court order or decree applicable to the Company or any such
subsidiary.
(x) Legal Proceedings; Contracts. Except as may be set
forth in the Registration Statement and the Prospectus, there is
no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened against or
affecting, the Company or any of its subsidiaries, which might,
in the opinion of the Company, result in any material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, or might
materially and adversely affect the properties or assets thereof
or might materially and adversely affect the consummation of this
Agreement or any Terms Agreement; and there are no contracts or
documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by
the 1933 Act or by the 1933 Act Regulations which have not been
so filed.
(xi) Authorization, Approval or Consent Required. The
Company is subject to the jurisdiction of the Massachusetts
Department of Public Utilities (the "DPU") which is vested with
powers of supervision, regulation and control over various
matters including the issuance of securities. No authorization,
approval or consent of any court or governmental authority or
agency is necessary in connection with the sale by the Company of
the Notes hereunder, except (i) for such order[s] as are required
to be issued by the DPU authorizing the issuance and sale of the
Notes on terms consistent with this Agreement and any applicable
Terms Agreement, which order[s] have been obtained and are in
full force and effect, and (ii) as otherwise may be required
under the 1933 Act, the 1939 Act, the 1933 Act Regulations or
state securities or Blue Sky laws.
(xii) Title to Property. The Company and its subsidiaries
have good and marketable title in fee simple (or its equivalent
under applicable law) to all real property and good and
marketable title to all personal property owned by them which is
material to the business of the Company and its subsidiaries, in
each case free and clear of all liens, encumbrances and defects
except such as are described in the Registration Statement and
the Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the
Company and its subsidiaries which are material to the business
of the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company and its
subsidiaries.
(xiii) Statutory Authority, Franchises, Permits,
Easements and Consents. The Company and its subsidiaries have
statutory authority, franchises, permits, easements and consents
free from unduly burdensome restrictions and adequate for the
conduct of the respective businesses in which they are engaged.
(xiv) No Labor Disputes. Except as set forth in the
Registration Statement and the Prospectus, no labor disturbance
by the employees of the Company or any subsidiary exists or is
imminent which might be expected to materially adversely affect
the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as one
enterprise.
(xv) Public Utility Holding Company Act. Neither the
Company nor any of its subsidiaries is a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of such a "subsidiary company" within the
meaning of the Public Utility Holding Company Act of 1935, as
amended (the "1935 Act").
(xvi) Environmental and Other Matters. Except as set forth
in the Registration Statement and the Prospectus, neither the
Company nor its subsidiaries (in the case of matters relating to
environmental protection, occupational safety and health and
equal employment opportunity, to the best of its knowledge) (a)
is in violation of any laws, ordinances, governmental rules and
regulations to which it is subject or (b) has failed to obtain
any licenses, permits, franchises or other governmental
authorizations, necessary to the ownership of its property or to
the conduct of its business, which violation or such failure to
obtain could reasonably be expected to materially adversely
affect the business, business prospects, profits, properties or
condition (financial or otherwise) of the Company and its
subsidiaries considered as one enterprise.
(xvii) Contingent Liabilities. To the best knowledge of
the Company, after reasonable investigation, the Company and its
subsidiaries have no material contingent liability which is not
disclosed in the Registration Statement and the Prospectus,
including the financial statements and related notes.
(b) Additional Certifications. Any certificate signed by
any director or officer of the Company and delivered to the
Agents or to counsel for the Agents in connection with an
offering of Notes or the sale of Notes to an Agent as principal
shall be deemed a representation and warranty by the Company to
the Agents as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
Section 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the
representations and warranties herein contained, but subject to
the terms and conditions herein set forth, each Agent agrees, as
the agent of the Company, to use its reasonable efforts to
solicit offers to purchase the Notes from time to time as
requested by the Company upon the terms and conditions set forth
herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through an Agent,
as agent, commencing at any time for any period of time or
permanently. Upon receipt of instructions from the Company, such
Agent will forthwith suspend solicitation of purchases from the
Company until such time as the Company has advised such Agent
that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the
form of a discount, equal to the applicable percentage of the
principal amount of each Note sold by the Company as a result of
a solicitation made by such Agent as set forth in Schedule A
hereto. An Agent may reallow any portion of the commission
payable pursuant hereto to dealers or purchasers in connection
with the offer and sale of any Notes.
The purchase price, interest rate, maturity date and other
terms of the Notes shall be agreed upon by the Company and the
Agents and set forth in a pricing supplement to the Prospectus to
be prepared following each acceptance by the Company of an offer
for the purchase of Notes. Except as may be otherwise provided
in such pricing supplement to the Prospectus, the Notes will be
issued in denominations of $1,000 or any larger amount that is an
integral multiple of $1,000. All Notes sold through an Agent as
agent will be sold at 100% of their principal amount unless
otherwise agreed to by the Company and such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent
as principal shall be made in accordance with the terms contained
herein and (unless the Company and such Agent shall otherwise
agree) pursuant to a separate agreement which will provide for
the sale of such Notes to, and the purchase and reoffering
thereof by, such Agent. Each such separate agreement (which may
be an oral agreement) between such Agent and the Company is
herein referred to as a "Terms Agreement". Unless the context
otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and the applicable Agent. Each
such Terms Agreement, whether oral or in writing, shall be with
respect to such information (as applicable) as is specified in
Exhibit A hereto. An Agent's commitment to purchase Notes as
principal pursuant to any Terms Agreement or otherwise shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject
to the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the price to be paid to
the Company for such Notes (which, if not so specified in a Terms
Agreement, shall be at a discount equivalent to the applicable
commission set forth in Schedule A hereto), the time and place of
delivery of and payment for such Notes, any provisions relating
to rights of, and default by purchasers acting together with such
Agent in the reoffering of the Notes, and such other provisions
(including further terms of the Notes) as may be mutually agreed
upon. Each Agent may utilize a selling or dealer group in
connection with the resale of the Notes purchased. Such Terms
Agreement shall also specify the requirements for the officers'
certificate, opinions of counsel and comfort letter pursuant to
Sections 7(b), 7(c) and 7(d) hereof.
(c) Administrative Procedures. The Notes will be issued in
accordance with the Administrative Procedures specified in
Exhibit B hereto as may be amended from time to time by written
agreement between the Agents and the Company (the "Procedures").
The Agents and the Company agree to perform the respective duties
and obligations specifically provided to be performed by them in
the Procedures.
Section 4. Covenants of the Company.
The Company covenants and agrees with each Agent as follows:
(a) Notice of Certain Events. The Company will notify the
Agents immediately (i) of the effectiveness of any amendment to
the Registration Statement (which shall not include the filing of
any document pursuant to the 1934 Act), (ii) of the receipt of
any comments from the SEC with respect to the Registration
Statement or the Prospectus, (iii) of any request by the SEC for
any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or for additional information, (iv)
of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose, and (v) of the issuance of any
further order of the DPU affecting the offer and sale of the
Notes as contemplated by this Agreement. The Company will make
every reasonable effort to prevent the issuance of any stop order
and, if any stop order is issued, to obtain the lifting thereof
at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will
give the Agents notice of its intention to file or prepare any
additional registration statement with respect to the registra
tion of additional Notes, any amendment to the Registration
Statement (which shall not include the filing of any document
pursuant to the 1934 Act) or any amendment or supplement to the
Prospectus, whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, and, in any case, including
the filing of any document pursuant to the 1934 Act, will furnish
the Agents with copies of any such amendment or supplement or
other documents proposed to be filed or prepared a reasonable
time in advance of such proposed filing or preparation, as the
case may be, and will not file any such amendment or supplement
or other documents in a form to which the Agents or counsel for
the Agents shall reasonably object.
(c) Copies of the Registration Statement and the
Prospectus. The Company will deliver to the Agents as many
signed and conformed copies of the Registration Statement (as
originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the
Agents may reasonably request. The Company will furnish to the
Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as
the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will
prepare, with respect to any Notes to be sold through or to any
Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by such Agent
and will file such Pricing Supplement pursuant to Rule 424(b)(3)
under the 1933 Act not later than the close of business of the
SEC on the fifth business day after the date on which such
Pricing Supplement is first used.
(e) Prospectus Revisions -- Material Changes. Except as
otherwise provided in subsection (l) of this Section 4, if at any
time during the term of this Agreement any event shall occur or
condition exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Agents or counsel for the
Company, to further amend or supplement the Prospectus in order
that the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is
delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of either such counsel, to amend or supplement
the Registration Statement or the Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act
Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to
purchase the Notes in the Agents' capacity as agents and to cease
sales of any Notes the Agents may then own as principal pursuant
to a Terms Agreement, and the Company will promptly prepare and
file with the SEC such amendment or supplement, whether by filing
documents pursuant to the 1934 Act, the 1933 Act or otherwise, as
may be necessary to correct such untrue statement or omission or
to make the Registration Statement and Prospectus comply with
such requirements.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (l) of this Section 4,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Company with respect to each of the first three quarters of
any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and, if such
information is required to be described or is proposed to be
described by the Company in a filing under the 1933 Act or the
1934 Act, shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information
for the comparable period of the preceding fiscal year, as well
as such other information and explanations as shall be necessary
for an understanding thereof or as shall be required by the 1933
Act or the 1933 Act Regulations.
(g) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (l) of this Section 4,
on or prior to the date on which there shall be released to the
general public financial information included in or derived from
the audited financial statements of the Company for the preceding
fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, to
include or incorporate by reference such audited financial
statements and the report or reports, and consent or consents to
such inclusion or incorporation by reference, of the Accountants
with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such
financial statements or as shall be required by the 1933 Act or
the 1933 Act Regulations.
(h) Earning Statements. The Company will make generally
available to its security holders as soon as practicable, but not
later than 90 days after the close of the period covered thereby,
an earning statement (in form complying with the provisions of
Rule 158 under the 1933 Act Regulations) covering each twelve
month period beginning, in each case, not later than the first
day of the Company's fiscal quarter next following the "effective
date" (as defined in such Rule 158) of the Registration Statement
with respect to each sale of Notes.
(i) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering
and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Agents may
designate and as shall be subject to the reasonable approval of
the Company, and will maintain such qualifications in effect for
as long as may be required for the distribution of the Notes;
provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as
may be required by the laws of each jurisdiction in which the
Notes have been qualified as above provided. The Company will
promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Notes for sale in any such state or jurisdiction or the
initiating or threatening of any proceeding for such purpose.
(j) 1934 Act Filings. The Company, during the period when
the Prospectus is required to be delivered under the 1933 Act,
will file promptly all documents required to be filed with the
SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act in compliance with the 1934 Act and the 1934 Act Regulations.
(k) Stand-Off Agreement. If required pursuant to the terms
of a Terms Agreement, between the date of any Terms Agreement and
the Settlement Date with respect to such Terms Agreement, the
Company will not, without the applicable Agent's prior consent,
offer or sell, or enter into any agreement to sell, any debt
securities of the Company (other than the Notes that are to be
sold pursuant to such Terms Agreement, bank borrowings, leases
and commercial paper in the ordinary course of business).
(l) Suspension of Certain Obligations. The Company shall
not be required to comply with the provisions of subsections (e),
(f) or (g) of this Section 4 or the provisions of subsections
(b), (c) or (d) of Section 7 during any period from the time (i)
the Agents shall have suspended solicitation of purchases of the
Notes in their capacity as agents pursuant to a request from the
Company and (ii) the Agents shall not then hold any Notes as
principal purchased pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the
Notes should be resumed or shall subsequently enter into a new
Terms Agreement with any of the Agents. However, prior to
instructing the Agents to resume the solicitation of offers to
purchase Notes or prior to entering into a new Terms Agreement,
the Company shall be required to comply with the provisions of
subsections (b), (c) and (d) of Section 7, by delivering or
causing to be delivered the certificates, opinions or letters
which would have otherwise been required under each such
subsection unless the Agents otherwise determine in their sole
discretion that such documents in respect of prior periods need
not be delivered.
(m) Condition to Agency Transactions. Any person who has
agreed to purchase Notes as the result of an offer to purchase
solicited by an Agent shall have the right to refuse to purchase
and pay for such Notes if, on the related settlement date fixed
pursuant to the Procedures, (i) there has been, since the date on
which such person agreed to purchase the Notes (the "Trade
Date"), or since the respective dates as of which information is
given in the Registration Statement, any material adverse change
in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business or (ii) the rating assigned by
any nationally recognized securities rating agency to any debt
securities of the Company as of the Trade Date shall have been
lowered since that date or if any such rating agency shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any debt securities
of the Company.
Section 5. Conditions of Obligations.
The obligations of each Agent to solicit offers to purchase
the Notes as agent of the Company, the obligations of any
purchasers of the Notes sold through each Agent as agent, and any
obligation of an Agent to purchase Notes pursuant to a Terms
Agreement or otherwise will be subject to the accuracy of the
representations and warranties on the part of the Company herein
and to the accuracy of the statements of the Company's officers
made in any certificate furnished pursuant to the provisions
hereof, to the performance and observance by the Company of all
its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Company Counsel. The opinion of Palmer &
Dodge, counsel to the Company, to the effect that:
(i ) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
Commonwealth of Massachusetts.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus.
(iii) To the best of such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(iv) Each Significant Subsidiary of the Company (as
identified by the Company) has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement, and, to
the best of such counsel's knowledge, is duly qualified as a
foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify and
be in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; all of the issued and outstanding
capital stock of each such Significant Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable,
and, except for directors' qualifying shares, is owned of record
and, to the best of such counsel's knowledge, beneficially by the
Company, directly or through subsidiaries, and, to the best of
such counsel's knowledge, free and clear of any mortgage, pledge,
lien, encumbrance, claim or equity.
(v) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(vi) The Supplemental Indenture has been duly and validly
authorized, executed and delivered by the Company and, as amended
by the Supplemental Indenture, the Mortgage constitutes a valid
and binding agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization or
other similar laws affecting enforcement of mortgagees' or other
creditors' rights and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in
equity or at law).
(vii) The Notes are in due and proper
form, have been duly authorized for issuance, offer and sale
pursuant to this Agreement and the Mortgage and, when issued,
authenticated and delivered pursuant to the provisions of this
Agreement and the Mortgage against payment of the consideration
therefor, will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or other
similar laws affecting enforcement of mortgagee's and other
creditors' rights and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in
equity or at law), and each holder of Notes will be entitled to
the benefits provided and security afforded by the Mortgage
ratably with the holders of all other first mortgage bonds issued
thereunder.
(viii) The statements and summaries of
documents in the Prospectus under the caption "Description of
Notes" are accurate in all material respects.
(ix) The Mortgage is qualified under the 1939
Act.
(x) The Registration Statement is
effective under the 1933 Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act or
proceedings therefor initiated or threatened by the SEC.
(xi) At the time the Registration Statement
became effective, the Registration Statement (other than
financial statements and other financial or statistical data
included or incorporated by reference therein and the Form T-1,
as to which no opinion need be rendered) complied as to form in
all material respects with the requirements of the 1933 Act, the
1939 Act, the 1933 Act Regulations and the 1939 Act Regulations.
(xii) To the best of such counsel's
knowledge, there are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the
Prospectus, other than those that are disclosed therein.
(xiii) To the best of such counsel's
knowledge, neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in the Mortgage or any other
contract, indenture, mortgage, loan agreement, note or lease
identified by management as being material to the Company to
which it is a party or by which it or any of them or their
properties may be bound. To the best of such counsel's
knowledge, the execution and delivery of this Agreement and of
the Mortgage, and the consummation by the Company of the
transactions contemplated by this Agreement and the Notes and the
incurrence of the obligations therein contemplated will not
conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its Significant Subsidiaries pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument identified by management as being material to the
Company and to which the Company or any of its subsidiaries is a
party or by which it or any of them is bound or to which any of
the property or assets of the Company or any such subsidiary is
subject (except pursuant to the Mortgage), nor will such action
result in any violation of the provisions of the charter or
by-laws of the Company or any such subsidiary or any applicable
law, administrative regulation or administrative or court order
or decree applicable to the Company or any such subsidiary.
(xiv) To the best of such counsel's
knowledge, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto.
(xv) The DPU has authorized the issuance
and sale of the Notes; such authorization, to the best of such
counsel's knowledge, is still in force and effect and is
sufficient for the issuance and sale of the Notes; the issuance
and sale of the Notes as contemplated herein are in conformity
with the terms of such authorization; no appeal of such
authorization can affect the validity of any Notes issued
hereunder; and no other consent, approval, authorization, order
or decree of any court or governmental agency or body is required
for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required
under the 1933 Act, the 1939 Act, the 1933 Act Regulations or
state securities or Blue Sky laws.
(xvi) Each document filed pursuant to the
1934 Act and incorporated by reference in the Prospectus complied
when filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder.
(xvii) The Company and its
subsidiaries have the statutory authority, franchises, permits,
easements and consents adequate to conduct the businesses in
which they are respectively engaged without legal restrictions
that would materially affect their ability to so conduct such
business.
(xviii) Neither the Company nor any of its
subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or
of such a "subsidiary company" within the meaning of the 1935
Act.
(2) Opinion of Local Counsel for the Company. The opinion
of local counsel to the Company, who shall be reasonably
acceptable to the Agents, to the effect that:
(i) The Company has good and clear record
and marketable title to its parcels of real estate and personal
property constituting fixtures described in such opinion and
subject, or intended to be subject, to the lien of the Mortgage
free of encumbrances except the lien of the Mortgage, liens for
current taxes not yet due and minor exceptions which, in the
opinion of such counsel, are of the nature ordinarily found in
properties of similar character and magnitude and which cannot in
any substantial way interfere with their use in the operation of
the business of the Company.
(ii) The Mortgage contains descriptions of
the parcels of real estate and personal property constituting
fixtures described in such opinion and included therein adequate
to subject them to the lien of the Mortgage.
(iii) The Mortgage has been duly recorded as a
real estate mortgage, duly filed as a chattel mortgage and
financing statements consisting of a true copy of the Mortgage or
incorporating the Mortgage by reference to documents already on
record have been duly filed in all offices in which such
recording or filing is necessary in order to create, and the
Mortgage does create, a valid, direct first mortgage lien on and
perfected security interest in all property described in such
opinion and specifically or generally described or referred to in
the Mortgage as subject to the lien of the Mortgage, subject to
no prior lien except as stated in the Mortgage and except for
encumbrances permitted by the Mortgage and subject to current
taxes not yet due; and no further filing, recording or refiling
or rerecording is necessary except as specified in such opinion
in order to maintain such valid, direct first mortgage lien.
In giving its opinion required by clause (i) of this
subsection, such local counsel may rely on substantially
equivalent prior opinions of counsel to the Company with
respect to properties described as subject to the lien of
the Mortgage as of the date of the First Supplemental
Indenture to the Mortgage, provided that such counsel, in
its opinion, identify such prior opinions and state that it
believes that such prior opinions are satisfactory in form
and scope.
(3) Opinion of Counsel for the Agents. The opinion of
Winthrop, Stimson, Putnam & Roberts, counsel for the Agents,
covering the matters referred to in subparagraph (1) under the
subheadings (v), (vi), (vii), (ix), (x) and (xi) above. In
giving such opinion, counsel for the Agents (i) need not opine as
to the Company's title to properties or the nature and extent of
the lien of the Mortgage and (ii) may rely as to all matters of
Massachusetts law and legal conclusions based thereon, upon the
opinion of Palmer & Dodge.
(4) In giving their opinions required by subsection (a)(1)
and (a)(3) of this Section 5, Palmer & Dodge and Winthrop,
Stimson, Putnam & Roberts shall each additionally state that
nothing has come to their attention that would lead them to
believe that the Registration Statement, at the time it became
effective, and if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the Company with
the SEC subsequent to the effectiveness of the Registration
Statement, then at the time such amendment became effective or at
the time of the most recent such filing, and at the date hereof,
or (if such opinion is being delivered in connection with a Terms
Agreement) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
contains or contained an untrue statement of a material fact or
omits or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as amended or supplemented at
the date hereof, or (if such opinion is being delivered in
connection with a Terms Agreement pursuant to Section 3(b)
hereof) at the date of any Terms Agreement and at the Settlement
Date with respect thereto, as the case may be, contains an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
Such counsel need not render an opinion with respect to financial
statements and other financial or statistical data included or
incorporated by reference in the Registration Statement or the
Prospectus, as to the part of the Registration Statement that
constitutes the Statement of Eligibility of the Trustee under the
Mortgage on Form T-1 and as to the information contained in the
Prospectus under the caption "Description of Notes--Book-Entry
Notes."
(b) Officers' Certificate. At the date hereof the Agents
shall have received a certificate of the President or any Vice
President and the chief financial officer, chief accounting
officer, treasurer or controller of the Company and dated as of
the date hereof, to the effect that (i) since the respective
dates as of which information is given in the Registration
Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not been any material adverse change
in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business except as set forth therein,
(ii) the other representations and warranties of the Company
contained in Section 2 hereof are true and correct with the same
force and effect as though expressly made at and as of the date
of such certificate, (iii) the Company has performed or complied
with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the date of such
certificate, (iv) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose have been initiated or threatened by the SEC, and
(v) the DPU order[s] issued relating to the issuance and the sale
of the Notes are in full force and effect and sufficient to
authorize the issuance and sale of the Notes.
(c) Comfort Letter. On the date hereof (and subject to the
Agents providing such representations to the Accountants as may
be necessary under SAS No. 72), the Agents shall have received a
letter from the Accountants dated as of the date hereof and in
form and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial statements
and supporting schedules of the Company and its subsidiaries
examined by them and incorporated by reference in the
Registration Statement comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and
the 1933 Act Regulations with respect to registration statements
on Form S-3 and the 1934 Act and the 1934 Act Regulations.
(iii) They have performed procedures specified by the
American Institute of Certified Public Accountants for a review
of interim financial information as described in SAS No. 71,
Interim Financial Information, not constituting an audit,
including a reading of the latest available interim financial
statements of the Company and its indicated subsidiaries, a
reading of the minute books of the Company and such subsidiaries
since the end of the most recent fiscal year with respect to
which an audit report has been issued, inquiries of and
discussions with certain officials of the Company and such
subsidiaries responsible for financial and accounting matters
with respect to the unaudited consolidated financial statements
included in the Registration Statement and Prospectus and the
latest available interim unaudited financial statements of the
Company and its subsidiaries, and such other inquiries and
procedures as may be specified in such letter, and on the basis
of such inquiries and procedures nothing came to their attention
that caused them to believe that: (A) the unaudited consolidated
financial statements of the Company and its subsidiaries included
in the Registration Statement and Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations, (B)
any material modifications should be made to said unaudited
consolidated financial statements for them to be in conformity
with generally accepted accounting principles, or (C) at a
specified date not more than five days prior to the date of such
letter, there was any change in the consolidated capital stock or
any increase in consolidated long-term debt of the Company and
its subsidiaries or any decrease in the consolidated net assets
of the Company and its subsidiaries, in each case as compared
with the amounts shown on the most recent consolidated balance
sheet of the Company and its subsidiaries included in the
Registration Statement and Prospectus or, during the period from
the date of such balance sheet to a specified date not more than
five days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the
preceding year, in consolidated revenues or net income of the
Company and its subsidiaries, except in each such case as set
forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such
letter as shall have been agreed to by the Agents and the
Company.
(iv) In addition to the examination referred to in
their report included or incorporated by reference in the
Registration Statement and the Prospectus, and the limited
procedures referred to in clause (iii) above, they have carried
out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included or incorporated by reference in
the Registration Statement and Prospectus and which are specified
by the Agents, and have found such amounts, percentages and
financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its
subsidiaries identified in such letter.
(d) Other Documents. On the date hereof and on each
Settlement Date with respect to any applicable Terms Agreement,
counsel for the Agents shall have been furnished with such
documents and opinions as such counsel may reasonably require for
the purpose of enabling such counsel to pass upon the issuance
and sale of Notes as herein contemplated and related proceedings,
or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of
the conditions, herein contained; and all proceedings taken by
the Company in connection with the issuance and sale of Notes as
herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel for the Agents.
If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this
Agreement (or, at the option of the applicable Agent, any
applicable Terms Agreement) may be terminated by the Agents by
notice to the Company at any time and any such termination shall
be without liability of any party to any other party, except that
the covenant regarding provision of an earning statement set
forth in Section 4(h) hereof, the provisions concerning payment
of expenses under Section 10 hereof, the indemnity and
contribution agreement set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties and
agreements to survive delivery of Section 11 hereof and the
provisions set forth under Section 15 hereof shall remain in
effect.
Section 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through an Agent as agent shall be
made by the Company to such Agent for the account of any
purchaser only against payment therefor in immediately available
funds. In the event that a purchaser shall fail either to accept
delivery of or to make payment for a Note on the date fixed for
settlement, the applicable Agent shall promptly notify the
Company and deliver the Note to the Company, and, if such Agent
has theretofore paid the Company for such Note, the Company will
promptly return such funds to such Agent. If such failure
occurred for any reason other than default by such Agent in the
performance of its obligations hereunder, the Company will
reimburse such Agent on an equitable basis for its loss of the
use of the funds for the period such funds were credited to the
Company's account.
Section 7. Additional Covenants of the Company.
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by the Company of an offer for the purchase of Notes,
and each delivery of Notes to the applicable Agent pursuant to a
Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this
Agreement and in any certificate theretofore delivered to the
Agents pursuant hereto are true and correct at the time of such
acceptance or sale, as the case may be, and an undertaking that
such representations and warranties will be true and correct at
the time of delivery to the purchaser or his agent, or to the
Agents, of the Note or Notes relating to such acceptance or sale,
as the case may be, as though made at and as of each such time
(and it is understood that such representations and warranties
shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Officers' Certificate. Except
as otherwise provided in Section 4(l), each time that the
Registration Statement or the Prospectus shall be amended or
supplemented, including without limitation through the filing
with the SEC of any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K relating
exclusively to the issuance of Notes under the Registration
Statement, unless the Agents shall otherwise specify) or (if
required pursuant to the terms of a Terms Agreement) the Company
sells Notes to an Agent pursuant to a Terms Agreement, the
Company shall furnish or cause to be furnished to the Agents
forthwith a certificate dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such
amendment, or the date of such sale, as the case may be, in form
satisfactory to the Agents to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof
which was last furnished to the Agents is true and correct at the
time of such amendment, supplement, filing or sale, as the case
may be, as though made at and as of such time (except that such
statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such
time) or, in lieu of such certificate, a certificate of the same
tenor as the certificate referred to in said Section 5(b),
modified as necessary to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(c) Subsequent Delivery of Opinion of Company Counsel.
Except as otherwise provided in Section 4(l), each time that the
Registration Statement or the Prospectus shall be amended or
supplemented, including without limitation through the filing
with the SEC of any document incorporated by reference into the
Prospectus (other than any Current Report on Form 8-K or
Quarterly Report on Form 10-Q, unless the Agent shall otherwise
specify), or (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant to a
Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents a
written opinion of Palmer & Dodge, counsel to the Company, dated
the date of filing with the SEC of such supplement or document,
the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form and substance satisfactory to
the Agents, of the same tenor as the opinion referred to in
Section 5(a)(1) hereof, but modified, as necessary, to relate to
the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion; or, in lieu
of such opinion, counsel last furnishing such opinion to the
Agents shall furnish the Agents with a letter to the effect that
the Agents may rely on such last opinion to the same extent as
though it was dated the date of such letter authorizing reliance
(except that statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter
authorizing reliance).
(d) Subsequent Delivery of Comfort Letter. Except as
otherwise provided in Section 4(l), each time that the
Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information or there
is filed with the SEC any document incorporated by reference into
the Prospectus which contains additional financial information or
(if required pursuant to the terms of a Terms Agreement) the
Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall cause the Accountants forthwith to furnish the
Agents a letter, dated the date of effectiveness of such
amendment, supplement or document with the SEC, or the date of
such sale, as the case may be, in form satisfactory to the
Agents, of the same tenor as the portions of the letter referred
to in clauses (i) and (ii) of Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended
and supplemented to the date of such letter, and of the same
general tenor as the portions of the letter referred to in
clauses (iii) and (iv) of said Section 5(c) with such changes as
may be necessary to reflect changes in the financial statements
and other information derived from the accounting records of the
Company; provided, however, that if the Registration Statement or
the Prospectus is amended or supplemented solely to include
financial information as of and for a fiscal quarter, the
Accountants may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement
unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the
reasonable judgment of the Agents, such letter should cover such
other information.
(e) Subsequent Delivery of Opinion of Local Counsel. Each
time that the Company sells Notes pursuant to this Agreement or a
Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents a
written opinion of local counsel to the Company, who shall be
reasonably acceptable to the Agents, dated the date of such sale
in form and substance satisfactory to the Agents, of the same
tenor as the opinion referred to in Section 5(a)(2) hereof; or,
in lieu of such opinion, counsel last furnishing such opinion to
the Agents shall furnish the Agents with a letter to the effect
that the Agents may rely on such last opinion to the same extent
as though it was dated the date of such letter authorizing
reliance.
Section 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to
indemnify and hold harmless each Agent and each person, if any,
who controls each Agent within the meaning of Section 15 of the
1933 Act and Section 20 of the Exchange Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading, unless (1) such untrue
statement or omission or such alleged untrue statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by the Agents expressly for
use in the Registration Statement or the Prospectus or (2) any
such loss, liability, claim, damage or expense of such Agent
results from the fact that such Agent sold Notes to a person as
to whom it shall be established by the Company that there was not
sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus as then amended or supplemented in
any case where such delivery is required by the 1933 Act if the
Company has previously furnished copies thereof in sufficient
quantity to such Agent and the loss, liability, claim, damage or
expense of such Agent results from an untrue statement or
omission of a material fact contained in the Prospectus which was
identified in writing at such time to such Agent and corrected in
the Prospectus as then amended or supplemented;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including the fees and disbursements of counsel chosen
by the Agents), reasonably incurred in investigating, preparing
or defending against any litigation or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above.
(b) Indemnification of Company. Each Agent agrees to
indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act and Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration
Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(c) General. Each indemnified party shall give prompt
notice to each indemnifying party of any action commenced against
it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have otherwise
than on account of this indemnity agreement except to the extent
that the indemnifying party is actually and substantially
prejudiced as a result of such failure. An indemnifying party
may participate at its own expense in the defense of such action
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense of
such action, with counsel reasonably 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 such indemnified
party of its election so to assume the defense of such action,
the indemnifying party will not be liable to such indemnified
party under this indemnity agreement for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense of such action other than reasonable
costs of investigation. Notwithstanding the foregoing, the
indemnifying party shall not be entitled to assume the defense of
such action if (i) the indemnified party has concluded that there
may be legal defenses available to it or other indemnified
parties that are different from or in addition to those available
to the indemnifying party or (ii) a conflict or potential
conflict exists (based on advice of counsel to such indemnified
party) between the indemnified party and the indemnifying party
which, as a result, in either case, would make it inappropriate
for the indemnifying party to assume such defense. In no event
shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to any local
counsel) for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
Section 9. Contribution.
In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in
Section 8 hereof is for any reason held to be unavailable to or
insufficient to hold harmless the indemnified parties although
applicable in accordance with its terms, the Company and the
Agents shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Agents, as
incurred, in such proportions that each Agent is responsible for
that portion represented by the percentage that the total
commissions and underwriting discounts received by such Agent to
the date of such liability bears to the total sales price from
the sale of Notes sold to or through such Agent to the date of
such liability, and the Company is responsible for the balance;
provided, however, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
1933 Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls each
Agent within the meaning of Section 15 of the 1933 Act and
Section 20 of the Exchange Act shall have the same rights to
contribution as such Agent, and each director of the Company,
each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act and Section 20
of the Exchange Act shall have the same rights to contribution as
the Company.
Section 10. Payment of Expenses.
Except as set forth in a Terms Agreement, the Company will
pay all expenses incident to the performance of its obligations
under this Agreement, including:
(a) The preparation and filing of the Registration
Statement and all amendments thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this
Agreement;
(c) The preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
(d) The fees and disbursements of the Accountants and its
counsel and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state securities
laws in accordance with the provisions of Section 4(i) hereof,
including filing fees and the reasonable fees and disbursements
of counsel for the Agents in connection therewith and in
connection with the preparation of any Blue Sky Survey;
(g) The printing and delivery to the Agents in quantities
as hereinabove stated of copies of the Registration Statement and
any amendments thereto, and of the Prospectus and any amendments
or supplements thereto, and the delivery by the Agents of the
Prospectus and any amendments or supplements thereto in
connection with solicitations or confirmations of sales of the
Notes;
(h) The preparation, printing, reproducing, recordation and
delivery to the Agents of copies of the Supplemental Indenture
and all supplements and amendments thereto;
(i) Any fees charged by rating agencies for the rating of
the Notes;
(j) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers,
Inc.;
(k) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company;
(l) The cost of preparing, and providing any CUSIP or other
identification numbers for, the Notes;
(m) The fees and expenses of any depository and any
nominees thereof in connection with the Notes; and
(n) The fees and expenses, if any, incurred in connection
with any filing with or approval by the DPU in connection with
the issuance of the Note.
Section 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Company
submitted pursuant hereto or thereto, shall remain operative and
in full force and effect, regardless of any investigation made by
or on behalf of the Agents or any controlling person of any
Agent, or by or on behalf of the Company, and shall survive each
delivery of and payment for any of the Notes.
Section 12. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any Terms Agreement) may be terminated for any reason,
at any time by either the Company or an Agent upon the giving of
30 days' written notice of such termination to the other party
hereto.
(b) Termination of a Terms Agreement. The applicable Agent
may terminate any Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating
thereto (i) if there has been, since the date of such Terms
Agreement or since the respective dates as of which information
is given in the Registration Statement, any material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there
shall have occurred any material adverse change in the financial
markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis
the effect of which is such as to make it, in the judgment of
such Agent, impracticable to market the Notes or enforce
contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the SEC or a
national securities exchange, or if trading generally on either
the American Stock Exchange or the New York Stock Exchange shall
have been suspended, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have
been required, by either of said exchanges or by order of the SEC
or any other governmental authority, or if a banking moratorium
shall have been declared by either Federal or New York
authorities, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall
have been lowered since that date or if any such rating agency
shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any
debt securities of the Company, or (v) if there shall have come
to the applicable Agent's attention any facts that would cause
such Agent to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances existing at the time of such
delivery, not misleading.
(c) General. In the event of any such termination, neither
party will have any liability to the other party hereto, except
that (i) each Agent shall be entitled to any commission earned in
accordance with the third paragraph of Section 3(a) hereof, (ii)
if at the time of termination (a) each Agent shall own any Notes
purchased pursuant to a Terms Agreement with the intention of
reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth
in Section 4(h) hereof, the provisions of Section 5 hereof, the
indemnity and contribution agreements set forth in Sections 8 and
9 hereof, and the provisions of Sections 11 and 15 hereof shall
remain in effect.
Section 13. Notices.
Unless otherwise provided herein, all notices required under
the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram,
and any such notice shall be effective when received at the
address specified below.
If to the Company:
Colonial Gas Company
40 Market Street
Lowell, Massachusetts 01853
Attention: Dennis W. Carroll, CPA
Vice President and Treasurer
If to the Agents:
Smith Barney Inc.
388 Greenwich Street
New York, New York 101013
Attention: MTN Product Management, Mark Meyer
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Attention: Debt Syndicate, John Meiners
PaineWebber Incorporated
1285 Avenue of the Americas
14th Floor
New York, New York 10019
Attention: MTN Trading
Peter Abramenko
or at such other address as such party may designate from time to
time by notice duly given in accordance with the terms of this
Section 13.
Section 14. Governing Law.
The rights and duties of the Company and the Agents under
this Agreement shall, pursuant to New York General Obligations
Law Section 5-1401, be governed by the law of the State of New
York. Any suit, action or proceeding brought by the Company
against the Agents in connection with or arising under this
Agreement shall be brought solely in the state or federal court
of appropriate jurisdiction located in the Borough of Manhattan,
The City of New York.
Section 15. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Company and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the
controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers
and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No
purchaser of Notes shall be deemed to be a successor by reason
merely of such purchase.
If the foregoing is in accordance with the Agents' under
standing of our agreement, please sign and return to the Company
a counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Agents
and the Company in accordance with its terms.
Very truly yours,
COLONIAL GAS COMPANY
By:
Name:
Title:
Accepted:
SMITH BARNEY INC.
By: ________________________________
Name:
Title:
A.G. EDWARDS & SONS, INC.
By: ________________________________
Name:
Title:
PAINEWEBBER INCORPORATED
By: ________________________________
Name:
Title:
SCHEDULE A
As compensation for the services of the Agents hereunder,
the Company shall pay the applicable Agent, on a discount basis,
a commission for the sale of each Note equal to the principal
amount of such Note multiplied by the appropriate percentage set
forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months but less than 1 year............. .125%
From 1 year but less than 18 months............ .150
From 18 months but less than 2 years........... .200
From 2 years but less than 3 years............. .250
From 3 years but less than 4 years............. .350
From 4 years but less than 5 years............. .450
From 5 years but less than 6 years............. .500
From 6 years but less than 7 years............. .550
From 7 years but less than 10 years............ .600
From 10 years but less than 15 years........... .625
From 15 years but less than 20 years........... .700
From 20 years to and including 30 years........ .750
More than 30 years............................... *
* Commission on Notes with maturities of more than 30 years
shall be agreed to by the Company and the applicable Agent
at the time of such transmission.
EXHIBIT A
The following terms, if applicable, shall be agreed to by
the applicable Agent and the Company pursuant to each Terms
Agreement:
Principal Amount: $_______
(or principal amount of foreign currency)
Interest Rate:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Stand-off Period (if any):
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b)
of the Distribution Agreement.
Legal Opinion pursuant to Section 7(c)of the
Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4(k) of the
Distribution Agreement.
EXHIBIT B
ADMINISTRATIVE PROCEDURES FOR
COLONIAL GAS COMPANY
SECURED MEDIUM TERM NOTES, SERIES A
DUE NOT LESS THAN NINE MONTHS FROM DATE OF ISSUE
(Dated as of ______ __, 1995)
Secured Medium Term Notes, Series A (the "Notes") in the
aggregate principal amount of up to $75,000,000 are to be offered
on a continuing basis by Colonial Gas Company (the "Company")
through Smith Barney Inc., A.G. Edwards & Sons, Inc. and
PaineWebber Incorporated who, as agents (each an "Agent," and,
collectively, the "Agents"), have agreed to use their reasonable
efforts to solicit offers to purchase the Notes from the Company.
The Agents may also purchase Notes as principal for resale.
The Notes are being sold pursuant to a Distribution
Agreement between the Company and the Agents, dated _________ __,
1995 (the "Distribution Agreement"). The Notes are to be issued
as a new series of first mortgage bonds under the Company's
Second Amended and Restated First Mortgage Indenture to The First
National Bank of Boston (as successor to State Street Bank and
Trust Company), as trustee, dated as of June 15, 1992, as
heretofore supplemented and as it is to be further supplemented
by a Second Supplemental Indenture, dated as of August 1, 1995
(said First Mortgage Indenture, as heretofore supplemented and as
it is to be further supplemented, the "Mortgage"). A
Registration Statement (the "Registration Statement," which term
shall include any additional registration statements filed in
connection with the Notes as provided in the introductory
paragraphs of the Distribution Agreement) with respect to the
Notes has been filed with the Securities and Exchange Commission
(the "Commission"). The most recent basic Prospectus included in
the Registration Statement is herein referred to as the
"Prospectus." A pricing supplement with respect to the specific
terms of any Notes is herein referred to as a "Pricing
Supplement."
The Notes will either be issued (a) in book-entry form and
represented by one or more fully registered Notes (each, a
"Book-Entry Note") delivered to the Trustee, as agent for The
Depository Trust Company ("DTC"), and recorded in the book-entry
system maintained by DTC, or (b) in certificated form delivered
to the purchaser thereof or a person designated by such
purchaser. Except in the limited circumstances described in the
Prospectus or a Pricing Supplement, owners of beneficial
interests in Notes issued in book-entry form will not be entitled
to physical delivery of Notes in certificated form equal in
principal amount to their respective beneficial interests.
General procedures relating to the issuance of all Notes are
set forth in Part I hereof. Additionally, Notes issued in
book-entry form will be issued in accordance with the procedures
set forth in Part II hereof and Notes issued in certificated form
will be issued in accordance with the procedures set forth in
Part III hereof.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/ Each Note will be dated by the
Authentication: Trustee as of the interest payment
date thereof to which interest was
paid next preceding the date of
issue, unless (a) issued on an
interest payment date thereof to
which interest was paid, in which
event it shall be dated as of the
date of issue, or (b) issued prior to
the occurrence of the first interest
payment date thereof to which
interest was paid, in which event it
shall be dated the original issue
date. The original issue date shall
remain the same for all Notes
subsequently issued upon transfer,
exchange or substitution of an
original Note regardless of their
dates of authentication.
Maturities: Each Note will mature on a date
selected by the purchaser and agreed
to by the Company which is not less
than nine months nor more than forty
years from its original issue date.
Registration: Notes will be issued only in fully
registered form.
Calculation of Interest: Interest (including payments for
partial periods) will be calculated
and paid on the basis of a 360-day
year of twelve 30-day months.
Acceptance and Rejection The Company shall have the sole right
of Offers: to accept offers to purchase Notes
from the Company and may reject any
such offer in whole or in part. Each
Agent shall communicate to the
Company, orally or in writing, each
reasonable offer to purchase Notes
from the Company received by it.
Each Agent shall have the right, in
its discretion reasonably exercised,
without notice to the Company, to
reject any offer to purchase Notes
through it in whole or in part.
Preparation of Pricing If any offer to purchase a Note is
Supplement: accepted by the Company, the Company,
with the approval of the Agent which
presented such offer (the "Presenting
Agent"), will prepare a Pricing
Supplement reflecting the terms of
such Note and file such Pricing
Supplement relating to such Notes and
the plan of distribution thereof (as
such Pricing Supplement supplements
the Prospectus, the "Supplemented
Prospectus"), with the Commission in
accordance with Rule 424 under the
Act. The Presenting Agent will cause
a Supplemented Prospectus to be
delivered to the purchaser of the
Note.
The Company shall have delivered a
completed Pricing Supplement, via
next day mail or telecopy to arrive
no later than 11 AM on the Business
Day following the trade date, to the
Presenting Agent at the following
locations: Smith Barney Inc. at the
following address: Smith Barney
Inc., 390 Greenwich Street - 4th
Floor, New York, New York 10013,
Attention: MTN Product
Management/Origination - Mark R.
Meyer, Telephone: (212) 723-5123,
Telecopy: (212) 723-8854, also, a
copy to: Smith Barney Inc., 388
Greenwich Street - 34th Floor, New
York, New York 10013, Attention:
Legal Compliance - Adrienne Garofalo,
Telephone (212) 816-7594, Telecopy
(212) 816-7912; to A.G. Edwards &
Sons, Inc. at the following address:
A.G. Edwards & Sons, Inc., One North
Jefferson Avenue, St. Louis, Missouri
63103, Attention: Debt Syndicate -
John Meiners, Telephone: (314) 289-
5800, Telecopy: (314) 289-5989; and
to PaineWebber Incorporated at the
following address: PaineWebber
Incorporated, 1285 Avenue of the
Americas, 14th Floor, New York, New
York 10019, Attention:
MTN Trading, Peter Abremenko, Telephone
(212) 713-2982 Telecopy (212) 247-0371.
In each instance that a Pricing
Supplement is prepared, the Agents
will affix such Pricing Supplement to
the Prospectus prior to its use.
Outdated Pricing Supplements, and the
Prospectuses to which they are
attached (other than those retained
for files), will be destroyed.
Settlement: The receipt of immediately available
funds by the Company in payment for a
Note and the authentication and
delivery of such Note shall, with
respect to such Note, constitute
"settlement." Offers accepted by the
Company will be settled on the date
that is three Business Days after the
date of the acceptance of the offer,
or at such later time as the
purchaser, the Trustee and the
Company shall agree, pursuant to the
timetable for settlement set forth in
Parts II and III hereof under the
caption "Settlement Procedures" with
respect to Book-Entry Notes and
Certificated Notes, respectively. If
procedures A and B of the applicable
Settlement Procedures with respect to
a particular offer are not completed
on or before the time set forth under
the applicable "Settlement Procedures
Timetable," such offer shall not be
settled until the Business Day
following the completion of
settlement procedures A and B or such
later date as the purchaser and the
Company shall agree.
In the event of a purchase of Notes
by any Agent as principal,
appropriate settlement details will
be as agreed between the Agent and
the Company pursuant to the
applicable Terms Agreement.
Suspension of The Company may instruct the Agents
Solicitation; to suspend solicitation of purchases
Amendment or at any time. Upon receipt of such
Supplement: instructions the Agents will
forthwith suspend solicitation of
offers to purchase from the Company
until such time as the Company has
advised them that solicitation of
offers to purchase may be resumed.
If the Company decides to amend the
Registration Statement (including
incorporating any documents by
reference therein) or supplement any
of such documents, it will promptly
furnish the Agents and their counsel
with copies of the amendment
(including any document proposed to
be incorporated by reference therein)
or supplement. One copy of such
filed document, along with a copy of
the cover letter sent to the
Commission, will be delivered or
mailed to the Agents at the following
respective addresses: Smith Barney
Inc., 390 Greenwich Street - 4th
Floor, New York, New York 10013,
Attention: MTN Product Management/
Origination - Mark R. Meyer; A.G.
Edwards & Sons, Inc., One North
Jefferson Avenue, St. Louis, Missouri
63103, Attention: Debt Syndicate -
John Meiners; and to PaineWebber
Incorporated, 1285 Avenue of the
Americas, 14th Floor, New York, New
York 10019, Attention:
MTN Trading - Peter Abramenko.
In the event that at the time the
solicitation of offers to purchase
from the Company is suspended there
shall be any orders outstanding which
have not been settled, the Company
will promptly advise the Agents and
the Trustee whether such orders may
be settled and whether copies of the
Prospectus as theretofore amended
and/or supplemented as in effect at
the time of the suspension may be
delivered in connection with the
settlement of such orders. The
Company will have the sole
responsibility for such decision and
for any arrangements which may be
made in the event that the Company
determines that such orders may not
be settled or that copies of such
Prospectus may not be so delivered.
Delivery of Supplemented A copy of the most recent
Prospectus: Supplemented Prospectus must
accompany or precede the earlier of
(a) the written confirmation of a
sale sent to a customer or the agent
of such Customer, and (b) the
delivery of Notes to a customer or
the agent of such customer.
Authenticity of The Agents will have no obligations
Signatures: or liability to the Company or the
Trustee in respect of the
authenticity of the signature of any
officer, employee or agent of the
Company or the Trustee on any Note.
Documents Incorporated The Company shall supply the Agents
by Reference: with an adequate supply of all
documents incorporated by reference
in the Registration Statement.
Business Day: "Business Day" means any day, other
than a Saturday or Sunday, on which
banks in the City of New York, are
not required or authorized by law to
close.
PART II: PROCEDURES FOR NOTES ISSUED IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in
book-entry form 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 respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated
______ __, 1995, and a Medium Term Note Certificate Agreement,
dated ______ __, ____, between the Trustee and DTC (the
"Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Notes issued in book-entry form
having the same original issue date,
interest rate, and stated maturity
will be represented initially by a
single global security in fully
registered form without coupons
(each, a "Book-Entry Note").
Each Book-Entry Note will be dated
and issued as of the date of its
authentication by the Trustee. Each
Book-Entry Note will bear an interest
accrual date, which will be (a) with
respect to an original Book-Entry
Note (or any portion thereof), its
original issue date and (b) with
respect to any Book-Entry Note (or
portion thereof) issued subsequently
upon exchange of a Book-Entry Note or
in lieu of a destroyed, lost or
stolen Book-Entry Note, the most
recent interest payment date to
which interest has been paid or
duly provided for on the predecessor
Book-Entry Note or Notes (or if no
such payment or provision has been
made, the original issue date of the
predecessor Book-Entry Note or
Notes), regardless of the date of
authentication of such subsequently
issued Book-Entry Note. No Book-
Entry Note shall represent any Note
issued in certificated form.
Identification: The Company has arranged with the
CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP
Service Bureau") for the reservation
of approximately 900 CUSIP numbers
which have been reserved for and
relating to Book-Entry Notes and the
Company has delivered to the Trustee
and DTC a written list of such CUSIP
numbers. The Trustee will assign
CUSIP numbers to Book-Entry Notes as
described below under Settlement
Procedure B. DTC will notify the
CUSIP Service Bureau periodically of
the CUSIP numbers that the Trustee
has assigned to Book-Entry Notes.
The Trustee will notify the Company
at any time when fewer than 50 of the
reserved CUSIP numbers remain
unassigned to Book-Entry Notes, and,
if it deems necessary, the Company
will reserve additional CUSIP numbers
for assignment to Book-Entry Notes.
Upon obtaining such additional CUSIP
numbers, the Company will deliver a
list of such additional numbers to
the Trustee and DTC.
Registration: Each Book-Entry Note will be
registered in the name of Cede & Co.,
as nominee for DTC, on the register
maintained by the Trustee under the
Mortgage. The beneficial owner of a
Note issued in book-entry form (i.e.,
an owner of a beneficial interest in
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 issued
in book-entry form, the
"Participants") to act as agent for
such beneficial 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 issued in
book-entry form in the account of
such Participants. The ownership
interest of such beneficial owner in
such Note issued in book-entry form
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 Book-Entry
Note.
Exchanges: The Trustee may deliver to DTC and
the CUSIP Service Bureau at any time
a written notice specifying (a) the
CUSIP numbers of two or more Book-
Entry Notes outstanding on such date
that represent Book-Entry Notes
having the same terms (other than
original issue dates) and for which
interest has been paid to the same
date; (b) a date, occurring at least
30 days after such written notice is
delivered and at least 30 days before
the next interest payment date for
the related Notes issued in
book-entry form, on which such
Book-Entry Notes shall be exchanged
for a single replacement Book-Entry
Note; and (c) a new CUSIP number,
obtained from the Company, to be
assigned to such replacement
Book-Entry Note. Upon receipt of
such a 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 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 Book-Entry Notes to be exchanged
will no longer be valid. On the
specified exchange date, the Trustee
will exchange such Book-Entry Notes
for a single Book-Entry Note bearing
the new CUSIP numbers and the CUSIP
number of the exchanged Book-Entry
Notes will, in accordance with CUSIP
Service Bureau procedures, be
canceled and not immediately
reassigned.
Denominations: Notes issued in book-entry form will
be issued in denominations of $1,000
and any larger denomination which is
an integral multiple of $1,000.
Interest: General. Interest on each Note
issued in book-entry form will accrue
from the original issue date of the
Book-Entry Note representing such
Note. Each payment of interest on a
Note issued in book-entry form will
include interest accrued through the
day preceding, as the case may be,
the Interest Payment Date or
Maturity. Interest payable at
Maturity of a Note issued in
book-entry form will be payable to
the Person to whom the principal of
such Note is payable. DTC will
arrange for each pending deposit
message described under Settlement
Procedure C below to be transmitted
to Standard & Poor's, which will use
the information in the message to
include certain terms of the related
Book-Entry Note in the appropriate
daily bond report published by
Standard & Poor's.
Interest Payment Dates. Interest
payments will be made on each
interest payment date commencing with
the first interest payment date
following the original issue date to
the holders on the Record Date
preceding such interest payment date.
Interest payments on Notes issued in
book-entry form will be made
semiannually on the dates specified
in the Pricing Supplement and at
maturity unless such day is not a
Business Day, in which case such
payment will be made on the next
Business Day.
Payments of Principal Payment of Interest Only. Promptly
and Interest: fifteen days prior to each interest
payment date, the Trustee will deliver
to the Company and DTC a written
notice specifying by CUSIP number
the amount of interest to be paid
on each Book-Entry Note on the following
interest payment date (other than an
interest payment date coinciding with
maturity) and the total of such
amounts. DTC will confirm the amount
payable on each Book-Entry Note on
such interest payment date by
reference to the daily bond reports
published by Standard & Poor's
Corporation. On such interest
payment date, the Company will pay to
the Trustee, and the Trustee in turn
will pay to DTC, such total amount of
interest due (other than at
maturity), at the times and in the
manner set forth below under "Manner
of Payment."
Payments at Maturity. On or about
the first Business Day of each month
in which principal and/or interest is
to be paid, the Trustee will deliver
to the Company and DTC a written list
of principal, interest and premium,
if any, to be paid on each Book-Entry
Note maturing either at stated maturity
or on a redemption date in the
following month. The Trustee, the
Company and DTC will confirm the amounts
of such principal and interest payments
with respect to a Book-Entry Note on or
about the fifth Business Day
preceding the maturity of such
Book-Entry Note. At such maturity,
the Company will pay to the Trustee,
and the Trustee in turn will pay to
DTC, the principal amount of such
Note, together with interest and
premium, if any, due at such
maturity, at the times and in the
manner set forth below under "Manner
of Payment." If any maturity of 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 maturity.
Promptly after payment to DTC of the
principal, interest and premium, if
any, due at the maturity of such Book-
Entry Note, the Trustee will cancel
such Book-Entry Note and deliver it
to the Company with an appropriate
debit advice. On the first Business
Day of each month, the Trustee will
deliver to the Company a written
statement indicating the total
principal amount of outstanding
Book-Entry Notes as of the
immediately preceding Business Day.
Manner of Payment. The total amount
of any principal, premium, if any,
and interest due on Book-Entry Notes
on any interest payment date or at
maturity shall be transferred by the
Company to the Trustee to an account
designated by the Trustee in funds
available for use by the Trustee as
of 9:30 a.m., New York City time, on
such date. The Company will confirm
such instructions in writing to the
Trustee. Prior to 10:00 a.m., New
York City time, on such date or as
soon as possible thereafter, the
Trustee will pay (but only from funds
withdrawn from such account) 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 interest,
principal and premium, if any, due on
a Book-Entry Note on such date.
Thereafter on 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 such
Notes are recorded in the book-entry
system maintained by DTC. Neither
the Company nor the Trustee shall
have any responsibility or liability
for the payment by DTC of the
principal of, or interest on, the
Book-Entry Note to such Participants.
Withholding Taxes. The amount of any
taxes required under applicable law
to be withheld from any interest
payment on a 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 Procedures: Settlement Procedures with regard to
each Note in book-entry form sold by
each Agent as agent of the Company,
will be as follows:
A. The Presenting Agent will advise
the Company by telephone
(confirmed by facsimile) of the
following settlement information:
1. Taxpayer identification
number of the purchaser.
2. Principal amount of the
Note.
3. Terms:
a) interest rate
b) interest payment dates
4. Price to public of the Note.
5. Trade date.
6. Settlement date (original
issue date).
7. Maturity.
8. Net proceeds to the Company.
9. Agent's commission
B. The Company will advise the
Trustee by electronic
transmission of the above
settlement information received
from the Presenting Agent with
respect to the Book-Entry Note
representing such Note and the
name of the Agent, and the
Trustee will assign a CUSIP
number to such Note.
C. The Trustee will communicate to
DTC through DTC's Participant
Terminal System, a pending
deposit message specifying the
following settlement information,
which will route such relevant
information to the Presenting
Agent, Standard & Poor's
Corporation and Interactive Data
Corporation:
1. The information set
forth in Settlement
Procedure A.
2. Identification numbers
of the participant accounts
maintained by DTC on behalf
of the Trustee and the
Agent.
3. Initial interest
payment date for such Note,
number of days by which such
date succeeds the related
record dated for DTC
purposes and, if then
calculable, the amount of
interest payable on such
interest payment date (which
amount shall have been
confirmed by the Trustee).
4. CUSIP number of the
Book-Entry Note representing
such Note.
5. Whether such Book-Entry
Note represents any other
Notes issued or to be issued
in book-entry form.
D. The Board of Directors of the
Company or its Executive
Committee or a designee thereof
shall approve the final terms of
the Notes.
E. The Trustee will complete a
Book-Entry Note representing such
Note in a form that has been
approved by the Company, the
Agents and the Trustee.
F. The Trustee will authenticate the
Book-Entry Note representing such
Note.
G. DTC will credit such Note to the
participant account of the
Trustee maintained by DTC.
H. The Trustee will enter an SDFS
deliver order through DTC's
Participating Terminal System
instructing DTC (i) to debit such
Note to the Trustee's participant
account and credit such Note to
the participant account of the
Presenting Agent maintained by
DTC and (ii) to debit the
settlement account of the
Presenting Agent and credit the
settlement account of the Trustee
maintained by DTC, in an amount
equal to the price of such Note
less such Agent's commission.
Any entry of such a deliver order
shall be deemed to constitute a
representation and warranty by
the Trustee to DTC that (i) the
Book-Entry Note representing such
Note has been issued and
authenticated and (ii) the
Trustee is holding such
Book-Entry Note pursuant to the
Medium Term Note Certificate
Agreement between the Trustee and
DTC.
I. The Presenting Agent will enter
an SDFS deliver order through
DTC's Participant Terminal System
instructing DTC (i) to debit such
Note to the Presenting Agent's
participant account and credit
such Note to the participant
account of the Participants
maintained by DTC and (ii) to
debit the settlement accounts of
such Participants and credit the
settlement account of the
Presenting Agent maintained by
DTC, in an amount equal to the
initial public offering price of
such Note.
J. Transfers of funds in accordance
with SDFS deliver orders
described in Settlement
Procedures H and I will be
settled in accordance with SDFS
operating procedures in effect on
the Settlement Date.
K. Upon receipt of such funds, the
Trustee will credit to an account
of the Company identified to the
Trustee funds available for
immediate use in the amount
transferred to the Trustee in
accordance with Settlement
Procedure H.
L. The Trustee will send a copy of
each Book-Entry Note to the
Company together with a statement
setting forth the principal
amount of Notes outstanding in
accordance with the Mortgage.
M. The Agent will confirm the
purchase of such Note to the
purchaser either by transmitting
to the Participant with respect
to such Note a confirmation order
through DTC's Participant
Terminal System or by mailing a
written confirmation to such
purchaser.
Settlement Procedures For order of Notes accepted by the
Timetable: Company, Settlement Procedures "A"
through "M" 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-B 11:00 a.m. on the trade date
C 2:00 p.m. on the trade date
D No later than the Business Day
before day of settlement
E 3:00 p.m. on the Business Day
before day of settlement
F No later than 2:00 p.m. on the
day prior to day of settlement
G 10:00 a.m. on day of settlement
H-I No later than 2:00 p.m. on the
day prior to day of settlement
J 4:45 p.m. on day of settlement
K-M 5:00 p.m. on day of settlement
Settlement Procedures A, B and C may,
if necessary, be completed at any
time prior to the specified times on
the first Business Day after the sale
date. Settlement Procedure J 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
day of settlement.
If settlement of a Note issued in
book entry form is rescheduled or
canceled, 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 day of
settlement.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a
Book-Entry Note issued in book-entry
form pursuant to Settlement Procedure
H; the Trustee may deliver to DTC,
through DTC's Participant Terminal
System, as soon as practicable a
withdrawal message instructing DTC to
debit such Note to the participant
account of the Trustee maintained at
DTC. DTC will process the withdrawal
message, provided that such
participant account contains a
principal amount of the Book-Entry
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 Notes represented by a
Book-Entry Note, the Trustee will
mark such Book-Entry Note "canceled",
make appropriate entries in its
records and send such
canceled Book-Entry Note to the
Company. The CUSIP number assigned
to such Book-Entry Note shall, in
accordance with CUSIP Service Bureau
procedures, be canceled and not
immediately reassigned. If
withdrawal messages are processed
with respect to a portion of the
Notes represented by a Book-Entry
Note, the Trustee will exchange such
Book-Entry Note for two Book-Entry
Notes, one of which shall represent
the Book-Entry Notes for which
withdrawal messages are processed and
shall be canceled immediately after
issuance, and the other of which
shall represent the other Notes
previously represented by the
surrendered Book-Entry Note and shall
bear the CUSIP number of the
surrendered Book-Entry 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
related Agent may enter SDFS deliver
orders through DTC's Participant
Terminal System reversing the orders
entered pursuant to Settlement
Procedures H and I, respectively.
Thereafter, the Trustee will deliver
the withdrawal message and take the
related actions described in the
preceding paragraph. If such failure
shall have occurred for any reason
other than default by the applicable
Agent to perform its obligations
hereunder or under the Distribution
Agreement, the Company 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
Company.
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 a Note that was to
have been represented by a Book-Entry
Note also representing other Notes,
the Trustee will provide, in
accordance with Settlement Procedures
E and F, for the authentication and
issuance of a Book-Entry Note
representing such remaining Notes and
will make appropriate entries in its
records.
PART III: PROCEDURES FOR NOTES ISSUED IN CERTIFICATED FORM
Denominations: The Notes will be issued in
denominations of $1,000 and integral
multiples of $1,000 in excess
thereof.
Interest: Each Note will bear interest in
accordance with its terms. Interest
will begin to accrue on the original
issue date of a Note for the first
interest period and on the most
recent interest payment date to which
interest has been paid for all
subsequent interest periods. Each
payment of interest shall include
interest accrued to, but excluding,
the date of such payment.
Interest payments will be made
semiannually on the dates specified
in the Pricing Supplement and at
maturity. However, the first payment
of interest on any Note issued
between a record date and an interest
payment date will be made on the
interest payment date following the
next succeeding record date. The
record date for any payment of
interest shall be the first day of
the month in which the interest
payment date occurs. Pursuant to the
Mortgage, the Company will execute a
supplemental indenture that will provide
for, among other things, such record
dates. Interest at maturity will be
payable to the person to whom the
principal is payable.
Nothing herein should be deemed to
require the Trustee to risk or expend
its own funds in connection with any
payment to the Company, or the
Agents, or DTC, or any Noteholder, it
being understood by all parties that
payments made by the Trustee shall be
made solely to the extent that funds
are provided to the Trustee for such
purpose.
Payments of Principal Principal of and interest on the
and Interest: Notes, will be payable in Canton,
Massachusetts or at the option of the
Registered Owner (as defined herein),
at such other office or agency of the
Trustee, at the office or
agency of the Company in New York,
New York or otherwise pursuant to the
Mortgage and interest is payable, at
the option of the Company, by check
mailed to the registered owners of
the Notes. Any payment of principal
or interest required to be made on an
interest payment date or at maturity
of a Note which is not a Business Day
need not be made on such day, but
may be made on the next succeeding
Business Day with the same force and
effect as if made on the interest
payment date or at maturity, as thecase
may be, and no interest shall accrue
for the period from and after such
interest payment date or maturity.
The Trustee will provide to the
Company in each month prior to a
month in which any Note or Notes
mature, a list of the principal and
interest to be paid on Notes maturing
in the next succeeding month. The
Trustee will be responsible for
withholding taxes on interest paid as
required by applicable law, but shall
be relieved from any such
responsibility if it acts in good
faith and in reliance upon an opinion
of counsel.
Notes presented to the Trustee at
maturity for payment will be
cancelled and held by the Trustee.
Settlement Procedures: Settlement Procedures with regard to
each Note purchased through any
Agent, as agent, shall be as follows:
A. The Presenting Agent will advise
the Company by telephone of the
following settlement information
with regard to each Note:
1. Exact name in which the
Note is to be registered
(the "Registered Owner").
2. Exact address or
addresses of the Registered
Owner for delivery, notices
and payments of principal
and interest.
3. Taxpayer identification
number of the Registered
Owner.
4. Principal amount of the
Note.
5. Denomination of the
Note.
6. Terms:
a) interest rate
b) interest payment dates
7. Price to public of the
Note.
8. Settlement date
(Original Issue Date).
9. Maturity.
10. Net proceeds to the
Company.
11. Agent's commission.
B. The Company shall provide to the
Trustee the above Settlement
information received from the
Agents and shall cause the
Trustee to issue, authenticate
and deliver Notes. The Company
also shall provide to the Trustee
and/or Agents a copy of the
applicable Pricing Supplement.
C. The Board of Directors of the
Company or its Executive
Committee or the designee thereof
shall approve the final terms of
the Notes.
D. With respect to each trade, the
Trustee will deliver the Notes to
the Presenting Agent at the
following applicable address:
Smith Barney Inc., 390 Greenwich
Street - 3rd Floor, New York, New
York 10013, Attention: Syndicate
Operations - James Steiner; in
the case of A.G. Edwards & Sons,
Inc., 77 Water Street, 6th Floor,
New York, New York 10004,
Attention: Carlos Velez; or in
the case of PaineWebber
Incorporated, 1285 Avenue of the
Americas, 14th Floor, New York,
New York 10019, Attention:
Syndicate Operations-Mark Waxman.
The Trustee will keep a copy of such
Note. The Presenting Agent will
acknowledge receipt of the Note
through a broker's receipt and
will keep a copy of such Note.
Delivery of the Note will be made
only against such acknowledgment
of receipt. Upon determination
that the Note has been
authorized, delivered and
completed as aforementioned, the
Presenting Agent will wire the
net proceeds of the Note after
deduction of its applicable
commission to the Company
pursuant to standard wire
instructions given by the
Company.
E. The Presenting Agent will deliver
the Note (with confirmations), as
well as a copy of the Prospectus
and any applicable Pricing
Supplement or Supplements
received from the Trustee to the
purchaser against payment in
immediately available funds.
F. The Trustee will send a copy of
such Note to the Company.
Settlement Procedures For offers accepted by the Company,
Timetable: Settlement Procedures "A" through "F"
set forth above shall be completed on
or before the respective times set
forth below:
Settlement
Procedure Time
A-B 3:00 P.M. on the fifth Business
Day prior to settlement
C No later than Business Day prior
to settlement
D 2:15 P.M. on day of settlement
E 3:00 P.M. on day of settlement
F 5:00 P.M. on day of settlement
Failure to Settle: In the event that a purchaser of a
Note from the Company shall either
fail to accept delivery of or make
payment for a Note on the date fixed
for settlement, the Presenting Agent
will forthwith notify the Trustee and
the Company by telephone, confirmed
in writing, and return the Note to
the Trustee. The Trustee, upon
receipt of the Note from the Agent,
will immediately advise the Company
and the Company will promptly arrange
to credit the account of the
Presenting Agent in an amount of
immediately available funds equal to
the amount previously paid by such
Agent in settlement for the Note.
Such credits will be made on the
settlement date if possible, and in
any event not later than the Business
Day following the settlement date;
provided that the Company has
received notice on the same day. If
such failure shall have occurred for
any reason other than failure by such
Agent to perform its obligations
hereunder or under the Distribution
Agreement, the Company 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
Company. Immediately upon receipt of
the Note in respect of which the
failure occurred, the Trustee will
cancel and destroy the Note, make
appropriate entries in its records to
reflect the fact that the Note was
never issued, and accordingly notify
in writing the Company.
[END OF EXHIBIT 1 TO FORM S-3]
[EXHIBIT 4e TO FORM S-3]
COLONIAL GAS COMPANY
SUCCESSION OF TRUSTEE AND ASSIGNMENT OF MORTGAGE
KNOW ALL MEN BY THESE PRESENTS:
(1) State Street Bank and Trust Company (the "Predecessor
Trustee") has been trustee under a Second Amended and Restated
First Mortgage Indenture (as amended and supplemented, the
"Restated Indenture") dated as of June 15, 1992 of Colonial
Gas Company (the "Company") and recorded and filed on
June 26, 1992, as follows:
Barnstable County Registry of Deeds in Book 8086,
Page 97;
Barnstable County Registry of Deeds, Land Registration
Division, as Document No. 556487 and noted on Certificates
of Title Nos. 46050, 59716 and 84810;
Middlesex County Registry of Deeds, North Division, in
Book 5994, Page 188;
Middlesex County Registry of Deeds, South Division, in
Book 22161, Page 360;
Plymouth County Registry of Deeds in Book 11076,
Page 210; and
Filed with Secretary of the Commonwealth as Documents
Nos. 100102 and 100103, an amendment to original
Financing Statements Nos. 589106 and 47680.
(2) Pursuant to written action of the holders of a
majority in principal amount of the First Mortgage Bonds (the
"Bonds") outstanding under the Restated Indenture in accordance
with Section 10.18 of the Restated Indenture, the Predecessor
Trustee has been removed as trustee and The First National Bank
of Boston (the "Successor Trustee") has been appointed
successor trustee with all the estates, properties, rights,
powers, trusts, duties and obligations of the trustee under
the Restated Indenture, such appointment to be effective as
of November 15, 1994.
(3) The Successor Trustee hereby represents that it is
qualified and eligible under the provisions of Sections 4.02
and 10.01 of the Restated Indenture to be appointed successor
trustee, and hereby accepts its appointment as successor
trustee as aforesaid.
(4) In connection with the foregoing, the Predecessor
Trustee does hereby GIVE, GRANT, BARGAIN, SELL, ASSIGN, TRANSFER
AND SET OVER unto the Successor Trustee, its successors and
assigns forever, all the rights and powers of the trustee in
and to the trust estate and all rights, powers, trusts, duties
and obligations of the trustee under the Restated Indenture; and
the Predecessor Trustee does hereby pay over, assign, and
deliver to the Successor Trustee any and all money, if any, and
property, if any, held by the Predecessor Trustee as trustee.
The Company for the purpose of more fully and certainly
vesting in and confirming to the Successor Trustee said estate,
properties, rights, powers, trusts, duties and obligations,
and at the request of the Successor Trustee, joins in the
execution hereof.
(5) The Predecessor Trustee hereby represents and
warrants to the Successor Trustee that:
a. To the best of the knowledge of the
Predecessor Trustee, no Event of Default, and no event which,
after notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing under the Restated
Indenture.
b. No covenant or condition contained in the
Restated Indenture has been waived by the Predecessor Trustee
or by the holders of the percentage in aggregate principal
amount of the Bonds required by the Restated Indenture to
effect any such waiver.
c. There is no action, suit or proceeding
pending or, to the best of the knowledge of the Predecessor
Trustee, threatened against the Predecessor Trustee before
any court or governmental authority arising out of any action
or omission by the Predecessor Trustee as trustee under the
Restated Indenture.
(6) Notwithstanding the removal of the Predecessor
Trustee as trustee under the Restated Indenture, the Company
shall remain obligated under the Restated Indenture to compensate,
reimburse and indemnify the Predecessor Trustee for the period
of its trusteeship under the Restated Indenture.
(7) This Instrument may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
(8) Each of the Company, the Predecessor Trustee and the
Successor Trustee acknowledges receipt of an executed counterpart
of this Instrument.
(9) Unless otherwise defined herein, all terms used
herein which are defined in the Restated Indenture shall have
the meanings assigned to them in the Restated Indenture.
(10) This Instrument shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the Colonial Gas Company has caused
this Instrument to be duly executed under seal by Dennis W.
Carroll, its Vice President and Treasurer, hereunto duly
authorized, as of this 9th day of November, 1994.
COLONIAL GAS COMPANY
By: Dennis W. Carroll
Title: Vice President and
Treasurer
COMMONWEALTH OF MASSACHUSETTS
Middlesex, ss. November 9, 1994
Then personally appeared the above-named Dennis W.
Carroll, Vice President and Treasurer of Colonial Gas Company
and acknowledged the foregoing instrument to be his free act and
deed and the free act and deed of Colonial Gas Company before
me.
June T. Abreu
Notary Public
My Commission Expires:
2/19/99
IN WITNESS WHEREOF, State Street Bank and Trust
Company has caused this Instrument to be duly executed under
seal by Daniel Golden, its Assistant Vice President, hereunto
duly authorized, as of this 18th day of November, 1994.
STATE STREET BANK AND TRUST COMPANY
By: Daniel Golden
Title: Assistant Vice President
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. November 18, 1994
Then personally appeared the above-named Daniel Golden,
Assistant Vice President of State Street Bank and Trust
Company and acknowledged the foregoing instrument to be his
free act and deed and the free act and deed of State Street
Bank and Trust Company before me.
Ann Cappelletti
Notary Public
My Commission Expires:
7/8/99
IN WITNESS WHEREOF, The First National Bank of
Boston has caused this Instrument to be duly executed
under seal by Donna Germano, its Account Manager,
hereunto duly authorized, as of this 22nd day of November,
1994.
THE FIRST NATIONAL BANK OF BOSTON
By: D. Germano
Title: Account Manager
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. November 22, 1994
Then personally appeared the above-named Donna
Germano, Account Manager of The First National Bank of
Boston and acknowledged the foregoing instrument to be
his free act and deed and the free act and deed of The
First National Bank of Boston before me.
B. May
Notary Public
My Commission Expires:
10/31/97
[END OF EXHIBIT 4e TO FORM S-3]
[EXHIBIT 4f TO FORM S-3]
COLONIAL GAS COMPANY
TO
THE FIRST NATIONAL BANK OF BOSTON,
Trustee
_______________
Second Supplemental Indenture
Dated as of August 1, 1995
to Second Amended and
Restated First Mortgage Indenture
Additional Issue (Secured Medium Term Notes, Series A) $75,000,000
COLONIAL GAS COMPANY
Second Supplemental Indenture
dated as of August 1, 1995 to Second
Amended and Restated First Mortgage Indenture
The above Supplemental Indenture was filed for recordation
in Massachusetts as follows:
Location Date Reference
Secretary of the Documents Nos.
Commonwealth ______ __, 1995 _____ and _____
Barnstable Instrument No.
County ______ __, 1995 _____, Book _____,
Page _____
Barnstable County, Document No. _____,
Land Registration ______ __, 1995 Certificates of
Division Title Nos. _____,
_____, and _____
Middlesex County, Instrument No.
North Division ______ __, 1995 _____, Book _____,
Page _____
Middlesex County, Instrument No.
South Division ______ __, 1995 _____, Book _____,
Page _____
Instrument No.
Plymouth ______ __, 1995 _____, Book _____,
Page _____
THIS SUPPLEMENTAL INDENTURE, dated as of August 1, 1995
(hereinafter referred to as this "Supplemental Indenture" or this
"Instrument"), made and entered into by and between Colonial Gas
Company (formerly named "Lowell Gas Company"), a corporation duly
organized and existing under the laws of The Commonwealth of
Massachusetts, having its principal place of business at 40
Market Street, Lowell, Massachusetts (hereinafter referred to as
the "Company"), and The First National Bank of Boston, a national
banking association, having its principal place of business at
100 Federal Street, Boston, Massachusetts, as successor Trustee
(hereinafter referred to, together with its successors hereunder,
as the "Trustee") under the Second Amended and Restated First
Mortgage Indenture dated as of June 15, 1992, as supplemented by
the First Supplemental Indenture dated as of June 15, 1992 (as so
supplemented, the "Indenture"), which amends, restates and
supplements the Amended and Restated First Mortgage Indenture
dated as of July 1, 1981 from the Company to State Street Bank
and Trust Company, as supplemented by the First to Eighth
Supplemental Indentures thereto, inclusive, which amended,
restated and supplemented the First Mortgage Indenture and Deed
of Trust dated as of June 1, 1951 from Lowell Gas Company to
State Street Bank and Trust Company, as supplemented by the First
to Twenty-second Supplemental Indentures thereto, inclusive, and
the Indenture of Trust and First Mortgage dated as of April 1,
1950 from Cape Cod Gas Company (which has been merged into and
with the Company) to State Street Bank and Trust Company, as
supplemented by the First to Twenty-fifth Supplemental
Indentures, thereto, inclusive.
WHEREAS, the Company has heretofore duly executed and
delivered to the Trustee the Indenture to which this instrument
is supplemental, whereby substantially all the properties of the
Company used by it in its gas business, whether then owned or
thereafter acquired, with certain exceptions and reservations
fully set forth in the Indenture, were given, granted, bargained,
sold, transferred, assigned, pledged, mortgaged and conveyed to
the Trustee, its successors and assigns, in trust upon the terms
and conditions set forth therein to secure bonds of the Company
issued and to be issued thereunder (the "Bonds"), and for other
purposes more particularly specified therein; and
WHEREAS, in order to comply with the provisions of sections
2.02, 3.01(g) and 4.07 of the Indenture, it is desirable and the
Company is required and has duly and lawfully determined, at the
request of the Trustee, to execute and deliver this instrument
for the purpose of complying with said provisions; and
WHEREAS, for the protection of the holders of the Bonds it
is desirable to add certain covenants to the covenants of the
Indenture; and;
WHEREAS, it is necessary, desirable and not inconsistent
with the security and protection intended to be conferred upon
the Trustee and the holders of the Bonds to make certain
provisions in this instrument in regard to matters arising under
the Indenture; and
WHEREAS, Bonds in the principal amounts specified below have
heretofore been issued under and in accordance with the terms of
the Indenture (or Prior Indentures, as defined in the Indenture)
as separate series described or designated as hereinafter
specified, of which the respective amounts specified below were
outstanding on July 31, 1995:
Principal Amount Principal
Authorized and Amount
Designation Issued Outstanding
First Mortgage Bonds, $12,000,000 $ 6,000,000
Series CD
First Mortgage Bonds, $15,000,000 $15,000,000
Series CE
First Mortgage Bonds, $20,000,000 $16,363,636
Series CF
First Mortgage Bonds, $20,000,000 $20,000,000
Series CG
First Mortgage Bonds, $25,000,000 $25,000,000
Series CH
and the Company now proposes to issue up to $75,000,000 in
aggregate principal amount of additional First Mortgage Bonds
designated Secured Medium Term Notes, Series A (herein referred
to as the "Series A Notes") under the Indenture, which Bonds are
to be further designated and described, as to dates, maturities,
interest rates, sinking funds, denominations and redemption and
call provisions, in such Series A Notes which the Company may
issue from time to time, each in the form hereinafter set forth
(and the Trustee hereby confirms its approval, previously given
prior to the certification of any of said additional Bonds, of
the form and designation thereof so specified); and
WHEREAS, this Supplemental Indenture has been duly
authorized by resolution of the Board of Directors of the
Company, as required by section 3.01(b) of the Indenture, and the
use of terms and expressions herein is in accordance with
definitions, uses and constructions contained in the Indenture;
and
WHEREAS, the Series A Notes to be issued under the Indenture
are to be substantially in the following form:
(Form of Series A Note)
No. ____-____ COLONIAL GAS COMPANY $____________
Secured Medium Term Note, Series A
Due ________ ___, _____
COLONIAL GAS COMPANY, a Massachusetts corporation
(hereinafter, with its successors and assigns, as defined in the
Indenture mentioned below, generally called the "Company"), for
value received, hereby promises to pay to _____________________
or registered assigns, on ________ ___, _____ (or earlier as
hereinafter referred to), the principal sum of
_____________________________________ dollars ($__________) in
lawful money of the United States of America, and to pay interest
thereon (computed on the basis of a 360-day year of twelve 30-day
months), in like lawful money, from the date hereof, at the rate
of ______________________ percent (______%) per annum,
semi-annually on February 15 and August 15 of each year and at
maturity, until the principal hereof shall become due and
payable. The Company agrees to pay on demand interest on any
overdue principal (including any overdue prepayment of principal)
and premium, if any, at the rate of ____________________ percent
(_____%) per annum and, to the extent permitted by law, interest
on any overdue installment of interest at the rate at which such
overdue installment was computed according to the terms hereof.
The principal of, premium, if any, and interest hereof and hereon
will be paid at the principal corporate trust office in Canton,
Massachusetts of The First National Bank of Boston (hereinafter,
with its successors and predecessors as defined in said
Indenture, generally called the "Trustee") or at the principal
office of its successor in the trust created by said Indenture
or, at the option of the registered owner hereof, at such other
office or agency of the Trustee or of the Company maintained by
it for the purpose in the Burough of Manhattan, The City of New
York, New York, or such other place as may be designated for the
purpose pursuant to the provisions of said Indenture.
This Note is one of a duly authorized issue of First
Mortgage Bonds of the Company (the "Bonds") issued or to be
issued in one or more series, the series of which this Note is
one being designated Secured Medium Term Notes, Series A (herein
generally referred to as the "Series A Notes"). The Series A
Notes may be issued from time to time in various principal
amounts and may mature at different times, may bear interest at
different rates, may have different sinking fund provisions, may
be in different denominations, may be subject to different
redemption or call provisions and may otherwise vary.
This Note is a Global Note within the
meaning of the Indenture and is registered in the name of The
Depository Trust Company, or its nominee, as depository. This
Global Note is exchangeable for Series A Notes, registered in
the name of a person other than such depository or its nominee
only in the limited circumstances described in the Indenture,
and no transfer of this Note (other than the transfer of this
Note as a whole by such depository to its nominee or by such
nominee to such depository or another nominee of such depository)
may be registered except in such limited circumstances.
Unless this Note is presented by an authorized representative of
The Depository Trust Company 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.
All Bonds of all series and forms are issued or to be issued
under and secured by a certain Second Amended and Restated First
Mortgage Indenture dated as of June 15, 1992, as supplemented by
the First and Second Supplemental Indentures, inclusive, executed
counterparts of which are on file with the Trustee and may be
examined at its principal corporate trust office in Canton,
Massachusetts. Said Second Amended and Restated First Mortgage
Indenture, as amended and so supplemented, is herein generally
called the Indenture. Reference is made to the Indenture for a
description of Bonds outstanding under the Indenture as of
particular dates, including Prior Series Bonds as defined in the
Indenture, for a description of the property mortgaged and
pledged to the Trustee as security for Bonds, for a statement of
the nature and extent of the security, the terms and conditions
upon which Bonds have been, are or are to be issued and secured,
the rights and remedies under the Indenture of the holders of all
of said Bonds, and the rights and obligations under the Indenture
of the Company and of the Trustee, and for the definitions of
certain terms used but not defined in this Note; but neither the
foregoing reference to the Indenture, nor any provision of this
Note or of the Indenture, shall affect or impair the obligation
of the Company, which is absolute, unconditional and unalterable,
to pay, at the stated or accelerated maturities herein provided,
the principal of and premium, if any, and interest on this Note
as herein provided. By the terms of the Indenture, the Bonds to
be secured thereby are issuable to an unlimited (except as
provided in said Indenture) aggregate principal amount, in series
which may vary as to date, amount, date of maturity, rate of
interest and in other respects as in the Indenture provided.
In certain events, on the conditions, in the manner, to the
extent and with the effect set forth in the Indenture,
(1) the principal of this Note may be declared and/or
may become due and payable before the stated maturity
hereof, together with the interest accrued hereon;
(2) the Company and the Trustee may make modifications
or alterations of the provisions of the Indenture and of
this Note with the consent of the holders of not less than
66 2/3% in principal amount of the Bonds outstanding under the
Indenture, including not less than 66 2/3% in principal amount
of the Bonds of any series or sub-series affected in any
manner or to any extent differing from that in or to which
the Bonds of any other series or sub-series are affected;
provided, however, that no such alteration or modification
shall, without the consent of the registered owner of this
Note, (a) impair the obligation of the Company in respect of
the principal of or premium, if any, or interest on this
Note, or extend the maturity hereof or change the rate or
extend the time of payment of interest hereon or modify the
terms of payment of such principal, premium, if any, or
interest, or (b) permit the creation of any lien prior to or
on a parity with the lien of the Indenture, except as
expressly authorized by the Indenture, or (c) alter the
percentages of the principal amount of Bonds required to
declare the principal of and interest accrued on all Bonds
outstanding immediately due and payable as a result of a
default under the Indenture or to annul such declaration, or
(d) reduce the percentage of the principal amount of Bonds
with the consent of the holders of which modifications or
alterations may be made as aforesaid;
(3) the holders of not less than 66 2/3% in principal
amount of the Bonds at the time outstanding under the
Indenture, including not less than 66 2/3% in principal amount
of the Bonds of any series or sub-series affected by the
waiver in a manner different from that of any other series
or sub-series, may waive any existing default under the
Indenture and the consequences of any such default, except a
default in the payment of the principal of, premium, if any,
or interest on any of the Bonds, and except a default
arising from the creation of any lien prior to or on a
parity with the lien of the Indenture;
(4) upon payment of charges and compliance with other
conditions as provided in the Indenture, the Series A Notes
are exchangeable, at the principal corporate trust office of
the Trustee and at such other offices or agencies of the
Trustee or of the Company as may be designated for the
purpose, for like aggregate principal amounts of Series A
Notes in authorized denominations; and this Note is
transferable on books kept by the Company at said office of
the Trustee and at such other offices or agencies, upon
surrender and cancellation hereof at any such office or
agency, duly endorsed or accompanied by a duly executed
instrument of transfer, and thereupon a new fully registered
Series A Note or Notes for a like aggregate principal amount
will be issued to the transferee or transferees in exchange
for this Note; and
(5) the Series A Notes (i) are subject to redemption
in whole or in part at any time prior to maturity if through
the application of eminent domain moneys or the proceeds of
insurance arising from loss or casualty, as specified in the
Indenture, at the principal amount thereof, and (ii) to the
extent specified in the attached table, if any, are subject
to redemption, in whole or in part, at any time prior to
maturity, at the option of the Company, on and after the
initial redemption date specified in the attached table, at
the applicable redemption prices (expressed as a percentage
of the principal amount) set forth in the attached table,
together in each case with accrued interest to the date
fixed for redemption. Any redemptions permitted or required
under the Indenture, other than those described in (i), will
be deemed optional redemptions.
At least thirty (30) but not more than sixty (60) days prior
to the date on which any Series A Note is to be redeemed as
aforesaid, written notice of such redemption shall be given by
registered mail to the registered owners of the Series A Notes
all or any portions of which are to be redeemed. If this Note is
called in whole or in part, after provision has been duly made
for notice of such call and after deposit shall have been made of
the principal, premium, if any, and interest to the date fixed
for redemption and such amounts are immediately available on the
date fixed for redemption to the holders of the Series A Notes to
be redeemed on surrender thereof, this Note, or such called part
of the principal amount hereof, shall cease to be secured by the
lien of the Indenture, no interest shall accrue on this Note or
such called part hereof on and after the date fixed for
redemption, and the Company after said date fixed for redemption
shall be under no further liability in respect of the principal
of or premium, if any, or interest on this Note or such called
part hereof (except as expressly provided in the Indenture); and
if less than the whole principal amount hereof shall be so
called, the registered owner hereof shall be entitled, in
addition to the sums payable on account of the part called, to
receive, without expense to such owner, on surrender of this Note
duly endorsed or accompanied by a duly executed instrument of
transfer, one or more Series A Notes for an aggregate principal
amount equal to that part of the principal amount hereof not then
called and paid, or to present this Note for the notation hereon
of the payment of the part of the principal amount then called
and paid.
This Note is not subject to redemption under any provision
of the Indenture, or otherwise, except as expressly referenced
above.
The Company, the Trustee, any paying agent, any bond
registrar and any other person may treat the registered owner
hereof as the absolute owner hereof for the purpose of receiving
payment of the principal of and premium, if any, and interest on
this Note and for all other purposes, and neither the Company nor
the Trustee, nor any paying agent or bond registrar, shall be
affected by any notice or knowledge to the contrary, whether
payments on this Note shall be overdue or not. The Company, and
every successive owner and assignee of this Note, by accepting
and holding the same, consents and agrees to the foregoing
provisions, and each invites the others and all persons to rely
thereon.
No recourse shall be had for the payment of the principal of
or premium, if any, or interest on this Note against any
incorporator, stockholder, director, officer or agent, past,
present or future, as such, of the Company or of any predecessor
or successor corporation, either directly or through the Company
or any such predecessor or successor corporation, under any rule
of law, statute or constitution or by the enforcement of any
assessment or otherwise, all such liability of incorporators,
stockholders, directors, officers and agents being released by
the holder hereof by the acceptance of this Note and being
likewise waived and released as provided in the Indenture,
provided that nothing herein or in the Indenture shall prevent
enforcement of obligations on stock not fully paid up.
This Note shall take effect as a sealed instrument.
This Note shall not be valid or become obligatory for any
purpose or be entitled to any security or benefit under the
Indenture until the certificate hereon shall have been signed by
the Trustee.
IN WITNESS WHEREOF, Colonial Gas Company has caused this
Note to be executed under its corporate seal and issued by its
duly authorized officers, all as of _________________ __, 19__.
COLONIAL GAS COMPANY
By
By
Attest:
(Form of Trustee's Certificate)
This is one of the Series A Notes referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By
Authorized Officer
(Form of Endorsement)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns
and transfers unto ____________________ (whose Taxpayer
Identification Number is ____________________) 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:
In the presence of:
Notice: The signature to this assignment must correspond
with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change
whatever.
[Insert Redemption Table, if applicable]
NOW, THEREFORE, THIS INSTRUMENT (BEING THE SECOND
SUPPLEMENTAL INDENTURE TO THE INDENTURE) WITNESSETH that, in
consideration of the premises, and of the acceptance and purchase
of the Series A Notes by the holders thereof, and of the sum of
$1.00 duly paid by the Trustee to the Company, and of other good
and valuable consideration, the receipt of which is hereby
acknowledged, and in confirmation of and supplementing and
amending the Indenture and in performance of and compliance with
the provisions thereof, said Colonial Gas Company has given,
granted, bargained, sold, warranted, pledged, assigned,
transferred, mortgaged and conveyed, and by these presents does
give, grant, bargain, sell, transfer, warrant, assign, pledge,
mortgage, convey and confirm unto The First National Bank of
Boston, as Trustee, as provided in the Indenture, and its
successor or successors in the trust thereby and hereby created,
and its and their assigns, (a) all and singular the property, and
rights and interests in property, described (directly or by
cross-reference to the Prior Indentures) in the Indenture and
thereby conveyed, pledged, assigned, transferred and mortgaged,
or intended so to be (said descriptions being hereby made a part
hereof to the same extent as if set forth herein at length),
whether then or now owned or thereafter or hereafter acquired;
(b) all of the real estate and personal property owned by the
Company located respectively in the City of Lowell, and in the
Towns of Chelmsford, Tewksbury, Dracut, Billerica, Westford,
Tyngsborough, Dunstable, Pepperell, North Reading, Littleton,
Wilmington, Wareham, Bourne (which includes the village of
Buzzards Bay), Mashpee, Falmouth, Barnstable (which includes the
village of Hyannis), Yarmouth, Dennis, Harwich, Chatham,
Sandwich, Brewster, Orleans and Eastham, all in Massachusetts,
including (without in any way limiting the generality of the
foregoing) the parcel or parcels of real estate, if any,
described in Exhibit A hereto; and (c) also without limiting the
generality of the foregoing, all the right, title and interest of
the Company in and to the franchises, rights, titles, interests,
easements and all other real and personal property acquired or
constructed by the Company since the execution and delivery of
the Indenture as fully as if set forth herein at length; except
such of said properties or interests therein described above in
(a) to (c), inclusive, as may have been released by the Trustee
or sold or disposed of in whole or in part as permitted by the
Indenture.
SUBJECT, HOWEVER, as to all of the foregoing, to the
specific rights, privileges, liens, encumbrances, restrictions,
conditions, limitations, covenants, interests, reservations,
exceptions and otherwise as provided (directly or by cross-
reference to the Prior Indentures) in the Indenture and in the
descriptions (directly or by cross-reference to the Prior
Indentures) in the Indenture and in the deeds or grants referred
to therein (or in said Prior Indentures).
BUT SPECIFICALLY RESERVING AND EXCEPTING (as the same were
reserved and excepted from the lien of the Indenture) from this
instrument and the grant, conveyance, mortgage, transfer and
assignment herein contained all right, title and interest of the
Company, now owned or hereafter acquired, in and to the
properties and rights described (directly or by cross-reference
to the Prior Indentures) on page 11 of the Indenture as
specifically reserved and excepted.
PROVIDED, HOWEVER, that if an event of default occurs and
the Trustee or any receiver or trustee appointed for the purpose
shall enter upon and take possession of the trust estate, the
Trustee or such receiver or trustee may, to the extent permitted
by law, take possession of the said specifically excepted
property and use it as if such property were part of the trust
estate, unless and until such default shall be remedied and
possession of the trust estate restored to the Company.
TO HAVE AND TO HOLD all such property, rights, title and
interests unto The First National Bank of Boston, Trustee
hereunder, its successors in the trust created by the Indenture,
and its and their assigns, to its and their own use and behoof
forever;
BUT IN TRUST, NEVERTHELESS, under and subject to the
provisions and conditions, with all the powers and authority and
for the trusts and purposes set forth in the Indenture, and (1)
for the equal pro rata benefit and security (except as provided
in sections 2.09 and 2.10 of the Indenture, and except insofar as
a sinking, improvement or analogous fund or funds, established in
accordance with the provisions of the Indenture for any series of
Bonds, may afford particular security for Bonds of one or more
series or sub-series, and except independent security as provided
in section 2.02 of the Indenture) of the holders of such of said
series of Bonds as are now outstanding and $75,000,000 in
aggregate principal amount of Series A Notes for the issue of
which provision is made herein, and of the holders of all the
Bonds from time to time certified, issued and outstanding under
the Indenture, and the bearers of the coupons thereto
appertaining, without (except as aforesaid) any preference,
priority or distinction whatever of any Bond or coupon over any
other Bond or coupon by reason of priority in the series or in
the issue, sale or negotiation thereof, or otherwise, and (2)
subject to the covenants, agreements, rights, privileges,
immunities and duties set forth in the Indenture and this
instrument.
The Company hereby declares that it holds and will hold and
apply all property described (directly or by cross-reference to
the Prior Indentures) on page 11 of the Indenture as specifically
reserved and excepted, upon the trusts of the Indenture set forth
and as the Trustee (or any purchaser thereof upon any sale
thereof hereunder) shall for such purpose direct, from time to
time, to the fullest extent permitted by law or in equity, as
fully as if the same could be and had been granted, conveyed,
mortgaged, transferred and assigned to and vested in the Trustee
by the Indenture.
ARTICLE I
Series A Notes
Section 1.01. General Terms of Series A Notes. The second
series of Bonds to be issued under the Indenture shall be known
as "Secured Medium Term Notes, Series A." Such Series A Notes
shall be limited in aggregate principal amount to $75,000,000.
The Series A Notes shall be issued from time to time as fully
registered Bonds, without coupons, and no coupon bonds shall be
issued, whether upon original issue or upon transfers or
exchanges. The Series A Notes shall be substantially in the form
hereinbefore recited and, in each case, shall recite the
principal amount, interest rate, maturity, redemption or call
provisions and other provisions thereof, which may vary as among
the Series A Notes. The Series A Notes may be issued in the
denomination of one thousand dollars ($1,000) each or any
multiple thereof and, without regard to the denomination thereof,
shall be numbered consecutively. Each Series A Note shall be
dated as of the day of certification, except that Series A Notes
issued upon transfers and exchanges of Series A Notes and upon
exchanges of temporary Bonds for such Series A Notes shall be
dated so that no gain or loss of interest shall result from such
transfer or exchange. The Series A Notes shall be due and
payable on such dates, and shall bear interest at such rates (in
each case computed on the basis of a 360-day year of twelve
30-day months from the date thereof) as may be specified therein
from the date of issuance. Interest thereon shall be payable
semi-annually, on February 15 and August 15 in each year, and at
maturity, until the principal thereof shall become due and
payable. The Company also agrees to pay on demand interest on
any overdue principal (including any overdue prepayment of
principal) and premium, if any, at a rate equal to the interest
rate of the relevant Series A Note, plus one percent (1.00%) per
annum and, to the extent permitted by law, interest on any
overdue installment of interest at the rate at which such overdue
installment of interest was calculated according to the terms of
the Series A Notes. The Series A Notes shall be payable as to
principal, premium, if any, and interest at, unless the holder of
any such Bond and the Company shall have otherwise agreed in
writing, the principal corporate trust office of the Trustee in
Canton, Massachusetts, or at the principal office of its
successor in trust created by the Indenture or, at the option of
the registered owner thereof, at such other office or agency of
the Trustee or of the Company maintained by it for the purpose
in the Burough of Manhattan, The City of New York, New York, or
such other place as may be designated for the
purpose pursuant to the provisions hereof, in lawful money of
the United States of America.
The Series A Notes shall be exchangeable by the holders, and
may be transferred, in each case as provided in section 2.06 of
the Indenture, all upon payment of charges and otherwise as
provided in the Indenture.
The Series A Notes are not subject to redemption, at the
option of the Company or otherwise, by operation of the
provisions of the Indenture, whether under sections 7.02 and 7.03
of the Indenture, or otherwise, except as specifically set forth
in the form of such Notes.
Series A Notes at any time outstanding may be called for
redemption in the manner provided in Article 5 of the Indenture
and section 1.03 hereof (i) in whole or in part, at any time
prior to maturity, at the option of the Company, to the extent,
under the provisions of and at the redemption prices specified in
the resolution of the Company providing for the issue of such
Series A Notes (the "Resolution") and set forth in the related
Series A Notes or (ii) in whole or in part at
any time prior to maturity through the application of eminent
domain moneys (as hereinafter defined) or the proceeds of
insurance arising from loss or casualty under the provisions of
the Indenture at the principal amount thereof; together in each
case with unpaid interest accrued to the date fixed for
redemption. Any redemptions permitted or required under the
Indenture, other than those described in (ii) above, shall be
deemed optional redemptions. The term "eminent domain moneys"
shall mean the net proceeds of the taking of property included in
the trust estate by exercise of the power of eminent domain, or
by similar right or power, or the purchase or designation of the
purchaser of, or ordering of the sale of, all or any part of such
property by the exercise of any right of any governmental
authority, or the sale or conveyance in lieu and in reasonable
anticipation of any such event (provided that, in case of a sale
or conveyance in anticipation of any such event, "eminent domain
moneys" shall include, in addition to said net proceeds, the
excess of the fair value over the net proceeds, if the fair
value, as evidenced by an engineer's certificate, of the property
sold or conveyed, is greater than such net proceeds), together
with all net sums payable for any damage to any fixed assets
embraced in the trust estate by or in connection with any such
taking, sale or conveyance.
Section 1.02. Payment of Interest. Whenever Series A Notes
are called for redemption, the Company shall, in each case, prior
to the date fixed for redemption thereof, pay to the Trustee in
cash all unpaid interest accrued on such Series A Notes to said
date fixed for redemption.
Section 1.03. Procedure for Redemption. Except as otherwise
provided in this section 1.03 or the Resolution, the procedure
for redemption of Series A Notes shall be that specified in
sections 5.02, 5.03 and 5.04 of the Indenture.
Notice of redemption of any Series A Notes shall be given by
the Company as provided in sections 5.02 and 5.03 of the
Indenture, except that, unless otherwise provided in the
Resolution, notice need be given only by mail and not by
publication. Any such notice of redemption shall be mailed not
less than thirty (30) nor more than sixty (60) days prior to the
date on which the proposed redemption is to take place. The
mailing of such notice shall be a condition precedent to
redemption, provided that any notice which is so mailed shall be
conclusively presumed to have been duly given, whether or not the
holders receive such notice, and failure to give such notice by
mail, or any defect in such notice, to the holder of any such
Series A Note designated for redemption, in whole or in part,
shall not affect the validity of the redemption of any other such
Series A Note.
Section 1.04. Global Notes. Notwithstanding any other
provisions of this Supplemental Indenture, the Series A Notes
issued by the Company and authenticated and delivered by the
Trustee under this Supplemental Indenture shall be issued as
definitive, fully-registered global notes in the name of Cede
& Co., as nominee of The Depository Trust Company ("DTC"), in
the aggregate principal amount of all Series A Notes issued
hereunder.
The Company and the Trustee may treat DTC as, and shall deem
DTC to be, the absolute owner of the Series A Notes evidenced by
the global notes for the purpose of payment of principal of,
premium, if any, and interest on such Series A Notes, for the
purpose of all other matters with respect to such Series A Notes,
for the purpose of registering transfers with respect to Series A
Notes, and for all other purposes whatsoever. Neither the
Company nor the Trustee shall have any responsibility or
obligation to any of DTC's direct or indirect participants.
Without limiting the immediately preceding sentence, neither the
Company nor the Trustee shall have any responsibility or
obligation with respect to (i) the accuracy of the records of DTC
or its nominee or any of its direct or indirect participants with
respect to any ownership interest in the global notes, (ii) the
delivery to any of DTC's direct or indirect participants or any
other person, other than DTC, of any notice with respect to the
Series A Notes evidenced by the global notes, (iii) the payment
to any of DTC's direct or indirect participants or any other
person, other than DTC, of any amount with respect to the
principal of, premium, if any, or interest on the Series A Notes
evidenced by the global notes, and (iv) the failure of DTC to
provide any information or notification on behalf of any of DTC's
direct or indirect participants. The Trustee shall pay all
principal of and premium, if any, and interest on the Series A Notes
only to or upon the order of DTC, and all such payments shall be
valid and effective to fully satisfy the Company's obligations
with respect to the principal of and premium, if any, and
interest on such Series A Notes to the extent so paid.
Notwithstanding the provisions of the Indenture to the contrary
(including, without limitation, place of payment, surrender of
the Series A Notes, registration and transfer thereof and
authorized denominations), as long as any of the Series A Notes
are in the form of a global note, full effect shall be given to
the procedures and practices of DTC with respect thereto, and the
Trustee shall comply therewith.
In the event that (i) DTC (or any successor securities
depository) is at any time unwilling or unable to continue as
depository and a successor depository is not appointed by the
Company within 90 days, (ii) the Company determines that the
continuation of the system of book-entry only transfers through
DTC (or a successor securities depository) is not in the best
interests of the beneficial owners of the Series A Notes or is
burdensome to the Company, or (iii) a default under the Indenture
has occurred and is continuing, the Company will notify DTC and the
Trustee, whereupon DTC or the Trustee will notify DTC
participants of the availability through DTC of certificates for
the Series A Notes. In such event, the Company and the Trustee
shall execute and deliver a supplemental indenture to add such
provisions and to make such modifications, including in the
form of Series A Note, as may be necessary or appropriate to provide
for the issuance of the Series A Notes in certificated form and
the Company shall issue and the Trustee shall transfer and
exchange certificates for the Series A Notes as requested by DTC
in denominations as prescribed by Section 1.01 hereof, to the
identifiable beneficial owners in replacement of such beneficial
owners' respective beneficial interests in the Series A Notes.
ARTICLE II
Miscellaneous
Section 2.01. Certain Covenants. For purposes of Sections
3.01(h) and 4.22 of the Indenture, and not for any other purpose,
the Series A Notes are hereby designated as Prior Series Bonds.
Section 2.02. Miscellaneous Provisions. The Trustee shall
be entitled to, may exercise and shall be protected by, where and
to the full extent that the same are applicable, all the rights,
powers, privileges, immunities and exemptions provided in the
Indenture, as if the provisions concerning the same were
incorporated herein at length. The Trustee under the Indenture
shall ex officio be Trustee hereunder. The remedies and
provisions of the Indenture, applicable in case of any default by
the Company thereunder, are hereby adopted and made applicable in
case of any default with respect to the properties included
herein and, without limitation of the generality of the
foregoing, there are hereby conferred upon the Trustee the same
powers of sale and other powers over the properties described
herein as are expressed to be conferred by the Indenture.
If, pursuant to Article I of this Supplemental Indenture or
any similar provision of any other supplemental indenture, the
Trustee makes payment of the redemption price of all or a portion
of any registered Series A Note directly to the registered owner
thereof without presentation or surrender thereof, the Trustee
shall have no responsibility to ascertain whether such registered
owner carries out its agreement not to dispose of such Note
without prior presentation or surrender thereof to the Trustee as
provided in said Article I or similar provision, and the Trustee
shall not be liable for any claim if arising out of or because of
the failure of such registered owner to carry out its said
agreement.
The recitals in this Supplemental Indenture shall be taken
as recitals by the Company alone, and shall not be considered as
made by or as imposing any obligation or liability upon the
Trustee, nor shall the Trustee be held responsible for the
legality or validity of this Supplemental Indenture, and the
Trustee makes no covenants or representations, and shall not be
responsible, as to or for the effect, authorization, execution,
delivery or recording of this Supplemental Indenture, except as
expressly set forth in the Indenture. The Trustee shall not be
taken impliedly to waive by this Supplemental Indenture any right
it would otherwise have. As provided in the Indenture, this
Supplemental Indenture shall hereafter form a part of the
Indenture.
The date of this Supplemental Indenture is intended as and
for a date for reference and for identification, the actual time
of the execution hereof being the date set forth in the
testimonium clause hereof.
This Supplemental Indenture shall become void when the
Indenture shall be void.
If any provision of this Supplemental Indenture limits,
qualifies or conflicts with the duties imposed by operation of
Section 318(c) of the Trust Indenture Act of 1939, as amended,
such imposed duties shall control.
This Supplemental Indenture may be simultaneously executed
in any number of counterparts, each of which shall be deemed an
original; and all said counterparts executed and delivered, each
as an original, shall constitute but one and the same instrument,
which shall for all purposes be sufficiently evidenced by any
such original counterpart.
IN WITNESS WHEREOF, Colonial Gas Company has caused this
Supplemental Indenture to be executed, and its corporate seal to
be hereto affixed, by its officers thereunto duly authorized, and
The First National Bank of Boston has caused this Supplemental
Indenture to be executed, and its corporate seal to be hereto
affixed, by its officers thereunto duly authorized, all as of the
day and year first above written but actually on the ____ day of
________, 1995.
COLONIAL GAS COMPANY
[Seal]
By_____________________________
By______________________________
Attest:
____________________________________
Clerk
THE FIRST NATIONAL BANK OF BOSTON, as Trustee
[Seal]
By _________________________________
By _________________________________
Attest:
____________________________________
Clerk
The Commonwealth of Massachusetts )
) ss.:
County of Suffolk )
On this _____ day of __________, 1995 before me personally
appeared ____________________, and _____________, to me personally
known, who, being by me duly sworn, did say that they are the
________________ and _______________, respectively, of Colonial
Gas Company, that the seal affixed to the foregoing instrument
is the corporate seal of said corporation, and that said instrument
was signed and sealed by them on behalf of said corporation by
authority of its Board of Directors; and the said _____________
and _________________, acknowledged said instrument to be the
free act and deed of said corporation.
[Seal]
___________________________
Notary Public
My Commission Expires:
The Commonwealth of Massachusetts )
) ss.:
County of Suffolk )
On this _____ day of __________, 1995 before me personally
appeared __________________ and __________________, to me
personally known, who, being by me duly sworn, did say that they
are the ___________________ and ___________________,
respectively, of The First National Bank of Boston, that the seal
affixed to the foregoing instrument is the corporate seal of said
bank, and that said instrument was signed and sealed by them on
behalf of said bank, by authority of its Board of Directors; and
the said ___________________ and _____________________,
acknowledged said instrument to be the free act and deed of said
trust company, as trustee.
[Seal]
_______________________
Notary Public
My Commission Expires:
Exhibit A
REAL ESTATE ACQUIRED
BY COLONIAL GAS COMPANY
[END OF EXHIBIT 4f TO FORM S-3]
[EXHIBIT 5 TO FORM S-3]
PALMER & DODGE
One Beacon Street
Boston, Massachusetts 02108
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
August 16, 1995
Colonial Gas Company
40 Market Street
Lowell, MA 01852
Ladies and Gentlemen:
We are furnishing this opinion in connection with
the Registration Statement on Form S-3 (the "Registration
Statement") being filed by Colonial Gas Company (the
"Company") with the Securities and Exchange Commission
under the Securities Act of 1933, as amended. The
Registration Statement relates to a maximum of $75,000,000
aggregate principal amount of First Mortgage Bonds of the
Company, designated Secured Medium Term Notes, Series A
(the "Series A Notes"), to be issued from time to time
pursuant to a proposed Second Supplemental Indenture (the
"Supplemental Indenture") to the Second Amended and
Restated First Mortgage Indenture dated as of June 15, 1992
between the Company and The First National Bank of Boston,
as successor Trustee (as supplemented and amended, and as
proposed to be supplemented by the Supplemental Indenture,
the "Indenture").
We have acted as counsel to the Company in
connection with the preparation of the Registration
Statement and the proposed issuance of the Series A Notes.
We have made such examination as we consider necessary
to render this opinion.
Based upon the foregoing and assuming that the terms
of the Series A Notes will comply with applicable law at
the time of issuance, we are of the opinion that:
(1) when the Board of Directors of the Company or
its Executive Committee or the designee thereof
has determined the terms and conditions
relating to the issuance and sale of the Series
A Notes, the Series A Notes will be duly
authorized by the Company;
(2) upon the execution and delivery of the
Supplemental Indenture and the filing with
the Trustee under the Indenture of the proper
papers, the Series A Notes will be issuable
under the terms of the Indenture;
(3) upon the effectiveness of the Registration
Statement, the qualification of the Indenture
under the Trust Indenture Act of 1939, and
the approval of the issuance of the Series A
Notes by the Massachusetts Department of Public
Utilities, no further authorization, consent
or approval by any regulatory authority will
be required for the valid issuance and sale of
the Series A Notes (except under the securities
laws of the several states, as to which we do
not express an opinion); and
(4) upon the due execution and delivery of the
Supplemental Indenture and the due execution,
certification and delivery of the Series A
Notes in accordance with the corporate and
regulatory authorizations referred to above and
in accordance with the Indenture, against
payment therefor as contemplated by the
Registration Statement, the Series A Notes will
be valid and legally binding obligations of the
Company, subject to bankruptcy, reorganization,
insolvency, moratorium and similar laws
affecting creditors' rights generally and to
general principles of equity.
We hereby consent to the filing of this opinion as a
part of the Registration Statement and to the reference to
our firm under the caption "Legal Opinions" in the
Prospectus filed as a part thereof.
Very truly yours,
Palmer & Dodge
[END OF EXHIBIT 5 TO FORM S-3]
[EXHIBIT 12 TO FORM S-3]
COLONIAL GAS COMPANY
COMPUTATION OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
Twelve
Year Ended December 31, Months
Ended
June, 30
1990 1991 1992 1993 1994 1995
Earnings:
Income Before $14,175 $16,515 $18,130 $20,174 $19,444 $18,030
Interest
Expense
Add:
State &
Federal 3,013 4,632 7,211 8,116 7,210 5,086
Income Taxes
Implied
Interest on 692 497 444 500 304 284
Leases
Total $17,880 $21,644 $25,784 $28,789 $26,958 $23,400
Earnings
Fixed
Charges:
Interest on
Long- $7,858 $7,293 $7,386 $8,447 $8,079 $7,820
Term Debt
Amortization
of Debt 82 78 86 134 148 136
Expense
Other
Interest 1,617 1,497 448 (40) 712 1,595
Implied
Interest on 692 497 444 500 304 284
Leases
Total Fixed $10,249 $9,365 $8,364 $9,041 $9,243 $9,835
Charges
Ratio of
Earnings to 1.74 2.31 3.08 3.18 2.92 2.38
Fixed Charges
[END OF EXHIBIT 12 TO FORM S-3]
[EXHIBIT 23a TO FORM S-3]
Consent of Independent Certified Public Accountants
We have issued our reports dated January 18, 1995,
accompanying the consolidated financial statements of
Colonial Gas Company and subsidiaries appearing in the 1994
Annual Report of the Company to its shareholders and
accompanying the schedules included in the Annual Report on
Form 10-K for the year ended December 31, 1994 which are
incorporated by reference in this Registration Statement.
We consent to the incorporation by reference in the
Registration Statement of the aforementioned reports and to
the use of our name as it appears under the caption
"Experts."
GRANT THORNTON LLP
Boston, Massachusetts
August 16, 1995
[END OF EXHIBIT 23a TO FORM S-3]
[EXHIBIT 25 TO FORM S-3]
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
(Address 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)
__________________________
COLONIAL GAS COMPANY
(Exact name of obligor as specified in its charter)
Massachusetts 04-1558100
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
40 MARKET STREET LOWELL, MA 01852
(Address of principal executive offices) (Zip Code)
Secured Medium Term Notes
(Title of indenture securities)
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 __)
None with respect to Bank of Boston Corporation.
3. through 11. Not applicable.
12. Indebtedness of the Obligor to the Trustee
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
1) REVOLVING CREDIT LINE $15,145,600.00 7/31/95
2) MONEY MARKET CREDIT LINE $ 0.00 7/31/95
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.
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.
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 14th day of July,1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By : 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
Colonial 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
Authorized Officer
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.
ASSETS
Dollar
Amounts in
Thousands
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
EQUITY CAPITAL
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 $36,886,506
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
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 14th day of July,1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By : 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
the Colonial 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
Authorized Officer
[END OF EXHIBIT 25 TO FORM S-3]
