<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 22, 1999
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
-------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
THE PROVIDENCE GAS COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
RHODE ISLAND 05-0203650
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NUMBER)
INCORPORATION OR ORGANIZATION)
</TABLE>
100 WEYBOSSET STREET,
PROVIDENCE, RHODE ISLAND 02903
(401) 272-5040
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
GARY S. GILLHEENEY
SENIOR VICE PRESIDENT, CHIEF FINANCIAL OFFICER AND TREASURER
THE PROVIDENCE GAS COMPANY
100 WEYBOSSET STREET
PROVIDENCE, RI 02903
(401) 272-5040
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
<TABLE>
<S> <C>
MARGARET D. FARRELL, ESQ. JAMES L. NOUSS, JR., ESQ.
HINCKLEY, ALLEN & SNYDER BRYAN CAVE LLP
1500 FLEET CENTER 211 NORTH BROADWAY, SUITE 3600
PROVIDENCE, RI 02903 ST. LOUIS, MO 63102
(401) 274-2000 (314) 259-2000
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
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 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
<TABLE>
<CAPTION>
=======================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE AGGREGATE PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
% Senior Secured Insured Quarterly Notes Due
, 2029.............................. $15,000,000 100% $15,000,000 $4,170.00
=======================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
SUBJECT TO COMPLETION, JANUARY 22, 1999
RATINGS:
STANDARD & POOR'S: "AAA"
MOODY'S: "AAA"
(SEE "RATINGS")
PROSPECTUS
$15,000,000
[PROVIDENCE GAS CO. LOGO]
% SENIOR SECURED INSURED QUARTERLY NOTES
DUE , 2029
(IQ NOTES(SM)*)
The notes bear interest at the rate of % per year. Interest on the notes is
payable quarterly on February 1, May 1, August 1 and November 1 of each year,
beginning May 1, 1999. The notes will mature on , 2029. We can
redeem the notes on or after February , 2004. We will also redeem the notes,
subject to certain conditions, at the option of the representative of any
deceased noteholder.
The notes will be secured by a direct first lien on substantially all of our
real and tangible personal property and franchises and will rank equally with
all of our other first mortgage bonds. The notes will be available for purchase
in denominations of $1,000.
The payment of the regularly scheduled principal and interest on the notes will
be insured by a financial guaranty insurance policy issued by MBIA Insurance
Corporation.
[MBIA Insurance Corp. LOGO]
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
Edward D. Jones & Co., L.P. has agreed to purchase the notes at 96.850% of their
principal amount ($14.53 million aggregate proceeds to The Providence Gas
Company, before deducting our expenses, which we estimate to be $442,000),
subject to the terms of our purchase agreement. Edward D. Jones & Co., L.P.
plans to sell the notes from time to time, in negotiated transactions or
otherwise, at prices based on either the prevailing market or negotiated prices.
We expect that the notes will be ready for delivery in book-entry form only
through The Depository Trust Company ("DTC"), on or about , 1999.
- -------------------------
* IQ Notes is a service mark of Edward D. Jones & Co., L.P.
EDWARD D. JONES & CO., L.P.
-------------------------
The date of this Prospectus is , 1999.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE> 3
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities and
Exchange Commission (the "SEC"). Our SEC filings are also available over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms at 450 Fifth Street,
N.W., Room 1024, Washington, D.C. 20549; Seven World Trade Center, 13th Floor,
New York, New York 10048; and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60601. Please call the SEC at 1-800-SEC-0330 for more
information on the public reference rooms and their copy charges.
We have filed a registration statement on Form S-3 with the SEC covering the
notes. For further information on The Providence Gas Company and the notes, you
should refer to our registration statement and its exhibits. This prospectus
summarizes material provisions of contracts and other documents. Since the
prospectus may not contain all the information that you may find important, you
should review the full text of these documents. We have included copies of these
documents as exhibits to our registration statement.
FORWARD-LOOKING STATEMENTS
This prospectus includes forward-looking statements. We have based these
forward-looking statements on our current expectations and projections about
future events. These forward-looking statements are subject to risks,
uncertainties, and assumptions about The Providence Gas Company, including,
among other things:
- - our anticipated growth strategies;
- - changes in governmental regulations or regulatory policies; and
- - our ability to continue to control costs and maintain quality.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties, and assumptions, the forward-looking
events discussed in this prospectus might not occur.
You should rely only on the information contained or incorporated by reference
in this prospectus. We have not, and the underwriter has not, authorized any
other person to provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely on it. We are
not, and the underwriter is not, making an offer to sell these securities in any
jurisdiction where the offer or sale is not permitted. You should assume that
the information appearing in this prospectus, as well as information we
previously filed with the SEC and incorporated by reference, is accurate as of
the date on the front cover of this prospectus only. Our business, financial
condition, results of operations and prospects may have changed since that date.
2
<PAGE> 4
PROSPECTUS SUMMARY
This summary may not contain all the information that may be important to you.
You should read the entire prospectus, including the financial data and related
notes, before making an investment decision. The terms "ProvGas," "our" and "we"
as used in this prospectus refer to The Providence Gas Company and its
subsidiary and predecessors as a combined entity, except where it is made clear
that such term means only the parent company.
THE COMPANY
ProvGas is a public utility engaged in natural gas distribution, serving
approximately 166,000 customers in Providence, Newport and 23 other cities and
towns in Rhode Island. Our service area encompasses approximately 730 square
miles with a population of approximately 817,000. For the year ended September
30, 1998, residential sales accounted for approximately 57% of total firm
deliveries, with commercial and industrial sales representing approximately 43%.
Our gas distribution system consists of approximately 2,300 miles of gas mains,
166,000 gas meters, and the necessary pressure regulators.
We are subject to regulation by various federal, state and local agencies
including the Rhode Island Public Utilities Commission and the Federal Energy
Regulatory Commission. These agencies regulate various aspects of our business
including the retail utility rates we charge, certain tariffs that affect our
pricing, our accounting practices and our ability to acquire, construct, operate
or dispose of certain assets and facilities.
1998 HIGHLIGHTS
- - In the first year of our Energize RI program, we lowered prices to customers
by four percent, implemented a three-year rate freeze by successfully
outsourcing gas supply, and began infrastructure investments related to
economic development and system reliability.
- - More than 40 percent of the 3,500 eligible business customers are
participating in Business Choice, our deregulation program. This represents
almost 25 percent of ProvGas' firm deliveries. This program has produced
customer savings ranging from 5 to 20 percent.
OPPORTUNITIES FOR GROWTH
In addition to opportunities presented by our Energize RI and Business Choice
programs, we seek to grow our business though implementation of the following
strategies:
- - Improving and expanding infrastructure;
- - Implementing new technology;
- - Managing costs; and
- - Providing superior customer service.
3
<PAGE> 5
- --------------------------------------------------------------------------------
THE OFFERING
Notes Offered................. First Mortgage Bonds, Series T, also referred
to as the % Senior Secured Insured
Quarterly Notes due , 2029 (the
"Notes")
Aggregate Principal Amount.... $15,000,000
Interest Rate................. %
Date of Maturity.............. , 2029
Interest Payment Dates........ February 1, May 1, August 1 and November 1 of
each year, beginning May 1, 1999
Record Date for Interest
Payments.................... The 15th calendar day of the month preceding
the month in which an Interest Payment Date
occurs.
Ranking....................... The Notes will be secured by a direct first
lien on substantially all of ProvGas' real and
tangible personal property and franchises, and
will rank equally with all of our other first
mortgage bonds (except as to any sinking fund
or similar fund provided for first mortgage
bonds of a particular series).
Redemption of the Notes:
Option of ProvGas........... We will have the option to redeem the Notes (in
whole or in part), from time to time on or
after February , 2004. If we redeem the
Notes, we will pay 100% of the principal amount
plus the accrued interest through the
redemption date.
Redemption of the Notes:
Option of a Deceased
Noteholder's
Representative.............. We will also redeem the Notes at the option of
the representative of any deceased noteholder.
We will pay 100% of the principal amount, plus
accrued interest, subject to the following
condition: the maximum principal amount we will
redeem is $25,000 per deceased owner and
$375,000 in the aggregate for all deceased
owners during the initial period from the date
of this prospectus until February , 2000 and
during each twelve-month period thereafter.
Insurance..................... The payment of the regularly scheduled
principal and interest on the Notes will be
insured by a financial guaranty insurance
policy issued by MBIA Insurance Corporation
that will be issued at the same time the Notes
are delivered.
Form of Note.................. One global security, held in the name of DTC.
Settlement and Payment........ Same-day immediately available funds.
Rating........................ We anticipate that the Notes will be rated
"AAA" by Standard & Poor's Ratings Group and
"Aaa" by Moody's Investors Services, Inc.
- --------------------------------------------------------------------------------
4
<PAGE> 6
Ratio of Earnings to Fixed
Charges....................... Our ratio of earnings to fixed charges for each
of the years ended September 30, 1998 through
1994 is 2.59; 2.63; 2.75; 2.19 and 2.89.
Use of Proceeds............... We estimate that the net proceeds of the
offering will be approximately $14.1 million.
We intend to use these proceeds from the
offering of the Notes to repay a portion of our
outstanding short-term indebtedness.
5
<PAGE> 7
THE PROVIDENCE GAS COMPANY
ProvGas, incorporated in Rhode Island in 1847, is a wholly-owned subsidiary of
Providence Energy Corporation ("Providence Energy"). The outstanding shares of
common stock of Providence Energy are presently listed on the New York Stock
Exchange and trade under the ticker symbol "PVY."
ProvGas is a public utility engaged in natural gas distribution, serving
approximately 166,000 customers in Providence, Newport and 23 other cities and
towns in Rhode Island. Our service area encompasses approximately 730 square
miles and has a population of approximately 817,000.
Our gas distribution system consists of approximately 2,300 miles of gas mains,
166,000 gas meters, and the necessary pressure regulators. ProvGas has
regulating and metering facilities at eight points of delivery from Algonquin
Gas Transmission Company and one from Tennessee Gas Pipeline Company, which we
believe to be adequate for receiving gas into our distribution system.
ProvGas is subject to regulation by various federal, state and local agencies
including the Rhode Island Public Utilities Commission ("RIPUC") and the Federal
Energy Regulatory Commission ("FERC"). The RIPUC regulates public utilities in
Rhode Island with respect to rates and charges, standards of service, accounting
and various other matters. The FERC has jurisdiction over certain aspects of our
business relating, among other things, to the transportation and sale of natural
gas in interstate commerce. We are also subject to standards prescribed by the
Secretary of Transportation under the Natural Gas Pipeline Safety Act of 1968
with respect to the design, installation, testing, construction and maintenance
of pipeline facilities.
The foregoing information concerning ProvGas does not purport to be
comprehensive. For additional information concerning our business and affairs,
including our capital requirements and external financing plans, pending legal
and regulatory proceedings and descriptions of certain laws and regulations to
which we are subject, prospective purchasers of the Notes should refer to the
Incorporated Documents. See "Incorporation by Reference: Information We File
with the SEC."
GAS SUPPLY
ProvGas has entered into a full requirements contract with Duke Energy Trading
and Marketing, L.L.C. ("DETM") to provide all of our gas supply needs through
September 30, 2000. DETM provides gas at a fixed price to our firm customers and
at market prices to cover our non-firm sales customers' needs. Despite volatile
natural gas prices, we are able to provide a three-year price freeze to our
customers by outsourcing gas supply to DETM.
CUSTOMERS
In our 1998 fiscal year, we experienced modest customer growth in both the
residential and commercial/industrial markets; the average annual number of
customers rose one percent to approximately 166,000. In our 1998 fiscal year,
residential sales accounted for approximately 57% of total firm deliveries, with
commercial and industrial sales representing approximately 43%.
1998 HIGHLIGHTS
We seek to grow our business by improving and expanding infrastructure,
implementing new technology, managing costs and providing superior customer
service. In our 1998 fiscal year, we generated lower operating revenues compared
to the previous year due, in large part, to (1) unseasonably warm temperatures
during the 1997-1998 winter season, and (2) adverse market prices of natural gas
versus alternate fuels which negatively impacted non-firm gas deliveries.
ENERGIZE RI PROGRAM
Energize RI is an innovative three-year regulatory plan implemented by ProvGas
which is designed to provide price stability to customers, improve system
reliability, and enhance economic development while improving earnings
6
<PAGE> 8
stability. Under Energize RI, customer rates were lowered four percent in
October 1997 and will remain frozen until September 2000, producing savings for
Rhode Island customers of about $20 million.
BUSINESS CHOICE PROGRAM
In May 1996, the RIPUC approved a ProvGas plan for unbundling natural gas
service in Rhode Island, enabling certain customers to choose their gas
suppliers. In August 1997, the RIPUC approved another plan, called Business
Choice, to further unbundle services to additional commercial and industrial
customers.
Business Choice now has approximately 1,500 firm transportation customers with
annual deliveries of over 5 billion cubic feet per year, representing
approximately 25 percent of our total annual firm deliveries. Surveys indicate
customers are saving as much as 20 percent on their gas bills.
MANAGING COSTS
Over the past year, we took additional steps to cut costs, reduce debt cost and
improve collection. In fiscal 1998, we retired $6.4 million of Series M bonds
with a coupon rate of 10.25 percent using short-term borrowings bearing interest
at a weighted average rate of 5.48% in 1998. We intend to repay the short-term
debt used to retire the Series M bonds with a portion of the net proceeds of
this offering. See "Use of Proceeds."
NATURAL GAS VEHICLE STATIONS
In response to the large increase in both state-owned and private fleet vehicles
powered by natural gas, we invested approximately $300,000 to renovate our
Providence "quick-fill" station for natural gas vehicles -- one of three
stations that we operate in the state. A new Rhode Island law provides
substantial tax incentives which, along with the Federal Department of Energy's
designation of Providence as a "clean city," may increase use and awareness of
the benefits of natural gas vehicles.
7
<PAGE> 9
SELECTED CONSOLIDATED FINANCIAL DATA
The following is a summary of certain financial information of ProvGas and its
subsidiary and is qualified in its entirety by, and should be read in
conjunction with, the detailed information and ProvGas consolidated financial
statements and notes thereto included in the Incorporated Documents. See
"Incorporation by Reference: Information We File with the SEC."
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 30,
--------------------------------------------------------
1998 1997 1996 1995 1994
-------- -------- -------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Operating revenue............... $184,026 $210,673 $210,601 $180,043 $219,143
Net income...................... 8,759 8,771 9,310 6,515 8,746
Net income available to common
stockholder................... 8,272 8,145 8,614 5,819 8,050
Total assets.................... 228,614 242,143 237,515 214,727 221,177
Long-term debt, excluding
current maturities............ 76,851 70,700 70,777 72,450 58,915
Capital leases.................. 1,170 1,672 1,678 2,032 1,163
Total preferred stock........... 4,800 6,400 8,000 8,000 8,000
</TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the fiscal years ended
September 30, 1994 through 1998 is as follows:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED SEPTEMBER 30,
------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.................. 2.59 2.63 2.75 2.19 2.89
</TABLE>
For the purpose of computing such ratio, (i) earnings have been calculated by
adding to income all income taxes deducted therefrom and all fixed charges; and
(ii) fixed charges consist of net interest charges, estimated interest portion
of lease payments and capitalized interest.
8
<PAGE> 10
CAPITALIZATION
The following table sets forth the audited consolidated capitalization of
ProvGas at September 30, 1998 and as adjusted to reflect the sale of the Notes
(also referred to as the First Mortgage Bonds, Series T, due ,
2029) offered hereby and the application of the estimated net proceeds from such
sale. See "Use of Proceeds." The table should be read in conjunction with
ProvGas' consolidated financial statements and notes thereto included in the
documents described under "Incorporation by Reference: Information We File with
the SEC" (the "Incorporated Documents").
<TABLE>
<CAPTION>
SEPTEMBER 30, 1998
-----------------------
ACTUAL AS ADJUSTED
-------- -----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Common stock equity:
Common stock, $1 Par, 2,500,000 shares authorized,
1,243,598 shares outstanding........................... $ 1,244 $ 1,244
Amount paid in excess of par.............................. 37,590 37,590
Retained earnings......................................... 42,807 42,807
-------- --------
81,641 81,641
-------- --------
Cumulative preferred stock:
Redeemable 8.7% series, $100 Par, 80,000 shares
authorized, 48,000 shares outstanding.................. 4,800 4,800
-------- --------
Long-term debt:
First Mortgage Bonds, secured by property --
Series M, 10.25%, due July 31, 2008.................... 2,728 2,728
Series N, 9.63%, due May 30, 2020...................... 10,000 10,000
Series O, 8.46%, due September 30, 2022................ 12,500 12,500
Series P, 8.09%, due September 30, 2022................ 12,500 12,500
Series Q, 5.62%, due November 30, 2003................. 9,600 9,600
Series R, 7.50%, due December 15, 2025................. 15,000 15,000
Series S, 6.82%, due April 20, 2018.................... 15,000 15,000
Series T, %, due February , 2029................ 0 15,000
Other long-term debt........................................ 2,573 2,573
Capital Leases.............................................. 1,170 1,170
-------- --------
81,071 96,071
Less-current portion........................................ 3,050 3,050
-------- --------
78,021 93,021
-------- --------
Total capitalization........................................ $164,462 $179,462
======== ========
</TABLE>
9
<PAGE> 11
USE OF PROCEEDS
We estimate that the net proceeds from the sale of the Notes will be $14.1
million. We intend to use the net proceeds to repay part of our short-term debt
under our bank lines of credit. This short-term debt was used for working
capital and to repurchase $7.8 million of ProvGas' Series M bonds (including
bond premium) in September 1998. The Series M bonds bear interest at a rate of
10.25 percent and mature on July 31, 2008. The cost of the September 1998
repurchase was comprised of $6.4 million in principal and $1.4 million in
premium. We paid interest at a weighted average rate of 5.48% on our bank lines
of credit in 1998.
DESCRIPTION OF THE NOTES
GENERAL
The Notes are to be issued under an Indenture dated as of January 1, 1922,
between ProvGas and State Street Bank and Trust Company, as trustee (the
"Trustee"), as amended and supplemented by various supplemental indentures,
including a Twentieth Supplemental Indenture dated as of February , 1999. At
September 30, 1998, seven series of First Mortgage Bonds (as defined below) in
an aggregate principal amount of approximately $77.3 million were outstanding
under the Indenture. The following summaries of certain provisions of the
Indenture do not purport to be complete, make use of defined terms (some but not
all of which are defined herein) and are subject to, and qualified in their
entirety by, all of the provisions of the Indenture and the supplements
referenced herein, which are incorporated herein by this reference and which are
available upon request to the Trustee. Unless otherwise indicated under this
caption, references to "Section" numbers are references to the Section numbers
of the original Indenture, references to "Twentieth Supp. Section" numbers are
references to the Twentieth Supplemental Indenture and references to "Fourth
Supp. Section" numbers are references to the Fourth Supplemental Indenture dated
as of January 1, 1958. In addition, capitalized terms used in this section and
not otherwise defined herein shall have the meaning given to them in the
Indenture.
The Notes are secured, as are all of the bonds issued under the Indenture
(collectively, "First Mortgage Bonds"), by a first mortgage lien on
substantially all of the real and tangible personal property and franchises of
ProvGas. See "Security and Priority." The Indenture provides that, in addition
to the Notes offered hereby, additional First Mortgage Bonds may be issued
thereunder, provided the aggregate principal amount of all First Mortgage Bonds
that may be issued and outstanding cannot exceed 60% of the unfunded, bondable
net property additions of ProvGas. See "Issuance of Additional First Mortgage
Bonds." ProvGas may, in the future, issue debt securities under the Indenture or
under a new indenture.
INTEREST
Each Note shall bear interest at % (the "Securities Rate") from the date of
original issuance, payable quarterly in arrears on February 1, May 1, August 1
and November 1 of each year and on the date of maturity to the person in whose
name such Note is registered at the close of business on the fifteenth calendar
day of the month preceding the month in which the respective Interest Payment
Date occurs. The initial Interest Payment Date is May 1, 1999. The amount of
interest payable will be computed on the basis of a 360-day year of twelve
30-day months. In the event that any date on which interest is payable on the
Notes is not a Business Day (as defined herein), then payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay).
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<PAGE> 12
SPECIAL INSURANCE PROVISIONS OF THE INDENTURE
So long as MBIA Insurance Corporation (the "Insurer") is not in default under
the financial guaranty insurance policy that insures the payment of the
principal of and interest on the Notes when due (the "Policy"), the Insurer
shall be entitled to control and direct the enforcement of all rights and
remedies with respect to the Notes upon the occurrence and during the
continuation of an Event of Default (as defined herein). The Trustee shall
within one Business Day notify the Insurer of any Nonpayment (as defined in the
Policy) and such notice shall specify the amount of the Nonpayment. The Trustee
shall make a claim for Nonpayment under the Policy prior to exercising any other
rights under the Indenture; provided, however, if the Insurer defaults under the
Policy, the Trustee may assert any and all rights it has under the Indenture.
(Twentieth Supp. Section 5.06)
OPTIONAL REDEMPTION
ProvGas shall have the right to redeem the Notes, in whole or in part, at par
without premium, from time to time, on or after February 1, 2004, upon not less
than 30 nor more than 60 days' notice, at a redemption price equal to 100% of
the principal amount to be redeemed (the "Redemption Price") plus any accrued
and unpaid interest to the Redemption Date.
If notice of redemption is given as aforesaid, the Notes so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
together with any accrued interest thereon, and from and after such date (unless
ProvGas shall default in the payment of the Redemption Price and accrued
interest) such Notes shall cease to bear interest. If any Note called for
redemption shall not be paid upon surrender thereof for redemption, the
principal shall, until paid, bear interest from the Redemption Date at the
Securities Rate.
Subject to the foregoing and to applicable law (including, without limitation,
United States federal securities laws), ProvGas or its affiliates may, at any
time and from time to time, purchase outstanding Notes by tender, in the open
market or by private agreement. (Twentieth Supp. Section 4.02)
LIMITED RIGHT OF REDEMPTION UPON DEATH OF BENEFICIAL OWNER
Unless the Notes have been declared due and payable prior to their maturity by
reason of an Event of Default, a person authorized to represent the estate of a
deceased Beneficial Owner (as defined herein) or a surviving joint tenant(s) or
tenants(s) by the entirety (each a "Representative") of a deceased Beneficial
Owner has the right to request redemption at par of all or part of such
interest, expressed in integral multiples of $1,000 principal amount, in the
Notes for payment prior to maturity, and ProvGas will redeem the same subject to
the limitations that ProvGas will not be obligated to redeem during the period
from the original issuance of the Notes through and including February 1, 2000
(the "Initial Period"), and during any twelve-month period which ends on and
includes each February 1 thereafter (each such twelve-month period being
hereinafter referred to as a "Subsequent Period") (i) on behalf of a deceased
Beneficial Owner any interest in the Notes which exceeds an aggregate principal
amount of $25,000 or (ii) interests in the Notes in an aggregate principal
amount exceeding $375,000. A "Beneficial Owner" is a person who has the right to
sell, transfer or otherwise dispose of an interest in a Note and the right to
receive the proceeds therefrom, as well as the principal and interest payable to
the holder thereof. A request for redemption may be initiated by the
Representative of a deceased Beneficial Owner at any time and in any principal
amount in integral multiples of $1,000. Representatives of deceased Beneficial
Owners must make arrangements with the registered owner of the Notes in the
records of DTC (the "Participant"), through whom such interest is owned, to
timely present redemption requests to the Trustee. If ProvGas, although not
obligated to do so, chooses to redeem interests of a deceased Beneficial Owner
in the Notes in the Initial Period or in any Subsequent Period in excess of the
$25,000
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limitation, such redemption, to the extent that it exceeds the $25,000
limitation for any deceased Beneficial Owner, shall not be included in the
computation of the $375,000 aggregate limitation for such Initial Period or such
Subsequent Period, as the case may be, or for any succeeding Subsequent Period.
Any Note (or portion thereof) tendered pursuant to a redemption request may be
withdrawn by a written request by the Representative received by the Trustee at
least 10 days prior to its repayment.
Subject to the $25,000 and the $375,000 limitations, ProvGas will, after the
death of any Beneficial Owner, redeem the interest of the Beneficial Owner in
the Notes on the next Interest Payment Date following receipt by the Trustee of
a redemption request received at least 20 days in advance of the next Interest
Payment Date. If, during the Initial Period or any Subsequent Period, redemption
requests exceed the aggregate principal amount of interests in Notes required to
be redeemed, then such excess redemption requests will be applied to successive
Subsequent Periods, regardless of the number of Subsequent Periods required to
redeem such interests. All redemption requests will be redeemed in the order in
which the Trustee receives the redemption request. To obtain repayment pursuant
to a redemption request, the Representative must provide to the Participant (i)
a written request for repayment signed by the Representative, and such signature
must be medallion guaranteed by a commercial bank, credit union, brokerage firm
or other financial institution that is a member of the Securities Transfer
Association Medallion Program (STAMP), New York Stock Exchange Program (SEMP) or
Stock Exchange Medallion Program (MSP); (ii) appropriate evidence satisfactory
to ProvGas and the Trustee that (A) the Representative has authority to act on
behalf of the deceased Beneficial Owner, (B) the death of such Beneficial Owner
has occurred and (C) the deceased was the owner of a beneficial interest in such
Note at the time of death; (iii) if applicable, a properly executed assignment
or endorsement; and (iv) if the beneficial interest in such Notes is held by a
nominee of the deceased Beneficial Owner, a certificate satisfactory to the
Trustee from such nominee attesting to the deceased's ownership of a beneficial
interest in such Note. The Participant will provide these documents to the
Trustee. All questions as to the eligibility or validity of any exercise of
redemption on behalf of a deceased Beneficial Owner will be determined by
ProvGas, in its sole discretion, which determinations will be final and binding
on all parties.
Interests in the Notes held in tenancy by the entirety, joint tenancy or by
tenants in common will be deemed to be held by a single Beneficial Owner, and
the death of a tenant in common, tenant by the entirety or joint tenant will be
deemed the death of a Beneficial Owner. The death of a person who, during such
person's lifetime, was entitled to substantially all of the rights of a
Beneficial Owner of an interest in the Notes will be deemed the death of the
Beneficial Owner, regardless of the recordation of such interest on the records
of the Participant, if such rights can be established to the satisfaction of the
Participant and ProvGas.
In the case of a redemption request which is presented on behalf of a deceased
Beneficial Owner and which has not been fulfilled at the time ProvGas gives
notice of its election to redeem the Notes, the interests in the Notes which are
the subject of such redemption request shall not be eligible for redemption
pursuant to ProvGas's option to redeem but shall remain subject to redemption
pursuant to such redemption request. Because of the limitations of ProvGas's
requirement to redeem, no Beneficial Owner can have any assurance that its
interest in the Notes will be paid prior to maturity. (Twentieth Supp. Section
4.04)
REGISTRATION, TRANSFER AND EXCHANGE
The Notes will initially be issued in the form of one or more Global Notes, in
registered form, without coupons, in denominations of $1,000 or an integral
multiple thereof as described under "Book-Entry Only Issuance -- The Depository
Trust Company." The Global Notes will be registered in the name of a nominee of
DTC. Except as set forth herein under "Book-Entry Only Issuance -- The
Depository Trust Company," owners of beneficial interests in a
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Global Note will not be entitled to have Notes registered in their names, will
not receive or be entitled to receive physical delivery of any such Note and
will not be considered the registered holder thereof under the Indenture.
The Notes will be exchangeable for other Notes of like aggregate principal
amount in any authorized denominations. (Section 11; Twentieth Supp. Section
2.02)
PAYMENT AND PAYING AGENTS
Payments of principal of and interest on Notes issued in the form of Global
Notes shall be made by wire transfer of immediately available funds to the
account specified by the registered holder of such Global Note, which shall
initially be a nominee of DTC. Interest on Notes (other than interest at
maturity) that are in the form of certificated notes (the "Certificated Notes")
will be paid by check mailed to the person entitled thereto at such person's
address as it appears in the register for the Notes maintained by the Trustee.
The principal of, and interest at maturity, if any, on Notes in the form of
Certificated Notes will be payable in immediately available funds at the office
of the Trustee or at the authorized office of any paying agent. (Twentieth Supp.
Section 7.04)
If and to the extent that ProvGas fails to make timely payment of interest on
any Note, that interest shall cease to be payable to the persons who were the
holders of such Notes at the applicable Regular Record Date, and shall instead
become payable to the holder of such Note at the close of business on a special
record date established by the Trustee, which special record date shall be not
more than 15 or fewer than 10 days prior to the date of the proposed payment.
(Twentieth Supp. Section 2.03)
All monies paid by ProvGas to the Trustee for the payment of principal of, and
interest on, any Note which remain unclaimed at the end of two years after such
principal or interest shall have become due and payable will be repaid to
ProvGas, subject to applicable abandoned property law, and the holder of such
Note will thereafter look only to ProvGas for payment thereof (Twentieth Supp.
Section 6.03)
In any case where the date of maturity of the principal or interest on any Note
or the date fixed for redemption of any Note is not a Business Day, then payment
of such principal or interest need not be made on such date but may be made on
the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, and, in the case of
timely payment thereof, no interest shall accrue for the period from and after
such interest payment date or the date on which the principal of the Note is
stated to be payable to such next succeeding Business Day. (Twentieth Supp.
Section 6.20) "Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banks or trust companies in the City of
Boston, Commonwealth of Massachusetts or in any other city where the corporate
trust office of the Trustee may be located, are obligated or authorized by law
or executive order to close.
SECURITY AND PRIORITY
All First Mortgage Bonds (including the Notes) will rank pari passu (except as
to any sinking fund or similar fund provided for bonds of a particular series)
as to security with all First Mortgage Bonds of any series now outstanding or
hereafter issued under the Indenture. The Indenture is a direct first lien on
substantially all of the real and tangible personal property and franchises of
ProvGas (other than certain property expressly excluded from the lien thereof
such as cash, securities, accounts receivable, materials or supplies acquired
for the purpose of sale and/or resale in the usual course of business or
consumable in the operation of any of the properties of ProvGas and motor
vehicles), and subject to excepted encumbrances (and certain other limitations)
as defined and described in the Indenture. (See Granting Clauses of Indenture
and Twentieth Supp.). The Indenture as supplemented permits, with certain
specified limitations, the acquisition of property subject to prior liens and,
under certain conditions, permits the issu-
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ance of additional indebtedness under such prior liens. (See Fourth Supp.
Sections 3.10 and 3.11)
ISSUANCE OF ADDITIONAL FIRST MORTGAGE BONDS
Additional First Mortgage Bonds may be issued under the Indenture to the extent
of 60% of the unfunded, bondable net property additions or against the deposit
of an equal amount of cash, if, for any period of twelve consecutive months
within the fifteen preceding calendar months the net earnings of ProvGas shall
have been at least twice the interest requirement for one year on all First
Mortgage Bonds outstanding and to be issued. Additional First Mortgage Bonds may
also be issued to refund bonds outstanding under the Indenture. Deposited cash
may be applied to the retirement of First Mortgage Bonds or be withdrawn in an
amount equal to the principal amount of First Mortgage Bonds which may be issued
on the basis of unfunded net property additions. (Section 20 and Fourth Supp.
Section 3.03) As of September 30, 1998, unfunded net property additions were
approximately $28 million, and ProvGas could issue approximately $17 million of
additional First Mortgage Bonds on the basis of such property additions. The
Notes are to be issued on the basis of property additions.
RELEASE AND SUBSTITUTION OF PROPERTY
The Indenture provides that, subject to various limitations, property may be
released from the lien thereof when sold or exchanged, or contracted to be sold
or exchanged, upon the basis of cash deposited with the Trustee, bonds or
purchase money obligations delivered to the Trustee, prior lien bonds delivered
to the Trustee or reduced or assumed by the purchaser, property additions
acquired in exchange for the property released, or upon a showing that unfunded
net property additions exist. (Section 40)
LIMITATIONS ON DIVIDENDS
The Indenture and the Twentieth Supplemental Indenture relating to the Notes do
not restrict ProvGas' ability to pay dividends on its Common Stock. However,
limitations on dividends are imposed by supplemental indentures relating to all
outstanding series of First Mortgage Bonds other than the Notes. As of September
30, 1998, approximately $15 million of ProvGas' retained earnings were available
for dividends under the most restrictive terms of its outstanding First Mortgage
Bonds.
MODIFICATION OF INDENTURE
The holders of 80% in aggregate principal amount of First Mortgage Bonds
(including the Notes) outstanding under the Indenture have the ability: (a) to
assent to and authorize the release of any part of the mortgaged property; (b)
to assent to and authorize the alteration or amendment of any lease of property
leased to ProvGas; and (c) to consent to and authorize any modification or
alteration of any of the provisions of the Indenture, provided: (i) that the
obligation of ProvGas to pay the principal of each series of First Mortgage
Bonds at their respective maturities and the interest thereon as the same shall
from time to time become due, shall continue unimpaired; (ii) that no
modification shall give to any First Mortgage Bonds any preference over any
other First Mortgage Bonds, and that no modification of any right which shall
have been specifically provided in respect of any particular series of First
Mortgage Bonds shall be effective unless assented to by the holders of eighty
percent (80%) in aggregate principal amount of First Mortgage Bonds of such
particular series; (iii) that no such modification shall authorize the creation
of any lien prior or equal to the lien of the Indenture upon any of the
mortgaged properties; (iv) that no such modification shall reduce the percentage
of the principal amount of First Mortgage Bonds, the consent of the holders of
which is required to effect a modification or alteration of the provisions of
the Indenture; and (v) no such modification shall in any manner affect any of
the rights or obligations of the Trustee without its written assent thereto.
(Fourth Supp. Section 6.01)
In addition to any supplemental indenture otherwise authorized or permitted by
the Indenture, ProvGas may, subject to the conditions
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and restrictions in the Indenture and without the consent of or notice to the
holders of First Mortgage Bonds, execute a supplemental indenture for certain
limited purposes set forth in the Indenture. (Fourth Supp. Section 6.02)
EVENTS OF DEFAULT; REMEDIES
The following constitute events of default under the Indenture, as modified by
the Twentieth Supplemental Indenture: (a) default in the payment of principal of
any Note when due and payable; (b) default in the payment of interest on any
Note when due which continues for 90 days; (c) default in the performance or
breach of any other covenant or agreement of ProvGas in the First Mortgage Bonds
or in the Indenture and the continuation thereof for 90 days after written
notice to ProvGas from the Trustee or from the holders of at least 10% in
aggregate principal amount of the outstanding First Mortgage Bonds; and (d)
certain events of bankruptcy, insolvency, reorganization, assignment or
receivership of ProvGas. (Sections 46, 47, 48, and 49; Twentieth Supp. Section
7.05)
If an event of default occurs and is continuing, the Trustee may, and upon the
request of the holders of 40% in aggregate principal amount of the outstanding
First Mortgage Bonds, shall declare the principal amount of all First Mortgage
Bonds to be due and payable immediately. (Section 47) At any time after an
acceleration of the First Mortgage Bonds has been declared but before a judgment
or decree for the payment of the principal amount of the First Mortgage Bonds
has been obtained, if ProvGas pays or deposits with the Trustee a sum sufficient
to pay all matured installments of interest and the principal which has become
due otherwise than by acceleration and all defaults shall have been cured or
waived, then the holders of a majority in aggregate principal amount of the
First Mortgage Bonds outstanding may waive such default and its consequences.
(Section 47) The Indenture also provides that the Trustee may, in the event of
default, take possession and carry on the business of ProvGas (Section 46), sell
the assets of ProvGas (Section 48) or seek relief through various legal
proceedings such as receivership, foreclosure or a law suit (Sections 49, 50 and
51).
The Indenture provides that the Trustee generally will be under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the holders of First Mortgage Bonds unless such holders have
offered to the Trustee reasonable security or indemnity. (Section 70) Upon the
written request of 40% of the aggregate principal amount of First Mortgage Bonds
outstanding, the Trustee shall exercise its rights to take possession, to
foreclose, to sell or initiate legal proceedings. (Section 60) Subject to such
provisions for indemnity and certain other limitations contained in the
Indenture, the holders of two-thirds in principal amount of the outstanding
First Mortgage Bonds generally will have the right to direct the time, method
and place of conducting any proceeding for any foreclosure, sale or legal
proceeding. (Section 61) After an acceleration of maturity requested by the
holders of 40% of the aggregate principal amount of the First Mortgage Bonds,
the holders of a majority in principal amount of the outstanding First Mortgage
Bonds will have the right to waive any past default or event of default on
behalf of all holders of First Mortgage Bonds. (Section 47) The Indenture
provides that no holder of First Mortgage Bonds may institute any action against
ProvGas under the Indenture unless such holder previously shall have given to
the Trustee written notice of default and continuance thereof and unless the
holders of not less than a 40% in aggregate principal amount of First Mortgage
Bonds then outstanding shall have requested the Trustee to institute such action
and shall have offered the Trustee reasonable indemnity, and the Trustee shall
not have instituted such action after a reasonable opportunity. No holder of
First Mortgage Bonds will be entitled to institute any such action if and to the
extent that such action would disturb or prejudice the rights of other holders
of First Mortgage Bonds. The Indenture provides that the Trustee, within 90 days
after the occurrence of a default with respect to the First Mortgage Bonds, is
required to give the holders of the
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First Mortgage Bonds notice of any such default known to the Trustee, unless
cured or waived, but, except in the case of default in the payment of principal
of, and interest on, any First Mortgage Bonds, the Trustee may withhold such
notice if it determines in good faith that it is in the interest of such holders
to do so. (Twentieth Supp. Section 6.11) ProvGas is required to deliver to the
Trustee each year a certificate as to whether or not, to the knowledge of the
officers signing such certificate, ProvGas is in compliance with the conditions
and covenants under the Indenture. (Fourth Supp. Section 3.13)
DEFEASANCE AND DISCHARGE
The Indenture provides that ProvGas will be discharged from any and all
obligations in respect to the First Mortgage Bonds and the Indenture (except for
certain obligations such as obligations to register the transfer or exchange of
First Mortgage Bonds, replace stolen, lost or mutilated First Mortgage Bonds and
maintain paying agencies) if, among other things, ProvGas irrevocably deposits
with the Trustee, in trust for the benefit of holders of First Mortgage Bonds,
money which through the payment of interest thereon and principal thereof in
accordance with their terms will provide money in an amount sufficient, without
reinvestment, to make all payments of principal of and interest on the First
Mortgage Bonds on the dates such payments are due in accordance with the terms
of the Indenture and the First Mortgage Bonds. Thereafter, the holders of First
Mortgage Bonds must look only to such deposit for payment of the principal of,
and interest on, the First Mortgage Bonds. (Section 66)
CONSOLIDATION, MERGER AND SALE OR
DISPOSITION OF ASSETS
ProvGas will not consolidate with or merge into any other corporation or sell or
otherwise dispose of its properties as or substantially as an entirety unless
(i) the successor or transferee corporation assumes by supplemental indenture
the due and punctual payment of the principal of and interest on all First
Mortgage Bonds and the performance of every covenant of the Indenture to be
performed or observed by ProvGas and (ii) the successor or transferee
corporation could, after giving effect to such transaction, satisfy the
requirements for issuing additional First Mortgage Bonds under the Indenture.
(Article Fourth of Fourth Supp.)
RESIGNATION OR REMOVAL OF TRUSTEE
The Trustee may resign at any time upon written notice to ProvGas specifying the
day upon which the resignation is to take effect and such resignation will take
effect immediately upon the later of the appointment of a successor Trustee and
such specified day. (Twentieth Supp. Section 6.15)
The Trustee may be removed at any time by an instrument or concurrent
instruments in writing filed with the Trustee and signed by the holders, or
their attorneys-in-fact, of at least a majority in principal amount of the then
outstanding First Mortgage Bonds. In addition, so long as no Event of Default or
event which, with the giving of notice or lapse of time or both, would become an
Event of Default has occurred and is continuing, ProvGas may remove the Trustee
upon notice to the holders of the Notes outstanding and the Trustee, and
appointment of a successor Trustee. (Twentieth Supp Section 6.15)
GOVERNING LAW
The Indenture and each Note will be governed by Rhode Island law.
BOOK-ENTRY ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
DTC will act as the initial securities depository for the Notes. The Notes will
be issued only as fully registered securities registered in the name of Cede &
Co. (DTC's partnership nominee). One or more fully registered global Notes
certificates will be issued, representing in the aggregate the total principal
amount of Notes, and will be deposited with DTC (collectively, the "Global
Notes").
DTC is a limited-purpose trust company organized under the New York Banking Law,
a
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"banking organization" within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a "clearing corporation" within the meaning of
the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Exchange Act (as defined
herein). DTC holds securities that the Participants deposit with DTC. DTC also
facilitates the settlement among Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participant's accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
Inc. and the National Association of Securities Dealers, Inc. Access to the DTC
system is also available to others such as securities brokers and dealers, banks
and trust companies that clear through or maintain a custodial relationship with
a Direct Participant, either directly or indirectly ("Indirect Participants").
The rules applicable to DTC and its Participants are on file with the SEC.
Purchases of Notes within the DTC system must be made by or through Direct
Participants, which will receive a credit for the Notes on DTC's records. The
ownership interest of each Beneficial Owner is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchase, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Notes. Transfers of
ownership interests in the Notes are to be accomplished by entries made on the
books of Participants acting on behalf of Beneficial Owners. Beneficial Owners
will not receive certificates representing their ownership interests in the
Notes, except in the event that use of the book-entry system for the Notes is
discontinued, ProvGas determines that Beneficial Owners may exchange their
ownership interests for such certificates or there shall have occurred an Event
of Default.
To facilitate subsequent transfers, all Notes deposited by Participants with DTC
are registered in the name of DTC's partnership nominee, Cede & Co. The deposit
of Notes with DTC and their registration in the name of Cede & Co. effect no
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Notes. DTC's records reflect only the identity of the Direct
Participants to whose accounts such Notes are credited, which may or may not be
the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices shall be sent to DTC. DTC's practice is to determine by lot
the amount of the interest of each Direct Participant in the Notes to be
redeemed.
Although voting with respect to the Notes is limited, in those cases where a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Notes. Under its usual procedures, DTC will mail an Omnibus Proxy to
ProvGas as soon as possible after the record date. The Omnibus Proxy assigns
Cede & Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Notes are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Principal and interest payments on the Notes will be made through Cede & Co., as
nominee of DTC. DTC's practice is to credit Direct Participants' accounts, upon
DTC's receipt of funds and corresponding detail information, on the Interest
Payment Date in accordance with
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their respective holdings shown on DTC's records. Payments by Participants to
Beneficial Owners will be governed by standing instructions and customary
practices, as is the case with securities held for the account of customers in
bearer form or registered in "street name," and will be the responsibility of
such Participant and not of DTC or ProvGas, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payment of
principal and interest to Cede & Co. is the responsibility of the Trustee upon
receipt of funds from ProvGas, disbursement of such payments to Direct
Participants is the responsibility of DTC, and disbursement of such payments to
the Beneficial Owners is the responsibility of Direct and Indirect Participants.
Except as provided herein, a Beneficial Owner of an interest in a Global Note
will not be entitled to receive physical delivery of Notes. Accordingly, each
Beneficial Owner must rely on the procedures of DTC to exercise any rights under
the Notes. The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in a Global Note.
DTC may discontinue providing its services as security depository with respect
to the Notes at any time by giving reasonable notice to ProvGas. Under such
circumstances, in the event that a successor securities depository is not
obtained, Notes certificates will be printed and delivered to the holders of
record. Additionally, ProvGas may decide to discontinue use of the system of
book-entry transfers through DTC (or a successor depository) with respect to the
Notes. In that event, certificates for the Notes will be printed and delivered
to the holders of record.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that ProvGas believes to be reliable, but we take no
responsibility for the accuracy thereof. We have no responsibility for the
performance by DTC or its Participants of their respective obligations as
described herein or under the rules and procedures governing their respective
operations.
CONCERNING THE TRUSTEE
As of October 1, 1995, Rhode Island Hospital Trust Company resigned as Trustee
and was replaced by State Street Bank and Trust Company. The Indenture provides
that ProvGas' obligations to compensate the Trustee and reimburse the Trustee
for expenses, disbursements and advances will constitute indebtedness which will
be secured by a lien generally prior to that of the First Mortgage Bonds upon
all property and funds held or collected by the Trustee as such. (Section 77)
MBIA INSURANCE CORPORATION
The following information has been furnished by MBIA Insurance Corporation (the
"Insurer"). No representation is made by ProvGas or the Underwriter as to the
accuracy or completeness of any such information. The Insurer's policy is
included as an exhibit to the Registration Statement of which this Prospectus is
a part.
THE POLICY
The Insurer's policy unconditionally and irrevocably guarantees the full and
complete payment required to be made by or on behalf of ProvGas to the party
authorized by ProvGas to pay the principal of, and interest on, the Notes (the
"Paying Agent") or its successor of an amount equal to (i) the principal of
(either at the stated maturity or by an advancement of maturity pursuant to a
mandatory sinking fund payment, if any) and interest on, the Notes as such
payments shall become due but shall not be so paid (except that in the event of
any acceleration of the due date of such principal by reason of mandatory or
optional redemption or acceleration resulting from default or otherwise, other
than any advancement of maturity pursuant to a mandatory sinking fund payment,
if any, the payments guaranteed by the Insurer's
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<PAGE> 20
policy shall be made in such amounts and at such times as such payments of
principal would have been due had there not been any such acceleration); and
(ii) the reimbursement of any such payment which is subsequently recovered from
any owner of the Notes pursuant to a final judgment by a court of competent
jurisdiction that such payment constitutes an avoidable preference to such owner
within the meaning of any applicable bankruptcy law (a "Preference").
The Insurer's policy does not insure against loss of any prepayment premium, if
any, which may at any time be payable with respect to any Note. The Insurer's
policy does not, under any circumstance, insure against loss relating to: (i)
optional or mandatory redemptions (other than mandatory sinking fund
redemptions, if any); (ii) any payments to be made on an accelerated basis;
(iii) payments of the purchase price of the Notes upon tender by an owner
thereof; or (iv) any Preference relating to (i) through (iii) above. The
Insurer's policy also does not insure against nonpayment of principal of or
interest on the Notes resulting from the insolvency, negligence or any other act
or omission of the Paying Agent or any other paying agent for the Notes.
Upon receipt of telephonic or telegraphic notice, such notice subsequently
confirmed in writing by registered or certified mail, or upon receipt of written
notice by registered or certified mail, by the Insurer from the Paying Agent or
any owner of a Note the payment of an insured amount for which is then due, that
such required payment has not been made, the Insurer on the due date of such
payment or within one Business Day after receipt of notice of such nonpayment,
whichever is later, will make a deposit of funds, in an account with State
Street Bank and Trust Company, N.A., in New York, New York, or its successor,
sufficient for the payment of any such insured amounts which are then due. Upon
presentment and surrender of such Notes or presentment of such other proof of
ownership of the Notes, together with any appropriate instruments of assignment
to evidence the assignment of the insured amounts due on the Notes as are paid
by the Insurer, and appropriate instruments to effect the appointment of the
Insurer as agent for such owners of the Notes in any legal proceeding related to
payment of insured amounts on the Notes, such instruments being in a form
satisfactory to State Street Bank and Trust Company, N.A., State Street Bank and
Trust Company, N.A. shall disburse to such owners or the Paying Agent payment of
the insured amounts due on such Notes, less any amount held by the Paying Agent
for the payment of such insured amounts and legally available therefor.
The Insurer's policy is not covered by the Property/Casualty Insurance Security
Fund specified in Article 76 of the New York Insurance Law.
THE INSURER
The Insurer is the principal operating subsidiary of MBIA Inc., a New York Stock
Exchange listed company. MBIA Inc. is not obligated to pay the debts of or
claims against the Insurer. The Insurer is domiciled in the State of New York
and licensed to do business in and subject to regulation under the laws of all
50 states, the District of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands, the Virgin Islands of the United
States and the Territory of Guam. The Insurer has two European branches, one in
the Republic of France and the other in the Kingdom of Spain. New York has laws
prescribing minimum capital requirements, limiting classes and concentrations of
investments and requiring the approval of policy rates and forms. State laws
also regulate the amount of both the aggregate and individual risks that may be
insured, the payment of dividends by the Insurer, changes in control and
transactions among affiliates. Additionally, the Insurer is required to maintain
contingency reserves on its liabilities in certain amounts and for certain
periods of time.
Effective February 17, 1998, MBIA Inc. acquired all of the outstanding stock of
Capital Markets Assurance Corporation ("CMAC") through a merger with its parent
CapMAC Holdings Inc. Pursuant to a reinsurance agree-
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ment, CMAC has ceded all of its net insured risks (including any amounts due but
unpaid from third party reinsurers), as well as its unearned premiums and
contingency reserves, to the Insurer. MBIA Inc. is not obligated to pay the
debts of or claims against CMAC.
The consolidated financial statements of the Insurer, a wholly owned subsidiary
of MBIA Inc., and its subsidiaries as of December 31, 1997 and December 31, 1996
and for the three years ended December 31, 1997, prepared in accordance with
generally accepted accounting principles, included in the Annual Report on Form
10-K of MBIA Inc. for the year ended December 31, 1997 and the consolidated
financial statements of the Insurer and its subsidiaries as of September 30,
1998 and for the nine-month periods ending September 30, 1998 and September 30,
1997 included in the Quarterly Report on Form 10-Q of MBIA Inc. for the period
ending September 30, 1998 are hereby incorporated by reference into this
Prospectus and shall be deemed to be a part hereof. Any statement contained in a
document incorporated by reference herein shall be modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated by reference
herein 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.
All financial statements of the Insurer and its subsidiaries included in
documents filed by MBIA Inc. pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, as amended, subsequent to the date of this
Prospectus and prior to the termination of the offering of the Notes shall be
deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the respective dates of filing such documents.
The tables below present selected financial information of the Insurer
determined in accordance with statutory accounting practices prescribed or
permitted by insurance regulatory authorities ("SAP") and generally accepted
accounting principles ("GAAP"):
<TABLE>
<CAPTION>
SAP
---------------------------------------
DECEMBER 31, 1997 SEPTEMBER 30, 1998
----------------- ------------------
(AUDITED) (UNAUDITED)
(IN MILLIONS)
<S> <C> <C>
Admitted Assets...................... $5,256 $6,318
Liabilities.......................... 3,496 4,114
Capital and Surplus.................. 1,760 2,204
</TABLE>
<TABLE>
<CAPTION>
GAAP
---------------------------------------
DECEMBER 31, 1997 SEPTEMBER 30, 1998
----------------- ------------------
(AUDITED) (UNAUDITED)
(IN MILLIONS)
<S> <C> <C>
Assets............................... $5,988 $7,439
Liabilities.......................... 2,624 3,268
Shareholder's Equity................. 3,364 4,171
</TABLE>
Copies of the financial statements of the Insurer incorporated by reference
herein and copies of the Insurer's 1997 year-end audited financial statements
prepared in accordance with statutory accounting practices are available,
without charge, from the Insurer. The address of the Insurer is 113 King Street,
Armonk, New York 10504. The telephone number of the Insurer is (914) 273-4545.
The Insurer does not accept any responsibility for the accuracy or completeness
of this Prospectus or any information or disclosure contained herein, or omitted
herefrom, other than with respect to the accuracy of the
20
<PAGE> 22
information regarding the Insurer's policy and Insurer set forth under the
heading "MBIA Insurance Corporation." Additionally, the Insurer makes no
representation regarding the Notes or the advisability of investing in the
Notes.
Moody's Investors Service, Inc. rates financial strength of the Insurer "Aaa."
Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies,
Inc. rates the financial strength of the Insurer "AAA."
Fitch IBCA, Inc. (formerly known as Fitch Investors Service, L.P.) rates the
financial strength of the Insurer "AAA."
Each rating of the Insurer should be evaluated independently. The ratings
reflect the respective rating agency's current assessment of the
creditworthiness of the Insurer and its ability to pay claims on its policies of
insurance. Any further explanation as to the significance of the above ratings
may be obtained only from the applicable rating agency.
The above ratings are not recommendations to buy, sell or hold the Notes, and
such ratings may be subject to revision or withdrawal at any time by the rating
agencies. Any downward revision or withdrawal of any of the above ratings may
have an adverse effect on the market price of the Notes. The Insurer does not
guaranty the market price of the Notes nor does it guaranty that the ratings on
the Notes will not be revised or withdrawn.
YEAR 2000 READINESS DISCLOSURE
An area of potential risk to the Insurer's financial guarantee business would be
the inability of an issuer or its trustee or paying agent to make payments on an
Insurer insured transaction because of their failure to be Year 2000 ready. To
mitigate this risk, the Insurer has been surveying all trustees, all paying
agents and selected high volume issuers to determine their state of readiness.
While the survey is not complete, the results to-date are that all respondents
are either ready or planning to be ready by late 1999. If the Insurer is asked
to pay in those situations where the issuer's system fails, it will do so and
would expect to recover any such payment in a fairly short time period. It is
not possible at this time to evaluate the extent of such payments. The Insurer
believes that it has adequate sources of liquidity to cover these payments.
RATINGS
It is anticipated that S&P and Moody's will assign the Notes the ratings set
forth on the cover page hereof conditioned upon the issuance and delivery by the
Insurer at the time of delivery of the Notes of the Policy, insuring the timely
payment of the principal of and interest on the Notes. Such ratings reflect only
the views of such rating agencies, and an explanation of the significance of
such ratings may be obtained only from such rating agencies at the following
addresses: Moody's Investors Service, Inc., 99 Church Street, New York, New York
10007; and Standard & Poor's, 25 Broadway, New York, New York 10004. There is no
assurance that such ratings will remain in effect for any period of time or that
they will not be revised downward or withdrawn entirely by the rating agencies
if, in their judgment, circumstances warrant. The Insurer does not guarantee the
market price of the Notes nor does it guarantee that the ratings on the Notes
will not be revised or withdrawn. Neither ProvGas nor the Underwriter has
undertaken any responsibility to oppose any proposed downward revision or
withdrawal of a rating on the Notes. Any such downward revision or withdrawal of
such ratings may have an adverse effect on the market price of the Notes.
At present, each of such rating agencies maintains four categories of investment
grade ratings. They are for S&P -- AAA, AA, A and BBB and for Moody's -- Aaa,
Aa, A and Baa. S&P defines "AAA" as the highest rating assigned to a debt
obligation. Moody's defines "Aaa" as representing the best quality debt
obligation carrying the smallest degree of investment risk.
21
<PAGE> 23
UNDERWRITING
Subject to the terms and conditions of the underwriting agreement relating to
the offering of Notes (the "Underwriting Agreement"), between ProvGas and Edward
D. Jones & Co., L.P. (the "Underwriter"), a form of which is filed as an exhibit
to the Registration Statement of which this Prospectus is a part, ProvGas has
agreed to sell to the Underwriter, and the Underwriter has agreed to purchase
from ProvGas, the entire principal amount of the Notes.
The Underwriter has advised ProvGas that it proposes to offer the Notes from
time to time for sale in one or more negotiated transactions or otherwise, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Underwriter may effect
such transactions by selling the Notes to or through dealers, and such dealers
may receive compensation in the form of underwriting discounts, concessions or
commissions from the Underwriter and/or the purchasers of the Notes for whom
they may act as agent. The Underwriter and any dealers that participate with the
Underwriter in the distribution of the Notes may be deemed to be underwriters,
and any discounts or commissions received by them and any profit on the resale
of the Notes by them may be deemed to be underwriting discounts or commissions,
under the Securities Act of 1933, as amended (the "Securities Act").
ProvGas has agreed, during the period of 120 days from the date of this
Prospectus, not to issue, sell, offer to sell, grant any option for the sale of,
or otherwise dispose of any debt securities (except for the Notes) which mature
more than one year after the Underwriter's purchase of the Notes and which are
substantially similar to the Notes without the prior written consent of the
Underwriter.
Prior to this offering, there has been no public market for the Notes. The
Underwriter has advised ProvGas that it intends to make a market in the Notes.
The Underwriter will have no obligation to make a market in the Notes, however,
and may cease market making activities, if commenced, at any time.
ProvGas has agreed to indemnify the Underwriter against certain liabilities,
including liabilities under the Securities Act and to contribute to payments the
Underwriter may be required to make in respect thereof.
LEGAL MATTERS
Certain legal matters relating to the Notes will be passed upon for ProvGas by
Hinckley, Allen & Snyder, Providence, Rhode Island. Certain legal matters
relating to the Notes will be passed upon for the Underwriter by Bryan Cave LLP,
St. Louis, Missouri.
EXPERTS
The consolidated financial statements and schedules of ProvGas as of September
30, 1998 and 1997, and for each of the three years in the period ended September
30, 1998, incorporated by reference in this Prospectus, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto.
The consolidated balance sheets of MBIA Insurance Corporation and Subsidiaries
as of December 31, 1997 and December 31, 1996 and the related consolidated
statements of income, changes in shareholder's equity and cash flows for each of
the three years in the period ended December 31, 1997 incorporated by reference
in this Prospectus, have been incorporated herein in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
22
<PAGE> 24
INCORPORATION BY REFERENCE:
INFORMATION WE FILE WITH THE SEC
The SEC allows us to "incorporate by reference" the information we file with
them, which means:
- - incorporated documents are considered part of the prospectus;
- - we can disclose important information to you by referring you to those
documents; and
- - information that we file with the SEC will automatically update and supersede
certain information in this prospectus.
We incorporate by reference the document listed below which was filed with the
SEC under the Securities Exchange Act of 1934, as amended ("Exchange Act"):
- - our Annual Report on Form 10-K for the year ended September 30, 1998.
We also incorporate by reference each of the following documents that we will
file with the SEC after the date of this prospectus but before the end of the
Notes offering:
- - reports filed under Sections 13(a) and (c) of the Exchange Act;
- - definitive proxy or information statements filed under Section 14 of the
Exchange Act in connection with any subsequent stockholders' meeting; and
- - any reports filed under Section 15(d) of the Exchange Act.
You may request a copy of any filings referred to above (including any exhibit
if specifically incorporated by reference therein), at no cost, by contacting
us, orally or in writing, at the following address:
The Providence Gas Company
Attention: Corporate Secretary
100 Weybosset Street
Providence, RI 02903
(401) 272-5040
23
<PAGE> 25
- ------------------------------------------------------
- ------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING
COVERED BY THIS PROSPECTUS. IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY PROVGAS OR
BY THE UNDERWRITER. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, THE NOTES IN ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE FACTS
SET FORTH IN THIS PROSPECTUS OR IN THE AFFAIRS OF PROVGAS SINCE THE DATE HEREOF.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Where You Can Find More Information.. 2
Forward-Looking Statements........... 2
Prospectus Summary................... 3
The Providence Gas Company........... 6
Selected Consolidated Financial
Data............................... 8
Ratio of Earnings to Fixed Charges... 8
Capitalization....................... 9
Use of Proceeds...................... 10
Description of the Notes............. 10
MBIA Insurance Corporation........... 18
Ratings.............................. 21
Underwriting......................... 22
Legal Matters........................ 22
Experts.............................. 22
Incorporation by Reference:
Information We File the SEC........ 23
</TABLE>
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
- ------------------------------------------------------
$15,000,000
[PROVIDENCE GAS CO. LOGO]
% SENIOR SECURED INSURED QUARTERLY NOTES
DUE , 2029
(IQ NOTES(SM))
-------------------------
PROSPECTUS
-------------------------
EDWARD D. JONES & CO., L.P.
, 1999
- ------------------------------------------------------
- ------------------------------------------------------
<PAGE> 26
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than underwriting
discounts and commissions, payable by ProvGas in connection with the issuance
and distribution of the securities being registered. All the amounts shown are
estimated, except the Securities and Exchange Commission Registration Fee.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 4,170
Trustees Expenses........................................... 5,000
Accounting Fees and Expenses................................ 12,500
Legal Fees and Expenses..................................... 65,000
Rating Agency Fees.......................................... 18,000
Insurance Premium........................................... 323,000
Printing, Engraving and Delivery Expenses................... 4,000
Blue Sky Fees and Expenses (includes fees and expenses of
counsel).................................................. 5,000
Miscellaneous............................................... 5,330
--------
Total............................................. $442,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 4.1 of the Rhode Island Business Corporation Act authorizes Rhode Island
corporations to indemnify their directors and officers. Article II, Section 6 of
ProvGas' By-Laws provides:
"SEC. 6. Any person who at any time serves or shall have served as
director, officer or employee of the corporation, and his heirs, executors
and administrators, without prejudice to any other rights or privileges to
which he may be entitled and whether or not in office at the time, shall be
indemnified and reimbursed by the corporation against and for any and all
claims and liabilities to which he may be or become subject by reason of
such service and against and for any and all expenses necessarily incurred
in connection with the defense or reasonable settlement of any legal or
administrative proceedings to which he is made a party by reason of such
service, except in relation to matters as to which he shall be finally
adjudged to be liable for negligence or misconduct in the performance of
his official duties."
ITEM 16. EXHIBITS.
(a) Exhibits.
The Index to Exhibits to this Registration Statement is incorporated herein
by reference.
(b) Financial Statement Schedules.
None
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) 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
II-1
<PAGE> 27
Exchange Act of 1934 that is incorporated by reference in this Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions described in 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 as 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, 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 be governed by the final
adjudication of such issue.
(3) That (1) for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act of 1933 shall be deemed to be part of
this Registration Statement as of the time it was declared effective; and
(2) for the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus 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.
II-2
<PAGE> 28
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Providence, State of Rhode Island, on January 22,
1999.
The Providence Gas Company
By: /s/ JAMES H. DODGE
----------------------------------
James H. Dodge
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities indicated on January 22, 1999.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JAMES H. DODGE Chairman, President, and Chief Executive
- --------------------------------------------------- Officer (Principal Executive Officer)
James H. Dodge
/s/ GARY S. GILLHEENEY Senior Vice President, Chief Financial
- --------------------------------------------------- Officer and Treasurer (Principal Financial
Gary S. Gillheeney Officer)
/s/ SHARON A. DUFOUR Controller
- ---------------------------------------------------
Sharon A. Dufour
* Director
- ---------------------------------------------------
Gilbert R. Bodell, Jr.
* Director
- ---------------------------------------------------
John H. Howland
* Director
- ---------------------------------------------------
Douglas H. Johnson
* Director
- ---------------------------------------------------
William Kreykes
* Director
- ---------------------------------------------------
Paul F. Levy
* Director
- ---------------------------------------------------
Romolo A. Marsella
</TABLE>
II-3
<PAGE> 29
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director
- ---------------------------------------------------
M. Anne Szostak
* Director
- ---------------------------------------------------
Kenneth W. Washburn
* Director
- ---------------------------------------------------
W. Edward Wood
By: /s/ GARY S. GILLHEENEY
-----------------------------------------------
(Attorney-in-fact for those individuals
indicated by an asterisk)
</TABLE>
II-4
<PAGE> 30
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement
3.1 Charter (incorporated by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1
(Registration No. 2-72726))
3.2 Bylaws. (Filed as Exhibit 3.2 to the Annual Report on Form
10-K of the Registrant in Form 10-K for the year ended
September 30, 1993, incorporated herein by this reference)
4.1 First Mortgage Indenture dated as of January 1, 1922, as
supplemented by First through Twelfth Supplemental
Indentures, (incorporated by reference to Exhibit 10.10 to
the Registrant's Registration Statement on Form S-1
(Registration No. 2-72726))
4.2 Fourteenth, Fifteenth and Sixteenth Supplemental Indentures
dated as of August 1, 1988, June 1, 1990 and November 1,
1992, respectively (incorporated by reference to Exhibit 4
to the Quarterly Report of Providence Energy Corporation
(Commission File No. 1-10032) on Form 10-Q for the quarter
ended March 31, 1993)
4.3 Seventeenth Supplemental Indenture dated as of November 1,
1993. (Filed as Exhibit 4.5 to the Annual Report of the
Registrant on Form 10-K for the year ended September 30,
1993, incorporated herein by this reference)
4.4 Eighteenth Supplemental Indenture dated as of December 1,
1995. (Filed as Exhibit 4.6 of the Annual Report of the
Registrant on Form 10-K for the year ended September 30,
1995, incorporated herein by this reference)
4.5 Nineteenth Supplemental Indenture dated as of April 1, 1998.
(Filed as Exhibit 4.5 of the Annual Report of the Registrant
on Form 10-K for the year ended September 30, 1998,
incorporated herein by this reference)
4.6 Form of Twentieth Supplemental Indenture to be dated on or
about February 1, 1999
5.1 Opinion of Hinckley, Allen & Snyder
10.1 Redacted gas supply contract dated October 1, 1997 between
Duke Energy Trading and Marketing, L.L.C. and the
Registrant. (Filed as Exhibit 10 to Form 10-Q of the
Registrant for the quarter ended June 30, 1998, incorporated
herein by this reference.)
12.1 Statement re: Computation of Ratios of Earnings to Fixed
Charges
21.1 Subsidiary of the Registrant
23.1 Consent of Hinckley, Allen & Snyder (included in Exhibit
5.1)
23.2 Consent of Arthur Andersen LLP
23.3 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney
25.1 Statement of Eligibility and Qualification of State Street
Bank and Trust Company
99.1 Form of Financial Guaranty Insurance Policy of MBIA
Insurance Corporation
</TABLE>
Exhibits listed above which have been filed with the Securities and Exchange
Commission are incorporated herein by reference with the same effect as if filed
with this Registration Statement.
II-5
<PAGE> 1
EXHIBIT 1.1
$15,000,000
THE PROVIDENCE GAS COMPANY
_% Senior Secured Insured Quarterly Notes
due __________, 2029
FORM OF UNDERWRITING AGREEMENT
_______________, 1999
EDWARD D. JONES & CO., L.P.
12555 Manchester Road
St. Louis, Missouri 63131-3729
Ladies and Gentlemen:
The undersigned, The Providence Gas Company, a Rhode Island
corporation (the "Company"), hereby confirms its agreement with Edward D. Jones
& Co., L.P., a Missouri limited partnership (the "Underwriter") as follows:
1. OFFERING. The Company proposes to issue and sell to
the Underwriter $15,000,000 aggregate principal amount of its First Mortgage
Bonds, Series T, _%, also known as _% Senior Secured Insured Quarterly Notes,
due _____, 2029 (the "Notes"). The Notes will be issued by the Company under its
First Mortgage Indenture (the "Original Indenture") dated as of January 1, 1922,
under which State Street Bank and Trust Company is now the trustee (the
"Trustee"), as amended and supplemented, and as to be further supplemented and
amended by a Twentieth Supplemental Indenture dated as of ____________, 1999
(the "Supplemental Indenture") relating to the Notes. The term "Indenture", as
hereinafter used, means such Original Indenture as so amended and supplemented.
The Company understands that the Underwriter proposes to make a public offering
of the Notes as soon as it deems advisable after this Agreement has been
executed and delivered.
2. PURCHASE, SALE AND DELIVERY OF THE NOTES.
On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriter and the Underwriter agrees to purchase the
Notes, at a price of $_____ per each $_____ principal amount of the Notes.
Payment for the Notes to be sold hereunder is to be made in
immediately available funds by wire transfer or certified or bank cashier's
checks drawn to the order of the Company against delivery of certificates
therefor to the Underwriter through the facilities of the Depository Trust
Company for the account of the Underwriter at 10:00 a.m., St. Louis time, on
___________, 1999, or, if such day is not a business day, on the next business
day, or at such
<PAGE> 2
other time and date not later than five (5) business days thereafter as may be
agreed upon in writing between the Underwriter and the Company, such time and
date being herein referred to as the "Closing Date." The Company shall deliver
certificates for the Notes to the Depository Trust Company in definitive, fully
registered form and in such denominations and in such registrations as the
Underwriter shall request in writing not later than 10:00 a.m. the second full
business day prior to the Closing Date, and shall make available said
certificates for inspection and packaging by the Depository Trust Company not
later than 10:00 a.m. at least one full business day prior to the Closing Date.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to the Underwriter that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), has
prepared a registration statement on Form S-3 (Registration No.
333-______) for the registration of the Notes and one or more
amendments thereto in conformity with the requirements of the Act and
all applicable instructions and the published rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") under the Act, has filed such registration statement
and amendments with the Commission and either (A) has prepared and
proposes to file, prior to the effective date of such registration
statement, an amendment to such registration statement, including a
final prospectus, setting forth the initial public offering price of
the Notes and related information or (B) if the Company has elected to
rely upon Rule 430A of the Rules and Regulations, will prepare and file
a prospectus in accordance with the provisions of Rule 430A and Rule
424(b) of the Rules and Regulations promptly after execution of this
Agreement. Copies of such registration statement and amendments
(including all forms of preliminary prospectuses) have been delivered
to the Underwriter, and the Company will not, before the registration
statement becomes effective, file any other amendment or supplement
thereto to which the Underwriter objects after being furnished with a
copy thereof. (The information, if any, included in such prospectus
that was omitted from the prospectus included in such registration
statement at the time it becomes effective but that is deemed, pursuant
to Rule 430A(b), to be part of the registration statement at the time
it becomes effective, is referred to herein as the "Rule 430A
Information." Each prospectus used before the time such registration
statement becomes effective, and any prospectus that omits the Rule
430A Information, used after such effectiveness and prior to the
execution and delivery of this Agreement, is referred to herein as a
"preliminary prospectus." Such registration statement, including all
prospectuses included as a part thereof, all financial schedules and
exhibits thereto, all documents incorporated by reference therein, as
amended at the time it becomes effective, and, if applicable, the Rule
430A Information, is herein called the "Registration Statement," and
the prospectus, including the documents incorporated by reference
therein, included in the Registration Statement at the time it becomes
effective is herein called the "Prospectus," except that, if the final
prospectus furnished to the Underwriter after the execution of this
Agreement for use in connection with the offering of the Notes differs
from the prospectus included in the Registration Statement at the time
it becomes effective (whether or not such prospectus is required to be
filed pursuant to Rule 424(b)), the term "Prospectus" shall refer to
the final prospectus first furnished to the Underwriter for such use.)
For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any term sheet
or any amendment or supplement to any of the foregoing shall be deemed
to include the electronically transmitted copy thereof filed with the
Commission pursuant
2
<PAGE> 3
to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
(b) The Commission has not issued any order preventing or
suspending the use of any preliminary prospectus, and each preliminary
prospectus, at the time of the filing thereof with the Commission, did
not include any 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 light of the circumstances under which
they were made, not misleading; provided, however, that none of the
representations and warranties in this subparagraph (b) shall apply to
statements in, or omissions from, any preliminary prospectus made in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Underwriter specifically for use in
such preliminary prospectus.
(c) When the Registration Statement becomes effective
(such date being referred to herein as the "Effective Date"), and at
all times subsequent thereto, up to and including the Closing Date, the
Registration Statement and the Prospectus, and all amendments and
supplements thereto, will comply with the provisions of the Act and the
Rules and Regulations. All documents filed by the Company with the
Commission under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") that are, or are deemed to be, incorporated by
reference into the Prospectus complied and/or will comply (as the case
may be) at the time of such filing with the applicable requirements of
the Exchange Act and the rules and regulations thereunder. When the
Registration Statement becomes effective, and when any post-effective
amendment thereto becomes effective, the Registration Statement (as
amended, if the Company has filed with the Commission any
post-effective amendment thereto) will not contain any 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. When the Registration Statement becomes effective, and at
all times subsequent thereto, up to and including the Closing Date, the
Prospectus (as amended or supplemented, if the Company has filed with
the Commission any amendment thereof or supplement thereto) will not
contain any 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 light of the circumstances under which
they were made, not misleading. None of the representations and
warranties in this subparagraph (c) will apply to statements in, or
omissions from, the Registration Statement or the Prospectus or any
amendment or supplement thereto made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
the Underwriter specifically for use in the Registration Statement or
the Prospectus or any such amendment or supplement. The Prospectus
delivered to the Underwriter for use in connection with the offering of
the Notes will, at the time of such delivery, be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Rhode
Island, and is duly qualified as a foreign corporation in each
jurisdiction in which the conduct of its business as described in the
Prospectus or the ownership or leasing of property requires such
qualification, except to the extent that the failure to be as qualified
or be in good standing would not have a material adverse effect on the
Company. The Company has one subsidiary, ProvEnergy Investments, Ltd.
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<PAGE> 4
(e) The authorized and outstanding capitalization of the
Company is set forth in the Registration Statement under
"Capitalization," and all the issued shares of common stock of the
Company, par value $1 per share (the "Common Stock") have been duly
authorized and validly issued and are fully paid and non-assessable.
All of the issued and outstanding shares of capital stock of the
Company are owned by Providence Energy Corporation, a Rhode Island
corporation.
(f) The statements concerning the Notes in the Prospectus
under the caption "Description of the Notes" conform with and
accurately describe the rights set forth in the instruments defining
the same.
(g) The Company has full right, power and authority to
enter into this Agreement and to perform all of its obligations
hereunder or contemplated hereby. This Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable in accordance with its
terms, except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws effecting creditors' rights generally or by general principal of
equity (regardless of whether enforcement is considered in a proceeding
at law or in equity).
(h) The Notes have been duly authorized by the Company
for issuance and sale pursuant to this Agreement and, at the Closing
Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payment of the consideration therefor specified in this
Agreement, will constitute legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms. The Notes will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material
respects to the description thereof contained in the Prospectus.
(i) The Indenture has been duly authorized and on the
Closing Date will have been duly , executed and delivered by the
Company and qualified under the Trust Indenture Act of 1939, as
amended, and constitutes a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms;
except to the extent that enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws effecting creditors' rights generally or by general principal of
equity (regardless of whether enforcement is considered in a proceeding
at law or in equity). The Indenture will conform in all materials
respects to the description thereof contained in the Prospectus.
(j) The Company has good and marketable title to the
properties subject to the lien of the Indenture free of encumbrances
except the lien of the Indenture, permitted liens as defined in the
Indenture, as to property acquired by the Company subsequent to the
execution of the Original Indenture, to any liens existing thereon or
purchase money liens placed thereon at the time of such acquisition as
permitted by the Indenture, and certain other reservations, rights of
grantors under revocable permits, easements, licenses, zoning laws and
ordinances and restrictions and minor defects or irregularities of
title which do not, individually or in the aggregate, materially impair
the use of the property affected thereby in the operation of the
business of the Company; the Company and its subsidiary have good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except the liens
of the Indenture and such
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<PAGE> 5
liens, encumbrances and defects 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 subsidiary; and any
real property and buildings held under lease by the Company and its
subsidiary 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 subsidiary; the pipeline, distribution
main and underground gas storage easements enjoyed by the Company and
its subsidiary are valid, subsisting and enforceable easements with
such exceptions as are not material and do not interfere with the
conduct of the business of the Company and its subsidiary.
(k) The Indenture constitutes a legally valid and direct
enforceable first mortgage lien on all of the Company's properties and
franchises specifically or generally described or referred to in the
Indenture as subject to the lien of the Indenture, whether now owned or
hereafter acquired, free from all prior liens, charges or encumbrances,
except as hereinbefore set forth in paragraph (j) above.
(l) The Company has all requisite corporate power and
authority necessary to own or hold its properties and conduct its
business as described in the Prospectus and owns or holds all material
licenses, certificates, permits and other required authorizations from
governmental authorities necessary to own or hold its properties and
conduct its business. The Company has not received any notice of
proceedings relating to the revocation or modification of any such
license, certificate, permit or authorization or infringement of or
conflict with asserted rights of others with respect to any license,
patent, patent rights, copyright, trademark or trade name, which
individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would materially adversely affect the
business or financial condition of the Company.
(m) Except as set forth in the Prospectus, there are no
actions, suits, proceedings, hearings, claims or investigations pending
or, to the knowledge of the Company, threatened before or by any court,
governmental authority, or instrumentality against the Company or
involving any of its properties or business that if determined
adversely, is likely to have a material adverse effect on the business
or financial condition of the Company, or which may materially
adversely affect the ability of the Company to perform its obligations
under this Agreement or the consummation of the transactions
contemplated by this Agreement or the validity or enforceability
hereof.
(n) Except as reflected in or contemplated by the
Prospectus, since the respective dates for which information is given
in the Prospectus and up to and including the Closing Date: (i) the
Company has not sustained any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
insured, or from any labor dispute or court or governmental action,
order or decree; (ii) there has been no change in the capital stock or
long term debt of the Company and (iii) there has been no material
adverse change, or any development specifically related to the business
of the Company, involving a prospective material adverse change in the
condition (financial or otherwise), net worth or results of operations
of the Company, whether or not arising in its ordinary course of
business.
(o) The Company is not in default under its Certificate
of Incorporation, Bylaws, any indenture or any material agreement,
lease, contract or other material
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<PAGE> 6
instrument or obligation to which it is a party or by which it or any
of its properties is bound. The execution and delivery of this
Agreement, the consummation of the transactions herein contemplated and
the fulfillment of the terms hereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company pursuant
to the terms of, any indenture (including, without limitation, the
Indenture), mortgage, deed of trust or other material agreement or
instrument to which the Company is a party or is bound, the corporate
charter or Bylaws of the Company or any order, rule or regulation
applicable to the Company of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction.
(p) The financial statements and schedules of the Company
included in the Registration Statement and the Prospectus fairly
present, and the financial statements and schedules of the Company
included in any amendment or supplement to the Registration Statement
and the Prospectus will fairly present, the financial condition of the
Company and the results of its operations and changes in its financial
position as of the dates and for the periods therein specified. Said
financial statements have been and will be prepared in accordance with
generally accepted accounting principles, consistently maintained and
applied throughout the periods involved.
(q) The books, records and accounts of the Company
accurately and fairly reflect, in reasonable detail, the transactions
and dispositions of the assets of the Company, and the system of
internal accounting controls maintained by the Company is sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary to (A) permit preparation of
financial statements and (B) maintain accountability for assets, (iii)
access to assets is permitted only in accordance with management's
general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any difference.
(r) The accountants who have certified the financial
statements and supporting schedules included in the Registration
Statement or incorporated by reference therein are independent public
accountants, as required by the Act and the Rules and Regulations.
(s) Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory,
administrative or other governmental body (including, without
limitation, the Rhode Island Public Utilities Commission necessary in
connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated
(except such additional steps as may be required by the National
Association of Securities Dealers, Inc. (the "NASD") with respect to
underwriting compensation and except for any filings under applicable
state securities or other Blue Sky laws required to be made subsequent
to the Closing Date) has been obtained or made and is in full force and
effect or has been duly waived.
(t) Each lease, contract, agreement or document of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
is so described or filed as required. All leases, contracts and
agreements referred to in or filed as exhibits to the Registration
Statement to which the
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<PAGE> 7
Company is a party have been duly and validly executed by the Company,
and are, together with such other leases, contracts and agreements by
which the Company are bound, in full force and effect except as set
forth in the Prospectus.
(u) The Company is not a "holding company" as such term
is defined in the Public Utility Holding Company Act of 1935 (the "1935
Act"). The Company is a "subsidiary company" of a "holding company" and
an "affiliate" of a "holding company", as such terms are defined in the
1935 Act, and such "holding company" and the Company are presently
exempt from the provisions of the 1935 Act (except Section 9(a)(2)
thereof).
(v) Neither the Company nor its subsidiary is an
"investment company" or under the "control" of an "investment company"
as such terms are defined under the Investment Company Act of 1940, as
amended (the "1940 Act").
(w) None of the Company or any of its directors, officers
or controlling persons, has taken, directly or indirectly, any action
resulting in a violation of Regulation M under the Exchange Act, or
designed to cause or result in, or that has constituted or that
reasonably might be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Notes.
(x) No "forward looking statement" (as defined in Rule
175 under the 1933 Act) contained in the Registration Statement, any
preliminary prospectus or the Prospectus was made or reaffirmed without
a reasonable basis or was disclosed other than in good faith.
(y) There are no claims for services in the nature of
finder's or origination fees with respect to the sale of the Notes
hereunder.
(z) The Company has authorized all necessary action to be
taken by it for the procurement of an irrevocable financial guarantee
insurance policy (the "Insurance Policy") issued by MBIA Insurance
Corporation (the "Insurer"), insuring the payment of principal and
interest on the Notes, when due.
(aa) The aggregate principal amount of bonds outstanding
under the Original Indenture, as amended and supplemented, does not
exceed $________________ and the principal payments on such bonds are
as follows:
Fiscal Year Amount
----------- ------
No holder of any indebtedness of the Company has, and no event
has occurred which will permit such holder or future holder to have, a
prior lien on the property encumbered by the Indenture.
Upon issuance, the Notes will be entitled to the benefits of
the security afforded under the Original Indenture, as amended and
supplemented, equally and ratably with all
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<PAGE> 8
securities presently outstanding thereunder. No holder of any
indebtedness of the Company has, and no event has occurred which will
permit such holder to have, a PARI PASSU lien on the property
encumbered by the Indenture, other than holders of bonds heretofore
issued under the Original Indenture, as amended and supplemented.
4. AGREEMENTS OF THE COMPANY. The Company agrees that:
(a) Prior to the Effective Date and at any time when a
prospectus relating to the Notes is required to be delivered under the
Act or the Rules and Regulations, the Company will not file or make any
amendment or post-effective amendment to the Registration Statement or
any amendment or supplement to the Prospectus to which the Underwriter
has objected in writing within a reasonable time after being furnished
copies thereof.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective at the earliest possible
time and will advise the Underwriter immediately and confirm that
advice in writing (i) of the effectiveness of the Registration
Statement, (ii) if any post-effective amendment thereto, any supplement
to the Prospectus or any amended Prospectus shall have been filed,
(iii) of any request of the Commission to amend or supplement the
Registration Statement or Prospectus or to provide additional
information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement, of
the suspension of the qualification of the Notes for sale in any state
or other jurisdiction or of the initiation or threat of any proceeding
for any such purpose. The Company will use its best efforts to prevent
the issuance of any stop order or suspension order and to obtain
promptly the withdrawal of any such stop order or suspension order.
(c) The Company will promptly deliver to the Underwriter
and to Bryan Cave LLP, without charge, (i) one signed copy of the
Registration Statement, as originally filed, each amendment thereto,
and each post-effective amendment thereto filed at any time when a
prospectus relating to the Notes is required to be delivered under the
Act, (ii) one signed copy of each consent and certificate included or
incorporated by reference in, or filed as an exhibit to the
Registration Statement as amended or supplemented, and (iii) conformed
copies of the Registration Statement, as originally filed, each
amendment thereto, and each post-effective amendment thereto filed at
any time when a prospectus relating to the Notes is required to be
delivered under the Act or the Rules and Regulations, without exhibits,
as the Underwriter may reasonably require. The Company will promptly
deliver, without charge, to the Underwriter and such others whose names
and addresses are designated by the Underwriter: (A) from time to time
until the effective date of the Registration Statement, as many printed
copies as the Underwriter may reasonably request of any preliminary
prospectus filed with the Commission prior to the effective date of the
Registration Statement and (B) as soon as possible after the
Registration Statement becomes effective, and from time to time
thereafter, as many printed copies as the Underwriter may reasonably
request of the Prospectus and of any amended or supplemented
Prospectus.
(d) During the period of time in which the Prospectus is
required to be delivered under the Act, the Company will comply to the
best of its ability with the Act and the Rules and Regulations so as to
permit the continuance of sales of and dealings in the Notes under the
Act and the Exchange Act and will keep current in the filing of all
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<PAGE> 9
material reports and forms required to be filed with any regulatory
authority having jurisdiction over the Company.
(e) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act or the Rules and
Regulations, any event occurs which causes the Prospectus as then
amended or supplemented to include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or if, at any time, it is necessary to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Company will promptly notify the Underwriter and promptly prepare and
file with the Commission an amendment or supplement to the Registration
Statement, an appropriate filing pursuant to Section 13 or 14 of the
Exchange Act correcting such statement or omission or an amendment
effecting such compliance and deliver in connection therewith such
Prospectus or Prospectuses to the Underwriter in such quantity as may
be necessary to permit compliance with the requirements of the Act and
the Rules and Regulations.
(f) The Company will use its best efforts to qualify the
Notes for sale under the securities laws of such jurisdictions as the
Underwriter may reasonably have designated in writing and will make
such applications, file such documents and consents to service of
process, and furnish such information as may be reasonably required for
that purpose, provided that the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction where it is not now so qualified
or required to file such a consent or where such action would subject
the Company to taxation where it is not now subject. The Company will,
from time to time, prepare and file such statements, consents, reports,
and other documents as are or may be required to continue such
qualifications in effect for so long a period as the Underwriter may
reasonably request for distribution of the Notes.
(g) The Company will make generally available to its
security holders as soon as practicable, but in any event not later
than 16 months after the Effective Date, an earnings statement (in form
complying with the provisions of Section 11(a) of the Act in the manner
contemplated by Rule 158 under the Act, which need not be certified by
independent public accountants unless required by the Act or the Rules
and Regulations) covering a period of at least 12 months commencing
after the Effective Date and will advise the Underwriter in writing
when such statement has been so made available.
(h) The Company will apply the net proceeds from the
offering of the Notes in accordance with the uses set forth in the
Prospectus.
(i) The Company will, for a period of five years from the
Closing Date, deliver to the Underwriter copies of (A) annual reports
and copies of all other documents, reports and information furnished by
the Company to its stockholders or filed with any securities exchange
pursuant to the requirements of such exchange or with the Commission
pursuant to the Act or the Exchange Act, (B) every press release
released by the Company, and (C) such additional documents and
information as the Underwriter may from time to time reasonably
request. The Company will deliver to the Underwriter similar reports
with respect to all significant subsidiaries, as that term is defined
in the Rules and Regulations, which are not consolidated in the
Company's financial statements.
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<PAGE> 10
(j) The Company will use its best efforts to do and
perform all things required or necessary to be done and performed under
this Agreement by the Company prior to the applicable Closing Date and
to satisfy all conditions precedent to the delivery of the Notes.
(k) The Company will comply with the Act, the Exchange
Act, the Rules and Regulation and the rules and regulations of the
Commission under the Exchange Act (the "Exchange Act Rules and
Regulations"), so as to permit the continuance of sales and dealings
under the Act, the Exchange Act, the Rules and Regulations and the
Exchange Act Rules and Regulations, and the Company will keep current
in the filings of all material reports and forms required to be filed
with any regulatory body having jurisdiction over the securities of the
Company, including, without limitation, the Commission.
(l) During a period of 120 days from the date of the
Prospectus, the Company will not, without the prior written consent of
the Underwriter, directly or indirectly, issue, sell, contract to sell,
grant any option for the sale of, or otherwise transfer or dispose of
any debt securities of the Company which mature more than one year
after the Closing Date and which are substantially similar to the
Notes.
(m) None of the Company or any of its respective
directors, officers or controlling persons, will take, directly or
indirectly, any action resulting in a violation of Regulation M under
the Exchange Act, or designed to cause or result in, or that reasonably
might be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Notes.
(n) The Company has or will have, on or before the
Closing Date, furnished to the Trustee the resolutions, certificates
and other instruments and cash, if any, required to be delivered prior
to or upon the issuance of the Notes to be delivered on the Closing
Date pursuant to the provisions of the Indenture. The Company will
request the Trustee to authenticate the Notes pursuant to Articles
First and Second of the Indenture. The Company will, on or before the
Closing Date, be able to comply with all other conditions with respect
to the authentication of the Notes imposed by the Indenture.
5. EXPENSES. The Company and the Underwriter agree as
follows:
(a) Whether or not the Registration Statement becomes
effective, the Company will pay all of the costs, expenses and fees
incident to the performance of its obligations under this Agreement,
including, without limiting the generality of the foregoing, the
following: accounting fees of the Company; the fees and disbursements
of counsel for the Company; the cost of printing and delivering to, or
as requested by, the Underwriter copies of the Registration Statement,
Preliminary Prospectuses, the Prospectus, this Agreement, the Selected
Dealer Agreement, the Blue Sky Survey and any supplements or amendments
thereto; the filing fees of the Commission; the filing fees and
reasonable expenses incident to securing any required review by the
NASD of the terms of the sale of the Notes; the expenses of
preparation, issuance and delivery of the certificates for the Notes to
the Underwriter; the fees and expenses of the transfer agent for the
Notes (including legal fees and disbursements, if any, of counsel to
the transfer agent); any taxes, including transfer taxes, on the sale
of the Notes to the Underwriter; the expenses, including the reasonable
fees and disbursements of Underwriter's counsel, incurred in connection
with the qualification of the Notes under State securities or Blue Sky
laws; and all other costs, expenses and fees incident to the
performance of the Company's
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<PAGE> 11
obligations hereunder which are not otherwise specifically provided for
in this section.
(b) The Underwriter will pay (i) the fees and
disbursements of the Underwriter's counsel, except as set forth in (a)
above and SECTION 10(C) hereof, and (ii) their own out-of-pocket
expenditures.
6. CONDITIONS OF THE UNDERWRITER'S OBLIGATIONS. The
obligations of the Underwriter to purchase and pay for the Notes shall be
subject in its discretion to the accuracy of and compliance with the
representations and the warranties of the Company herein contained as of the
date hereof, and the Closing Date, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become
effective no later than 1:00 p.m., St. Louis time, on the date of this
Agreement, or such later time and date as shall be consented to in
writing by the Underwriter, neither a stop order suspending the
effectiveness of such Registration Statement shall have been issued
under the Act nor proceedings therefor shall have been initiated or
threatened by the Commission, and all requests for additional
information on the part of the Commission shall have been complied with
to the reasonable satisfaction of the Underwriter.
(b) The Underwriter shall not have discovered and
disclosed to the Company on or prior to the Closing Date, if any, that
the Registration Statement or the Prospectus or any amendment or
supplement thereto contains an untrue statement of fact which, in the
opinion of the Underwriter or counsel for the Underwriter, is material
or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) On the Closing Date, the Underwriter and the Trustee
shall have received a favorable opinion, dated the Closing Date, of
Hinckley, Allen & Snyder, in the form to be mutually agreed upon. In
giving such opinion, said counsel may rely as to matters of fact upon
statements and certifications of officers of the Company and of other
appropriate persons and may rely as to matters of law, other than the
laws of the United States and the State of Rhode Island, upon an
opinion or opinions of local counsel, provided that any such opinion or
opinions are delivered to the Underwriter and that said counsel shall
state that they have no reason to believe that such opinions are not
correct.
(d) On the Closing Date, the Underwriter shall have
received from Bryan Cave LLP an opinion or opinions with respect to the
sufficiency of the Company proceedings and other legal matters relating
to this Agreement, the Registration Statement, the Prospectus and such
related matters as the Underwriter may reasonably require, and there
shall have been furnished to such counsel such documents as they may
request to enable them to pass upon such matters. In giving such
opinion or opinions, Bryan Cave LLP may rely as to matters of fact upon
statements and certifications of officers of the Company and of other
appropriate persons and may rely as to matters of law, other than the
laws of the United States and the State of Missouri, upon an opinion or
opinions of local counsel, who may be counsel for the Company, provided
that any such opinion or opinions are delivered to the Underwriter and
that said counsel shall state that they have no reason to believe that
such opinions are not correct.
(e) On the Closing Date, the Underwriter shall have
received a certificate,
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<PAGE> 12
dated the Closing Date signed by the chief executive officer or
president and principal financial or accounting officer of the Company,
in form and substance satisfactory to the Underwriter, to the effect
that: (i) the representations and warranties of the Company in this
Agreement are true and correct as if made on the Closing Date and the
Company has performed and complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied at or prior to the Closing Date; (ii) since the respective
dates for which information is given in the Prospectus, there has not
been any material adverse change in the business, properties or
financial condition of the Company, whether or not arising in the
ordinary course of business, other than as described in the Prospectus;
(iii) no stop order affecting the Registration Statement is in effect
or, to the best of such officers' knowledge, threatened; and (iv)
covering such other matters as the Underwriter may otherwise request.
(f) On the date of this Agreement, the Underwriter shall
have received a letter from Arthur Andersen LLP, dated such date and
addressed to the Underwriter in form and substance reasonably
satisfactory to the Underwriter, with respect to the financial
statements and certain financial and statistical information contained
in the Registration Statement and the Prospectus.
(g) On the Closing Date, the Underwriter shall have
received a letter from Arthur Andersen LLP, dated the Closing Date, and
addressed to the Underwriter in form and substance satisfactory to the
Underwriter, confirming as of the Closing Date, their letter dated the
date hereof and delivered to the Underwriter pursuant to Section 6(f)
hereof.
(h) Before the Closing Date, Bryan Cave LLP, counsel for
the Underwriter, shall have been furnished with such opinions and
copies of such documents as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Notes as
herein contemplated and related proceedings or in order to evidence the
accuracy or completeness of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained. All
proceedings taken by the Company in connection with the issuance and
sale of the Notes as herein contemplated and all opinions and
certificates mentioned above or elsewhere in this Agreement shall be
satisfactory in form and substance in all material respects to the
Underwriter and said counsel.
(i) Except as contemplated in the Prospectus, subsequent
to the respective dates for which information is given in the
Registration Statement and the Prospectus, there shall not have been
any material change in the capital securities, short-term debt or
long-term debt of the Company or any material adverse change, or any
development specifically related to the business of the Company
involving a prospective material adverse change, in the condition
(financial or otherwise), net worth or results of operations of the
Company considered as a whole, which, in the judgment of the
Underwriter, makes it impracticable to offer or deliver the Notes on
the terms and in the manner contemplated in the Prospectus.
(j) On the Closing Date, the Underwriter shall have
received from Shipman & Goodwin LLP, counsel for the Trustee, an
opinion substantially in the form attached hereto as Schedule I.
(k) On the Closing Date, the Underwriter shall have
received from
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<PAGE> 13
_________________, counsel to the Insurer, an opinion substantially in
the form attached hereto as Schedule II.
(l) On or prior to the Closing Date, the Supplemental
Indenture shall have been duly authorized, executed and delivered by
the Company and the Trustee, and shall be in full force and effect, and
the Indenture (including the Supplemental Indenture) and all other
documents, including, without limitation, Uniform Commercial Code
financing statements shall have been duly executed and properly
recorded or filed in such manner and in each jurisdiction in which
recording is required to establish the mortgage lien and security
interest created by the Indenture as a mortgage lien on and/or a
security interest in the property encumbered by the lien of the
Indenture.
(m) On or prior to the Closing Date, the Underwriter
shall have received satisfactory evidence that the Insurance Policy has
been issued by the Insurer and confirmation that the Notes have been
rated at least Aaa by Moody's Investors Services, Inc. and at least AAA
by Standard & Poor's Corporation.
If any of the conditions specified in this Section 6 shall not
have been fulfilled, this Agreement may be terminated by the Underwriter upon
notice to the Company or such conditions may be waived, modified or the time for
fulfillment thereof may be extended by the Underwriter upon notice to the
Company.
7. CONDITIONS OF THE COMPANY'S OBLIGATIONS. The obligations of
the Company to deliver the Certificates representing the Notes shall be subject
to the condition that no stop order suspending the effectiveness of the
Registration Statement shall be in effect at the Closing Date and no proceedings
therefor shall be pending or threatened by the Commission at the Closing Date.
In the event the conditions specified in this Section 7 shall
not be fulfilled, this Agreement may be terminated by the Company upon delivery
of notice to the Underwriter. Any such notice shall be without liability of the
Company to the Underwriter, except as otherwise provided in Section 10(c)
hereof, and without liability of the Underwriter to the Company.
8. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless the
Underwriter and each person, if any, who controls the Underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which the Underwriter or such
controlling person may be subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus, any amendment or supplement to the
foregoing, any related preliminary prospectus or based upon written
information furnished by the Company filed in any jurisdiction in order
to qualify the Notes under the securities laws thereof or filed with
the Commission or any securities exchange or any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; and,
subject to the limitations set forth in Section 8(c) hereof, will
reimburse the Underwriter and each controlling person for any legal or
other expenses reasonably incurred by the Underwriter or such
controlling person in
13
<PAGE> 14
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or omission made in any of such documents in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use in the Prospectus or any such
document; provided further, however, that the indemnification contained
in this paragraph with respect to any preliminary prospectus shall not
inure to the benefit of the Underwriter (or any person controlling the
Underwriter) on account of any such losses, claims, damages,
liabilities or expenses arising from the sale of the Notes by the
Underwriter to any person if a copy of the Prospectus (as amended or
supplemented if any amendments or supplements thereto shall have been
furnished to the Underwriter prior to the written confirmation of the
sale involved) shall not have been given or sent to such person by or
on behalf of the Underwriter with or prior to the written confirmation
of the sale involved, and the untrue or alleged untrue statement or
omission or alleged omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus (as amended or
supplemented if amended or supplemented as aforesaid). Indemnification
pursuant to this Section 8 will be in addition to any liability which
the Company may otherwise have.
(b) The Underwriter agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who has signed
the Registration Statement, and each person, if any, who controls the
Company within the meaning of the Act, against any losses, claims,
damages or liabilities to which the Company or any such director,
officer or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
action in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, any amendment or supplement
thereto, any related preliminary prospectus or based upon written
information furnished by the Company filed in any jurisdiction in order
to qualify the Notes under the securities laws thereof or filed with
the Commission or any securities exchange or any omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of the Underwriter
specifically for use in the Prospectus or any such document and,
subject to the limitations set forth in Section 8(c) hereof, will
reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim,
damage, liability or action. Indemnification pursuant to this Section 8
will be in addition to any liability which the Underwriter may
otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any
action, such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or commencement thereof;
but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 8. In case any claim or action is
brought against any indemnified party, and the indemnified party
notifies the indemnifying party of the claim or the commencement
thereof, the indemnifying party will be entitled to participate therein
and, to the extent that it may wish, jointly with any other
14
<PAGE> 15
indemnifying party similarly notified, assume the defense thereof, with
counsel chosen by the indemnifying party and reasonably satisfactory to
the indemnified party and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense of such
claim or action, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than as provided in the following sentence or
reasonable costs of investigation. The indemnified party shall have the
right to employ its counsel in any such action, but the fees and
expenses of such counsel shall be at the expense of such indemnified
party unless (i) the employment of counsel by such indemnified party
has been authorized by the indemnifying party, (ii) counsel to the
indemnified party shall have reasonably concluded that representation
of both the indemnifying party and the indemnified party would be
inappropriate due to actual or likely conflict of interest between the
indemnifying party and the indemnified party in the conduct of the
defense of such action (in which case the indemnifying party shall not
have the right to direct the defense of such action on behalf of the
indemnified party) or (iii) the indemnifying party shall not in fact
have employed counsel to assume the defense of such action, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party, provided, however, that in no case shall the
indemnifying party be responsible for the fees and expenses of more
than one such counsel. An indemnifying party shall not be liable for
any settlement of any action or claim effected without its consent.
9. CONTRIBUTION. If the indemnification provided for in
Section 8 of this Agreement is unavailable to an indemnified party in respect of
any losses, claims, damages or liabilities referred to therein, then the
indemnifying party under Sections 8(a) and (b), as the case may be, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter on
the other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriter on the other in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriter on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discount and commissions received by the Underwriter, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company and of the Underwriter shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the Company
or by the Underwriter and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding sentence. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in Section 8 shall be deemed to
include, subject to the limitations set forth above and in Section 8 hereof, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the
15
<PAGE> 16
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
10. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective (i) if the
Commission has not declared the Registration Statement effective under
the Act, at 11:00 a.m., St. Louis time, on the first full business day
following the Effective Date, or (ii) if the Commission has declared
the Registration Statement effective, (A) at 11:00 a.m., St. Louis
time, on the day following the date hereof, or (B) at such earlier time
as the Underwriter shall first release the Notes for sale to the
public. For the purposes of this Section, the Notes shall be deemed to
have been released for sale to the public upon release by the
Underwriter for publication of a newspaper advertisement relating
thereto or upon release by the Underwriter of facsimile transmissions
offering the Notes for sale to securities dealers, whichever shall
first occur. By giving notice as hereinafter specified before the time
this Agreement becomes effective, the Underwriter or the Company may
prevent this Agreement from becoming effective without liability of any
party to any other party, except that the provisions of Sections 5, 8
and 9 hereof shall at all times be effective.
(b) This Agreement may be terminated at any time prior to
the Closing Date by the Underwriter by written notice to the Company,
if in the judgment of the Underwriter it is impracticable to offer for
sale or to enforce contracts made by the Underwriter for the resale of
the Notes by reason of (i) trading generally in securities on the New
York Stock Exchange, Inc. having been suspended or limited or minimum
prices having been established on such exchange, (ii) a banking
moratorium having been declared by the United States or by New York
state authorities, or (iii) an outbreak of major hostilities or other
national or international calamity having occurred.
(c) If the obligations of the parties to this Agreement
shall be terminated pursuant to Section 6 or 7 hereof or this Section
10, or if the purchases provided for herein are not consummated because
of any refusal, inability or failure on the part of the Company to
comply with any of the terms or to fulfill any of the conditions of
this Agreement, or if for any reason the Company shall be unable to
perform all of its obligations under this Agreement, the Company shall
not be liable to the Underwriter for damages on account of loss of
anticipated profits arising out of the transactions covered by this
Agreement, but the Company shall remain liable to the extent provided
in Sections 5(a) and 8(a) hereof, and, except where termination occurs
pursuant to clause (i), (ii) or (iii) of Section 10(b) hereof, the
Company shall pay the out-of-pocket expenses incurred by the
Underwriter in contemplation of the performance by it of its
obligations hereunder, including the fees and disbursements of its
counsel and its traveling expenses and postage, telegraph and telephone
charges.
(d) If the Underwriter elects to prevent this Agreement
from becoming effective or to terminate this Agreement as provided in
this Section, the Company shall be notified promptly by the Underwriter
by telephone or telegram, confirmed by letter. If the Company elects to
prevent this Agreement from becoming effective, the Underwriter shall
be notified promptly by the Company by telephone or telegram, confirmed
by letter.
16
<PAGE> 17
11. SURVIVAL OF INDEMNITIES, REPRESENTATIONS AND
WARRANTIES. The respective indemnities of the Company and the Underwriter and
the respective representations and warranties of the Company and the Underwriter
set forth in this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Company or the Underwriter or any
of their respective officers, directors, partners or any controlling person, and
will survive delivery of and payment for the Notes or termination of this
Agreement pursuant to Section 10 hereof, as the case may be.
12. PARTIES IN INTEREST; ENTIRE AGREEMENT. This Agreement
shall inure to the benefit of the Company, the Underwriter, the officers,
directors and partners of such parties, each controlling person referred to in
Section 8 hereof, and their respective successors. Nothing in this Agreement is
intended or shall be construed to give to any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained.
The term "successor" as used in this Agreement shall not
include any purchaser, as such purchaser, of any Notes from the Underwriter.
This Agreement constitutes the entire agreement between the
parties concerning the subject matter hereof, and supersedes any agreement
previously entered into.
13. NOTICES. All communication, terminations and notices
hereunder shall be in writing and sent to the Company and to the Underwriter.
Notices shall be mailed, delivered, transmitted by facsimile or telegraphed and
confirmed to the Underwriter at 12555 Manchester Road, St. Louis, Missouri
63131-3729 (telecopier: (314) 515-2664) (Attn: Lawrence Sobol, Esq.) (or such
other place as the Underwriter may specify in writing) with a copy to Bryan Cave
LLP, One Metropolitan Square, Suite 3600, St. Louis, Missouri 63102 (telecopier
(314) 259-2020) (Attn: James L. Nouss, Jr., Esq.) and to the Company at 100
Weybosset Street, Providence, Rhode Island 02903 (telecopier: (401) 272-____)
(Attn: ____________________) (or such other place as the Company may specify in
writing) with a copy to Hinckley, Allen & Snyder, 1500 Fleet Center, 15th Floor,
Providence, Rhode Island 02903 (telecopier: (401) 277-9600) (Attn: Margaret
Farrell, Esq.).
14. COUNTERPARTS. This Agreement may be executed in any
number of counterparts which, taken together, shall constitute one and the same
instrument.
15. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Missouri.
17
<PAGE> 18
Please sign the enclosed duplicate of this letter whereupon
this letter will become a binding agreement between the parties in accordance
with its terms.
Very Truly Yours,
THE PROVIDENCE GAS COMPANY
By: ___________________________________
Name: _________________________________
Title: ________________________________
The foregoing Agreement is hereby
confirmed and accepted, as of the
date first above written.
EDWARD D. JONES & CO., L.P.
By
------------------------------
Authorized Signatory
18
<PAGE> 19
SCHEDULE I
FORM OF OPINION OF TRUSTEE'S COUNSEL
The opinion of Shipman & Goodwin LLP shall be to the effect
that:
1 The Trustee has been duly organized and is validly
existing as a trust company in good standing under the laws of The
Commonwealth of Massachusetts
2. The Trustee has all requisite power and authority
(corporate and other) to enter in the Twentieth Supplemental Indenture
and to perform, as trustee, the transactions contemplated thereby and
by the Indenture.
3. The Twentieth Supplemental Indenture has been duly
authorized by all necessary corporate action on the part of the Trustee
(no action by the stockholders of the Trustee being required by law, by
any charter document or bylaw of the Trustees or otherwise), has been
duly executed and delivered by the Trustee and constitutes the legal,
valid and binding obligation of the Trustee, enforceable in accordance
with its terms.
4. The Notes have been duly authenticated by the
Trustee.
5. No consents of, approval or authorizations by,
registrations with, or notices to any governmental or public regulatory
authority or agency are required on the part of the Trustee under any
federal or Commonwealth of Massachusetts law governing the trust powers
of the Trustee in connection with the execution, delivery and
performance of the Twentieth Supplemental Indenture, except as have
been obtained, taken or made.
Note: Such opinion may contain reasonable limitations.
19
<PAGE> 20
SCHEDULE II
FORM OF OPINION OF INSURER'S COUNSEL
The opinion of Insurer's counsel shall be to the effect that:
1. MBIA Insurance Corporation (the "Corporation") is a
stock insurance corporation, duly incorporated and validly existing
under the laws of the State of New York, and is licensed and authorized
to issue the Policy under the laws of the State of New York.
2. The Policy has been duly executed and is a valid and
binding obligation of the Corporation enforceable in accordance with
its terms.
3. The Policy is not required to be registered under the
Securities Act.
4. The statements set forth under the caption "The
Policy" in the Prospectus dated January __, 1999 (the "Prospectus")
insofar as such statements constitute a description of the Policy,
accurately summarize the Policy.
Note: Such opinion may contain reasonable limitations.
20
<PAGE> 1
Exhibit 4.6
THE PROVIDENCE GAS COMPANY
To
STATE STREET BANK AND TRUST COMPANY,
as Successor to
RHODE ISLAND HOSPITAL TRUST COMPANY,
Trustee
TWENTIETH SUPPLEMENTAL INDENTURE
Dated as of __________, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION HEADING PAGE
<S> <C>
Parties............................................................................................... 1
FORM OF SERIES T BOND................................................................................. 2
ARTICLE FIRST. DEFINITIONS........................................................................... 9
Section 1.01. General....................................................................... 9
Section 1.02. Trust Indenture Act........................................................... 9
Section 1.03. Definitions................................................................... 9
ARTICLE SECOND. DESIGNATION AND TERMS OF SERIES T BONDS.............................................. 11
Section 2.01. Establishment Of Series....................................................... 11
Section 2.02. Exchangeability Of Series T Bonds............................................. 12
Section 2.03. Special Record Date........................................................... 12
ARTICLE THIRD. ISSUANCE OF $15,000,000 OF SERIES TO BONDS AND
CLOSING OF SUCH SERIES AT THAT AMOUNT................................................ 12
Section 3.01. Issuance Of Series T Bonds.................................................... 12
Section 3.02. Limitation On Aggregate Principal Amount...................................... 12
Section 3.03. Cancellation Of Series T Bonds Paid, Etc...................................... 13
Section 3.04. Bonds Issuance In The Form Of a Global Note................................... 13
ARTICLE FOURTH. REDEMPTION........................................................................... 14
Section 4.01. General....................................................................... 14
Section 4.02. Optional Redemption of Series T Bonds......................................... 15
Section 4.03. Redemption Procedures......................................................... 15
Section 4.04. Redemption at the Holder's Option............................................. 15
ARTICLE FIFTH. SPECIAL INSURANCE PROVISIONS.......................................................... 17
Section 5.01. Insurer as Third Party Beneficiary............................................ 17
Section 5.02. Notices and Information....................................................... 17
Section 5.03. Concerning the Special Insurance Provisions................................... 17
Section 5.04. Amendments.................................................................... 18
Section 5.05. Limitation on Defeasance...................................................... 18
Section 5.06. Payments Under the Policy..................................................... 18
Section 5.07. Insurer's Rights Concerning the Trustee....................................... 19
Section 5.08. Insurer's Right to Accelerate, etc............................................ 19
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE SIXTH: PARTICULAR PROVISIONS RELATED TO THE TRUST
INDENTURE ACT....................................................................... 20
Section 6.01. Deposited Moneys To Be Held In Trust By Trustee............................... 20
Section 6.02. Paying Agent to Repay Moneys Held............................................. 20
Section 6.03. Return of Unclaimed Moneys Held............................................... 20
Section 6.04. Provisions as to Paying Agent................................................. 20
Section 6.05. Certificates and Notice to Trustee............................................ 21
Section 6.06. Company to Furnish Registered Owner Lists..................................... 21
Section 6.07. Preservation and Disclosure of Registered Owner Lists......................... 22
Section 6.08. Reports by the Company........................................................ 23
Section 6.09. Reports by the Trustee........................................................ 23
Section 6.10. Prohibition of Impairment of Registered Owner's Right to Payment.............. 24
Section 6.11. Notice of Default............................................................. 24
Section 6.12. Undertaking to Pay Costs...................................................... 24
Section 6.13. Conflict Interest of Trustee.................................................. 25
Section 6.14. Existence and Eligibility of Trustee.......................................... 25
Section 6.15. Resignation or Removal of Trustee............................................. 25
Section 6.16. Appointment of Successor Trustee.............................................. 26
Section 6.17. Acceptance by Successor Trustee............................................... 26
Section 6.18. Limitations on Rights of Trustee as a Creditor................................ 27
Section 6.19. Company-Owned Series T Bonds Disregarded...................................... 27
Section 6.20. Business Days................................................................. 27
Section 6.21. Trust Indenture Act to Control................................................ 27
Section 6.22. Manner of Mailing Notice to Registered Owner.................................. 28
ARTICLE SEVENTH. ADDITIONAL PROVISIONS............................................................... 28
Section 7.01. Title......................................................................... 28
Section 7.02. Released Property............................................................. 28
Section 7.03. Bonds Held by the Company..................................................... 28
Section 7.04. Payment of Series T Bonds..................................................... 28
Section 7.05. Events of Default............................................................. 29
Section 7.06. Expiration.................................................................... 30
Section 7.07. Dates for Identification...................................................... 30
Section 7.08. Section References............................................................ 30
Section 7.09. Recordation................................................................... 30
Section 7.10. Replacement on Loss, Etc...................................................... 30
Section 7.11. Counterparts.................................................................. 31
Section 7.12. Rights and Remedies on Default................................................ 31
Signatures............................................................................................ 31
</TABLE>
ATTACHMENTS TO TWENTIETH SUPPLEMENTAL INDENTURE:
SCHEDULE I - Schedule of Property and Interests Therein
SCHEDULE II - Schedule of Released Property
SCHEDULE III - Form of Request for Redemption
<PAGE> 4
THIS TWENTIETH SUPPLEMENTAL INDENTURE, dated as of __________, 1999,
between THE PROVIDENCE GAS COMPANY, a corporation created by Special Act of the
General Assembly of the State of Rhode Island ( herein after sometimes called
the "Company"), party of the first part, and STATE STREET BANK AND TRUST
COMPANY, a Massachusetts trust company (successor to Rhode Island Hospital Trust
National Bank, which succeeded Rhode Island Hospital Trust Company), as trustee
under the Company's First Mortgage herein below mentioned (hereinafter sometimes
called the "Trustee"), party of the second part:
WHEREAS the Company by an Indenture, dated as of January 1, 1922, as
supplemented by a First Supplemental Indenture, dated as of February 6, 1933, a
Second Supplemental Indenture, dated as of June 1, 1944, a Third Supplemental
Indenture, dated as of April 1, 1948, a Fourth Supplemental Indenture, dated as
of January 1, 1958, a Fifth Supplemental Indenture, dated as of July 1, 1960, a
Sixth Supplemental Indenture, dated as of September 1, 1963, a Seventh
Supplemental Indenture, dated as of November 1, 1971, an Eighth Supplemental
Indenture, dated as of July 1, 1972, a Ninth Supplemental Indenture, dated as of
October 1, 1975, a Tenth Supplemental Indenture, dated as of April 1, 1976, an
Eleventh Supplemental Indenture, dated as of September 1, 1978, a Twelfth
Supplemental Indenture, dated as of September 1, 1983, a Thirteenth Supplemental
Indenture, dated as of May 1, 1986, a Fourteenth Supplemental Indenture, dated
as of August 1, 1988, a Fifteenth Supplemental Indenture, dated as of June 1,
1990, a Sixteenth Supplemental Indenture, dated as of September 1, 1992, a
Seventeenth Supplemental Indenture, dated as of November 1, 1993, an Eighteenth
Supplemental Indenture, dated as of December 1, 1995, and a Nineteenth
Supplemental Indenture dated as of April 1, 1998 (said instruments being herein
after sometimes called, respectively, the "Original Indenture", the "First
Supplemental Indenture", the "Second Supplemental Indenture", the "Third
Supplemental Indenture", the "Fourth Supplemental Indenture", the "Fifth
Supplemental Indenture", the "Sixth Supplemental Indenture", the "Seventh
Supplemental Indenture", the "Eighth Supplemental Indenture", the "Ninth
Supplemental Indenture", the "Tenth Supplemental Indenture", the "Eleventh
Supplemental Indenture", the "Twelfth Supplemental Indenture", the "Thirteenth
Supplemental Indenture", the "Fourteenth Supplemental Indenture", the "Fifteenth
Supplemental Indenture", the "Sixteenth Supplemental Indenture", the
"Seventeenth Supplemental Indenture", the "Eighteenth Supplemental Indenture",
and the "Nineteenth Supplemental Indenture" and the Original Indenture as
supplemented by whatsoever supplements, including, if apt, this Twentieth
Supplemental Indenture, as have been or shall have been executed and delivered
at the pertinent time, being herein after sometimes called, collectively, the
"Indenture"), mortgaged its property and franchises, including after-acquired
property and franchises, to the Trustee to secure its First Mortgage Bonds
issued and to be issued thereunder in accordance with the provisions of said
Indenture, and there are now outstanding thereunder $2,728,000 principal amount
of First Mortgage Bonds, Series M, 10.25% due July 31, 2008, being all of an
original issue of $10,000,000 principal amount of bonds of said Series M,
$10,000,000 principal amount of First Mortgage Bonds, Series N, 9.63% due May
30, 2020, being all of an original issue of $10,000,000 principal amount of
bonds of said Series N, $12,5000,000 principal amount of First Mortgage Bonds,
Series O, 8.46% due September 30, 2022, being all of an original issue of
$12,500,000 principal amount of bonds of said Series O, $12,500,000 principal
amount of First Mortgage Bonds, Series P, 8.09% due September 30, 2022, being
all of an original issue of $12,500,000 principal amount of bonds of said Series
P, $8,000,000 principal amount of First Mortgage Bonds, Series Q, 5.62% due
November 30, 2003, being a portion of an original issue of $16,000,000 principal
amount of bonds of said Series Q, $15,000,000 principal amount of First Mortgage
Bonds, Series R, 7.50% due December 15, 2025, being all of an original issue of
$15,000,000 principal amount of bonds of said Series R; and $15,000,000
principal amount of First Mortgage Bonds, Series S, 6.82% due April 1, 2018; and
1
<PAGE> 5
WHEREAS the Company has determined, by due corporate action, to provide
for the immediate issuance, execution, authentication and delivery of
$15,000,000 in aggregate principal amount of its fully registered First Mortgage
Bonds in the principal amount of $15,000,000 to be known as the Company's First
Mortgage Bonds, Series T, ___% or, alternatively, as ___% Senior Secured Insured
Quarterly Notes (hereinafter sometimes called "bonds of Series T" or "Series T
bonds" or "Notes") due February 1, 2029; and
WHEREAS each of the bonds to be issued hereunder and the certificate of
the Trustee to be endorsed on the bonds of such series are to be substantially
in the following forms, respectively, to wit:
[FORM OF SERIES T BOND - GLOBAL NOTE]
THIS SECURITY IS A GLOBAL NOTE REGISTERED IN THE NAME OF THE DEPOSITARY
(REFERRED TO HEREIN) OR A NOMINEE THEREOF AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR THE INDIVIDUAL BONDS REPRESENTED HEREBY, THIS 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 BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
GLOBAL NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK), TO THE TRUSTEE FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT 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.
No. R- $ ________
CUSIP_____________
THE PROVIDENCE GAS COMPANY
FIRST MORTGAGE BOND, SERIES T, ___%
Due February 1, 2029
THE PROVIDENCE GAS COMPANY, a corporation created by Special Act of the
General Assembly of the State of Rhode Island (herein after called the
"Company"), for value received, hereby promises to pay
____________________________or registered assigns, on the first day of February,
2
<PAGE> 6
2029, the principal sum of _____________________________Dollars
($_____________), and to pay interest thereon (unless this bond shall have been
called for previous redemption and payment duly provided therefor) at the rate
of [ _____and ______] hundredths per cent (____%) per annum, payable quarterly
in arrears on the first day of February, May, August and November in each year
(each such date, an "Interest Payment Date"), commencing the first day of May,
1999, until said principal sum shall have become due. Interest shall be computed
on the basis of a 360-day year of twelve 30-day months.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture (as defined below),
be paid to the holder (the "Holder") of this bond (or one or more predecessor
bonds) of record at the close of business on the regular record date (the
"Regular Record Date") for such Interest Payment Date, which except in the case
of interest payable at the Stated Maturity (as defined in the Twentieth
Supplemental Indenture), shall be the fifteenth calendar day (whether or not a
Business Day) of the month preceding the month in which the respective Interest
Payment Date occurs, and, in the case of interest payable at the Stated
Maturity, shall be the date such that interest payable at the Stated Maturity is
payable to the same Person to whom principal on this bond is payable.
Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date by
virtue of his having been such Holder, and may be paid to the Holder of this
bond (or one or more predecessor bonds) of record at the close of business on a
special record date (the "Special Record Date") fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to Holders not
less than 10 days prior to such Special Record Date, all as more fully provided
in the Twentieth Supplemental Indenture.
The principal of and interest on this bond shall, subject to the
provisions of Section 7.04 of the Twentieth Supplemental Indenture hereinafter
described, be payable at the office of State Street Bank and Trust Company, in
Boston, Massachusetts (or at the office of its successor trustee in the trust to
which reference is herein after made), in such coin or currency of the United
States of America as shall be legal tender for the payment of public and private
debts at the time of payment.
This bond is one of a duly authorized issue of First Mortgage Bonds of
the Company, unlimited as to aggregate principal amount except as set forth in
the Indenture hereinafter mentioned, issuable in series and is one of a series
known as First Mortgage Bonds, Series T, [___%] (or alternatively, as ___%
Senior Secured Insured Quarterly Notes), all bonds of all series being issued
and to be issued under and pursuant to and all equally secured (except as any
sinking or other analogous fund, established in accordance with the provisions
of the Indenture hereinafter mentioned, may afford additional security for the
bonds of any particular series) by an Indenture, dated as of January 1, 1922, as
supplemented by a First Supplemental Indenture, dated as of February 6, 1933, a
Second Supplemental Indenture, dated as of June 1, 1944, a Third Supplemental
Indenture, dated as of April 1, 1948, a Fourth Supplemental Indenture, dated as
of January 1, 1958, a Fifth Supplemental Indenture, dated as of July 1, 1960, a
Sixth Supplemental Indenture, dated as of September 1, 1963, a Seventh
Supplemental Indenture, dated as of November 1, 1971, an Eighth Supplemental
Indenture, dated as of July 1, 1972, a Ninth Supplemental Indenture, dated as of
October 1, 1975, a Tenth Supplemental Indenture, dated as of April 1, 1976, an
Eleventh Supplemental Indenture, dated as of September 1, 1978, a Twelfth
Supplemental Indenture, dated as of September 1, 1983, a Thirteenth Supplemental
Indenture, dated as of May 1, 1986, a Fourteenth Supplemental Indenture, dated
as of August 1, 1988, a Fifteenth Supplemental Indenture, dated as of June 1,
1990, a Sixteenth Supplemental Indenture, dated as of September 1, 1992, a
Seventeenth Supplemental Indenture, dated as of November 1, 1993, an Eighteenth
Supplemental Indenture, dated as of December 1,
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<PAGE> 7
1995, a Nineteenth Supplemental Indenture, dated as of April 1, 1998 and a
Twentieth Supplemental Indenture dated as of February ___, 1999 (said twenty-one
instruments being hereinafter called, collectively, the "Indenture"), all duly
executed and delivered by the Company to State Street Bank and Trust Company, in
Boston Massachusetts, as successor to Rhode Island Hospital Trust National Bank,
which succeeded Rhode Island Hospital Trust Company (hereinafter called the
"Trustee"), as trustee, to which Indenture and to all indentures supplemental
thereto reference is hereby made for a description of the property transferred,
assigned and mortgaged thereunder, the nature and extent of the security, the
terms and conditions upon which the bonds are secured and additional bonds may
be issued and secured, and the rights of the holders or registered owners of
said bonds, of the Trustee and of the Company in respect of such security.
Subsequent series of said bonds may vary as to date, date of maturity, rate of
interest and in other ways as in the Indenture provided or permitted.
Notwithstanding any provisions of the Indenture (including, without
limitation, Section 41 of the Original Indenture), the bonds of Series T shall
be subject to redemption only in the manner and to the extent provided in the
Twentieth Supplemental Indenture.
As long as this bond is represented in global form (the "Global Note")
registered in the name of the Depository or its nominee, except as provided in
the Twentieth Supplemental Indenture and subject to certain limitations therein
set forth, no Global Note shall be exchangeable or transferable.
If an Event of Default (as defined in the Indenture, including the
Twentieth Supplemental Indenture) with respect to the bonds shall occur and be
continuing, the principal plus any accrued interest may be declared due and
payable in the manner and with the effect and subject to the conditions provided
in the Indenture.
In case of default by the Company, as set forth in the Indenture, the
principal of all the bonds of each and every series issued and outstanding
thereunder may be declared or may become due and payable in the manner and with
the effect provided in the Indenture.
No recourse shall be had for the payment of any part of either the
principal of or interest on this bond, or for any claim based hereon, or
otherwise in any manner in respect hereof or in respect of the Indenture, to or
against any stockholder, officer or director, past, present or future, of the
Company, by virtue of any statute or provision or rule of law, or by the
enforcement of any assessment or penalty, all such liability being expressly
waived and released by the acceptance of this bond.
This bond shall not become obligatory for any purpose until
authenticated by the execution by the Trustee of the certificate endorsed
hereon.
STATEMENT OF INSURANCE
The MBIA Insurance Corporation (the "Insurer") has issued a financial
guaranty insurance policy (the "Policy") containing the following provisions,
such Policy being on file at State Street Bank and Trust Company.
The Insurer, in consideration of the payment of the premium and subject
to the terms of the Policy, hereby unconditionally and irrevocably guarantees to
any owner, as hereinafter defined, of the following described obligations, the
full and complete payment required to be made by or on behalf of the Company
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<PAGE> 8
to State Street Bank and Trust Company or its successor (the "Paying Agent") of
an amount equal to (i) the principal of (at the stated maturity) and interest
on, the Obligations (as that term is defined below) as such payments shall
become due but shall not be so paid (except that in the event of any
acceleration of the due date of such principal by reason of mandatory or
optional redemption or acceleration resulting from default or otherwise, the
payments guaranteed hereby shall be made in such amounts and at such times as
such payments of principal would have been due had there not been any such
acceleration); and (ii) the reimbursement of any such payment which is
subsequently recovered from any owner pursuant to a final judgment by a court of
competent jurisdiction that such payment constitutes an avoidable preference to
such owner within the meaning of any applicable bankruptcy law. The amounts
referred to in clauses (i) and (ii) of the preceding sentence shall be referred
to herein collectively as the "Insured Amounts." "Obligations" shall mean:
$15,000,000
The Providence Gas Company
Senior Secured Insured Quarterly Notes
Due [ ] (IQ Notes(SM))
Upon receipt of telephonic or telegraphic notice, such notice
subsequently confirmed in writing by registered or certified mail, or upon
receipt of written notice by registered or certified mail, by the Insurer from
the Paying Agent or any owner of an Obligation the payment of an Insured Amount
for which is then due, that such required payment has not been made, the Insurer
on the due date of such payment or within one Business Day after receipt of
notice of such nonpayment, whichever is later, will make a deposit of funds, in
an account with State Street Bank and Trust Company, N.A., in New York, New
York, or its successor, sufficient for the payment of any such Insured Amounts
which are then due. Upon presentment and surrender of such Obligations or
presentment of such other proof of ownership of the Obligations, together with
any appropriate instruments of assignment to evidence the assignment of the
Insured Amounts due on the Obligations as are paid by the Insurer, and
appropriate instruments to effect the appointment of the Insurer as agent for
such owners of the Obligations in any legal proceeding related to payment of
Insured Amounts on the Obligations, such instrument being in a form satisfactory
to State Street Bank and Trust Company, N.A., State Street Bank and Trust
Company, N.A. shall disburse to such owners or the Paying Agent payment of the
Insured Amounts due on such Obligations, less any amount held by the Paying
Agent for the payment of such Insured Amounts and legally available therefor.
The Policy does not insure against loss of any prepayment premium which may at
any time be payable with respect to any Obligation.
As used herein, the term "owner" shall mean the registered owner of any
Obligation as indicated in the books maintained by the Paying Agent, the
Company, or any designee of the Company for such purpose. The term owner shall
not include the Company or any party whose agreement with the Company
constitutes the underlying security for the Obligations.
Any service of process on the Insurer may be made to the Insurer at its
offices located at 113 King Street, Armonk, New York 10504 and such service of
process shall be valid and binding.
The Policy is non-cancelable for any reason. The premium on the Policy
is not refundable for any reason including the payment prior to maturity of the
Obligations.
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The insurance provided by the Policy is not covered by the
Property/Casualty Insurance Security Fund specified in Article 76 of the New
York Insurance Law.
Any provision of the Indenture may not be amended in any manner which
materially adversely affects the rights of the Insurer hereunder without the
prior written consent of the Insurer, which may not be unreasonably withheld,
conditioned or delayed.
IN WITNESS WHEREOF, THE PROVIDENCE GAS COMPANY has caused its corporate
seal to be hereto affixed and this bond to be signed by its President or Vice
President and its Treasurer or Assistant Treasurer, the ________day of
________________________________.
THE PROVIDENCE GAS COMPANY
By______________________________________
President
[CORPORATE SEAL]
and
By______________________________________
Treasurer
[FORM OF TRUSTEE'S CERTIFICATE]
This is one of the bonds of Series T of the issue described in the
Indenture within mentioned.
STATE STREET BANK AND TRUST COMPANY,
as Successor to Rhode Island Hospital
Trust Company, Trustee
By______________________________________
Authorized Signature
WHEREAS the Company also desires to confirm the lien of the Indenture
upon property (intended to be thereby mortgaged) acquired by the Company since
the execution of the Nineteenth Supplemental Indenture;
NOW, THEREFORE, THIS TWENTIETH SUPPLEMENTAL INDENTURE WITNESSETH: That
The Providence Gas Company, pursuant to and in execution of the powers,
authorities and obligations conferred, imposed and reserved in the Original
Indenture, as heretofore supplemented by the First, Second, Third, Fourth,
Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth,
Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth and Nineteenth
Supplemental Indentures, and every other power, authority and obligation thereto
appertaining or enabling, in consideration of the premises and of the
authentication, purchase and acceptance of the Series T bonds, of $10 duly paid
to the Company by the Trustee and of other good and valuable consideration,
receipt whereof is hereby acknowledged, and for the
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<PAGE> 10
purpose of confirming the Original Indenture and said First, Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth and
Nineteenth Supplemental Indentures, as hereby supplemented, and in order to
secure, equally and ratably, the payment of the principal of and the interest on
all of the bonds at any time outstanding under the Indenture according to their
tenor, purport and effect and in order to secure the faithful performance and
observance of all of the covenants and conditions set forth herein and in the
Original Indenture, as heretofore supplemented by the First, Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth and
Nineteenth Supplemental Indentures, by these presents hereby confirms (except
for property hereinafter expressly reserved and excluded from the lien of the
Indenture) the mortgage, conveyance, pledge, assignment and transfer of the
properties, franchises, rights and privileges set forth and described in the
Original Indenture and said Second, Third, Fourth, Fifth, Sixth, Seventh,
Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth,
Sixteenth, Seventeenth, Eighteenth and Nineteenth Supplemental Indentures, and
does hereby grant, bargain, sell, release, convey, mortgage, confirm, assign,
transfer, pledge and set over unto the Trustee, and its successors in the trust,
and its and their assigns, upon the trusts established by the Indenture, all and
singular:
A. The "Schedule of Property and Interests Therein" hereto attached as
Schedule I and made a part hereof.
B. The Company's gasworks, plant and machinery, purifiers, generators,
service and other pipes, holders, mains, meters, shops, tools, implements,
fixtures, appurtenances, and (except for property hereinafter expressly reserved
and excluded from the lien of the Indenture) all other real and tangible
personal property now owned or which shall hereafter be acquired by the Company,
or its successor or successors, and used or useful in connection with its
business of making, distributing, purchasing and selling gas, and with any other
business authorized or permitted by the Company's charter, and all of the
Company's leasehold interests in any of such property now or hereafter leased by
the Company as a lessee and all corporate and other franchises of the Company,
and all permits, ordinances, easements, privileges, immunities and licenses, all
rights to lay, construct, maintain and operate systems for the distribution and
transmission of gas and other agencies for the supply to itself or others of
light, heat and power, and all rights of way, grants and consents which the
Company now owns or which it may hereafter acquire, being intended to include,
among other things covered by the Indenture, the entire existing and future
light, heat and power business of the Company and all of its existing and all of
its future rights, franchises, permits, ordinances and licenses to transact and
conduct the same, and each and every part thereof (except as hereinafter noted)
as provided in the Original Indenture and said Second, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth,
Fifteenth, Sixteenth, Seventeenth, Eighteenth and Nineteenth Supplemental
Indentures, which are hereby made a part hereof, to the same extent as if set
forth herein at length, excepting, however, and there is expressly reserved and
excluded from the lien of the Indenture:
(1) Such of said properties or interests therein heretofore
conveyed to the Trustee as may have been released by the Trustee or
sold or otherwise disposed of as permitted by the provisions of the
Indenture; and
(2) All right, title and interest of the Company now owned or
hereafter acquired in and to
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(a) all cash, bonds, shares of stock, obligations and
other securities not deposited with the Trustee under the
provisions of the Indenture;
(b) all accounts and bills receivable (other than for
the recovery of real property or establishing a lien or charge
thereon or right therein) and choses in action not
specifically assigned to the Trustee and pledged with the
Trustee hereunder;
(c) all goods, wares, merchandise, products and
by-products held for sale in the ordinary course of business;
(d) all materials and supplies held for consumption
in operation;
(e) all conversion burners, water heaters, stoves and
refrigerators rented to customers or held for rental;
(f) all motor vehicles; and
(3) The last day of each of the demised terms created by any
lease of property now leased to the Company and the last day of any
demised term under each and every lease hereafter made or acquired by
the Company and, under each and every renewal of any lease the last day
of each and every such demised term being hereby expressly reserved to
and by the Company;
until and unless a default shall be made in one or more obligations of the
Company under the Indenture and such default shall have continued beyond the
period of grace, if any, applicable in respect thereof, and the Trustee or any
receiver or other official shall take control of the mortgaged properties, in
which event the Indenture shall (to the extent permitted by law) become and be a
lien upon all of the classes of property set forth in 2 above (subject to any
liens or encumbrances then existing thereon), and the Trustee, receiver or other
official shall (to the extent permitted by law) be entitled to possess, use and
dispose of the same in carrying on the operation of the Company's enterprise and
to include the same in any sale under power of sale conferred by the Indenture
or by law.
TO HAVE AND TO HOLD all of said property, real, personal and mixed, now
owned or hereafter acquired, mortgaged and conveyed by the Company as aforesaid,
or intended so to be, unto the Trustee, and its successors in said trust, and to
them and to their assigns forever.
IN TRUST, NEVERTHELESS, for the purposes, with the powers and subject
to the agreements, covenants and conditions set forth and expressed in the
Original Indenture, as supplemented and modified by the First Supplemental
Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture,
the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth
Supplemental Indenture, the Seventh Supplemental Indenture, the Eighth
Supplemental Indenture, the Ninth Supplemental Indenture, the Tenth Supplemental
Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental
Indenture, the Thirteenth Supplemental Indenture, the Fourteenth Supplemental
Indenture, the Fifteenth Supplemental Indenture, the Sixteenth Supplemental
Indenture, the Seventeenth Supplemental Indenture, Eighteenth Supplemental
Indenture, the Nineteenth Supplemental Indenture and this instrument, it being
agreed as follows, to wit:
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<PAGE> 12
ARTICLE FIRST
DEFINITIONS
Section 1.01. General. The terms defined in this Article (whether or
not capitalized and except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Twentieth Supplemental
Indenture shall have the respective meanings specified in this Article FIRST.
Section 1.02. Trust Indenture Act. (a) Whenever this Indenture refers
to a provision of the Trust Indenture Act of 1939, as amended (the "TIA"), such
provision is incorporated by reference in and made a part of this Indenture.
(b) Unless otherwise indicated, all terms used in this
Twentieth Supplemental Indenture that are defined by the TIA, defined by the TIA
by reference to another statute or defined by a rule of the Commission under the
TIA shall have the meanings assigned to them in the TIA or such statute or rule
as in force on the date of execution of this Twentieth Supplemental Indenture.
Section 1.03. Definitions. For purposes of this Twentieth Supplemental
Indenture, the following terms shall have the following meanings:
"Authorized Agent" shall mean any agent of the Company designated as
such by an Officers' Certificate delivered to the Trustee.
"Board of Directors" shall mean the Board of Directors of the Company
or the Executive Committee of such Board or any other duly authorized committee
of such Board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions or trust companies in the
City of Boston, Commonwealth of Massachusetts, or in the city where the
corporate trust office of the Trustee is located, are obligated or authorized by
law or executive order to close or on which the office of the Insurer in the
Burrough of Manhattan, City of New York, State of New York, is closed.
"Commission" shall mean the United States Securities and Exchange
Commission, or if at any time hereafter the Commission is not existing or
performing the duties now assigned to it under the TIA, then the body performing
such duties.
"Company Order" shall mean a written order signed in the name of the
Company by one of the Chairman, the President, any Vice President (whether or
not designated by a number or numbers or a word or words added before or after
the title "Vice President"), the Treasurer or an Assistant Treasurer, of the
Company, and delivered to the Trustee.
"Corporate Trust Office of the Trustee", or other similar term, shall
mean the corporate trust office of the Trustee, at which at any particular time
its corporate trust business shall be principally administered, which office is
at the date of the execution of this Indenture located at Two International
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<PAGE> 13
Place, 4th Floor, Boston, Massachusetts 02110, Attention: Corporate Trust
Administration (The Providence Gas Company Twentieth Supplemental Indenture).
"Depository" shall mean, unless otherwise specified in a Company Order,
The Depository Trust Company, New York, New York, or any successor thereto
registered and qualified as a clearing agency under the Securities Exchange Act
of 1934, or other applicable statute or regulation.
"Event of Default" shall mean any event specified in Section 7.05
hereof, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
"Global Note" shall mean a Series T bond that, pursuant to Section 3.04
hereof, is issued to evidence the Series T bonds, that is delivered to the
Depository or pursuant to the instructions of the Depository and that shall be
registered in the name of the Depository or its nominee.
"Holder" shall mean (a) with respect to Series T bonds issued in the
form of a Global Note as provided in Section 3.04 hereof, any Person in whose
name a Series T bond is registered on the records of the Depository and (b) with
respect to Series T bonds issued in the form of individual Notes, the Registered
Owner thereof.
"Insurance Paying Agent" shall have the meaning ascribed thereto in
Section 5.06 hereof.
"Insurer" shall mean MBIA Insurance Corporation, a New York domiciled
stock insurance company.
"Interest Payment Date" shall mean (a) each date designated as such for
the payment of interest on the Series T bonds specified in this Twentieth
Supplemental Indenture, (b) a date of maturity of the Series T bonds and (c)
only with respect to defaulted interest on the Series T bonds, the date
established by the Trustee for the payment of such defaulted interest pursuant
to Section 2.03 hereof.
"Note" or "Notes" shall mean the First Mortgage Bond(s), Series T, also
known as ___% Senior Secured Insured Quarterly Note(s).
"Officers' Certificate" when used with respect to the Company, shall
mean a certificate signed by one of the Chairman, the President, any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President"), and by the Chief Financial
Officer, Treasurer, any Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company; provided, that no individual shall be entitled to sign
in more than one capacity.
"Original Issue Date" shall mean _____________, 1999.
"Participant" shall mean one of the participating organizations for
which the Depository holds the Global Note.
"Paying Agent" shall mean any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of or interest on
the Series T bonds on behalf of the Company.
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"Person" shall mean any individual, corporation, partnership, joint
venture, limited liability company, limited liability partnership or other
juridical entity, association, joint-stock company, trust, unincorporated
organization or government or any agent or political subdivision thereof.
"Policy" shall mean the financial guaranty insurance policy issued by
the Insurer insuring the payment when due of the principal of and interest on
the Series T bonds as provided therein.
"Redemption Date" shall mean with respect to any Series T bond to be
redeemed, in whole or in part, the date fixed for such redemption by or pursuant
to this Twentieth Supplemental Indenture.
"Registered Owner" shall mean any Person in whose name a particular
First Mortgage Bond (including a Note) is registered on the books of the Trustee
kept for that purpose in accordance with the terms of the Indenture (including
this Twentieth Supplemental Indenture).
"Regular Record Date" means the fifteenth (15th) calendar day (whether
or not a Business Day) of the month preceding the month in which the respective
Interest Payment Date occurs.
"Principal Executive Offices of the Company" shall mean 100 Weybosset
Street, Providence, Rhode Island 02903, or such other place where the main
corporate offices of the Company are located as designated in writing to the
Trustee by an Authorized Agent.
"Responsible Officer" or "Responsible Officers" when used with respect
to the Trustee shall mean any officer in the Corporate Trust Office of the
Trustee or any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"Special Record Date" shall mean, with respect to any Series T bond,
the date established by the Trustee in connection with the payment of defaulted
interest on such Series T bond pursuant to Section 2.03 hereof.
"Stated Maturity" means February 1, 2029.
ARTICLE SECOND
DESIGNATION AND TERMS OF SERIES T BONDS
Section 2.01. Establishment of Series. There shall be and is hereby
created a new series of bonds entitled "First Mortgage Bonds, Series T, [____]%"
also known as "____% Senior Secured Insured Quarterly Notes" (herein sometimes
called the "Series T bonds" or "bonds of Series T" or "Notes"), limited in
aggregate principal amount, except as noted in Section 3.02 hereof, to Fifteen
Million Dollars ($15,000,000), and to be issued as prescribed in Section 3.01
hereof. Series T bonds shall be fully registered bonds in denominations of One
Thousand Dollars ($1,000) and multiples thereof. All Series T bonds shall mature
February 1, 2029 and shall bear interest at the rate and payable at the times
specified in the form of Series T bond set forth herein.
Interest shall be paid quarterly in arrears on each Interest Payment
Date to the Person in whose name the Series T bonds are registered on the
Regular Record Date for such Interest Payment Date. Any such interest that is
not so punctually paid or duly provided for will forthwith cease to be payable
to the
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Registered Owners on such Regular Record Date and may either be paid to the
Person or Persons in whose name the Series T bonds are registered at the close
of business on a Special Record Date for the payment of such defaulted interest
to be fixed by the Trustee, notice whereof shall be given to Registered Owners
of the Series T bonds not less than ten (10) days prior to such Special Record
Date.
Payments of interest on the Series T bonds will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Series T bonds shall be computed and paid on the basis of a
360-day year of twelve 30 day months.
The principal of and interest on bonds of Series T shall, subject to
the provisions of Section 7.04 be payable at the office of the Trustee in such
coin or currency of the United States of America as shall be legal tender for
the payment of public and private debts.
Bonds of Series T shall be numbered "R-1" and consecutively upwards.
Section 2.02. Exchangeability of Series T Bonds. Bonds of Series T
shall be exchangeable for a like aggregate principal amount of Series T bonds of
another authorized denomination or other authorized denominations.
Section 2.03. Special Record Date. If and to the extent that the
Company fails to make timely payment or provision for timely payment of interest
on any Series T bond (other than on an Interest Payment Date that is a maturity
date), that interest shall cease to be payable to the Persons who were the
Registered Owners of such Series T bonds at the applicable Regular Record Date.
In that event, when moneys become available for payment of the interest, the
Trustee shall (a) establish a date of payment of such interest and a Special
Record Date for the payment of that interest, which Special Record Date shall be
not more than fifteen (15) or fewer than ten (10) days prior to the date of the
proposed payment and (b) mail notice of the date of payment and of the Special
Record Date not fewer than ten (10) days preceding the Special Record Date to
each Registered Owner of such Series T bonds at the close of business on the
15th day preceding the mailing at the address of such Registered Owner, as it
appeared on the register for the Series T bonds. On the day so established by
the Trustee the interest shall be payable to the Registered Owners of the Series
T bonds at the close of business on the Special Record Date.
ARTICLE THIRD
ISSUANCE OF $15,000,000 OF SERIES T BONDS AND
CLOSING OF SUCH SERIES AT THAT AMOUNT
Section 3.01. Issuance of Series T Bonds. Upon the execution and
delivery hereof, the Company will execute and deliver to the Trustee and the
Trustee will authenticate and deliver to the Company Fifteen Million Dollars
($15,000,000) in aggregate principal amount of Series T bonds.
Section 3.02. Limitation on Aggregate Principal Amount. The issue of
Series T bonds hereunder is hereby limited to the Fifteen Million Dollars
($15,000,000) in aggregate principal amount of bonds of such series to be
initially issued as provided in Section 3.01 hereof and to Series T bonds issued
in exchange or substitution for outstanding Series T bonds under the provisions
of the Indenture, permitting the exchange of bonds for other Series T bonds
(under the provisions of Section 2.02 hereof), or permitting
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the issuance of bonds in lieu of lost, stolen, destroyed or mutilated bonds, or
permitting the exchange of definitive bonds for temporary bonds.
Section 3.03. Cancellation of Series T Bonds Paid, Etc. All Series T
bonds surrendered for the purpose of payment, redemption, exchange or
registration of transfer shall be surrendered to the Trustee for cancellation
and promptly canceled by it and no Series T bonds shall be issued in lieu
thereof except as expressly permitted by this Twentieth Supplemental Indenture.
The Company shall surrender to the Trustee any Series T bonds so acquired by it
and such Series T bonds shall be canceled by the Trustee. No Series T bonds
shall be authenticated in lieu of or in exchange for any Series T bonds so
canceled.
Section 3.04. Bonds Issuable in the Form of a Global Note.
(a) The Company shall execute and the Trustee shall, in accordance with
Section 3.01 hereof, authenticate and deliver the Series T bonds issuable
hereunder in the form of a Global Note or Global Notes, which (i) shall
represent, shall be denominated in an amount equal to the aggregate principal
amount of and shall have the same terms as the outstanding Series T bonds, (ii)
shall be registered in the name of the Depository or its nominee, (iii) shall be
delivered by the Trustee to the Depository or pursuant to the Depository's
instruction and (iv) shall bear a legend substantially to the following effect:
"This Security is a Global Note registered in the name of the Depository
(referred to herein) or a nominee thereof and, unless and until it is exchanged
in whole or in part for the individual Notes represented hereby, this Global
Note may not be transferred except as a whole by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository or a nominee of
such successor Depository. Unless this Global Note is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the Trustee for registration of transfer, exchange or payment and any
certificate issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment 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" or such other legend as may be
required by the rules and regulations of the Depository.
(b) Notwithstanding any other provision of the Indenture, a Global Note
may be transferred, in whole but not in part, only as described in the legend
thereto.
(c) (i) If at any time the Depository for a Global Note
notifies the Company that it is unwilling or unable to continue as
Depository for such Global Note or if at any time the Depository for
the Global Note shall no longer be eligible or in good standing under
the Securities Exchange Act of 1934 or other applicable statute or
regulation, the Company shall appoint a successor Depository with
respect to such Global Note. If a successor Depository for such Global
Note is not appointed by the Company within ninety (90) days after the
Company receives such notice or becomes aware of such ineligibility,
the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of individual Notes of such
series in exchange for such Global Note, shall authenticate and
deliver, individual Notes of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal
amount of the Global Note in exchange for such Global Note. The Trustee
shall not be charged with knowledge or notice of the ineligibility of a
Depository unless a Responsible Officer of the Trustee shall have
actual knowledge thereof.
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(ii) (A) The Company may at any time and in its sole
discretion determine that all outstanding (but not less than all) Notes
evidencing the Series T bonds issued or issuable in the form of one or
more Global Notes shall no longer be represented by such Global Note or
Notes. In such event the Company shall execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
individual Notes in exchange for such Global Note, shall authenticate
and deliver individual Notes of like tenor and terms in definitive form
in an aggregate principal amount equal to the principal amount of such
Global Note or Notes in exchange for such Global Note or Notes.
(B) Within seven (7) days after the occurrence of an
Event of Default with respect to any Global Notes, the Company shall
execute, and the Trustee shall authenticate and deliver, Notes
evidencing such Series T bonds in definitive registered form in any
authorized denominations and in aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(iii) In any exchange provided for in either of the preceding
two paragraphs, the Company will execute and the Trustee will
authenticate and deliver individual Notes in definitive registered form
in authorized denominations. Upon the exchange of a Global Note for
individual Notes, such Global Note shall be canceled by the Trustee.
Notes issued in exchange for a Global Note pursuant to this Section
shall be registered in such names and in such authorized denominations
as the Depository for such Global Note, pursuant to instructions from
its direct or indirect Participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Notes to the Depository for
delivery to the Persons in whose names such Notes are so registered, or
if the Depository shall refuse or be unable to deliver such Notes, the
Trustee shall deliver such Notes to the Persons in whose names such
Notes are registered, unless otherwise agreed upon between the Trustee
and the Company, in which event the Company shall cause the Notes to be
delivered to the Persons in whose names such Notes are registered.
(d) None of the Company, the Trustee, any authenticating agent or any
Paying Agent shall have any responsibility or liability for any aspect of the
records relating to, or payments made on account of, beneficial ownership
interests of a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
(e) If the principal amount of part, but not all of a Global Note is
paid, then upon surrender to the Trustee of such Global Note, the Company shall
execute, and the Trustee shall authenticate, deliver and register, a Global Note
in an authorized denomination in aggregate principal amount equal to, and having
the same terms, Original Issue Date and series as, the unpaid portion of such
Global Note.
ARTICLE FOURTH
REDEMPTION
Section 4.01. General. Notwithstanding any provisions of the Indenture
(including, without limitation, Section 41 thereof) the bonds of Series T shall
be subject to redemption only in the manner and to the extent provided in this
Article FOURTH.
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Section 4.02. Optional Redemption of Series T Bonds. The Company shall
have the option, at any time and from time to time on or after February 1, 2004,
of redeeming the outstanding Series T bonds, either in whole or in part, upon
not less than thirty (30) days' nor more than sixty (60) days' prior written
notice to each Registered Owner, by payment of the principal amount of the
Series T bonds to be redeemed (the "Redemption Price"), and accrued interest
thereon to, but not including, the Redemption Date.
If notice of redemption is given as aforesaid, the Series T bonds so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price together with any accrued interest thereon, and from and after
such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) the Series T bonds shall cease to bear interest. If
any Series T bond called for redemption shall not be paid upon surrender thereof
for redemption, the principal shall, until paid, bear interest from the
Redemption Date at __%. Subject to the foregoing and applicable law (including
without limitation, United States federal securities laws), the Company or its
affiliates may, at any time and from time to time, purchase outstanding Series T
bonds by tender, in the open market or by private agreement.
Section 4.03. Redemption Procedures. Except as herein otherwise set
forth, the provisions of Article Fourth of the Original Indenture, with respect
to the procedures for call and redemption, prior to maturity, of Series A and
Series B bonds, shall apply to the call and redemption, prior to maturity, of
all bonds of Series T so to be called and redeemed pursuant to Section 4.02. All
Series T bonds redeemed pursuant to the provisions hereof shall be canceled by
the Trustee and shall be delivered to or upon the order of the Company, and
shall not be reissued.
Whenever any Series T bonds are to be redeemed pursuant to Section
4.02, the Trustee shall allocate to each Registered Owner a proportion of the
Series T bonds to be redeemed, equal, as nearly as practicable, to the
proportion that the principal amount of the Series T bonds then outstanding
hereunder, registered in the name of such Registered Owner, bears to the
principal amount of all Series T bonds then outstanding under the Indenture.
Redemption notices for Series T bonds shall be given to each Registered
Owner by registered mail and not by publication. The redemption notice given to
each Registered Owner shall comply with the provisions of Article Fourth of the
Original Indenture and shall also specify (i) the principal amount of such
Registered Owner's Series T bonds to be redeemed, and (ii) the accrued interest
payable in connection with such redemption.
Section 4.04. Redemption at the Holder's Option. For purposes of this
Section 4.04 a "Beneficial Owner" means the person who has the right to sell,
transfer or otherwise dispose of an interest in Series T bonds and the right to
receive the proceeds therefrom, as well as the interest and principal payable to
the Holder thereof. In general, a determination of beneficial ownership in the
Series T bonds will be determined by the Company, in its sole discretion, which
determinations shall be final and binding on all parties.
Unless the Series T bonds have been declared due and payable prior to
their maturity by reason of an Event of Default, the personal representative or
other Person authorized to represent the estate of the deceased Beneficial Owner
or from a surviving joint tenant(s) or tenant(s) by the entirety (each, a
"Representative") of a deceased Beneficial Owner has the right to request
redemption prior to February 1, 2029 of all or part of such interest, expressed
in integral multiples of $1,000 principal amount, in the Series T bonds, and the
Company will redeem the same subject to the limitations that the Company will
not be
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obligated to redeem, during the period from the Original Issue Date through and
including February 1, 2000 (the "Initial Period"), and during any twelve-month
period which ends on and includes each February 1 thereafter (each such
twelve-month period being hereinafter referred to as a "Subsequent Period"), (i)
on behalf of a deceased Beneficial Owner any interest in the Series T bonds
which exceeds an aggregate principal amount of $25,000 or (ii) interests in the
Series T bonds in an aggregate principal amount exceeding $375,000. A request
for redemption in the form attached as Schedule III hereto may be initiated by
the Representative of a deceased Beneficial Owner at any time and in any
principal amount in integral multiples of $1,000. Representatives of deceased
Beneficial Owners must make arrangements with the Participant through whom such
interest is owned in order that timely presentation of redemption requests can
be made by the Participant to the Trustee. If the Company, although not
obligated to do so, chooses to redeem interests of any deceased Beneficial Owner
in the Series T bonds in the Initial Period or any Subsequent Period in excess
of the $25,000 limitation, such redemption, to the extent that it exceeds the
$25,000 limitation for any deceased Beneficial Owner, shall not be included in
the computation of the $375,000 limitation for such Initial Period or such
Subsequent Period, as the case may be, or for any succeeding Subsequent Period.
Any Series T bonds (or portion thereof) tendered pursuant to a redemption
request may be withdrawn by a written request by the Representative received by
the Trustee at least ten (10) days prior to its repayment.
Subject to the $25,000 and $375,000 limitations, the Company will, after
the death of any Beneficial Owner, redeem the interest of such Beneficial Owner
in the Series T bonds on the next Interest Payment Date following receipt by the
Trustee of a redemption request received at least twenty (20) days in advance of
the next Interest Payment Date. The Trustee will notify the Company promptly
after receipt of any redemption request and the Company will provide all funds
necessary for such redemption prior to the date of redemption to the Paying
Agent. If redemption requests exceed the aggregate principal amount of interests
in Series T bonds required to be redeemed during the Initial Period or during
any Subsequent Period, then such excess redemption requests will be applied in
the order received by the Trustee to successive Subsequent Periods, regardless
of the number of Subsequent Periods required to redeem such interests. All
redemption requests will be redeemed in the order in which the trustee receives
the redemption request. To obtain repayment pursuant to a redemption request,
the Representative must provide to the Participant (i) a written request for
repayment signed by the Representative, and such signature must be guaranteed by
a member firm of a registered national securities exchange or of the National
Association of Securities Dealers, Inc. ("NASD") or a commercial bank or trust
company having an office or correspondent in the United States, (ii) appropriate
evidence satisfactory to the Company and the Trustee that (A) the Representative
has authority to act on behalf of the deceased Beneficial Owner, (B) the death
of such Beneficial Owner has occurred and (C) the deceased was the owner of a
beneficial interest in such Series T bond at the time of death, (iii) if
applicable, a properly executed assignment or endorsement, and (iv) if the
beneficial interest in such Series T bond is held by a nominee of the deceased
Beneficial Owner, a certificate satisfactory to the Trustee from such nominee
attesting to the deceased's ownership of a beneficial interest in such Series T
bond. The Participant will provide these documents to the Trustee. All questions
as to the eligibility or validity of any exercise of redemption on behalf of a
deceased Beneficial Owner will be determined by the Company, in its sole
discretion, which determinations will be final and binding on all parties.
For purposes of this Section 4.04, an interest in Series T bonds held in
tenancy by the entirety, joint tenancy or by tenants in common will be deemed to
be held by a single Beneficial Owner and the death of a tenant by the entirety,
joint tenant or tenant in common will be deemed the death of a Beneficial Owner.
The death of a Person who, during his lifetime, was entitled to substantially
all of the rights of a
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Beneficial Owner of an interest in the Series T bonds will be deemed the death
of the Beneficial Owner, regardless of the recordation of such interest on the
records of the Participant, if such rights can be established to the
satisfaction of the Participant, if any, and the Company.
In the case of any redemption request which is presented pursuant to this
Section 4.04 and which has not been fulfilled at the time the Company gives
notice of its election to partially redeem Series T bonds pursuant to Section
4.02 hereof, such interest or portion thereof shall not be subject to redemption
pursuant to such Section 4.02, but shall remain subject to redemption pursuant
to this Section 4.04.
ARTICLE FIFTH
SPECIAL INSURANCE PROVISIONS
Section 5.01. Insurer as Third Party Beneficiary. To the extent that the
Indenture confers upon or gives or grants to the Insurer any right, remedy or
claim, the Insurer is hereby explicitly recognized as being a third-party
beneficiary hereunder and may enforce any such right remedy or claim conferred,
given or granted hereunder.
Section 5.02. Notices and Information.
(a) The Company shall furnish to the Insurer:
(i) Any notice that is required to be given to a Holder of the
Series T bonds or to the Trustee pursuant to the Indenture.
(ii) As soon as practicable after the filing thereof, a copy
of any financial statement of the Company and a copy of any audit
and annual report of the Company; a copy of any notice to be given
to the Registered Owners of the Series T bonds including, without
limitation, notice of any redemption of or defeasance of the Series
T bonds; and such additional information as it may reasonably
request.
(b) The Company will permit the Insurer to have access to and to
make copies of all books and records relating to the Series T bonds at any
reasonable time.
(c) Notwithstanding any other provision of the Indenture, the
Trustee and the Company shall immediately notify the Insurer in accordance with
Section 5.06 if at any time after such amounts are due to be paid to the Trustee
or Paying Agent there are insufficient moneys to make any payments of principal
and/or interest as required and promptly upon the occurrence of any Event of
Default hereunder.
All notices and information required to be given to the Insurer shall be
in writing and shall be sent by overnight delivery to MBIA Insurance
Corporation, 113 King Street, Armonk, New York 10504.
Section 5.03. Concerning the Special Insurance Provisions. The provisions
of this Article V shall apply notwithstanding anything in the Indenture to the
contrary, but only so long as the Policy shall be in full force and effect and
the Insurer is not in default thereunder.
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Section 5.04. Amendments. Any provision of the Indenture may not be
amended in any manner which materially adversely affects the rights of the
Insurer hereunder without the prior written consent of the Insurer, which shall
not be unreasonably withheld, conditioned or delayed.
Section 5.05. Limitation on Defeasance. Notwithstanding anything herein to
the contrary, in the event that the principal and/or interest due on the Series
T bonds shall be paid by the Insurer pursuant to the Policy, the Series T bonds
shall remain outstanding for all purposes, not be defeased or otherwise
satisfied and not be considered paid by the Company, and the assignment and
pledge of moneys held in trust by the Trustee and all covenants, agreements and
other obligations of the Company to the Registered Owners shall continue to
exist and shall run to the benefit of the Insurer, and the Insurer shall be
subrogated to the rights of such Registered Owners.
Section 5.06. Payments Under the Policy.
(a) If, as of the second day next preceding any date on which payment of
principal of or interest on the Series T bonds is due, there are insufficient
moneys available under the Indenture to pay all principal and interest coming
due on the Series T bonds on the next succeeding payment date, the Trustee shall
immediately notify the Insurer or its designee by telephone or telegraph,
confirmed in writing by registered or certified mail, of the amount of the
deficiency.
(b) If the deficiency is made up in whole or in part prior to or on the
Interest Payment Date or the date designated for the payment of principal of the
Series T bonds, the Trustee shall so notify the Insurer or its designee.
(c) In addition, if the Trustee has notice that any of the Registered
Owners have been required to disgorge payments of principal or interest on
Series T bonds to the Company or to the trustee in bankruptcy for creditors or
others pursuant to a final judgment by a court of competent jurisdiction that
such payment constitutes a voidable preference to such Registered Owners within
the meaning of any applicable bankruptcy laws, then the Trustee shall notify the
Insurer or its designee of such fact by telephone or telegraphic notice,
confirmed in writing by registered or certified mail.
(d) The Trustee is hereby irrevocably designated, appointed, directed and
authorized to act as attorney-in-fact for Registered Owners of the Series T
bonds as follows:
(i) if and to the extent there is a deficiency in amounts required
to pay interest on the Series T bonds, the Trustee shall (A) execute and
deliver to State Street Bank and Trust Company, N.A., or its successors
under the Policy (the "Insurance Paying Agent"), in form satisfactory to
the Insurance Paying Agent, an instrument appointing the Insurer as agent
for such Registered Owners in any legal proceeding related to the payment
of such interest and an assignment to the Insurer of the claims for
interest to which such deficiency relates and which are paid by the
Insurer, (B) receive as designee of the respective Registered Owners (and
not as Trustee) in accordance with the tenor of the Policy payment from
the Insurance Paying Agent with respect to the claims for interest so
assigned and (C) disburse the same to such respective Registered Owners;
and
(ii) if and to the extent of a deficiency in amounts required to pay
principal of the Series T bonds, the Trustee shall (A) execute and deliver
to the Insurance Paying Agent an instrument appointing the Insurer as
agent for such Registered Owner in any legal proceeding
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relating to the payment of such principal and an assignment to the Insurer
of any of the Series T bonds surrendered to the Insurance Paying Agent of
so much of the principal amount thereof as has not previously been paid or
for which moneys are not held by the Trustee and available for such
payment (but such assignment shall be delivered only if payment from the
Insurance Paying Agent is received), (B) receive as designee of the
respective Registered Owners (and not as Trustee) in accordance with the
tenor of the Policy payment therefor from the Insurance Paying Agent and
(C) disburse the same to such Registered Owners.
(e) Payments with respect to claims for interest on and principal of
Series T bonds disbursed by the Trustee from proceeds of the Policy shall not be
considered to discharge the obligation of the Company with respect to such
Series T bonds as set forth in Section 2.01 hereof, and the Insurer shall become
the owner of such unpaid Series T bond and claims for interest in accordance
with the tenor of the assignment made to it under the provisions of this
subsection or otherwise.
(f) Irrespective of whether any such assignment is executed and delivered,
the Company and the Trustee hereby agree for the benefit of the Insurer that:
(i) they recognize that to the extent the Insurer makes payments,
directly or indirectly (as by paying through the Trustee), on account of
principal of or interest on the Series T bonds, the Insurer will be
subrogated to the rights of such Registered Owners to receive the amount
of such principal and interest from the Company, with interest thereon as
provided and solely from the sources stated in the Indenture and the
Series T bonds; and
(ii) they will accordingly pay to the Insurer the amount of such
principal and interest (including principal and interest recovered under
subparagraph (ii) of the first paragraph of the Policy, which principal
and interest shall be deemed past due and not to have been paid), with
interest thereon as provided in the Indenture and the Series T bond, but
only from the sources and in the manner provided herein for the payment of
principal of and interest on the Series T bonds to Registered Owners and
will otherwise treat the Insurer as the owner of such rights to the amount
of such principal and interest.
Section 5.07. Insurer's Rights Concerning the Trustee.
(a) The Insurer shall receive prompt written notice of any Trustee or
Paying Agent resignation.
(b) Notwithstanding any other provision of the Indenture, in determining
whether the rights of the Holders of Series T bonds will be adversely affected
in any material respect by any action taken pursuant to the terms and provisions
of the Indenture, the Trustee or Paying Agent shall consider the effect on the
Holders of Series T bonds as if there were no Policy.
Section 5.08. Insurer's Right to Accelerate, etc. Anything in the
Indenture to the contrary notwithstanding, upon the occurrence and continuance
of an Event of Default, so long as the Policy shall be in full force and effect
and the Insurer is not in default under the terms of the Policy, the Insurer
shall be entitled to control and direct the enforcement of all rights and
remedies granted to the Holders of Series T bonds.
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ARTICLE SIXTH
PARTICULAR PROVISIONS RELATED TO THE TRUST INDENTURE ACT
Anything contained elsewhere in the Indenture notwithstanding, so long as
any of the Series T bonds shall remain outstanding, the following provisions,
which are intended to clarify certain matters, including compliance with the
TIA, shall apply, in addition to all other provisions of the Indenture, as
supplemented, and in the case of any conflict with any other provision of the
Indenture, the following provisions shall control.
Section 6.01. Deposited Moneys to be Held in Trust by Trustee. Subject to
Section 6.03, all moneys deposited with the Trustee pursuant to Section 66 of
the Original Indenture, shall be held in trust and applied by it to the payment,
either directly or through any Paying Agent (including the Company if acting as
its own Paying Agent), to the Registered Owners of the particular Series T bonds
for the payment or redemption of which such moneys have been deposited with the
Trustee of all sums due and to be come due thereon for principal and interest.
Section 6.02. Paying Agent to Repay Moneys Held. Upon the satisfaction and
discharge of the Indenture, all moneys then held by any Paying Agent for the
Series T bonds (other than the Trustee) shall, upon written demand by the
Company, be repaid to the Company or paid to the Trustee, and thereupon such
Paying Agent shall be released from all further obligations with respect to such
moneys.
Section 6.03. Return of Unclaimed Moneys. Any moneys deposited with or
paid to the Trustee for payment of the principal of or any interest on any
Series T bonds and not applied but remaining unclaimed by the Registered Owners
of such Series T bonds for two years after the date upon which the principal of
or any interest on such Series T bonds, as the case may be, shall have become
due and payable, shall be repaid to the Company, subject to applicable abandoned
property laws, by the Trustee on written demand by the Company; and any
Registered Owner of any of such Series T bonds shall thereafter look only to the
Company for any payment which such Registered Owner may be entitled to collect.
Section 6.04. Provisions as to Paying Agent. The Trustee shall be the
Paying Agent for the Series T bonds and, at the option of the Company, the
Company may appoint additional Paying Agents (including without limitation
itself). Whenever the Company shall appoint a Paying Agent other than the
Trustee with respect to the Series T bonds, it will cause such Paying Agent to
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section:
(a) that such Paying Agent will hold all sums received by it as such agent
for the payment of the principal of or interest, if any, on the Series T bonds
(whether such sums have been paid to it by the Company or by any other obligor
on the Series T bonds) in trust for the benefit of the Registered Owners of the
Series T bonds, or of the Trustee until such sums shall be paid to such
Registered Owners or otherwise disposed of as herein provided;
(b) that such Paying Agent will give the Trustee notice of any failure by
the Company (or by any other obligor on the Series T bonds) to make any payment
of the principal of, premium if any, or interest on the Series T bonds when the
same shall be due and payable; and
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(c) that such Paying Agent will at any time during the continuance of any
such failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company will, on or prior to each due date of the principal of and any
interest on the Series T bonds, deposit with the Paying Agent a sum sufficient
to pay such principal and any interest so becoming due, such sum to be held in
trust for the benefit of the Registered Owners of the Series T bonds entitled to
such principal of and any interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of any failure to take
such action.
If the Company shall act as its own Paying Agent with respect to the
Series T bonds, it will, on or before each due date of the principal of or
interest, if any, on the Series T bonds, set aside, segregate and hold in trust
for the benefit of the Registered Owners of the Series T bonds, a sum sufficient
to pay such principal or interest, if any, so becoming due until such sums shall
be paid to such Registered Owners or otherwise disposed of as herein provided.
The Company will promptly notify the Trustee of any failure to take such action.
The Company may at any time pay or cause to be paid to the Trustee all
sums held in trust by it or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained,
and, upon such payment by any Paying Agent to the Trustee, such Paying Agent
shall be released from all further liability with respect to such money.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this section is subject to the provisions of
Sections 6.02 and 6.03.
Section 6.05. Certificates and Notice to Trustee. The Company shall, on or
before the expiration of ninety (90) days after the end of each calendar year
ending on or after December 31, 1999, deliver to the Trustee a certificate from
its principal executive officer, principal financial officer or principal
accounting officer covering the preceding calendar year and stating whether or
not, to the knowledge of such Person, the Company has complied with all
conditions and covenants under the Indenture, and, if not, describing in
reasonable detail any failure by the Company to comply with any such conditions
or covenants. For purposes of this Section, compliance shall be determined
without regard to any period of grace or requirement of notice provided under
the Indenture. Upon the occurrence of a default, the Company shall promptly
notify the Trustee of such event.
Section 6.06. Company to Furnish Registered Owner Lists. The Company and
any other obligor on the Series T bonds shall furnish or cause to be furnished
to the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the Registered Owners of the Series T bonds:
(a) semi-annually and not more than fifteen (15) days after each
Regular Record Date for each Interest Payment Date that is not a maturity date,
as of such Regular Record Date, and such list need not include information
received after such date; and
(b) at such other times as the Trustee may request in writing,
within thirty (30) days after receipt by the Company of any such request, as of
a date not more than fifteen (15) days prior to the time such information is
furnished, and such list need not include information received after such date;
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provided that if and so long as the Trustee shall be the registrar for the
Series T bonds, such list shall not be required to be furnished.
Section 6.07. Preservation and Disclosure of Registered Owner Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Registered
Owners of the Series T bonds (i) contained in the most recent lists furnished to
it as provided in Section 6.06, (ii) received by it in the capacity of registrar
for the Series T bonds, if so acting, and (iii) filed with it within the two
preceding years pursuant to Section 6.09(d)(ii). The Trustee may destroy any
list furnished to it as provided in Section 6.06 upon receipt of a new list so
furnished.
(b) In case three or more Registered Owners of Series T bonds (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each such applicant has owned a Series T bond for
a period of at least six months preceding the date of such application, and such
application states that the applicants desire to communicate with other
Registered Owners of Series T bonds with respect to their rights under this
Indenture or under the Series T bonds and such application is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either
(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section; or
(ii) inform such applicants as to the approximate number of
Registered Owners whose names and addresses appear in the
information preserved at the time by the Trustee, in accordance with
the provisions of such subsection (a) and as to the approximate cost
of mailing to such Registered Owners the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Registered Owner of Series T bonds, whose name and address appears
in the information preserved at the time by the Trustee in accordance with the
provisions of such subsection (a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five (5) days after such tender the Trustee shall mail to such applicants and
file with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Registered Owners or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met, and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Registered Owners with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
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(c) Each and every Registered Owner of a Series T bond, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor the agent of the Company or the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Registered Owners of Series T bonds in accordance
with the provisions of subsection (b) of this Section, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
such subsection (b).
Section 6.08. Reports by the Company. The Company shall:
(a) file with the Trustee, within fifteen (15) days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of said Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to all Registered Owners of Series T bonds, within
thirty (30) days after the filing thereof with the Trustee in the manner and to
the extent provided in Section 6.09(d), such summaries of any information,
documents and reports required to be filed by the Company pursuant to paragraphs
(a) and (b) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
Section 6.09. Reports by the Trustee.
(a) Annually, not later than August 15 of each year, the Trustee shall
transmit by mail in the manner provided in Section 6.22 a brief report dated as
of such date that complies with Section 313(a) of the TIA (to the extent
required by such Section).
(b) The Trustee shall from time to time transmit by mail brief reports
that comply, both in content and date of delivery, with Section 313(b) of the
TIA (to the extent required by such Section).
(c) A copy of each such report mailed pursuant to this section shall, at
the time of such transmission to such Registered Owners, be filed by the Trustee
with each stock exchange upon which any Series T bonds are listed and also with
the Commission. The Company will notify the Trustee promptly in writing upon the
listing of such Series T bonds on any stock exchange.
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<PAGE> 27
(d) Reports pursuant to this Section shall be transmitted:
(i) by mail to all Registered Owners of Series T bonds, as
their names and addresses appear in the register for the Series T
bonds;
(ii) by mail to such Registered Owners of Series T bonds as
have within the two years preceding such transmission, filed their
names and addresses with the Trustee for such purpose;
(iii) by mail, except in the case of reports pursuant to
Section 6.09(b) and (c) hereof, to all Registered Owners of Series T
bonds whose names and addresses have been furnished to or received
by the Trustee pursuant to Section 6.06 and 6.07(a) (ii) hereof; and
(iv) at the time such report is transmitted to the Registered
Owners of the Series T bonds, to each exchange on which Series T
bonds are listed and also with the Commission.
Section 6.10. Prohibition of Impairment of Registered Owner's Right to
Payment. Notwithstanding any other provision in the Indenture, the rights of any
Registered Owner of any Series T bond to receive payment of the principal of and
any interest on a Series T bond, on or after the respective due dates expressed
in a Series T bond or on the applicable Redemption Date, or to institute suit
for the enforcement of any such payment on or after such respective dates are
absolute and unconditional, and shall not be impaired or affected without the
consent of such Registered Owner.
Section 6.11. Notice of Default. The Trustee shall, within ninety (90)
days after the occurrence of a default with respect to the Series T bonds, give
to all Registered Owners of the Series T bonds, in the manner provided in
Section 6.22, notice of such default known to the Trustee, unless such default
shall have been cured or waived before the giving of such notice, the term
"default" for the purpose of this Section 6.11 being hereby defined to be any
event which is or after notice or lapse of time or both would become an Event of
Default; provided that, except in the case of default in the payment of the
principal of or any premium or interest on any of the Series T bonds, or in the
payment of any sinking or purchase fund installments, the Trustee shall be
protected in withholding such notice if and so long as its board of directors or
trustees, executive committee, or a trust committee of directors or trustees or
Responsible Officers in good faith determines that the withholding of such
notice is in the interests of the Registered Owners of the Series T bonds.
Section 6.12. Undertaking to Pay Costs. All parties to this Twentieth
Supplemental Indenture agree, and each Registered Owner of any Series T bond by
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
the Indenture (including this Twentieth Supplemental Indenture) or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but this Section 6.12 shall not apply to any suit
instituted by the Trustee, or to any suit instituted by any Registered Owner, or
group of Registered Owners, holding in the aggregate more than 10% in principal
amount of the Series T bonds outstanding, or
24
<PAGE> 28
to any suit instituted by any Registered Owner for the enforcement of the
payment of the principal of or any interest on any Series T bond on or after the
due date expressed in such Series T bond or the applicable Redemption Date.
Section 6.13. Conflicting Interest of Trustee. The Trustee shall be
subject to and shall comply with the provisions of Section 310(b) of the TIA.
Nothing in this Twentieth Supplemental Indenture shall be deemed to prohibit the
Trustee or the Company from making any application permitted pursuant to such
section.
Section 6.14. Existence and Eligibility of Trustee. There shall at all
times be a Trustee hereunder which Trustee shall at all times be a corporation
organized and doing business under the laws of the United States or any State
thereof or of the District of Columbia having (or in the case of a subsidiary of
a bank holding company, its parent shall have) a combined capital and surplus of
at least $50,000,000 and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal
or State authorities. Such corporation shall have its principal place of
business in the Borough of Manhattan, The City of New York, State of New York or
the City of Boston, Commonwealth of Massachusetts, if there be such a
corporation in such location willing to act upon reasonable and customary terms
and conditions. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid authority,
then for the purposes of this Section 6.14, the combined capital and surplus
shall be deemed to be as set forth in its most recent report of condition so
published. No obligor upon the Series T bonds or Person directly or indirectly
controlling, controlled by, or under common control with such obligor shall
serve as Trustee. If at any time the Trustee shall cease to be eligible in
accordance with this Section 6.14, the Trustee shall resign immediately in the
manner and with the effect specified herein.
Section 6.15. Resignation or Removal of Trustee.
(a) Pursuant to the provisions of this Twentieth Supplemental Indenture,
the Trustee may at any time resign and be discharged of the trusts created by
the Indenture by giving written notice to the Company specifying the day upon
which such resignation shall take effect, and such resignation shall take effect
immediately upon the later of the appointment of a successor trustee and such
day.
(b) Any Trustee may be removed at any time by an instrument or concurrent
instruments in writing filed with such Trustee and signed and acknowledged by
the Registered Owners of a majority in principal amount of the then outstanding
First Mortgage Bonds or by their attorneys in fact duly authorized.
(c) So long as no default has occurred and is continuing, and no event has
occurred and is continuing that, with the giving of notice or the lapse of time
or both, would become a default, the Company may remove any Trustee upon written
notice to the Registered Owner of each Series T bond outstanding and the Trustee
and appoint a successor Trustee meeting the requirements of Section 6.14. The
Company or the successor Trustee shall give notice to the Registered Owners, in
the manner provided in Section 6.22, of such removal and appointment within
thirty (30) days of such removal and appointment.
(d) If at any time (i) the Trustee shall cease to be eligible in
accordance with Section 6.14 hereof and shall fail to resign after a written
request therefor by the Company or by any Registered Owner who has been a bona
fide Registered Owner for at least six months, (ii) the Trustee shall fail to
comply
25
<PAGE> 29
with Section 6.13 hereof after written request therefor by the Company or any
such Registered Owner, or (iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Trustee may be removed forthwith by an
instrument or concurrent instruments in writing filed with the Trustee and
either:
(i) signed by the President or any Vice President of the
Company and attested by the Secretary or an Assistant Secretary of
the Company; or
(ii) signed and acknowledged by the Registered Owners of a
majority in principal amount of outstanding Series T bonds or by
their attorneys in fact duly authorized.
(e) Any resignation or removal of the Trustee shall not become effective
until acceptance of appointment by the successor Trustee as provided in Section
6.16 hereof.
Section 6.16. Appointment of Successor Trustee.
(a) If at any time the Trustee shall resign or be removed, the
Company, by a resolution of its Board of Directors, shall promptly appoint a
successor Trustee.
(b) The Company shall provide written notice of its appointment of a
successor Trustee to the Registered Owner of each Series T bond outstanding
following any such appointment.
(c) If no appointment of a successor Trustee shall be made pursuant
to Section 6.16(a) hereof within sixty (60) days after appointment shall be
required, any Registered Owner or the resigning Trustee may apply to any court
of competent jurisdiction to appoint a successor Trustee. Said court may
thereupon after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Trustee.
(d) Any Trustee appointed under this Section 6.16 as a successor
Trustee shall be a bank or trust company eligible under Section 6.14 hereof and
qualified under Section 6.13 hereof.
Section 6.17. Acceptance by Successor Trustee.
(a) Any successor Trustee appointed as provided in Section 6.16
hereof shall execute, acknowledge and deliver to the Company and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee herein; but nevertheless, on the written request of the Company
or of the successor Trustee, the Trustee ceasing to act shall, upon payment of
any amounts then due it pursuant to Section 77 of the Original Indenture,
execute and deliver an instrument transferring to such successor Trustee all the
rights and powers of the Trustee so ceasing to act, including all right, title,
and interest in the First Mortgage Bonds. Upon request of any such successor
Trustee, the Company shall execute any and all instruments in writing in order
more fully and certainly to vest in and confirm to such successor
26
<PAGE> 30
Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
Trustee to secure any amounts then due it pursuant to Section 77 of the Original
Indenture.
(b) No successor Trustee shall accept appointment as provided in
this Section 6.17 unless at the time of such acceptance such successor Trustee
shall be qualified under Section 6.13 hereof and eligible under Section 6.14
hereof and the Insurer shall have consented in writing to such appointment,
which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Upon acceptance of appointment by a successor Trustee as
provided in this Section 6.17, the successor Trustee shall mail notice of its
succession hereunder to all Registered Owners of Series T bonds as the names and
addresses of such Registered Owners appear on the books of the Trustee kept for
that purpose.
Section 6.18. Limitations on Rights of Trustee as a Creditor. The Trustee
shall be subject to, and shall comply with, the provisions of Section 311 of the
TIA.
Section 6.19. Company-Owned Series T Bonds Disregarded. In determining
whether the Registered Owners of the requisite aggregate principal amount of
outstanding Series T bonds have concurred in any direction, consent or waiver
under the Indenture, Series T bonds which are owned by the Company or any other
obligor on the Series T bonds or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Series T bonds shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided
that, for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, consent or waiver, only Series T bonds which the
Trustee knows are so owned shall be so disregarded. Series T bonds so owned
which have been pledged in good faith to third parties may be regarded as
outstanding for the purposes of this Section 6.19 if the pledgee shall establish
the pledgee's right to take action with respect to such Series T bonds and that
the pledgee is not a person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any such other
obligor. In the case of a dispute as to such right, the Trustee may rely upon an
opinion of counsel (which may be counsel to the Company) and Officers'
Certificate to establish the foregoing.
Section 6.20. Business Days. Unless otherwise provided, in any case where
the date of maturity of the principal of or any interest on any Series T bond or
the date fixed for redemption of any Series T bond is not a Business Day, then
payment of such principal or any interest need not be made on such date but may
be made on the next succeeding Business Day with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and, in the case
of timely payment thereof, no interest shall accrue for the period from and
after such Interest Payment Date or the date on which the principal of the
Series T bond is required to be paid.
Section 6.21. Trust Indenture Act to Control. If and to the extent that
any provision of the Indenture limits, qualifies or conflicts with the duties
imposed by the TIA, such required provision of the TIA shall govern.
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<PAGE> 31
Section 6.22. Manner of Mailing Notice to Registered Owner.
(a) Any notice or demand which by any provision of the Indenture is
required or permitted to be given or served by the Trustee or the Company to or
on the Registered Owners of Series T bonds as the case may be, shall be given or
served by first-class mail, postage prepaid, addressed to the Registered Owners
of such Series T bonds in the register of Registered Owners, and any such notice
shall be deemed to be given or served by being deposited in a post office letter
box in the form and manner provided in this Section 6.22. In case by reason of
the suspension of regular mail service or by reason of any other cause it shall
be impracticable to give notice to any Registered Owner by mail, then such
notification to such Registered Owner as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
(b) The Company shall also provide any notices required under the
Indenture by publication, but only to the extent that such publication is
required by the TIA, the rules and regulations of the Commission or any
securities exchange upon which any Series T bonds are listed.
ARTICLE SEVENTH
ADDITIONAL PROVISIONS
Section 7.01. Title. The Company covenants and agrees that it has good
right and lawful authority to mortgage the properties described in the granting
clauses hereof and after-acquired property as provided herein and that it is
lawfully seized and possessed of the same (except with respect to after-acquired
property).
Section 7.02. Released Property. The Company covenants and agrees that
since the date of the Nineteenth Supplemental Indenture no real estate or
interest therein has been taken by exercise of the right of eminent domain or
released from the Indenture or subjected to any easement which has not been
terminated of record except as listed on the "Schedule of Released Property"
attached hereto as Schedule II.
Section 7.03. Bonds Held by the Company. No bonds owned or held by, for
the account of or for the benefit of the Company or any other obligor on the
bonds (other than bonds pledged to secure an obligation) shall be deemed
entitled to share in any payment or distribution provided in Article Sixth of
the Original Indenture or under the Policy, provided that the Trustee shall be
protected in making any such payment or distribution unless it shall have actual
knowledge that the bonds in respect of which such payment or distribution is
made are so owned or held.
Section 7.04. Payment of Series T Bonds. Payment of the principal and
interest on all Series T bonds shall be payable as follows:
(a) On or before 9:30 a.m., Boston, Massachusetts time, or such other time
as shall be agreed upon between the Trustee and the Company, of the day on which
payment of principal or interest is due on any Global Note pursuant to the terms
thereof, the Company shall deliver to the Trustee funds available on such date
sufficient to make such payment, by wire transfer of immediately available funds
or by instructing the Trustee to withdraw sufficient funds from an account
maintained by the Company with the Trustee or such other method as is acceptable
to the Trustee. On or before 12:00 noon, Boston, Massachusetts time, or such
other time as shall be agreed upon between the Trustee and the Depository, of
the day on which any payment of interest is due on any Global Note (other than
at maturity), the Trustee shall pay to the Depository such interest in same day
funds. On or before 1:00 p.m., Boston, Massachusetts time or such other time as
shall be agreed upon between the Trustee and the Depository, of
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<PAGE> 32
the day on which principal and interest payable at maturity, if any, is due on
any Global Note, the Trustee shall deposit with the Depository the amount equal
to the principal and interest payable at maturity by wire transfer into the
account specified by the Depository. As a condition to the payment, at maturity
or upon redemption, of any part of the principal of and interest on any Global
Note, the Depository shall surrender, or cause to be surrendered, such Global
Note to the Trustee, whereupon a new Global Note shall be issued to the
Depository pursuant to Section 3.04(e) hereof.
(b) With respect to any Note that is not a Global Note, principal and
interest due at the maturity of the Note shall be payable in immediately
available funds when due upon presentation and surrender of such Note at the
Corporate Trust Office of the Trustee or at the authorized office of any Paying
Agent. Interest on any Note that is not a Global Note (other than interest
payable at maturity) shall be paid by check mailed to the Registered Owner
thereof at such Registered Owner's address as it appears on the register by
check payable in clearinghouse funds; provided that if the Trustee receives a
written request from any Registered Owner of Notes, the aggregate principal
amount of which having the same Interest Payment Date equals or exceeds
$10,000,000, on or before the applicable Regular Record Date for such Interest
Payment Date, interest shall be paid by wire transfer of immediately available
funds to a bank within the continental United States designated by such
Registered Owner in its request or by direct deposit into the account of such
Registered Owner designated by such Registered Owner in its request if such
account is maintained with the Trustee or any paying agent.
Section 7.05. Events of Default. Anything contained elsewhere in the
Indenture notwithstanding, and without limiting the effect of Section 7.12 of
this Twentieth Supplemental Indenture, so long as any of the Series T bonds
shall remain outstanding, the Trustee shall be entitled to exercise any of the
remedies provided in the Indenture (including, without limitation, the remedies
provided in Sections 33, 46, 47, 48 and 49 of the Original Indenture):
(a) if the Company shall default in the payment of any interest payable on
any Series T bonds and such default shall have continued for a period of ninety
(90) days, or the Company shall default in the payment of principal on any
Series T bonds at final maturity or at any date fixed for the optional
redemption thereof pursuant to the provisions of Section 4.02 or Section 4.03 of
this Twentieth Supplemental Indenture;
(b) if the Company shall fail in the observance or performance of any
other covenant, condition or agreement not enumerated in this Section herein
above, contained in the Indenture (including this Twentieth Supplemental
Indenture), and such failure shall continue for a period of ninety (90) days
after the date on which written notice specifying such failure, stating that
such notice is a "Notice of Default" hereunder and demanding that the Company
remedy the same, shall have been given to the Company by the Trustee by
registered or certified mail, or to the Company and the Trustee by the
Registered Owners of not less than 10% in aggregate principal amount of the
Series T bonds; or
(c) in the event of the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of, or in respect of, the Company under applicable
Federal bankruptcy law or any other applicable Federal or State law, or
appointing a receiver, liquidator,
29
<PAGE> 33
assignee, trustee, sequestrator (or other similar official) or the Company or of
any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of sixty (60) consecutive days; or
(d) in the event of the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under applicable
Federal bankruptcy law or any other similar applicable Federal or State law, or
the consent by it to the filing of any such petition or the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due.
Section 7.06. Expiration. This Twentieth Supplemental Indenture shall
become void when the Original Indenture shall be void and the Insurer has been
repaid in full any amounts paid by the Insurer under the Policy.
Section 7.07. Dates for Identification. Dates of supplemental indentures
and of bonds are intended as and for dates for the identification of such bonds
and such instruments, respectively, and are not intended to indicate that any
such instrument or any bond was and no such instrument or bond has been or is to
be executed on a Sunday or a legal holiday, the respective dates when
supplemental indentures were executed being the dates or respective dates of the
acknowledgments of the parties thereto.
Section 7.08. Section References. Whenever reference is made in this
Twentieth Supplemental Indenture to a Section or an Article of the Original
Indenture and such Section or Article has been amended by this instrument or any
of the indentures supplemental to the Original Indenture enumerated herein
above, or two or more of them, then such reference shall be to such Section or
Article as so amended, whether or not herein expressly so stated.
Section 7.09. Recordation. The Company, at its own cost and expense, will
forthwith, upon the execution and delivery by the parties hereto of this
Twentieth Supplemental Indenture, cause the same to be recorded pursuant to law
in all offices for the recording of mortgages of real or personal property in
which such recordation is necessary in order to perfect and protect the lien
hereof, and, in any event, in all such offices in which it has caused or may
cause the Original Indenture to be recorded.
Section 7.10. Replacement on Loss, Etc. Anything in the Series T bonds or
in the Indenture to the contrary notwithstanding, upon receipt by the Company or
the Trustee of evidence reasonably satisfactory to the Company or the Trustee of
the ownership of and loss, theft, destruction or mutilation of any Series T bond
and (a) in the case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to it (provided, however, that if the holder of such
Series T bond is an institution having a minimum net worth of $10,000,000 or
more, its own affidavit and undertaking of indemnity shall be deemed to be
satisfactory evidence, indemnity and security) or (b) in the case of mutilation,
upon surrender and cancellation thereof, the Company at its expense will
execute, and thereupon the Trustee will authenticate and deliver in lieu
thereof, a new bond, executed and authenticated in the same manner as the bond
being replaced, in an aggregate principal amount equal to the unpaid portion of
the principal amount of the bond being replaced.
30
<PAGE> 34
Section 7.11. Counterparts. This Twentieth Supplemental Indenture may be
executed in any number of counterparts, each of which shall be deemed an
original; and such counterparts shall constitute but one and the same
instrument, which shall for all purposes be sufficiently evidenced by any such
original counterpart.
Section 7.12. Rights and Remedies on Default. For any default by the
Company in the covenants, stipulations, promises and agreements herein contained
or contained in the bonds of Series T, the Trustee and the bondholders, subject
to the rights of the Insurer, shall have the same rights and remedies, subject
to the same limitations, as are provided in the Original Indenture.
IN WITNESS WHEREOF, The Providence Gas Company has caused its corporate
seal to be hereto affixed and these presents to be executed, acknowledged and
delivered in its name and on its behalf by its President and Treasurer, and said
State Street Bank and Trust Company, as successor as Trustee to Rhode Island
Hospital Trust National Bank, which succeeded Rhode Island Hospital Trust
Company, has caused its corporate seal to be hereto affixed and these presents
to be executed and delivered by one of its officers, all hereunto duly
authorized, as of the day and year first above written.
THE PROVIDENCE GAS COMPANY
(CORPORATE SEAL) By________________________________
Its President
By________________________________
Its Treasurer
Signed, sealed and delivered in the presence of:
________________________________
as to The Providence Gas Company
STATE STREET BANK AND TRUST COMPANY,
Trustee
[CORPORATE SEAL] By________________________________
Authorized Officer
Signed, sealed and delivered in the presence of:
________________________________
as to State Street Bank and Trust Company
31
<PAGE> 35
STATE OF RHODE ISLAND )
) : SS.:
COUNTY OF PROVIDENCE )
In Providence, this ____ day of February A.D. 1999, personally appeared
before me James H. Dodge, to me known and known by me to be the President of THE
PROVIDENCE GAS COMPANY, one of the parties that executed the foregoing
instrument, and acknowledged said instrument to be his free act and deed in his
capacity, and the free act and deed of said corporation; and on oath stated that
he was duly authorized to execute said instrument and that the seal affixed
thereto is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year first above written.
________________________________
Notary Public
My Commission Expires:__________
[Notarial Seal]
STATE OF RHODE ISLAND )
):SS.:
COUNTY OF PROVIDENCE )
In Providence, this ____ day of February A.D. 1999, personally appeared
before me Gary S. Gillheeney, to me known and known by me to be the Treasurer of
THE PROVIDENCE GAS COMPANY, one of the parties that executed the foregoing
instrument, and acknowledged said instrument to be his free act and deed in his
said capacity; and the free act and deed of said corporation; and on oath stated
that he was duly authorized to execute said instrument and that the seal affixed
thereto is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year first above written.
________________________________
Notary Public
My Commission Expires:__________
[Notarial Seal]
32
<PAGE> 36
COMMONWEALTH OF MASSACHUSETTS )
):SS.:
COUNTY OF SUFFOLK )
In Boston, this ____ day of February A. D. 1999, personally appeared
before me, _____________ to me known and known by me to be ________________ of
STATE STREET BANK AND TRUST COMPANY, one of the parties that executed the
foregoing instrument, and acknowledged said instrument to be his free act and
deed in his said capacity, and the free act and deed of said corporation; and on
oath stated that he was duly authorized to execute said instrument and that the
seal affixed thereto is the corporate seal of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year first above written.
________________________________
Notary Public
My Commission Expires:__________
[Notarial Seal]
33
<PAGE> 37
SCHEDULE OF PROPERTY AND INTEREST THEREIN
[to be supplied]
SCHEDULE I
(to Twentieth Supplemental Indenture)
1
<PAGE> 38
SCHEDULE OF RELEASED PROPERTY
None
SCHEDULE II
(to Twentieth Supplemental Indenture)
2
<PAGE> 39
FORM OF REQUEST FOR REDEMPTION
PROVIDENCE GAS COMPANY
First Mortgage Bond, Series T, ____%
(____% Senior Secured Insured Quarterly Notes)
due February, 2029
CUSIP No.
The undersigned Participant does hereby certify, pursuant to Section 4.05
of the Twentieth Supplemental Indenture dated as of _________, 1999 to the
Indenture dated as of January 1, 1922 between THE PROVIDENCE GAS COMPANY (the
"Company") and STATE STREET BANK AND TRUST COMPANY, as trustee (the "Trustee"),
to the Company and the Trustee that:
1. [Name of deceased Beneficial Owner] is deceased.
2. [Name of deceased Beneficial Owner] had an interest in $______ in face
principal amount of the Company's First Mortgage Bond, Series T, _____% (also
known as _____% Senior Secured Insured Quarterly Notes) due February 1, 2029
(the "Notes").
3. [Name of Representative] is [Beneficial Owner's personal
representative/other person authorized to represent the estate of the Beneficial
Owner/surviving joint tenant/surviving tenant by the entirety] of [Name of
deceased Beneficial Owner] and has delivered to the undersigned a request for
redemption in form satisfactory to the undersigned, requesting that $__________
[$1,000 or an integral multiple thereof] be redeemed pursuant to said Section
4.05. Such request and the documents accompanying such request, all of which are
satisfactory to the undersigned, are delivered herewith.
4. [Name of Participant] holds the interest in the Notes with respect to
which this Request for Redemption is being made on behalf of [Name of deceased
Beneficial Owner].
IN WITNESS WHEREOF, the undersigned has executed this Request for
Redemption as of __________, ____.
[Name of Participant]
By:________________________________
Name:______________________________
Title:_____________________________
SCHEDULE III
(to Twentieth Supplemental Indenture)
3
<PAGE> 1
Exhibit 5.1
1500 FLEET CENTER
PROVIDENCE, RHODE ISLAND 02903
(401) 274-2000
FAX (401) 277-9600
HINCKLEY, ALLEN & SNYDER
- --------------------------------------------------------------------------------
ATTORNEYS AT LAW
January 21, 1999
The Providence Gas Company
100 Weybosset Street
Providence, RI 02903
Ladies and Gentlemen:
We have acted as special counsel for The Providence Gas Company, a Rhode
Island corporation, ("ProvGas") in connection with the Registration Statement on
Form S-3 (the "Registration Statement") filed by ProvGas with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, relating to the registration of $15 million of Senior Secured Insured
Quarterly Notes due on or about February 1, 2029, also referred to as the First
Mortgage Bonds, Series T (the "Notes").
We have examined the Registration Statement, the Indenture dated as of
January 1, 1922, as supplemented, including as to be supplemented by the
Twentieth Supplemental Indenture to be dated on or about February 1, 1999 (a
form of which is being filed with the Commission as an exhibit to the
Registration Statement), between State Street Bank and Trust Company, as trustee
(the "Trustee") and ProvGas (the "Indenture"). In addition, we have examined,
and have relied as to matters of fact upon, the originals or copies, certified
or otherwise identified to our satisfaction, of such corporate records,
agreements, documents and other instruments and such certificates or comparable
documents of public officials and of officers and representatives of ProvGas,
and have made such other and further investigations, as we have deemed relevant
and necessary as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents.
<PAGE> 2
The Providence Gas Company
January 21, 1999
Page 2
Based upon the foregoing, and subject to the qualifications and
limitations stated herein, we are of the opinion that, the Notes have been duly
authorized and, when executed, authenticated and delivered in accordance with
the provisions of the Indenture and the Registration Statement, will constitute
valid and legally binding obligations of ProvGas, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing.
We are members of the Bar of the State of Rhode Island and we do not
express any opinion herein concerning any law other than the law of the State of
Rhode Island and the federal law of the United States.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus included therein. This opinion is rendered to you in
connection with the Registration Statement and, except as consented to in the
preceding sentence, may not be relied upon or furnished to any other person in
any context. In giving such consent, we do not thereby admit that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Hinckley, Allen & Snyder
<PAGE> 1
Exhibit 12.1
Earnings vs. Fixed Charges
<TABLE>
<CAPTION>
1998 1997 1996 1995 1994
<S> <C> <C> <C> <C> <C>
Earnings before interest expense $ 16,232 $ 16,202 $ 16,604 $ 13,696 $ 14,867
Federal income tax 4,342 4,489 4,418 3,027 4,369
-------- -------- -------- -------- --------
subtotal 20,574 20,691 21,022 16,723 19,236
Interest portion of lease rentals 500 461 455 711 715
Interest capitalized 254 220 93 102 107
-------- -------- -------- -------- --------
Total earnings $ 21,328 $ 21,372 $ 21,570 $ 17,536 $ 20,058
======== ======== ======== ======== ========
Net interest expense $ 7,473 $ 7,431 $ 7,294 $ 7,181 $ 6,121
Interest portion of lease rentals 500 461 455 711 715
Interest capitalized 254 220 93 102 107
-------- -------- -------- -------- --------
Total fixed charges $ 8,227 $ 8,112 $ 7,842 $ 7,994 $ 6,943
======== ======== ======== ======== ========
Ratio 2.59 2.63 2.75 2.19 2.89
</TABLE>
<PAGE> 1
Exhibit 21.1
SUBSIDIARY OF THE PROVIDENCE GAS COMPANY
1. ProvEnergy Investments, Ltd. - incorporated under the laws of Rhode Island
<PAGE> 1
Exhibit 23.2
[ARTHUR ANDERSEN LLP LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
included in this Registration Statement and to the incorporation by reference
in this Registration Statement of our report dated November 6, 1998 included in
Providence Gas Company's Form 10-K for the year ended September 30, 1998 and to
all references to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
- -----------------------
Arthur Andersen LLP
Boston, Massachusetts
January 19, 1999
<PAGE> 1
Exhibit 23.3
[PRICEWATERHOUSECOOPERS LETTERHEAD]
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Prospectus and Registration
Statement on Form S-3 of The Providence Gas Company relating to Senior Secured
Insured Quarterly Notes, of our report dated February 3, 1998, on our audits of
the consolidated financial statements of MBIA Insurance Corporation and
Subsidiaries as of December 31, 1997 and 1996 and for each of the three years
in the period ended December 31, 1997. We also consent to the reference to our
firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
------------------------------
PricewaterhouseCoopers LLP
January 22, 1999
<PAGE> 1
Exhibit 24.1
THE PROVIDENCE GAS COMPANY
POWER OF ATTORNEY TO SIGN
REGISTRATION STATEMENT ON FORM S-3
KNOW ALL MEN BY THESE PRESENTS, that the undersigned do hereby
constitute and appoint James H. Dodge and Gary S. Gillheeney, and each of them,
with full power of substitution and full power to act without the other, as his
or her true and lawful attorney-in-fact and agent to act in his or her name,
place and stead and to execute in the name and on behalf of the undersigned,
individually and in each capacity stated below, a Registration Statement on Form
S-3 of The Providence Gas Company with respect to the $15 million of First
Mortgage Bonds, Series T, of The Providence Gas Company, and any and all
amendments (including 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
said attorneys-in-fact, or their substitute or substitutes, may do or cause to
be done by virtue hereof.
This Power of Attorney has been signed by the following persons in the
capacities and on the date or dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ James H. Dodge Chairman, President, and Chief January 14, 1999
- ---------------------------------
James H. Dodge Executive Officer
(Principal Executive Officer)
/s/ Gary S. Gillheeney Senior Vice President, Chief January 14, 1999
- --------------------------------- Financial Officer and Treasurer
Gary S. Gillheeney (Principal Financial Officer)
/s/ Sharon A. Dufour Controller January 14, 1999
- ---------------------------------
Sharon A. Dufour
/s/ Gilbert R. Bodell, Jr. Director January 14, 1999
- ---------------------------------
Gilbert R. Bodell, Jr.
/s/ John H. Howland Director January 14, 1999
- ---------------------------------
John H. Howland
/s/ Douglas H. Johnson Director January 14, 1999
- ---------------------------------
Douglas H. Johnson
</TABLE>
-1-
<PAGE> 2
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ William Kreykes Director January 14, 1999
- ---------------------------------
William Kreykes
/s/ Paul F. Levy Director January 14, 1999
- ---------------------------------
Paul F. Levy
/s/ Romolo A. Marsella
- --------------------------------- Director January 14, 1999
Romolo A. Marsella
/s/ M. Anne Szostak
- --------------------------------- Director January 14, 1999
M. Anne Szostak
/s/ Kenneth W. Washburn Director January 14, 1999
- ---------------------------------
Kenneth W. Washburn
/s/ W. Edward Wood Director January 15, 1999
- ---------------------------------
W. Edward Wood
</TABLE>
-2-
<PAGE> 1
EXHIBIT 25.1
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 incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
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)
THE PROVIDENCE GAS COMPANY
(Exact name of obligor as specified in its charter)
RHODE ISLAND 05-0203650
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 WEYBOSSET STREET, PROVIDENCE, RHODE ISLAND 02903
(Address of principal executive offices) (Zip Code)
% SENIOR SECURED INSURED QUARTERLY NOTES
(Title of indenture securities)
<PAGE> 2
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.
1
<PAGE> 3
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 21st day of January, 1999
STATE STREET BANK AND TRUST COMPANY
By: /s/ SANDY LAMARR CODY
----------------------
NAME SANDY LAMARR CODY
TITLE VICE PRESIDENT
2
<PAGE> 4
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 The Providence
Gas Company of its % Senior Secured Insured Quarterly Notes 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/ SANDY LAMARR CODY
----------------------
NAME SANDY LAMARR CODY
TITLE VICE PRESIDENT
DATED: JANUARY 21, 1999
<PAGE> 5
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 SEPTEMBER 30, 1998,
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).
<TABLE>
<CAPTION>
Thousands of
Dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................ 2,008,956
Interest-bearing balances ..................................................... 12,286,877
Securities ............................................................................... 9,654,241
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary ........................................... 10,922,779
Loans and lease financing receivables:
Loans and leases, net of unearned income .................. 7,457,235
Allowance for loan and lease losses ....................... 82,851
Allocated transfer risk reserve............................ 0
Loans and leases, net of unearned income and allowances ....................... 7,374,384
Assets held in trading accounts .......................................................... 1,898,804
Premises and fixed assets ................................................................ 513,372
Other real estate owned .................................................................. 100
Investments in unconsolidated subsidiaries ............................................... 484
Customers' liability to this bank on acceptances outstanding ............................. 48,563
Intangible assets ........................................................................ 220,613
Other assets.............................................................................. 1,333,210
----------
Total assets ............................................................................. 46,262,383
==========
LIABILITIES
Deposits:
In domestic offices ........................................................... 9,557,938
Noninterest-bearing .............................. 7,158,356
Interest-bearing ................................. 2,399,582
In foreign offices and Edge subsidiary ........................................ 18,451,054
Noninterest-bearing .............................. 429,797
Interest-bearing ................................. 18,021,257
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary ........................................... 12,023,438
Demand notes issued to the U.S. Treasury.................................................. 451,424
Trading liabilities...................................................... 1,582,933
Other borrowed money ..................................................................... 323,782
Subordinated notes and debentures ........................................................ 0
Bank's liability on acceptances executed and outstanding ................................. 48,563
Other liabilities ........................................................................ 1,226,129
Total liabilities ........................................................................ 43,665,261
----------
EQUITY CAPITAL
Perpetual preferred stock and related surplus............................................. 0
Common stock ............................................................................. 29,931
Surplus .................................................................................. 462,782
Undivided profits and capital reserves/Net unrealized holding gains (losses) ............. 2,080,148
Net unrealized holding gains (losses) on available-for-sale securities... 27,376
Cumulative foreign currency translation adjustments ..................................... (3,115)
Total equity capital ..................................................................... 2,597,122
----------
Total liabilities and equity capital ..................................................... 46,262,383
----------
</TABLE>
4
<PAGE> 6
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
<PAGE> 1
Exhibit 99.1
SPECIMEN
FINANCIAL GUARANTY INSURANCE POLICY
MBIA INSURANCE CORPORATION
ARMONK, NEW YORK 10504
[NUMBER]
MBIA Insurance Corporation (the "Insurer"), in consideration of the payment of
the premium and subject to the terms of this policy, hereby unconditionally and
irrevocably guarantees to any owner, as hereinafter defined, of the following
described obligations, the full and complete payment required to be made by or
on behalf of the Issuer to
or its successor (the "Paying Agent ") of an amount equal to (i) the principal
of (either at the stated maturity or by any advancement of maturity pursuant to
a mandatory sinking fund payment) and interest on, the Obligations (as that term
is defined below) as such payments shall become due but shall not be so paid
(except that in the event of any acceleration of the due date of such principal
by reason of mandatory or optional redemption or acceleration resulting from
default or otherwise, other than any advancement of maturity pursuant to a
mandatory sinking fund payment, the payments guaranteed hereby shall be made in
such amounts and at such times as such payments of principal would have been due
had there not been any such acceleration); and (ii) the reimbursement of any
such payment which is subsequently recovered from any owner pursuant to a final
judgment by a court of competent jurisdiction that such payment constitutes an
avoidable preference to such owner within the meaning of any applicable
bankruptcy law. The amounts referred to in clauses (i) and (ii) of the preceding
sentence shall be referred to herein collectively as the "Insured Amounts."
"Obligations" shall mean:
[PAR]
[LEGAL NAME OF ISSUE]
Upon receipt of telephonic or telegraphic notice, such notice subsequently
confirmed in writing by registered or certified mail, or upon receipt of written
notice by registered or certified mail, by the Insurer from the Paying Agent or
any owner of an Obligation the payment of an Insured Amount for which is then
due, that such required payment has not been made, the Insurer on the due date
of such payment or within one business day after receipt of notice of such
nonpayment, whichever is later, will make a deposit of funds, in an account with
State Street Bank and Trust Company, N.A., in New York, New York, or its
successor, sufficient for the payment of any such Insured Amounts which are then
due. Upon presentment and surrender of such Obligations or presentment of such
other proof of ownership of the Obligations, together with any appropriate
instruments of assignment to evidence the assignment of the Insured Amounts due
on the Obligations as are paid by the Insurer, and appropriate instruments to
effect the appointment of the Insurer as agent for such owners of the
Obligations in any legal proceeding related to payment of Insured Amounts on the
Obligations, such instruments being in a form satisfactory to State Street Bank
and Trust Company, N.A., State Street Bank and Trust Company, N.A. shall
disburse to such owners, or the Paying Agent payment of the Insured Amounts due
on such Obligations, less any amount held by the Paying Agent for the payment of
such Insured Amounts and legally available therefor. This policy does not insure
against loss of any prepayment premium which may at any time be payable with
respect to any Obligation.
As used herein, the term "owner" shall mean the registered owner of any
Obligation as indicated in the books maintained by the Paying Agent, the Issuer,
or any designee of the Issuer for such purpose. The term owner shall not include
the Issuer or any party whose agreement with the Issuer constitutes the
underlying security for the Obligations.
Any service of process on the Insurer may be made to the Insurer at its offices
located at 113 King Street, Armonk, New York 10504 and such service of process
shall be valid and binding.
This policy is non-cancellable for any reason. The premium on this policy is not
refundable for any reason including the payment prior to maturity of the
Obligations.
This policy is not covered by the Property/Casualty Insurance Security Fund
specified in Article 76 of the New York Insurance Law.
IN WITNESS WHEREOF, the Insurer has caused this policy to be executed in
facsimile on its behalf by its duly authorized officers, this [DAY] day of
[MONTH, YEAR].
MBIA INSURANCE CORPORATION
_____________________________________
President
Attest: ______________________________
Assistant Secretary
