As filed with the Securities and Exchange Commission on
March 24, 1998.
REGISTRATION NO. 333-
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 (978) 322-3000
(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
(978) 322-3000
(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. TIMOTHY A. CLARK DAVID P. FALCK, ESQ.
Palmer & Dodge LLP General Counsel Winthrop,Stimson,
One Beacon Street Colonial Gas Company Putnam & Roberts
Boston, Massachusetts 40 Market Street One Battery park Plaza
Lowell, MA 01852 New York, Nyew York 10004
______________________
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement.
______________________
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. _X_
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._
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.
CALCULATION OF REGISTRATION FEE
Title of each Amount to Proposed Proposed Amount of
class of be maximum maximum registra-
securities to be registered offering aggregate tion fee
registered price per offering
unit price (1)
(1)(2)
Secured Medium $75,000,000 100% $75,000,000 $22,125
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 March 24, 1998
PROSPECTUS
$75,000,000
COLONIAL GAS COMPANY
Secured Medium Term Notes, Series B
Due from 9 months to 40 years from Date of Issue
_________________________
Colonial Gas Company (the "Company") may offer from time to time up to
$75,000,000 aggregate principal amount of its Secured Medium Term Notes,
Series B (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 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 hereto relating to the
Notes (a "Pricing Supplement") and may be subject to redemption at the option
of the Company or repayment at the option of the holder thereof, in each
case, in whole or in part, prior to maturity, if specified in the applicable
Pricing Supplement. Interest on the Notes will be payable semi-annually in
arrears on the dates set forth in the applicable Pricing Supplement and at
maturity or, if applicable, upon earlier redemption or repayment.
The Notes will be issued as a new series of First Mortgage Bonds under the
Company's Second Amended and Restated First Mortgage Indenture to State
Street Bank and Trust Company, as trustee (the "Trustee"), dated as of
June 15, 1992 (as supplemented and amended from time to time, the
"Indenture"), and, pursuant to the Indenture, secured by a lien on certain
property owned by the Company. See "Description of Notes-Security."
The aggregate principal amount, interest rate, interest payment dates,
price to public, purchase price, maturity date, redemption or repayment
terms, if applicable, and the other variable terms of each Note not described
herein will be set forth in the applicable Pricing Supplement.
Each Note will be issued in book-entry form (a "Book-Entry Note or Notes")
or, if specified in the applicable Pricing Supplement, in fully registered
certificated form (a "Certificated Note or Notes"). Each Book-Entry Note
will be represented by a global note (a "Global Note or Notes") deposited
with or on behalf of The Depository Trust Company, New York, New York (the
"Depositary"), and registered in the name of the Depositary or its nominee.
Beneficial interests in a Global Note will be shown on, and transfers thereof
will be effected only through, records maintained by the Depositary (with
respect to its participants) and by its participants (with respect to
beneficial owners). Owners of beneficial interests in a Global Note will not
be considered holders thereof and will not be entitled to receive physical
delivery of Certificated Notes, except under the limited 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.
Agents'
Price to Discounts and Proceeds to the
Public (1) Commissions Company (1)(3)
(1)(2)
Per Note 100% .125% - .750% 99.875% - 99.250%
Total $75,000,000 $93,750 - $562,500 $74,906,250 - $74,437,500
(1) Salomon Brothers Inc, A.G. Edwards & Sons, Inc., Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated or other agents
selected from time to time by the Company who become parties to the
Distribution Agreement dated the date hereof (the "Distribution
Agreement") between the Company and each of the agents (the "Agents"),
individually or in a syndicate, may purchase Notes, as principal, from
the Company for resale to investors and other purchasers at varying
prices relating to prevailing market prices at the time of resale as
determined by the applicable Agent or, if so specified in the applicable
Pricing Supplement, for resale at a fixed offering price. Unless
otherwise specified in the applicable 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 of the
principal amount equal to the commission applicable to an agency sale
(as described below) of a Note of identical maturity. If agreed to by
the Company and an Agent, such agent may utilize its reasonable efforts
on an agency basis to solicit offers to purchase Notes at 100% of the
principal amount thereof, unless otherwise specified in the applicable
Pricing Supplement. The Company will pay to an Agent a commission
ranging from .125% to .750% of the principal amount of any Note,
depending on maturity, sold through such Agent. Commissions with
respect to Notes with maturities in excess of 30 years that are sold
through such Agent will be negotiated between the Company and such Agent
at the time of such sale. The Notes may also be sold by the Company
directly to investors, in which case no commission will be payable to
any Agent. See "Plan of Distribution."
(2) The Company has agreed to indemnify the Agents against, and to provide
contribution with respect to, certain liabilities, including liabilities
under the Securities Act of 1933. See "Plan of Distribution".
(3) Before deduction of expenses payable by the Company estimated
at $200,000.
___________________________
The Notes are being offered on a continuing basis by the Company to or
through the Agents. 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, if sold, that there will be a secondary
market for any of the Notes or liquidity in the secondary market if one
develops. 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 on an agency basis may reject such offer to purchase Notes in whole or
in part. See "Plan of Distribution."
___________________________
Salomon Smith Barney A.G. Edwards & Sons, Inc. Merrill Lynch & Co.
___________________________
The date of the Prospectus is March ___, 1998.
___________________________
Information contained herein is subject to completion or amendment. A
Registration Statement 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.
IN CONNECTION WITH AN OFFERING OF NOTES PURCHASED BY ONE OR MORE AGENTS AS
PRINCIPAL ON A FIXED PRICE BASIS, SUCH AGENT(S) MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES. SUCH
TRANSACTIONS MAY INCLUDE STABILIZING AND THE PURCHASE OF NOTES TO COVER
SYNDICATE SHORT POSITIONS. FOR A DESCRIPTION OF THESE ACTIVITIES, SEE
"PLAN OF DISTRIBUTION."
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. In addition, the Company is required to file electronic versions of
such material with the Commission through the commission's Electronic Data
Gathering, Analysis and Retrieval (EDGAR) system. The Commission maintains
a World Wide Web site at http://www.sec.gov that contains reports, proxy
and information statements and other information regarding registrants that
file electronically with the Commission such as the Company. The Company's
common stock is listed on the New York Stock Exchange. Reports and other
information concerning the Company can be inspected at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 (together with all amendments and
exhibits thereto, the "Registration Statement"), which the Company has
filed with the Commission under the Securities Act of 1933 (the "Securities
Act"). Statements contained or incorporated by reference herein concerning
the provisions of documents are necessary summaries of such documents, and
each statement is qualified in its entirety by reference to the
Registration Statement.
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, 1997.
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 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 Treasury Manager,
Colonial Gas Company, 40 Market Street, Lowell, Massachusetts 01852
(Telephone: (978) 322-3000).
THE COMPANY
The Company, a Massachusetts corporation formed in 1849, is primarily a
regulated natural gas distribution utility that serves approximately
151,000 utility customers in 24 municipalities 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 50%
of potential customers in its service areas. Of its 151,000 customers,
approximately 90% are residential accounts. The Company added 6,101 firm
customers in 1997. Approximately 46% of such growth resulted from new
construction in its service areas and approximately 54% resulted from
conversions to gas from other energy sources for existing homes and
businesses.
The Company has proposed to create a holding company structure in which
the Company will become a separate, wholly-owned subsidiary of a new parent
company, Colonial Energy. Notwithstanding such change, the Notes and the
other Bonds (as defined below) issued under the Indenture will remain
obligations of the Company secured by the lien of the Indenture, and will
not be obligations of the new holding company. Completion of the
restructuring is subject to approval of the Company's stockholders, which
is proposed to be considered at the April 15, 1998 annual stockholders'
meeting, and to approval by the Massachusetts Department of
Telecommunications and Energy (the "DTE").
The address of the Company's principal executive office is 40 Market
Street, Lowell, Massachusetts 01852 (Telephone: (978) 322-3000).
SELECTED FINANCIAL INFORMATION
(Dollars in thousands)
Year Ended December 31,
1995 1996 1997
Operating Revenues $163,668 $169,878 $187,140
Utility Operating Income $21,525 $22,154 $22,856
Net Income $13,764 $16,478 $16,040
Ratio of Earnings to Fixed
Charges(b) 3.19 3.88 3.93
December 31, 1997
Long-term Debt (excluding current portion) $100,101
Common Equity 122,132
Total Capitalization $222,233
__________________
(a) Ratios of Earnings to Fixed Charges for the years ended
December 31, 1993 and 1994 were 3.18 and 2.92, respectively. Fixed charges
include the financing costs of the Company's gas inventories which the DTE
allows to be fully recovered through a 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 $390, $504, $662, $500 and
$564 for the years ended December 31, 1993, 1994, 1995, 1996 and 1997,
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 the
applicable Pricing Supplement, the refunding of maturing long-term
indebtedness and the repayment of short-term bank debt incurred for such
purposes.
DESCRIPTION OF NOTES
The following statements are only a summary, do not purport to be
complete, and are subject to the detailed provisions of the Indenture,
including the Fourth Supplemental Indenture thereto pursuant to which the
Notes will be issued, the form of which is filed as an exhibit to the
Registration Statement. This summary incorporates by reference the
Indenture and is qualified in its entirety by such reference. Certain of
the capitalized terms used below are used herein with the meanings ascribed
to such terms in 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, subject to the prior
authorization of the DTE. By an order issued December 9, 1997 (the "DTE
Order"), the DTE has authorized the issuance of up to $45,896,060 aggregate
principal amount of Notes, subject to reduction in the event of the
issuance of certain other securities of the Company. As of the date
hereof, $705,931 of such other securities have been issued by the Company.
The Company may not issue and sell Notes in excess of the amount authorized
by the DTE without further DTE authorization.
The Notes will be issued in fully registered form only, without
coupons and, unless otherwise specified in the applicable Pricing
Supplement, will be issued as Book-Entry Notes. The minimum denominations
of the Notes will be $1,000 and integral multiples thereof.
The Notes will be offered on a continuing basis and will mature
from 9 months to 40 years from their issue dates. Each Note will bear
interest at a fixed rate. The Notes will not have any conversion rights.
Each Pricing Supplement relating to the Notes will describe the
following terms: (i) the purchase price and price to the public 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
and the dates such interest will be paid; (v) the date or dates from which
any such interest shall accrue; (vi) the terms for redemption or repayment,
if any; and (vii) any other variable terms of such Notes not inconsistent
with the Indenture.
Payment of Principal and Interest
The Notes will bear interest at a fixed rate from their date of
issue for the first interest period or from the most recent date on which
any interest has been paid or duly provided for all subsequent interest
periods to but excluding the next interest payment date, the maturity date
or date of earlier redemption or repayment 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 in arrears on the dates set forth
in the applicable Pricing Supplement and at maturity or, if applicable,
upon earlier redemption or repayment. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Payments of principal of and premium, if any, and interest on
Book-Entry Notes will be made by the Company in immediately available funds
through the Trustee to the Depositary. See "-- Book-Entry Notes."
Payments of principal of and premium, if any, and interest on Certificated
Notes will be payable in immediately available funds to registered holders
thereof on dates that will be set forth in the applicable Pricing
Supplement at the principal corporate trust office in Boston, Massachusetts
of the Trustee, or, at the option of such registered holder, at such other
office or agency of the Trustee or the Company in New York, New York or
otherwise pursuant to the Indenture.
Interest rates offered by the Company with respect to the Notes
may differ depending upon, among other things, the aggregate principal
amount of Notes purchased in any transaction. Notes with similar variable
terms but different interest rates may be offered concurrently at any time.
The Company may also concurrently offer Notes having different variable
terms (as are described herein or in the applicable Pricing Supplement).
Redemption at the Option of the Company
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 plus unpaid accrued interest
thereon to the redemption date. The Notes are also subject to redemption
at the principal amount thereof, in whole or in part, through the
application of eminent domain moneys (as defined in the Indenture) or
proceeds of insurance arising from loss or casualty each as specified in
the Indenture. Except as may otherwise be specified in the applicable
Pricing Supplement, notice of redemption shall be published or mailed to
the registered holders of the Notes to be redeemed at least 30 days but not
more than 60 days prior to the redemption date and in accordance with the
provisions of the Indenture.
Repayment at the Option of the Holder
To the extent set forth in the applicable Pricing Supplement, the
Notes may be repayable by the Company, at the option of the registered
holder thereof. If so specified, such holder shall have the option to
require repayment of the Notes held by it in whole or in part at the
repayment prices set forth in the applicable Pricing Supplement plus unpaid
accrued interest thereon to the repayment date set forth therein upon
return to the Trustee of (i) a duly completed "Option to Elect Repayment"
form on such Note or (ii) a telegram, telex, facsimile transmission or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank or a trust
company in the United States of America, setting forth the name of the
registered holder of the Note, the principal amount of the Note, the
principal amount of the Note to be repaid, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to
be repaid with the "Option to Elect Repayment" form as set forth in clause
(i) duly executed will be received by the Company not later than three
business days after the date of such telegram, telex, facsimile
transmission or letter and such Note and form duly completed are received
by the Company by such third business day, in either case, not less than 30
nor more than 60 days prior to the repayment date (unless otherwise
provided in the applicable Pricing Supplement) at the office maintained for
such purpose in Boston, Massachusetts, currently the corporate trust office
of the Trustee. The repayment option may be exercised by a registered
holder of Notes for less than the entire principal amount held by it,
provided the principal amount which is to be repaid to such holder is equal
to $1,000 or an integral multiple of $1,000. Such exercise by a registered
holder to tender Notes for repayment will be irrevocable. All questions as
to the validity, eligibility (including time of receipt) and the acceptance
of any Note for repayment will be determined by the Company, whose
determination will be final and binding.
So long as the Notes are issued as Book-Entry Notes represented
by Global Notes, the Depositary or its nominee, Cede & Co., as registered
holder of the Notes, will be entitled to tender the Notes on the date for
repayment by the Company and any such tenders will be effected by means of
the Depositary's repayment option procedures. During the period from and
including the date 60 days prior to the repayment date to and including the
date 30 days prior to the repayment date or, if the date thirty days prior
to the repayment date is not a business day, the next succeeding business
day, the Depositary participants who are acting on behalf of owners of
beneficial interests in the Global Notes, must provide instructions to the
Depositary to tender the Notes for repayment under the Depositary's
repayment option procedures. Such tenders for repayment will be made by
the Depositary by means of a book-entry credit of the applicable Book-Entry
Notes to the account of the Trustee. Promptly after the recording of any
such book-entry credit, the Depositary will provide the Trustee with an
agent put daily activity report in accordance with its repayment option
procedures, identifying the Book-Entry Notes and the aggregate principal
amount thereof as to which such tenders for repayment have been made.
OWNERS OF BENEFICIAL INTERESTS IN GLOBAL NOTES WHO WISH TO EFFECTUATE THE
TENDER AND REPAYMENT OF SUCH NOTES MUST SO INSTRUCT THEIR RESPECTIVE
DEPOSITARY PARTICIPANT OR PARTICIPANTS A REASONABLE PERIOD OF TIME IN
ADVANCE OF THE DATE 30 DAYS PRIOR TO THE REPAYMENT 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 December 31, 1997,
the Company had $110,000,000 aggregate principal amount of Bonds
outstanding, consisting of 3 separate series. Two of 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. The third outstanding series of Bonds, designated as Secured
Medium Term Notes, Series A, of the Company, and the Notes have been
designated as Prior Series Bonds only for purposes of the debt restrictions
described under "--Restrictive Covenants - Debt Restrictions."
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 that 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 subject to receipt of any necessary DTE approvals that
may be required. At December 31, 1997, the Company had approximately
$88,309,676 net amount of additional property and $4,550,000 of retired
Bonds, entitling it in accordance with the provisions of the Indenture to
issue approximately $57,500,000 of additional Bonds.
The issuance by the Company of debt securities with maturities of
greater than one year requires the approval of the DTE. The DTE Order
authorizes the issuance of up to $45,896,060 aggregate principal amount of
Notes, subject to reduction in the event of the issuance of certain other
securities of the Company. As of the date hereof, $705,931 of such other
securities have been issued by the Company. The Company may not issue and
sell Notes in excess of the amount authorized by the DTE without further
DTE authorization.
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, for the benefit of holders of Prior
Series Bonds, 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
$12,500,000.
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.
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 set forth above, but not
otherwise, the Notes will be considered Prior Series Bonds, and the holders
of the Notes will have the benefit of such debt restrictions.
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.
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 Bonds 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 holders of the Series 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, if
any, 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, or (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 as Book-Entry Notes. Upon issuance, all
Book-Entry Notes having identical terms and provisions will be represented
by a single 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 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 Certificated Notes 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 of and premium, if any, and interest on the
Book-Entry Notes represented by one or more Global Notes will be made by
the Company in immediately available funds 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,
premium, if any, and interest 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 Certificated Notes 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 Certificated Notes
which are equal in principal amount to such beneficial interest and to have
such Certificated 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 Certificated Notes are issued, the record
dates for the payment of interest thereon will be set forth in such
Certificated Notes.
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.
Concerning the Trustee
State Street Bank and Trust Company, as Trustee under the
Indenture, is the trustee for the Bonds currently outstanding under the
Indenture.
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
The Notes are being offered on a continuing basis for sale by the
Company to or through Salomon Brothers Inc, A.G. Edwards & Sons, Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated or
other Agents selected from time to time by the Company who become parties
to the Distribution Agreement. The Agents individually or in a syndicate,
may purchase Notes, as principal, from the Company from time to time for
resale to investors and other purchasers at varying prices relating to
prevailing market prices at the time of resale as determined by the
applicable Agent or, if so specified in the applicable Pricing Supplement,
for resale at a fixed offering price. If agreed to by the Company and an
Agent, such Agent may also utilize its reasonable efforts on an agency
basis to solicit offers to purchase the Notes at 100% of the principal
amount thereof, unless otherwise specified in the applicable Pricing
Supplement. The Company will pay a commission to an Agent, ranging from
.125% to .750% of the principal amount of each Note, depending upon its
stated maturity, sold through such Agent as an agent of the Company.
Commissions with respect to Notes with stated maturities in excess of 30
years that are sold through an Agent as an agent of the Company will be
negotiated between the Company and such Agent at the time of such sale.
The Company may also sell the Notes directly to purchasers in those
jurisdictions in which it is permitted to do so. No commission or discount
will be payable by the Company on Notes sold directly by the Company.
Unless otherwise specified in the applicable 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 of
the principal amount equal to the commission applicable to an agency sale
of a Note of identical maturity. An Agent may sell Notes it has purchased
from the Company as principal to certain dealers less a concession equal to
all or any portion of the discount received in connection with such
purchase. Such Agent may allow, and such dealers may reallow, a discount
to certain other dealers. After the initial offering of Notes, the
offering price (in the case of Notes to be resold on a fixed offering price
basis), the concession and the reallowance may be changed.
The Company reserves the right to withdraw, cancel or modify the
offer made hereby without notice and may reject offers in whole or in part
(whether placed directly with the Company or through an Agent). Each Agent
will have the right, in its discretion reasonably exercised, to reject in
whole or in part any offer to purchase Notes received by it on an agency
basis.
Upon issuance, the Notes will not have an established trading
market. The Notes will not be listed on any securities exchange. The
Agents may from time to time purchase and sell Notes in the secondary
market, but the Agents are not obligated to do so, and there can be no
assurance that there will be a secondary market for the Notes or that there
will be liquidity in the secondary market if one develops. From time to
time, the Agents may make a market in the Notes, but the Agents are not
obligated to do so and may discontinue any market-making activity at any
time.
In connection with an offering of Notes purchased by one or more
Agents as principal on a fixed price basis, each such Agent will be
permitted to engage in certain transactions that stabilize the price of
such Notes. Such transactions may consist of bids or purchases for the
purpose of pegging, fixing or maintaining the price of such Notes. If an
Agent creates a short position in such Notes (i.e., if it sells Notes in an
aggregate principal amount exceeding that set forth in the applicable
Pricing Supplement), such Agent may reduce that short position by
purchasing Notes in the open market. In general, purchases of Notes for
the purpose of stabilization or to reduce a short position could cause the
price of Notes to be higher than it might be in the absence of such
purchases.
Neither the Company nor any of the Agents makes any
representation or prediction as to the direction or magnitude of any effect
that the transactions described above may have on the price of the Notes.
In addition, neither the Company nor any of the Agents makes any
representation that the Agents will engage in any such transactions or that
such transactions once commenced will not be discontinued without notice.
The Agents may be deemed to be "underwriters" within the meaning
of the Securities Act. The Company has agreed to indemnify the Agents
against, and to provide contribution with respect to, certain liabilities,
including liabilities under the Securities Act. The Company also has
agreed to reimburse the Agents for certain other expenses.
The Agents have in the past performed, and in the future may
perform, various services for the Company in the ordinary course of its
business.
LEGAL OPINIONS
The validity of the Notes will be passed upon for the Company by
Palmer & Dodge LLP, counsel to the Company, One Beacon Street, Boston,
Massachusetts, and for the Agents by Winthrop, Stimson, Putnam & Roberts,
One Battery Park Plaza, New York, New York.
EXPERTS
The financial statements and schedule included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1997,
incorporated by reference in this Prospectus and in the Registration
Statement, have been audited by Grant Thornton LLP, independent auditors,
as stated in their reports, which are incorporated by reference herein, and
have been so incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
No dealer, salesperson or any other person has been authorized to give any
information or to make any representation not contained in this Prospectus
(including any accompanying Pricing Supplement) and, if given or 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 accompanying Pricing 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 to whom it is
unlawful to make such offer in such jurisdiction. Neither the delivery of
this Prospectus (or any accompanying Pricing Supplement) by the Company or
any of the Agents nor any sale made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs 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.
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 Secured Medium Term
authorized by the Company or Notes, Series B
by any of the Agents. This
Prospectus (including any
accompanying Pricing PROSPECTUS
Supplement) does not
constitute an offer to sell or _________ __, 1998
a solicitation of any offer to
buy any of the securities
offered hereby or thereby in Salomon Smith Barney
any jurisdiction to any person
to whom it is unlawful to make A.G. Edwards & Sons, Inc.
such offer in such
jurisdiction. Neither the Merrill Lynch & Co.
delivery of this Prospectus
(or any accompanying Pricing
Supplement) by the Company or
any of the Agents nor any sale
made hereunder shall, under
any circumstances, create any
implication that there has
been no change in the affairs
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
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) $ 22,125
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 80,000
Charges of trustee 10,000
Miscellaneous 875
Total $200,000
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.
3a Restated Articles of Organization Incorporated herein
of Colonial Gas Company, dated by reference.
April 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.
3b 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.
4a Second Amended and Restated First Incorporated herein
Mortgage Indenture, dated as of by reference.
June 15, 1992, filed as Exhibit
4(b) to Form 10-Q of the Registrant
for the quarter ended June 30,
1992.
4b 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.
4c Action substituting The First Incorporated herein
National Bank of Boston as Trustee. by reference.
4d Second Supplemental Indenture, Incorporated herein
dated as of August 1, 1995 by reference.
relating to the Secured Medium Term
Notes, Series A, filed as Exhibit
4(c) to Form 10-K of the Registrant
for the fiscal year ended December
31, 1995.
4e Amendment to Second Supplemental Incorporated herein
Indenture, dated as of August 1, by reference.
1995 relating to flexibility for
interest payment dates for the
Secured Medium Term Notes, Series
A, filed as Exhibit 4(d) to Form 10-
K of the Registrant for the fiscal
year ended December 31, 1995.
4f Third Supplemental Indenture, dated Incorporated herein
as of December 15, 1995, relating by reference.
to the succession of State Street
Bank and Trust Company as successor
trustee.
4g Form of Fourth Supplemental Filed herewith as
Indenture relating to the Secured Exhibit 4g
Medium Term Notes, Series B.
4h Form of Secured Medium Term Note, Included in Exhibit
Series B. 4g.
5 Opinion of Palmer & Dodge LLP as to Filed herewith as
the 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 LLP. Included in Exhibit
5.
24 Power of attorney Set forth on the
signature page.
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 24th day of March,
1998.
COLONIAL GAS COMPANY
By /s/F.L. Putnam, III
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:
/s/F.L. Putnam, III
F. L. Putnam, III, President and March 24, 1998
Chief Executive Officer
Principal Financial Officer:
/s/Nickolas Stavropoulos
Nickolas Stavropoulos, March 24, 1998
Executive Vice President-Finance,
Marketing and
Chief Financial Officer
Principal Accounting Officer:
/s/Dennis W. Carroll
Dennis W. Carroll, Vice President March 24, 1998
and Treasurer
FORM S-3
Directors: Date:
/s/V.W. Baur
V.W. Baur March 24, 1998
/s/J.P. Harrington
J.P. Harrington March 24, 1998
/s/R.L. Hull
R.L. Hull March 24, 1998
/s/R.A. Perkins
R.A. Perkins March 24, 1998
/s/F.L. Putnam, Jr.
F.L. Putnam, Jr. March 24, 1998
/s/F.L. Putnam, III
F.L. Putnam, III March 24, 1998
/s/J.F. Reilly, Jr.
J.F Reilly, Jr. March 24, 1998
/s/M.M. Stapleton
M.M. Stapleton March 24, 1998
/s/N. Stavropoulos
N. Stavropoulos March 24, 1998
/s/C.O. Swanson
C.O. Swanson March 24, 1998
EXHIBIT INDEX
Exhibit Page
No. Description
1 Form of Distribution Agreement
3a 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
3b 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
4a 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
4b 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
4c Action substituting the First National Bank
of Boston as Trustee
4d Second Supplemental Indenture, dated as of
August 1, 1995, related to the Secured Medium
Term Notes, Series A
4e Amendment to Second Supplemental Indenture,
dated as of August 1, 1995 relating to
flexibility for interest payment dates for
the Secured Medium Term Notes, Series A,
filed as Exhibit 4(d) to Form 10-K of the
Registrant for the fiscal year ended December
31, 1995
4f Third Supplemental Indenture, dated as of
December 15, 1995, relating to the succession
of State Street Bank and Trust Company as
successor trustee
4g Form of Fourth Supplemental Indenture
relating to the Secured Medium Term Notes,
Series B
4h Form of Secured Medium Term Note, Series B
5 Opinion of Palmer & Dodge LLP 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 LLP
25 Statement of Eligibility of Trustee on Form T-1
[END OF FORM S-3]
[EXHIBIT 1 TO FORM S-3]
$75,000,000
Colonial Gas Company
Secured Medium Term Notes, Series B
Due from 9 Months to 40 years from Date of Issue
DISTRIBUTION AGREEMENT
March ___, 1998
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
New York, New York 10281
Ladies and Gentlemen:
Colonial Gas Company, a Massachusetts corporation (the "Company"),
confirms its agreement with Salomon Brothers Inc, A.G. Edwards & Sons, Inc.
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
(each, an "Agent" and collectively, the "Agents") with respect to the issue
and sale by the Company of its Secured Medium Term Notes, Series B, due
from 9 months to 40 years from date of issue (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 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
Fourth Supplemental Indenture, dated as of March ___, 1998 (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 March 24, 1998, the Company filed with the Securities and Exchange
Commission (the "SEC") a registration statement on Form S-3 (No. 333 - )
under the Securities Act of 1933 (the "1933 Act") relating to $75,000,000
aggregate principal amount of the Company's secured medium term 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 (the "1939 Act"). Such registration statement (and any further
registration statement that may be filed by the Company for the purpose of
registering additional secured medium term notes of the Company and in
connection with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part of such
registration statement, 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 (the "Incorporated
Documents"), as from time to time amended or supplemented, 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.
All references in this Agreement to financial statements and schedules
and other information that is "contained," "included" or "stated" in the
Registration Statement or the Prospectus (and all other references of like
import) shall be deemed to mean and include all such financial statements
and schedules and other information that are or are deemed to be
incorporated by reference in the Registration Statement or the Prospectus,
as the case may be and all references in this Agreement to amendments or
supplements to the Registration Statement or the Prospectus shall be deemed
to mean and include the filing of any Incorporated Document after the time
of execution of this Agreement; provided, however, that any supplement to
the Prospectus filed with the SEC pursuant to Rule 424(b) of the 1933 Act
Regulations with respect to an offering of securities of the Company, other
than the Notes, shall not be deemed to be a supplement to, or a part of,
the Prospectus.
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 and the Department of
Telecommunications and Energy of the Commonwealth of Massachusetts
(formerly known as the Department of Public Utilities ) (the "DTE") 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 or applicable DTE
authorizations. 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, in 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, and agrees
with 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
(other than by any Current Report on Form 8-K relating exclusively to the
issuance of Notes under the Registration Statement, unless the Agents shall
otherwise specify to the Company that the following representations and
warranties are applicable thereto) (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. The
Registration Statement, at the Effective Date, 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 Effective Date, did not, 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"). As
used herein, the term "Effective Date" means the later of (i) the date
that the Registration Statement or the most recent post-effective
amendment thereto was or is declared effective by the SEC under the
1933 Act and (ii) the date that the Company's Annual Report on Form
10-K for its most recently completed fiscal year is filed with the SEC
under the 1934 Act.
(iv) Incorporated Documents. The Incorporated Documents, 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
audited 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
included or 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,
executed and delivered by the Company and, upon execution and delivery
by the Agents, will be a valid and binding agreement of the Company;
the Mortgage has been duly authorized, executed and delivered by the
Company and qualified under the 1939 Act and constitutes a valid and
binding obligation of the Company enforceable against the Company in
accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement
of mortgagees' and other creditors' rights and by general equitable
principles (whether 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 applicable DTE authorizations and 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 against the Company in accordance with their respective
terms, except as may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting enforcement of
mortgagees' and other creditors' rights and by general equitable
principles (whether 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; No Conflicts. 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) Regulatory Approvals. The Company is subject to the
jurisdiction of the DTE 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 on order of
the DTE issued December 9, 1997 (D.P.U./D.T.E. 97-83) (the "DTE
Order") authorizing the issuance and sale by the Company of up to
$45,896,060 aggregate principal amount of Notes, subject to reduction
in the event of the issuance of certain other securities of the
Company (the "Authorized Notes") on terms consistent with this
Agreement and any applicable Terms Agreement, which order has been
obtained and is in full force and effect, (ii) Additional DTE Orders
(as defined in Section 4(a) hereof) authorizing the issuance and sale
by the Company of the Notes in aggregate principal amount greater than
the aggregate principal amount of the Authorized Notes (the
"Additional Notes") on terms consistent with this Agreement and any
applicable Terms Agreement, which orders will have been obtained and
will be in full force and effect prior to the issuance and sale of the
Additional Notes by the Company, and (iii) 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 (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.
(xviii) Ratings. The Notes, prior to any issuance thereof, will
be rated Baa 1 by Moody's Investors Service, Inc. and A by Standard &
Poor's or such other rating as to which the Company shall have most
recently notified the Agents of pursuant to Section 4(a) hereof.
(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. As soon as
practicable, 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 terms, unless otherwise agreed, shall, to the extent
applicable, include those terms specified in Exhibit A hereto and be agreed
upon orally with written confirmation prepared by such Agent or Agents and
mailed or sent by facsimile transmission to the Company) 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. 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 price to the
public, the time and place of delivery of and payment for such Notes, any
provisions applicable to the failure of any Agents (if more than one) to
purchase and pay for the Notes it has agreed to purchase and pay for
thereunder, 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 stand-off
agreement, the officers' certificate, opinions of counsel and comfort
letter pursuant to Sections 4(k), 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, and confirm such notice in writing, (i) of the effectiveness
of any amendment to the Registration Statement (which shall not include the
filing of any Incorporated Document), (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, (v) the issuance of any
order or orders of the DTE (each, an "Additional DTE Order") authorizing
the issuance and sale by the Company of the Additional Notes, (vi) the
expiration or modification of the DTE Order or any Additional DTE Orders
and (vii) any change in the rating assigned by any nationally recognized
statistical rating organization to the Notes or the public announcement by
any nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of
the Notes or the withdrawal by any nationally recognized statistical rating
organization of its rating of the Notes. 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 registration of additional
Notes, any amendment to the Registration Statement (which shall not include
the filing of any Incorporated Document) 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 Incorporated Document, 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 Incorporated Documents) 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 such 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), (d) or (f) 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
LLP, 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) 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; 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.
(iv) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(v) 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 against the
Company in accordance with its terms, except as 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 (whether
considered in a proceeding in equity or at law).
(vi) The Notes are in due and proper form, have been duly
and validly authorized for issuance, offer and sale pursuant to
this Agreement and the Mortgage and, when issued, authenticated
and delivered pursuant to the applicable DTE authorizations and
the provisions of this Agreement and the Mortgage against payment
of the consideration therefor, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as 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 (whether
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.
(vii) The statements and summaries of documents in the
Prospectus under the caption "Description of Notes" are accurate
in all material respects.
(viii) The Mortgage is qualified under the 1939 Act.
(ix) 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.
(x) The Registration Statement, at the Effective Date, and
the Prospectus, as of the date hereof (other than in each case
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.
(xi) 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.
(xii) 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.
(xiii) 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.
(xiv) No 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 (i) such as have been
obtained under the 1933 Act, the 1933 Act Regulations, the 1939
Act or the 1939 Act Regulations, (ii) the DTE Order, which has
been obtained, and, to the best of such counsel's knowledge, is
in full force and effect and is sufficient for the issuance and
sale of the Authorized Notes by the Company, (iii) any Additional
DTE Orders with respect to the issuance and sale of Additional
Notes by the Company and (iv) such as may be required under state
securities or blue sky laws.
(xv) Each Incorporated Document complied when filed as to
form in all material respects with the 1934 Act and the 1934 Act
Regulations thereunder.
(xvi) 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.
(xvii) 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 (iv),
(v), (vi), (vii) (viii), (ix) and (x) 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 LLP
required by subsection (a)(1) of this Section 5.
(4) In giving their opinions required by subsection (a)(1) and
(a)(3) of this Section 5, Palmer & Dodge LLP 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, as of the Effective Date, contained an untrue
statement of a material fact 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, 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 any 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 Form T-1 or 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 DTE Order issued relating to the issuance and the sale of the
Authorized Notes is in full force and effect and is sufficient to authorize
the issuance and sale of the Authorized 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 a registration statement 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 consoli-dated financial statements included
in the Registration Statement and the 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 the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act, the 1933
Act Regulations, 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 the 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 the 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 the
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 agreements 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 Incorporated
Document (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 (i) the Registration Statement and
the Prospectus as amended and supplemented to such time and (ii) with
respect to clause (v) of said Section 5(b), the DTE Order and any
Additional DTE Orders issued and in effect as of such time relating to the
issuance and sale of the Notes) 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 (i) the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate and (ii) with respect to clause (v) of said
Section 5(b), the DTE Order and any Additional DTE Orders issued and in
effect as of such time relating to the issuance and sale of the Notes.
(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 Incorporated
Document (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 LLP, 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 (i) the Registration Statement and the Prospectus
as amended and supplemented to the time of delivery of such opinion and
(ii) with respect to clause (xiv) of said Section 5(a)(1), the DTE Order
and any Additional DTE Orders issued and in effect as of such time relating
to the issuance and sale of the Notes; 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 (i) the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance
and (ii) with respect to clause (xiv) of said Section 5(a)(1), the DTE
Order and any Additional DTE Orders issued and in effect as of such time
relating to the issuance and sale of the Notes).
(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 Incorporated Document 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.
(f) Subsequent Delivery of DTE Additional Orders. Except as
otherwise provided in Section 4(l), each time that the Company gives to the
Agents the written notification required by Section 4(a)(v) of this
Agreement, the Company shall concurrently deliver to each Agent (i) a
certified copy of each DTE Additional Order and (ii) the written opinion of
Palmer & Dodge LLP to the effect that such DTE Additional Order, to the
best of such counsel's knowledge, is in full force and effect and
sufficient for the issuance and sale by the Company of the aggregate
principal amount of Additional Notes referenced in such opinion. The
Company will not request any Agent to solicit offers to purchase Notes
unless a DTE order authorizing the Company to issue and sell such Notes is
in effect.
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 DTE in connection with the issuance
of the Notes.
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 10, 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:
Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Attention: Marianne Spinelli,
Legal Department, 32nd Floor
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, Missouri 63103
Attention: Debt Syndicate, Karen Clay-Middleton
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
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' understanding of
our agreement, please sign and return to the Company a counter-part hereof,
whereupon this instrument along with all counter-parts 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:
Salomon Brothers Inc
By: ________________________________
Name:
Title:
A.G. Edwards & Sons, Inc.
By: ________________________________
Name:
Title:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
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
transaction.
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: $_______
Interest Rate:
Interest Payment Dates:
If Redeemable at the Option of the Company:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Other Redemption Terms:
If Repayable at the Option of the Holder:
Optional Repayment Date(s):
Optional Repayment Price(s):
Date of Maturity:
Purchase Price: ___%, plus accrued interest,
if any, from _________
Price to Public: ___%, plus accrued interest,
if any, from _________
Settlement Date and Time:
Stand-off Period (if any):
Provisions applicable to the failure of any Agents (if more
than one) to purchase and pay for the Notes it has agreed
to purchase and pay for hereunder:
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 B
Due From 9 Months to 40 Years From Date Of Issue
(Dated as of March __, 1998)
Secured Medium Term Notes, Series B (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 Salomon Brothers Inc,
A.G. Edwards & Sons, Inc. and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith 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 March __, 1998 (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 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 Fourth Supplemental Indenture, dated as of March __, 1998
(said First Mortgage Indenture, as heretofore supplemented and as it is to
be further supplemented, the "Mortgage"). The Registration Statement (as
defined in the Distribution Agreement) with respect to the Notes has been
filed with the Securities and Exchange Commission (the "Commission"). The
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 (a "Book-Entry
Note or Notes") and represented by one or more fully registered Notes
(each, a "Global Note or Notes") 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 (each, a "Certificated Note
or Notes") 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
Book-Entry Notes will not be entitled to physical delivery of Certificated
Notes 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, Book-Entry Notes will be issued in
accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part
III hereof.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication:
Each Note will be dated as of the date of its
authentication by the Trustee. Each Note
shall also bear an original issue date (each,
an "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 which is not
less than nine months nor more than forty
years from its Original Issue Date (the
"Stated Maturity Date") selected by the
investor or other purchaser and agreed to by
the Company.
Registration:
Unless otherwise provided in the applicable
Pricing Supplement, Notes will be issued only
in fully registered form.
Denominations:
Unless otherwise provided in the applicable
Pricing Supplement, the Notes will be issued
in denominations of $1,000 and integral
multiples thereof.
Redemption/Repayment:
The Notes will be subject to redemption by the
Company in accordance with the terms of the
Notes, which will be fixed at the time of sale
and set forth in the applicable Pricing
Supplement. If no initial redemption date is
indicated with respect to a Note, such Note
will not be redeemable prior to its Stated
Maturity Date.
The Notes will be subject to repayment at the
option of the holders thereof in accordance
with the terms of the Notes, which will be
fixed at the time of sale and set forth in the
applicable Pricing Supplement. If no optional
repayment date is indicated with respect to a
Note, such Note will not be repayable at the
option of the holder prior to its Stated
Maturity Date.
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.
Interest:
General. Each Note will bear interest in
accordance with its terms. Unless otherwise
provided in the applicable Pricing Supplement,
interest on each Note will accrue from and
including the Original Issue Date of such Note
for the first interest period or from the most
recent Interest Payment Date (as defined
below) to which interest has been paid or duly
provided for all subsequent interest periods
to but excluding the applicable Interest
Payment Date or the Stated Maturity Date or
date of earlier redemption or repayment, as
the case may be (the Stated Maturity Date or
date of earlier redemption or repayment is
referred to herein as the "Maturity Date" with
respect to the principal repayable on such
date).
If an Interest Payment Date or the Maturity
Date with respect to any Note falls on a day
that is not a Business Day (as defined below),
the required payment to be made on such 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 such day,
and no interest shall accrue on such payment
for the period from and after such day to the
next succeeding Business Day. "Business Day"
means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a
day on which banking institutions are
authorized or required by law, regulation or
executive order to close in The City of New
York or the City of Boston.
Interest Payment Dates. Interest payments
will be made on the Maturity Date and each
Interest Payment Date commencing with the
first Interest Payment Date following the
Original Issue Date.
Interest payments on the Notes will be made
semi-annually in arrears on the dates set
forth in the applicable Pricing Supplement and
on the Maturity Date.
Acceptance and Rejection
of Offers:
The Company shall have the sole right 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
Supplement:
If any offer to purchase a Note is 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:
Salomon Brothers Inc at the following address:
Salomon Brothers Inc, Seven World Trade
Center, 32nd Floor, New York, New York 10048,
Attention: Legal Department -- Marianne
Spinelli, Telephone: (212) 783-5891, Telecopy:
(212) 783-2274; 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 -- Karen Clay-Middleton, Telephone:
(314) 955-5000, Telecopy: (314) 955-5989; and
to Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated at the following
address: Tritech Services, 40 Colonial Drive,
Piscataway, New Jersey 08854, Attention:
Prospectus Operations/Nachman Kimerling,
Telephone: (908) 885-2768, Telecopy: (908)
885-2774, with a copy to: Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, World Financial Center, North
Tower, 10th Floor, New York, New York
10281-1310, Attention: MTN Product
Management, Telephone: (212) 449-7476,
Telecopy: (212) 449-2234. Also, a copy
should be sent to Winthrop, Stimson, Putnam &
Roberts, One Battery Park Plaza, New York, New
York 10004, Attention: David P. Falck, Esq.,
Telephone: (212) 858-1438, Telecopy: (212)
858-1500.
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 Global 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 Solicitation;
Amendment or Supplement:
The Company may instruct the Agents to suspend
solicitation of purchases at any time. Upon
receipt of such 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
telecopied or mailed to the Agents at the
following respective addresses: Salomon
Brothers Inc, Seven World Trade Center, 32nd
Floor, New York, New York 10048, Telecopy:
(212) 783-2274, Attention: Legal Department -
Marianne Spinelli; A.G. Edwards & Sons, Inc.,
One North Jefferson Avenue, St. Louis,
Missouri 63103, Telecopy: (314) 289-5489,
Attention: Debt Syndicate -- Karen
Clay-Middleton; and to Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith
Incorporated, World Financial Center, North
Tower, 10th Floor, New York, New York
10281-1310, Attention: MTN Product
Management, Telecopy: (212) 449-2234. A copy
of such filed document should also be
telecopied or mailed to Winthrop, Stimson,
Putnam & Roberts, One Battery Park Plaza, New
York, New York 10004, Attention: David P.
Falck, Esq., Telecopy: (212) 858-1500.
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
Prospectus:
A copy of the most recent 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
Signatures:
The Agents will have no obligation 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 by
Reference:
The Company shall supply the Agents with an
adequate supply of all documents incorporated
by reference in the Registration Statement.
PART II: PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a
Letter of Representation from the Company and the Trustee to DTC, dated
March __, 1998, and a Medium Term Note Certificate Agreement, dated August
21, 1989, 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 Book-Entry Notes having the same Original
Issue Date, interest rate and Stated Maturity
will be represented initially by a single
Global Note. Owners of beneficial interests
in Global Notes will be entitled to physical
delivery of Certificated Notes equal in
principal amount to their respective
beneficial interests only upon certain limited
circumstances described in the Prospectus.
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 Global 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 Global 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 Global Notes.
The Trustee will notify the Company at any
time when fewer than 50 of the reserved CUSIP
numbers remain unassigned to Global Notes,
and, if it deems necessary, the Company will
reserve additional CUSIP numbers for
assignment to Global Notes. Upon obtaining
such additional CUSIP numbers, the Company
will deliver a list of such additional numbers
to the Trustee and DTC.
Registration:
Each Global Note will be registered in the
name of Cede & Co., as nominee for DTC, on the
register maintained by the Trustee under the
Mortgage. The beneficial owner of a
Book-Entry Note (i.e., an owner of a
beneficial interest in a Global 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 Book-Entry Note in the account of such
Participants. The ownership interest of such
beneficial owner in such Book-Entry Note will
be recorded through the records of such
Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers:
Transfers of a Global 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 Global
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 Global Notes outstanding on such date
that represent Global 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 Book-Entry Notes, on
which such Global Notes shall be exchanged for
a single replacement Global Note; and (c) a
new CUSIP number, obtained from the Company,
to be assigned to such replacement Global
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 Global Notes to be
exchanged will no longer be valid. On the
specified exchange date, the Trustee will
exchange such Global Notes for a single Global
Note bearing the new CUSIP numbers and the
CUSIP number of the exchanged Global Notes
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned.
Payments of Principal,
Premium, if any,
and Interest:
Payment of Interest Only. Promptly 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 Global
Note on the following Interest Payment Date
(other than an Interest Payment Date
coinciding with the Maturity Date) and the
total of such amounts. DTC will confirm the
amount payable on each Global Note on such
Interest Payment Date by reference to the
daily bond reports published by Standard &
Poor's. 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 the
Maturity Date), 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,
premium, if any, and interest is to be paid,
the Trustee will deliver to the Company and
DTC a written list of principal, premium, if
any, and interest to be paid on each Global
Note maturing or otherwise becoming due in the
following month. The Trustee, the Company and
DTC will confirm the amounts of such
principal, premium, if any, and interest
payments with respect to each such Global Note
on or about the fifth Business Day preceding
the Maturity Date of such Global Note. On the
Maturity Date, the Company will pay to the
Trustee, and the Trustee in turn will pay to
DTC, the principal amount of such Global Note,
together with interest and premium, if any,
due on the Maturity Date, at the times and in
the manner set forth below under "Manner of
Payment." Promptly after payment to DTC of
the principal, interest and premium, if any,
due on the Maturity Date of such Global Note,
the Trustee will cancel such Global 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 Global
Notes as of the immediately preceding Business
Day.
Manner of Payment. The total amount of any
principal, premium, if any, and interest due
on Global Notes on any Interest Payment Date
or on the Maturity Date 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 Global 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 the
beneficial interests in such Global 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 and
premium, if any, or interest on, such Global
Notes to such Participants.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Global 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 Global Note.
Settlement Procedures:
|
Settlement Procedures with regard to each
Book-Entry Note 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.
3. Terms:
a) interest rate
b) interest payment dates
4. Price to public.
5. Trade date.
6. Settlement date (Original Issue Date).
7. Stated Maturity Date.
8. Net proceeds to the Company.
9. Presenting Agent's discount or
commission.
10. Purchase Price.
11. Redemption provisions, if any.
12. Repayment provisions, if any.
13. Whether such Note is being sold to the
Presenting Agent as principal or to an
investor or other purchaser through the
Presenting Agent acting as agent for the
Company.
14. Such other information specified with
respect to such Note.
B. The Company will advise the Trustee by
electronic transmission of the above
settlement information received from the
Presenting Agent with respect to the Global
Note representing such Book-Entry Note and the
name of the Presenting Agent, and the Trustee
will assign a CUSIP number to such Global
Note.
C. The Trustee will communicate to DTC through
DTC's Participant Terminal System, a pending
deposit message specifying the following
settlement information:
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 Presenting
Agent.
3. Initial Interest Payment Date for such
Global Note 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 Global Note
representing such Book-Entry Note.
5. Whether such Global Note represents
any other Book-Entry Notes.
D. The Board of Directors of the Company or
its Executive Committee or a designee thereof
shall approve the final terms of the Global
Notes.
E. The Trustee will complete the Global Note
representing such Book-Entry Note in a form
that has been approved by the Company, the
Agents and the Trustee.
F. The Trustee will authenticate the Global
Note representing such Book-Entry Note.
G. DTC will credit such Book-Entry 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
Book-Entry Note to the Trustee's participant
account and credit such Book-Entry 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 Book-Entry Note less such
Presenting Agent's discount or 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
Global Note representing such Book-Entry Note
has been issued and authenticated and (ii) the
Trustee is holding such Global Note pursuant
to the Certificate Agreement.
I. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting Agent's
participant account and credit such Book-Entry
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 Book-Entry 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 the Global
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
Book-Entry Note to the purchaser either by
transmitting to the Participant with respect
to such Book-Entry Note a confirmation order
through DTC's Participant Terminal System or
by mailing a written confirmation to such
purchaser.
Settlement Procedures
Timetable:
For order of Notes accepted by the 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-F 3:00 p.m. on the Business Day before 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 Book-Entry Note 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
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 Book-Entry 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
Global Note representing such Book-Entry Note
that is at least equal to the principal amount
to be debited. If withdrawal messages are
processed with respect to all the Book-Entry
Notes represented by a Global Note, the
Trustee will mark such Global Note "canceled",
make appropriate entries in its records and
send such canceled Global Note to the Company.
The CUSIP number assigned to such Global 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
Book-Entry Notes represented by a Global Note,
the Trustee will exchange such Global Note for
two Global Notes, one of which shall represent
the Global Notes for which withdrawal messages
are processed and shall be canceled
immediately after issuance, and the other of
which shall represent the other Book-Entry
Notes previously represented by the
surrendered Global Note and shall bear the
CUSIP number of the surrendered Global Note.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such Book-Entry 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 Book-Entry Note that was to
have been represented by a Global Note also
representing other Book-Entry Notes, the
Trustee will provide, in accordance with
Settlement Procedures E and F, for the
authentication and issuance of a Global Note
representing such remaining Book-Entry Notes
and will make appropriate entries in its
records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Payments of Principal,
Premium, if any and Interest:
Principal of and premium, if any, and interest
on the Certificated Notes, will be payable in
immediately available funds to Registered
Owners (as defined herein) at the principal
corporate trust office in Boston,
Massachusetts of the Trustee or, at the option
of such Registered Owner, at such other office
or agency of the Trustee, at such other office
or agency of the Company in New York, New York
or otherwise pursuant to the Mortgage. The
record dates for any payment of interest will
be set forth in the Certificated Notes.
The Trustee will provide to the Company in
each month prior to a month in which any
Certificated Note or Notes mature, a list of
the principal and interest to be paid on
Certificated 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.
Certificated Notes presented to the Trustee on
the Maturity Date for payment will be canceled
and held by the Trustee.
Settlement Procedures:
Settlement Procedures with regard to each
Certificated 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
Certificated Note:
1. Exact name in which the Certificated
Note(s) is to be registered (the "Registered
Owner").
2. Exact address or addresses of the
Registered Owner for delivery, notices and
payments of principal, premium, if any, and
interest.
3. Taxpayer identification number of the
Registered Owner.
4. Principal amount.
5. Terms:
a) interest rate
b) interest payment dates
6. Price to public.
7. Trade date.
8. Settlement date (Original Issue Date).
9. Stated Maturity Date.
10. Net proceeds to the Company.
11. Presenting Agent's discount or
commission.
12. Purchase Price.
13. Redemption provisions, if any.
14. Repayment provisions, if any.
15. Whether such Note is being sold to the
Presenting Agent as principal or to an
investor or other purchaser through the
Presenting Agent acting as agent for the
Company.
16. Such other information specified with
respect to such Note. |
B. The Company shall provide to the Trustee
the above settlement information received from
the Presenting Agent and shall cause the
Trustee to issue, authenticate and deliver
Certificated Notes. The Company also shall
provide to the Trustee and/or Presenting Agent
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
Certificated Notes.
D. With respect to each trade, the Trustee
will deliver the Certificated Notes to the
Presenting Agent at the following applicable
address: Salomon Brothers Inc, Seven World
Trade Center, 32nd Floor, New York, New York
10048, Attention: Legal Department -- Marianne
Spinelli; 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 Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
Merrill Lynch Money Markets Clearance, 55
Water Street, Concourse Level, N.S.C.C.
Window, New York, New York 10041, Attention:
Al Mitchell. The Trustee will keep a copy of
such Certificated Note. The Presenting Agent
will acknowledge receipt of the Certificated
Note through a broker?s receipt and will keep
a copy of such Certificated Note. Delivery of
the Certificated Note will be made only
against such acknowledgment of receipt. Upon
determination that the Certificated Note has
been authorized, delivered and completed as
aforementioned, the Presenting Agent will wire
the net proceeds of the Certificated Note
after deduction of its applicable discount or
commission to the Company pursuant to standard
wire instructions given by the Company.
E. The Presenting Agent will deliver the
Certificated Note (with confirmations), as
well as a copy of the Prospectus and any
applicable Pricing Supplement received from
the Trustee to the purchaser against payment
in immediately available funds.
F. The Trustee will send a copy of such
Certificated Note to the Company.
Settlement Procedures
Timetable:
For offers accepted by the Company, 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 trade date
C No later than the Business Day before day
of 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
Certificated Note from the Company shall
either fail to accept delivery of or make
payment for a Certificated 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 Certificated Note to the
Trustee. The Trustee, upon receipt of the
Certificated 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 Presenting
Agent in settlement for the Certificated 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 Presenting Agent to perform
its obligations hereunder or under the
Distribution Agreement, the Company will
reimburse such Presenting 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 Certificated
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 Certificated Note
was never issued, and accordingly notify in
writing the Company.
[END OF EXHIBIT 1 TO FORM S-3]
[EXHIBIT 4g TO FORM S-3]
COLONIAL GAS COMPANY
TO
STATE STREET BANK AND TRUST COMPANY,
Trustee
_______________
Fourth Supplemental Indenture
Dated as of March _, 1998
to Second Amended and
Restated First Mortgage Indenture
Additional Issue (Secured Medium Term Notes, Series B)
$75,000,000
COLONIAL GAS COMPANY
Fourth Supplemental Indenture
dated as of March __, 1998 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 ______ __, 1998 _____ and _____
Barnstable Instrument No.
County ______ __, 1998 _____, Book _____,
Page _____
Barnstable County, Document No. _____,
Land Registration ______ __, 1998 Certificates of
Division Title Nos. _____,
_____, and _____
Middlesex County, Instrument No.
North Division ______ __, 1998 _____, Book _____,
Page _____
Middlesex County, Instrument No.
South Division ______ __, 1998 _____, Book _____,
Page _____
Instrument No.
Plymouth ______ __, 1998 _____, Book _____,
Page _____
THIS SUPPLEMENTAL INDENTURE, dated as of March __, 1998
(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 State Street Bank and Trust Company, a
corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts, having its principal place of
business at 225 Franklin 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 to Third Supplemental Indentures
thereto, inclusive, and the Amendment to Second Supplemental
Indenture (as so supplemented and amended, 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 as of the date hereof.
Principal Amount Principal
Authorized and Amount
Designation Issued Outstanding
First Mortgage Bonds, $20,000,000 $20,000,000
Series CG
First Mortgage Bonds, $25,000,000 $25,000,000
Series CH
First Mortgage Bonds, $75,000,000 $75,000,000
Medium Term Notes,
Series A
and the Company now proposes to issue from time to time up to
$75,000,000 in aggregate principal amount of additional First
Mortgage Bonds designated Secured Medium Term Notes, Series B
(herein referred to as the "Series B Notes") under the Indenture
subject to the prior approval of the Massachusetts Department of
Telecommunications and Energy with respect to any Series Notes
issued in excess of $45,896,060 in aggregate principal amount,
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 B 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 B Notes to be issued under, and in
accordance with the terms of, the Indenture are to be
substantially in the following form:
(Form of Series B Note)
Unless this Note is presented by an authorized
representative of The Depository Trust Company ("DTC") 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 DTC 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.
This Note is a Global Note within the meaning of the
Indenture (described below) and is registered in the name of DTC,
or its nominee, as depositary. This Global Note is exchangeable
for certificated Series B Notes, registered in the name of a
person other than DTC 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 DTC to
its nominee or by such nominee to DTC or another nominee of DTC)
may be registered except in such limited circumstances.
No. ____-____ COLONIAL GAS COMPANY $____________
Secured Medium Term Note, Series B
Due ________ ___, _____
COLONIAL GAS COMPANY, a Massachusetts corporation
(hereinafter, with its successors and assigns, as defined in the
Indenture mentioned below, generally called the "Company"), for
value received, hereby promises to pay to _____________________
or registered assigns, on ________ ___, _____ (or earlier as
hereinafter referred to), the principal sum of
_____________________________________ dollars ($__________) 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 _______________ and _______________ of each year
(each, an "Interest Payment Date"), commencing with
__________ __, ____, and at maturity, or, if applicable, upon
earlier redemption or repayment, 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.
For so long as this Note is a Global Note, the principal of,
and premium, if any, and interest on this Note will be paid by
the Company in immediately available funds through the Trustee to
DTC. If this Note is not a Global Note, the principal of and
premium, if any, and interest on this Note will be paid in
immediately available funds to the registered owners hereof as of
___________ and __________ of each year at the principal
corporate trust office in Boston, Massachusetts of State Street
Bank and Trust Company (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 such
registered owner, at such other office or agency of the Trustee
or of the Company maintained by it for the purpose in the Borough
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 in lawful money of the United States of
America. Interest on this Note will accrue from and including
the date hereof for the first interest period or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for all subsequent interest periods to but
excluding the applicable Interest Payment Date or at maturity or,
if applicable, earlier redemption or repayment. If an Interest
Payment Date or the date of maturity or, if applicable, date of
earlier redemption or repayment, with respect to any Note falls
on a day that is not a Business Day (as defined below), the
required payment to be made on such 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 such day, and no interest
shall accrue on such payment for the period from and after such
day to the next succeeding Business Day. "Business Day" means
any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions are authorized or
required by law, regulation or executive order to close in The
City of New York or the City of Boston.
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 B (herein
generally referred to as the "Series B Notes"). The Series B
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.
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 to Fourth Supplemental Indentures, inclusive, and the
Amendment to Second Supplemental Indenture, executed counterparts
of which are on file with the Trustee and may be examined at its
principal corporate trust office in Boston, 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. Such Series B Notes
shall be in minimum denominations of $1,000 and integral
multiples thereof.
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, or, 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) subject to certain restrictions on transfer relating to
Global Notes as set forth in the legends hereon, upon payment of
charges and compliance with other conditions as provided in the
Indenture, the Series B 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 B
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 B 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 B 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, each 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 thereon 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 B 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 B 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 B 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 B 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.
[This Note is subject to mandatory repayment in whole or in
part (as set forth below) on ____________________ (each, a
"Repayment Date") at the principal amount hereof plus accrued
interest thereon to the Repayment Date upon return by the
registered owner of (i) a duly completed "Option to Elect
Repayment" form attached hereto or (ii) a telegram, telex,
facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities
Dealers, Inc., or a commercial bank or a trust company in the
United States of America, setting forth the name of the
registered holder of the Note, the principal amount of the Note,
the principal amount of the Note to be repaid, a statement that
the option to elect repayment is being exercised thereby and a
guarantee that the Note to be repaid with the "Option to Elect
Repayment" form as set forth in clause (i) duly executed will be
received by the Company not later than three Business Days after
the date of such telegram, telex, facsimile transmission or
letter (the redemption not being effective unless such Note and
form duly completed are received by the Company by such third
Business Day) to the Trustee not less than 30 nor more than 60
days prior to the Repayment Date to the office maintained for
such purpose in Boston, Massachusetts, the corporate trust office
of the Trustee. Repayment in part shall be in minimum
denominations of $1,000 and integral multiples thereof. Such
demand for repayment shall be irrevocable. All questions as to
the validity, eligibility (including time of receipt) and the
acceptance of any Note for repayment will be determined by the
Company, whose determination will be final and binding. So long
as this Note is a Global Note, tender for repayment shall be in
accordance with DTC's repayment option procedures. If a holder
has elected to have this Note repaid by the Company in whole or
in part, after such holder has duly made a demand on the Company
for such repayment and after deposit shall have been made of the
principal, premium, if any, and interest to the Repayment Date
and such amounts are immediately available on the Repayment Date
to such holder on surrender thereof, this Note, or such part of
the principal amount hereof to be repaid, shall cease to be
secured by the lien of the Indenture, no interest shall accrue on
this Note or such part hereof to be repaid on and after the
Repayment Date, and the Company after said Repayment Date shall
be under no further liability in respect of the principal of or
premium, if any, or interest on this Note or such part hereof to
be repaid (except as expressly provided in the Indenture). If
less than the whole principal amount hereof shall be repaid by
the Company, the registered owner hereof shall be entitled, in
addition to the sums payable on account of the part repaid, 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 B Notes in an aggregate principal
amount equal to that part of the principal amount hereof not then
repaid, or to present this Note for the notation hereon of the
payment of the portion of the principal amount to be repaid.] <F1>
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
<F1> This bracketed provision will only apply with respect to Series
B Notes which have a repayment right exercisable at the option of
the registered owner thereof.
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 B Notes referred to in the
within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
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:
Signature Guaranteed by:
__________________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
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]
(Form of Option to Elect Repayment - Insert if applicable)
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and
instruct(s) the Company to repay this Note (or portion hereof
specified below) pursuant to its terms at a price equal to ___%
of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the
undersigned, at
_________________________________________________________
_________________________________________________________________
_____________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in Boston, Massachusetts, not more than 60
nor less than 30 calendar days prior to the Repayment Date, this
Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to
be repaid, specify the portion hereof (which will be increments
of $1,000 which the holder elects to have repaid and specify the
denomination or denominations (which will be increments of
$1,000) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not
being repaid).
Principal Amount
to be Repaid: $__________
Date:__________________ Notice: The signature(s) on
this Option to Elect Repayment
must correspond with the
name(s) as written upon the
face of this Note in every
particular, without alteration
or enlargement or any change
whatsoever.
NOW, THEREFORE, THIS INSTRUMENT (BEING THE FOURTH
SUPPLEMENTAL INDENTURE TO THE INDENTURE) WITNESSETH that, in
consideration of the premises, and of the acceptance and purchase
of the Series B 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 State Street Bank and Trust
Company, 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,
Tyngsboro, 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 State Street Bank and Trust Company, 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 B 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 B Notes
Section 1.01 General Terms of Series B Notes. The series
of Bonds to be issued under this Supplemental Indenture shall be
known as "Secured Medium Term Notes, Series B." Such Series B
Notes shall be limited in aggregate principal amount to
$75,000,000. The Series B 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 B Notes shall be
substantially in the form hereinbefore recited and, in each case,
shall, pursuant to a resolution of the Company providing for the
issue of the Series B Notes (each, a "Resolution"), recite the
principal amount, interest rate, interest payment dates,
maturity, redemption or call provisions, repayment provisions and
other provisions thereof not inconsistent with the terms of the
Indenture, which may vary as among the Series B Notes. The
Series B 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 B Note shall be dated as of the day of certification,
except that Series B Notes issued upon transfers and exchanges of
Series B Notes and upon exchanges of temporary Bonds for such
Series B Notes shall be dated so that no gain or loss of interest
shall result from such transfer or exchange. The Series B 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 in each year on the dates as set
forth in the form of such Notes (each, an "Interest Payment
Date"), and at maturity or earlier redemption or repayment, if
applicable, 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 B 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 B Notes. Pursuant to section 1.04 hereof, as long as
the Series B Notes are represented by Global Notes, the Series B
Notes shall be payable as to principal, premium, if any, and
interest by the Company in immediately available funds through
the Trustee to DTC. If the Series B Notes cease to be
represented by Global Notes, the Series B Notes shall be payable
in immediately available funds to registered owners thereof as of
records dates to be set forth in such Series B Notes as to
principal, premium, if any, and interest at the principal
corporate trust office of the Trustee in Boston, Massachusetts,
or at the principal office of its successor in trust created by
the Indenture or, at the option of such registered owner thereof,
at such other office or agency of the Trustee or of the Company
maintained by it for the purpose in the Borough 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.
Interest on the Series B Notes will accrue from and
including the date of certification for the first interest period
or from the most recent Interest Payment Date to which interest
has been paid or duly provided for all subsequent interest
periods to but excluding the applicable Interest Payment Date or
at maturity or, if applicable, earlier redemption or repayment.
If any Interest Payment Date or the date of maturity or, if
applicable, date of earlier redemption or repayment, with respect
to any Series B Note falls on a day that is not a Business Day
(as defined below), the required payment to be made on such 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 such day, and no interest shall accrue on such payment for the
period from and after such day to the next succeeding Business
Day. "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law,
regulation or executive order to close in The City of New York or
the City of Boston.
Subject to Section 1.04 hereof, the Series B 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 B 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
herein or in the Series B Notes.
Series B 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
a Resolution and set forth in the related Series B 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 thereon 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 B Notes
are called for redemption or the registered holder elects to have
such Series B Notes be repaid, if applicable, the Company shall,
in each case, prior to the date fixed for redemption or repayment
thereof, pay to the Trustee in cash all unpaid interest accrued
thereon to said date fixed for redemption or repayment.
Section 1.03 Procedure for Redemption. Except as
otherwise provided in any Series B Note, this section 1.03 or a
Resolution, the procedure for redemption of Series B Notes shall
be that specified in sections 5.02, 5.03 and 5.04 of the
Indenture.
Notice of redemption by the Company of any Series B 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
a 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 B Note designated for redemption, in whole or in part,
shall not affect the validity of the redemption of any other such
Series B Note.
Section 1.04 Global Notes. Notwithstanding any other
provisions of this Supplemental Indenture, unless otherwise
provided in the Series B Notes, the Series B 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 ("Global Notes") in the name of Cede &
Co., as nominee of The Depository Trust Company ("DTC").
The Company and the Trustee may treat DTC as, and shall deem
DTC to be, the absolute owner of the Series B Notes evidenced by
the Global Notes for the purpose of payment of principal of, and
premium, if any, and interest on such Series B Notes, for the
purpose of all other matters with respect to such Series B Notes,
for the purpose of registering transfers with respect to Series B
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 B 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, and premium, if any, or interest on the Series B
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 make
all payments of principal of and premium, if any, and interest on
the Series B Notes in immediately available funds 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 B 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 B Notes,
registration and transfer thereof and authorized denominations),
as long as any of the Series B Notes are in the form of Global
Notes, 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
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 determines not to
continue the system of book-entry only transfers through DTC (or
a successor securities depositary) 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
definitive certificates for the Series B 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 B Note, as may be
necessary or appropriate to provide for the issuance of the
Series B Notes in certificated form and the Company shall issue
and the Trustee shall transfer and exchange certificates for the
Series B 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 B Notes represented by Global 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 B 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 B 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
State Street Bank and Trust Company 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 March __, 1998.
COLONIAL GAS COMPANY
[Seal]
By_________________________________
Vice President
By_________________________________
Treasurer
Attest:
____________________________________
Assistant Clerk
STATE STREET BANK AND TRUST
COMPANY, as Trustee
[Seal]
By_________________________________
Authorized Officer
Attest:
____________________________________
The Commonwealth of Massachusetts )
) ss.:
County of Middlesex )
On this ____ day of March, 1998 before me personally
appeared Dennis W. Carroll and _________________, to me
personally known, who, being by me duly sworn, did say that they
are the Vice President and Treasurer and the Assistant Clerk,
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 Dennis W. Carroll 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 March, 1998 before me personally
appeared ________________, to me personally known, who, being by
me duly sworn, did say that he is an Authorized Officer of State
Street Bank and Trust Company, that the seal affixed to the
foregoing instrument is the corporate seal of said bank, and that
said instrument was signed and sealed by him on behalf of said
bank, by authority of its Board of Directors; and the said
________________________, 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
[NONE]
[END OF EXHIBIT 4g TO FORM S-3]
[EXHIBIT 5 TO FORM S-3]
Palmer & Dodge LLP
One Beacon Street
Boston, MA 01208
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
March 23, 1998
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 B
(the "Series B Notes"), to be issued from time to time pursuant
to a proposed Fourth Supplemental Indenture (the "Supplemental
Indenture") to the Second Amended and Restated First Mortgage
Indenture dated as of June 15, 1992 between the Company and State
Street Bank and Trust Company, 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 B 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 B 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 B Notes, the Series
B 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 B 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 B Notes by the Massachusetts
Department of Telecommunications and Energy (the
"DTE"), no further authorization, consent or approval
by any regulatory authority will be required for the
valid issuance and sale of the Series B 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 B 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 B 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.
The DTE has previously approved the issuance of up to $45,896,060
aggregate principal amount of the Series B Notes, subject to
reduction for any portion of such authorization used for the
issuance by the Company of its common stock, par value $3.33 per
share, under the Company's Dividend Reinvestment and Common Stock
Purchase Plan. As of the date hereof, $45,190,129 aggregate
principal amount of Series B Notes may be issued pursuant to such
DTE approval, and further DTE approval will be required for the
issuance of Series B Notes in excess of the approved amount (as
such amount may be reduced).
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 LLP
[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)
Year Ended December 31,
1993 1994 1995 1996 1997
Earnings:
Income Before Interest $20,174 $19,444 $23,087 $25,233 $24,102
Expense
Add:
State & Federal Income 8,116 7,210 8,996 11,077 10,394
Implied Interest on
Leases 500 304 127 140 211
Total Earnings $28,789 $26,959 $32,210 $36,451 $34,706
Fixed Charges:
Interest on Long-Term
Debt $8,477 $8,079 $7,642 $7,152 $8,141
Amortization of
Debt Expense 134 148 145 269 363
Other Interest (40) 712 2,199 1,833 123
Implied Interest on Leases 500 304 127 140 211
Total Fixed Charges $9,041 $9,244 $10,112 $9,395 $8,837
Ratio of Earnings to
Fixed Charges 3.18 2.92 3.19 3.88 3.93
[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 14, 1998,
accompanying the consolidated financial statements of
Colonial Gas Company and subsidiaries appearing in the 1997
Annual Report of the Company to its shareholders and
accompanying the schedule included in the Annual Report on
Form 10-K for the year ended December 31, 1997 which are
incorporated by reference in this Registration Statement
and Prospectus. We consent to the incorporation by
reference in the Registration Statement and Prospectus
of the aforementioned reports and to the use of our
name as it appears under the caption "Experts."
GRANT THORNTON LLP
Boston, Massachusetts
March 23, 1998
[END OF EXHIBIT 23a TO FORM S-3]
[EXHIBIT 25 TO FORM S-3]
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY 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)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of (I.R.S. Employer
incorporation or Identification No.)
organization if not a U.S.
national bank)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and
General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(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 (I.R.S. Employer
of Identification No.)
incorporation or
organization)
40 Market Street, Lowell, Massachusetts, 01852
(Address of principal executive offices) (Zip Code)
1998 Medium Term Note Program Series B
(Title of indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory
authority to which it is subject.
Department of Banking and Insurance of The
Commonwealth of Massachusetts, 100 Cambridge
Street, Boston, Massachusetts.
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.
Item 2. Affiliations with Obligor.
If the Obligor is an affiliate of the trustee, describe
each such affiliation.
The obligor is not an affiliate of the trustee or
of its parent, State Street Corporation.
(See note on page 2.)
Item 3. through Item 15. Not applicable.
Item 16. List of Exhibits.
List below all exhibits filed as part of this statement
of eligibility.
1. A copy of the articles of association of the
trustee as now in effect.
A copy of the Articles of Association of the
trustee, as now in effect, is on file with the Securities
and Exchange Commission as Exhibit 1 to Amendment
No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) 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 a Statement from the Commissioner of
Banks of Massachusetts that no certificate of
authority for the trustee to commence business was
necessary or issued is on file with the
Securities and Exchange Commission as Exhibit 2 to Amendment
No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) 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 the authorization of the trustee to
exercise corporate trust powers is on file with the
Securities and Exchange Commission as Exhibit 3 to Amendment
No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File
No. 22-17940) and is incorporated herein by reference
thereto.
4. A copy of the existing by-laws of the trustee, or
instruments corresponding thereto.
A copy of the by-laws of the trustee, as now in
effect, is on file with the Securities and Exchange
Commission as Exhibit 4 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with
the Registration Statement of Eastern Edison Company (File
No. 33-37823) and is incorporated herein by
reference thereto.
5. A copy of each indenture referred to in Item 4. if
the obligor is in default.
Not applicable.
6. The consents of United States institutional
trustees required by Section 321(b) of the Act.
The consent of the trustee required by Section
321(b) of the Act is annexed hereto as Exhibit 6 and
made a part hereof.
7. 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 of this Statement of Eligibility
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, as amended, the trustee, State Street Bank and
Trust Company, a corporation organized and existing under
the laws of The Commonwealth of Massachusetts, has duly
caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in
the City of Boston and The Commonwealth of Massachusetts, on the
March 20, 1998.
STATE STREET BANK AND TRUST
COMPANY
By: /s/Arthur J. MacDonald
NAME Arthur J. MacDonald
TITLE Assistant Vice President
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the
Trust Indenture Act of 1939, as amended, in connection with
the proposed issuance by Colonial Gas Company of its 1998
Medium Term Note Program Series B, we hereby consent that
reports of examination by Federal, State, Territorial or
District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon request
therefor.
STATE STREET BANK AND TRUST
COMPANY
By: /s/Arthur J. MacDonald
NAME Arthur J. MacDonald
TITLE Assistant Vice President
Dated: March 20, 1998
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and
Trust Company, Massachusetts and foreign and domestic
subsidiaries, a state banking institution organized and
operating under the banking laws of this commonwealth and a
member of the Federal Reserve System, at the close of
business December 31, 1997, published in accordance with a
call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks
under General Laws, Chapter 172, Section 22(a).
Thousands of
ASSETS Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin 2,220,829
Interest-bearing balances 10,076,045
Securities 10,373,821
Federal funds sold and securities purchased
under agreements to resell in domestic
offices of the bank and its Edge
subsidiary 5,124,310
Loans and lease financing receivables:
Loans and leases, net of
unearned income 6,270,348
Allowance for loan and
lease losses 82,820
Allocated transfer risk reserve 0
Loans and leases, net of unearned
income and allowances 6,187,528
Assets held in trading accounts 1,241,555
Premises and fixed assets 410,029
Other real estate owned 100
Investments in unconsolidated subsidiaries 38,831
Customers' liability to this bank on
acceptances outstanding 44,962
Intangible assets 224,049
Other assets 1,507,650
Total assets 37,449,709
==================
LIABILITIES
Deposits:
In domestic offices 10,115,205
Noninterest-bearing 7,739,136
Interest-bearing 2,376,069
In foreign offices and Edge
subsidiary 14,791,134
Noninterest-bearing 71,889
Interest-bearing 14,719,245
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of its
Edge subsidiary 7,603,920
Demand notes issued to the U.S. Treasury
and Trading Liabilities 194,059
Trading liabilities 1,036,905
Other borrowed money 459,252
Subordinated notes and debentures 0
Bank's liability on acceptances
executed and outstanding 44,962
Other liabilities 972,782
Total liabilities 35,218,219
EQUITY CAPITAL
Perpetual preferred stock and
related surplus 0
Common stock 29,931
Surplus 444,620
Undivided profits and capital reserves/Net
unrealized holding gains (losses) 1,763,076
Cumulative foreign currency translation
adjustments (6,137)
Total equity capital 2,231,490
Total liabilities and equity capital 37,449,709
I, Rex S. Schuette, Senior Vice President and Comptroller of
the above named bank do hereby declare that this Report of
Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal
Reserve System and is true to the best of my knowledge and
belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of
this Report of Condition and 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
issued by the Board of Governors of the Federal Reserve
System and is true and correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
