<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
______________
FORM 10-Q
____________
(MARK ONE)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED MARCH 31, 1999 OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________TO________
COMMISSION FILE NUMBER 0-10721
YANKEE ENERGY SYSTEM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CONNECTICUT 06-1236430
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
599 RESEARCH PARKWAY
MERIDEN, CONNECTICUT 06450-1030
(ADDRESS OF PRINCIPAL EXECUTIVE (ZIP CODE)
OFFICES)
REGISTRANT'S TELEPHONE NUMBER (203) 639-4000
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR, IF CHANGED
SINCE LAST REPORT)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to
file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes __X__ No ____
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
NUMBER OF SHARES OF COMMON STOCK ($5.00 PAR VALUE)
OUTSTANDING AT APRIL 30, 1999 10,623,484
<PAGE>
<TABLE>
PART 1. FINANCIAL INFORMATION
Item 1. Financial Statements
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<CAPTION> Three Months Ended
March 31,
1999 1998
_______ ______
(In thousands,except
per share amounts)
<S> <C> <C>
Revenues
Utility revenues $110,871 $106,325
Nonutility revenues 6,573 6,868
_______ _______
Total revenues 117,444 113,193
_______ _______
Operating expenses:
Cost of gas/goods sold 59,482 60,805
Operations 16,318 14,990
Maintenance 1,605 1,424
Depreciation and amortization 5,273 5,055
Taxes other than income taxes 7,731 7,091
_______ _______
Total operating expenses 90,409 89,365
_______ _______
Operating income 27,035 23,828
Other income/expense:
Other income, net 18 181
Interest expense, net 3,741 3,954
_______ _______
Income before income taxes 23,312 20,055
Provision for income taxes 11,862 9,245
_______ _______
Net Income $ 11,450 $ 10,810
_______ _______
_______ _______
Basic and Diluted Earnings Per
Common Share $ 1.08 $ 1.03
_______ _______
_______ _______
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
<CAPTION> Six Months Ended
March 31,
1999 1998
____ ____
(In thousands, except
per share information)
<S> <C> <C>
Revenues
Utility revenues $188,053 $203,443
Nonutility revenues 14,392 12,345
_______ _______
Total revenues 202,445 215,788
_______ _______
Operating expenses:
Cost of gas/goods sold 102,314 117,212
Operations 30,704 29,955
Maintenance 3,043 2,615
Depreciation and amortization 10,359 9,733
Taxes other than income taxes 12,924 12,111
________ ________
Total operating expenses 159,344 171,626
_______ _______
Operating income 43,101 44,162
Other income/expense:
Other income, net 79 250
Interest expense, net 7,263 6,928
_______ _______
Income before income taxes 35,917 37,484
Provision for income taxes 16,621 17,583
_______ _______
Net Income $ 19,296 $ 19,901
_______ _______
_______ _______
Basic and Diluted Earnings Per
Common Share $ 1.82 $ 1.90
_______ _______
_______ _______
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<CAPTION>
March 31, September 30,
1999 1998
________ ___________
(Unaudited)
(In thousands)
<S>
ASSETS <C> <C>
Utility Plant, at original cost $562,440 $547,098
Less: Accumulated provision for
depreciation 214,867 207,872
________ ________
347,573 339,226
Construction work in progress 24,165 28,707
________ ________
Total net utility plant 371,738 367,933
________ ________
Other property and investments 13,147 12,778
Assets held for sale 15,523 12,361
Current assets:
Cash and temporary cash
investments 10,986 1,881
Accounts receivable, net 61,597 35,946
Fuel supplies 1,354 1,418
Other materials and supplies 2,091 1,972
Accrued utility revenues 10,945 4,028
Deferred gas costs, current portion 1,827 1,879
Prepaid expenses and other 4,595 25,327
_______ _______
Total current assets 93,395 72,451
_______ _______
Deferred gas costs, net --- 8,601
Recoverable environmental
cleanup costs 33,493 33,670
Recoverable income taxes 4,986 10,673
Recoverable postretirement
benefits costs 1,844 1,725
Other deferred debits 13,868 15,092
_______ _______
Total Assets $547,994 $535,284
_______ ________
_______ ________
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<CAPTION> March 31, September 30,
1999 1998
_________ ____________
(Unaudited)
(In thousands)
<S> <C> <C>
CAPITALIZATION AND LIABILITIES
Capitalization:
Common shares - $5.00 par value.
Authorized 20,000,000 shares; 10,621,389
shares outstanding at March 31, 1999
and 10,545,362 outstanding at
September 30, 1998 $ 53,107 $ 52,727
Capital surplus, paid in 90,761 89,818
Retained earnings 35,034 23,047
Employee stock ownership
plan guarantee (200) (600)
________ ________
Total common shareholders' equity 178,702 164,992
Long-term debt, net of
current portion 164,000 131,048
_______ _______
Total capitalization 342,702 296,040
_______ _______
Current liabilities:
Notes payable to banks 16,500 75,700
Long-term debt, current portion 20,615 4,217
Accounts payable 12,330 19,643
Accrued taxes 18,799 ---
Accrued interest 3,518 3,176
Pipeline transition costs payable 2,035 2,516
Other 5,274 8,402
_______ _______
Total current liabilities 79,071 113,654
_______ _______
Deferred gas costs, net 11,608 ---
Accumulated deferred income taxes 60,066 72,816
Accumulated deferred investment
tax credits 8,137 8,325
Liability for environmental
cleanup costs 35,000 35,000
Postretirement benefits obligation 3,522 3,353
Other deferred credits 7,888 6,096
Commitments and contingencies (Note 4) --- ---
________ ________
Total Capitalization and
Liabilities $547,994 $535,284
________ ________
________ ________
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
<PAGE>
<TABLE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<CAPTION> Six Months Ended
March 31,
__________________
1999 1998
____ ____
(In thousands)
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $19,296 $19,901
Adjusted for the following:
Depreciation and amortization 10,359 9,733
Equity earnings from investments 154 (77)
Deferred income taxes, net (7,251) (3,674)
Deferred gas costs activity and
other non-cash items 22,940 16,025
Changes in working capital:
Accounts receivable and accrued
utility revenues (32,568) (44,340)
Prepaid expenses and other 39,531 (4,720)
Accounts payable (7,313) 24,897
Other working capital
(excludes cash) (6,281) 9,694
_______ _______
Net cash provided by
operating activities 38,867 27,439
_______ _______
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from common stock
issuance 1,188 1,040
Issuance of long-term debt 50,000 ---
Retirement of long-term debt (650) (650)
Decrease in short-term debt (59,200) (500)
Cash dividends (7,309) (7,013)
________ ________
Net cash used for financing
activities (15,971) (7,123)
________ ________
INVESTMENT IN PLANT AND OTHER:
Utility plant (12,938) (14,945)
Other property and investments (853) (3,413)
________ ________
Net cash used for plant and other (13,791) (18,358)
________ _______
Net Increase in Cash and Temporary
Cash Investments for the Period 9,105 1,958
Cash and Temporary Cash Investments,
beginning of period 1,881 2,239
________ ________
Cash and Temporary Cash Investments,
end of period $10,986 $ 4,197
________ _______
________ _______
Supplemental Cash Flow Information:
Cash paid during the period for:
Interest, net of amounts
capitalized $ 7,468 $ 6,228
Income taxes $ 351 $ 856
</TABLE>
The accompanying notes are an integral part of these consolidated
financial statements.
<PAGE>
YANKEE ENERGY SYSTEM, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
1) GENERAL
The accompanying unaudited consolidated financial statements
should be read in conjunction with the Annual Report of
Yankee Energy System, Inc. (the Company) on Form 10-K for
the fiscal year ended September 30, 1998 (1998 Form 10-K),
including the audited financial statements (and notes
thereto) incorporated by reference therein and the Company's
quarterly report on Form 10-Q for the quarter ended December
31, 1998. In the opinion of the Company, the accompanying
unaudited consolidated financial statements contain all
adjustments (consisting only of normal recurring accruals)
necessary to present fairly the financial position of the
Company as of March 31, 1999, and its results of operations
for the three and six months ended March 31, 1999 and 1998
and cash flows for the six months ended March 31, 1999 and
1998. The results of operations for the three and six
months ended March 31, 1999 and 1998 are not necessarily
indicative of the results expected for a full year, due
mainly to the highly seasonal nature of the gas business.
2) ACCOUNTING FOR THE EFFECTS OF REGULATION
The Company's wholly-owned subsidiary, Yankee Gas Services
Company (Yankee Gas), is subject to regulation by the
Connecticut Department of Public Utility Control (DPUC).
The Company prepares its financial statements in accordance
with generally accepted accounting principles which includes
the provisions of Statement of Financial Accounting
Standards No. 71, "Accounting for the Effects of Certain
Types of Regulation," (FAS 71). FAS 71 requires a cost-
based, rate-regulated enterprise such as Yankee Gas to
reflect the impact of regulatory decisions in its financial
statements. The DPUC, through the rate regulation process,
can create regulatory assets that result when costs are
allowed for ratemaking purposes in a period other than the
period in which the costs would be charged to expense by an
unregulated enterprise.
Following the provisions of FAS 71, Yankee Gas has recorded
regulatory assets or liabilities as appropriate, primarily
related to deferred gas costs, pipeline transition costs,
hardship customer receivables, environmental cleanup costs,
income taxes and postretirement benefit costs. The specific
amounts related to these items are disclosed in the
consolidated balance sheets. For additional information
about these items see the 1998 Form 10-K.
Yankee Gas continues to be subject to cost-of-service based
rate regulation by the DPUC. Based upon current regulation
and recent regulatory decisions, Yankee Gas believes that its
use of regulatory accounting in accordance with the provisions
of FAS 71 is appropriate and its regulatory assets are
probable of recovery.
3) EARNINGS PER SHARE
The Company computes and presents basic and diluted earnings
per share. The basic weighted average shares outstanding for
the three months ended March 31, 1999 and 1998 were
10,608,406 and 10,483,265, respectively, and for the six
months ended March 31, 1999 and 1998 were 10,587,947 and
10,472,510, respectively. The diluted weighted average
shares outstanding for the three months ended March 31, 1999
and 1998 were 10,616,244 and 10,492,271, respectively, and
for the six months ended March 31, 1999 and 1998 were
10,601,952 and 10,479,491, respectively. As such, there is
no difference between basic and diluted earnings per share.
4) COMMITMENTS AND CONTINGENCIES
The Company faces a number of contingencies which arise
during the normal course of business and which have been
discussed in Note 9 (entitled "Commitments and
Contingencies") to the Consolidated Financial Statements
included in the Company's 1998 Form 10-K Report. Except as
disclosed below, for the six months ended March 31, 1999,
there have been no material changes in the matters discussed
in Note 9 to the Company's 1998 Form 10-K Report.
YESCo Power Division: The Company's wholly-owned subsidiary,
Yankee Energy Services Company (YESCo), is currently
negotiating the sale of its more significant Power division
investments with several interested parties. These
investments include an operating land fill gas (LFG) fueled
generating facility in Brookhaven, NY, interests in two
operating cogeneration facilities, development stage
projects and other less significant assets. The total
investment at March 31, 1999 is approximately $15.5 million.
Management expects that the sale of the Power division
assets will have no material effect on the Company's
consolidated balance sheets.
One of Yankee Gas' largest customers was the Foxwoods Hotel
and Casino (Foxwoods) operated by the Mashantucket Pequot
Indian Tribe (Pequots). The City of Norwich, Connecticut,
pursuant to an agreement with the Pequots, became the sole
provider of gas transportation service to the Pequots.
Yankee Gas has made a claim against the Pequots for payment
for distribution facilities, which Yankee Gas constructed
pursuant to agreement with the Pequots, which claim seeks to
compensate Yankee Gas for its investment. Yankee Gas has on-
reservation distribution facilities totaling approximately
$0.4 million and off-reservation distribution facilities
totaling approximately $4.9 million. Yankee Gas is
evaluating the Pequots' response to the claim in an effort
to resolve the dispute consensually before any legal action
is taken.
5) FORWARD-LOOKING STATEMENTS
This report contains statements which, to the extent they
are not recitations of historical fact, constitute "forward-
looking statements" within the meaning of Section 27A of the
Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. When used in
this report, the words "anticipate," "plan," "believe,"
"estimate," "expect," and similar expressions as they
relate to the Company or its management are intended to
identify forward-looking statements. All forward-looking
statements involve risks and uncertainties. Actual results
may differ materially from those discussed in, or implied
by, the forward-looking statements for reasons including,
but not limited to, changes to and developments in the
legislative and regulatory environments affecting the
Company's business, the impact of competitive products and
services, changes in the natural gas industry caused by
deregulation and other factors, certain environmental
matters and internal and/or third party delays or failures
in achieving Year 2000 compliance, as well as such other
factors as set forth in the Company's Form 10-K for the year
ended September 30, 1998 and in other filings with the
Securities and Exchange Commission.
6) USE OF ESTIMATES
The preparation of financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results
could differ from those estimates.
7) RECLASSIFICATIONS
Certain prior year amounts have been reclassified to conform
with current year presentation.
<PAGE>
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders of
Yankee Energy System, Inc.:
We have reviewed the accompanying consolidated balance sheet of
Yankee Energy System, Inc. (a Connecticut corporation) and
subsidiaries (the Company) as of March 31, 1999, and the related
consolidated statements of income for the three- and six-month
period then ended and cash flows for the six-month period then
ended. These financial statements are the responsibility of the
Company's management.
We conducted our review in accordance with standards established
by the American Institute of Certified Public Accountants. A
review of interim financial information consists principally of
applying analytical procedures to financial data and making
inquiries of persons responsible for financial and accounting
matters. It is substantially less in scope than an audit
conducted in accordance with generally accepted auditing
standards, the objective of which is the expression of an opinion
regarding the financial statements taken as a whole.
Accordingly, we do not express such an opinion.
Based on our review, we are not aware of any material
modifications that should be made to the financial statements
referred to above for them to be in conformity with generally
accepted accounting principles.
We have previously audited, in accordance with generally accepted
auditing standards, the consolidated balance sheet of Yankee
Energy System, Inc. as of September 30, 1998 (not presented
herein), and, in our report dated November 16, 1998, we expressed
an unqualified opinion on that statement. In our opinion, the
information set forth in the accompanying consolidated balance
sheet as of September 30, 1998 is fairly stated, in all material
respects, in relation to the balance sheet from which it has been
derived.
Arthur Andersen LLP
Hartford, Connecticut
April 26, 1999
<PAGE>
ITEM 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
RESULTS OF OPERATIONS
Consolidated net income was $11.5 million for the three months
ended March 31, 1999, compared to $10.8 million for the same
period a year earlier. The corresponding basic and diluted
earnings per share were $1.08 and $1.03 for the three months
ended March 31, 1999 and 1998, respectively.
Earnings for the second quarter of fiscal year 1999 increased
approximately five percent due to weather that was 15 percent
colder than the same period last year. Operating income
increased 14 percent over the same period last year, partially
offset by an increase in income taxes due to a higher effective
tax rate. This quarter's overall earnings were negatively
impacted by two items. First, weather again played a role by
virtue of a seven percent warmer-than-normal quarter. Management
estimates that warmer weather reduced earnings by $1.4 million,
or $0.13 per share. The prior year's quarter experienced even
warmer than normal weather with management estimating a weather-
related reduction to earnings of $3.9 million, or $0.38 per
share. Second, a metering problem with an industrial customer
resulted in approximately $0.4 million in lost margin during the
second quarter. The prior year's quarter was also negatively
impacted by customer bill credits of $0.9 million, or $0.09 per
share, as part of a rate review settlement reached with the
Connecticut Department of Public Utility Control.
A favorable impact to this quarter's results was the continuing
operations from nonutility subsidiaries, which performed at a
break even level. The recent financial performance at Yankee
Energy Services Company (YESCo) reflects the cost reduction
initiatives that have now been fully implemented. R. M. Services
(RMS), our receivables management company, again positively
contributed to quarterly results. As a result of continuing
growth for its collection services, RMS is completing a new call
center in East Hartford, Connecticut, which is expected to be
operational in the third quarter.
COMPARISON OF THE SECOND QUARTER OF FISCAL 1999 WITH THE SECOND
QUARTER OF FISCAL 1998
OPERATING REVENUES
Utility revenues increased $4.5 million, or 4 percent, in the
second quarter of fiscal 1999 compared with the same period in
the prior fiscal year. This increase was partially offset by a
$0.3 million decrease in operating revenues from nonutility
operations. The components of the change in operating revenues
are as follows:
<TABLE>
<CAPTION>
Three Months Ended
March 31, Increase/
1999 1998 (Decrease)
(In thousands)
<S> <C> <C> <C>
Firm sales $ 94,766 $ 92,853 $ 1,913
Firm transportation 8,801 5,419 3,382
Interruptible/off-system sales 4,923 5,409 (486)
Interruptible transportation 700 943 (243)
Other utility revenues 1,681 1,701 (20)
_______ _______ _______
Total Utility revenues 110,871 106,325 4,546
Nonutility revenues 6,573 6,868 (295)
_______ _______ _______
Total operating revenues $117,444 $113,193 $ 4,251
_______ _______ _______
_______ _______ _______
</TABLE>
The corresponding changes in Yankee Gas' throughput were as
follows:
<TABLE>
<CAPTION>
Three Months Ended
March 31, Increase/
(Mcf - thousands) 1999 1998 (Decrease)
<S> <C> <C> <C>
Firm sales 10,229 9,902 327
Firm transportation 4,116 3,008 1,108
Interruptible/
off-system sales 1,468 1,228 240
Interruptible
transportation 955 1,889 (934)
_______ ______ _____
Total throughput 16,768 16,027 741
_______ ______ _____
_______ ______ _____
</TABLE>
The change in utility revenues was due primarily to weather that
was 15 percent colder than the prior year. The colder weather in
the second quarter of the fiscal 1999 heating season directly
increased sales to firm sales customers. However, this increase
was partially offset by interruptible customers switching to
alternative fuels as a result of continued lower oil prices. The
slight decrease in nonutility revenues in the second quarter of
fiscal 1999 compared to the same period in fiscal 1998 is
primarily due to the reorganization of YESCo's operations, offset
by an increase in RMS' revenues due to expansion of its
collection business.
OPERATING EXPENSES
Total operating expenses increased $1.0 million in the second
quarter of fiscal 1999 compared to the same period in the prior
year as a result of the following items:
- - Cost of gas decreased $1.3 million, or 2 percent, for
the three months ended March 31, 1999 compared to the three months
ended March 31, 1998 due primarily to the continued shift of
customers to transportation service, partially offset by an
increase in costs due to additional firm sales.
- - Cost of goods sold increased slightly in the second
quarter of fiscal 1999 compared to the second quarter of fiscal
1998 due to increased nonutility activity resulting primarily from
an expansion of RMS'collection business, partially offset by the
corresponding decrease in YESCo's revenues due to management's
reorganization of YESCo.
- - Operations and maintenance expenses increased $1.5
million, primarily due to increases in Yankee Gas expenses for
pension, uncollectible accounts, and data center operations.
These increases were offset by a slight decrease in nonutility
expenses due to cost reduction initiatives implemented by YESCo.
- - Depreciation and amortization expense increased $0.2
million, primarily due to additions in plant, property
and investments.
- - Taxes other than income taxes increased $0.6 million,
primarily due to higher Connecticut gross earnings taxes as a
result of the increase in revenues.
INTEREST EXPENSE
Interest expense decreased $0.2 million primarily due to lower
short-term debt outstanding. This decrease was partially offset
by an increase in long-term debt interest expense, primarily due
to a $50 million new long-term debt financing completed in
January 1999.
INCOME TAXES
Federal and state income taxes increased $2.6 million primarily
due to higher pre-tax income and a higher effective tax rate for
the three months ended March 31, 1999 compared to the three
months ended March 31, 1998. The second quarter effective tax
rate reflects a retroactive adjustment to the effective tax rate
for the six months ended March 31, 1999.
COMPARISON OF THE FIRST SIX MONTHS OF FISCAL 1999 WITH THE FIRST
SIX MONTHS OF FISCAL 1998
OPERATING REVENUES
Utility revenues decreased $15.4 million, or 8 percent, in the
first six months of fiscal 1999 compared with the same period in
the prior fiscal year. This decrease was offset by a $2.0 million
increase in operating revenues from nonutility operations. The
components of the change in operating revenues are as follows:
<TABLE>
<CAPTION>
Six Months Ended
March 31, Increase/
1999 1998 (Decrease)
(In thousands)
<S> <C> <C> <C>
Firm sales $158,596 $175,358 $(16,762)
Firm transportation 15,799 9,938 5,861
Interruptible/off-system sales 9,613 13,459 (3,846)
Interruptible transportation 1,605 1,488 117
Other utility revenues 2,440 3,200 (760)
_______ _______ _______
Total utility revenues 188,053 203,443 (15,390)
Nonutility revenues 14,392 12,345 2,047
_______ _______ _______
Total operating revenues $202,445 $215,788 $(13,343)
_______ _______ _______
_______ _______ _______
</TABLE>
<PAGE>
The corresponding changes in Yankee Gas' throughput were as
follows:
<TABLE>
<CAPTION>
Six Months Ended
March 31, Increase/
(Mcf - thousands) 1999 1998 (Decrease)
<S> <C> <C> <C>
Firm sales 17,322 19,254 (1,932)
Firm transportation 7,298 5,257 2,041
Interruptible/
off-system sales 2,801 2,994 (193)
Interruptible
transportation 2,329 3,216 (887)
______ ______ ______
Total throughput 29,750 30,721 (971)
______ ______ ______
______ ______ ______
</TABLE>
The change in utility revenues was due to a combination of items
directly related to warmer than normal weather experienced over
the past two heating seasons. Firm sales continue to decrease as
an increasing number of commercial and industrial customers
continued to shift from gas sales to transportation service
resulting in a decrease in utility revenues. The switch to
transportation has no effect on margin because the cost of gas
has traditionally been a pass through item. Interruptible
revenues decreased primarily as a result of lower oil prices in
the first six months of fiscal 1999 compared to the same period
in the prior year, which enabled these customers to use a less
costly alternative fuel. These decreases were partially offset
by an increase in nonutility revenues in the second quarter of
fiscal 1999 compared to the same period in fiscal 1998. This
increase was primarily due to an increase in R.M. Services'
revenues due to expansion of its collection business, offset by a
slight decrease in YESCo's revenues due to management's
reorganization of YESCo.
OPERATING EXPENSES
Total operating expenses decreased $12.3 million in the first six
months of fiscal 1999 compared with the same period in the prior
year as a result of the following items:
- - Cost of gas decreased $16.6 million, or 15 percent, for
the six months ended March 31, 1999 compared to the six months
ended March 31, 1998 due primarily to the weather impact on firm
sales customers and the continued increase in transportation
customers.
- - Cost of goods sold increased $1.8 million in the first
six months of fiscal 1999 compared to the first six months of
fiscal 1998 due to expansion of R.M. Services' collection
business, partially offset by the corresponding decrease in
YESCo's revenues due to management's reorganization of YESCo.
- - Operations and maintenance expenses increased $1.2
million, primarily due to increases in data center operation
expense, expenses related to nonutility activity, uncollectible
expense and pension expenses.
- - Depreciation and amortization expense increased $0.6
million, primarily due to additions in plant, property
and investments.
- - Taxes other than income taxes increased $0.8 million,
primarily due to increases in Connecticut unemployment taxes and
municipal taxes in fiscal 1999.
INTEREST EXPENSE
Interest expense increased $0.3 million mainly due to higher
short-term debt outstanding during the six months ended March 31,
1999 and higher interest on long-term debt, primarily due to a
$50 million new long-term debt financing completed in January
1999.
INCOME TAXES
Federal and state income taxes decreased $1.0 million primarily
due to lower pre-tax income for the six months ended March 31,
1999 compared to the six months ended March 31, 1998, partially
offset by a slight increase in the effective tax rate.
LIQUIDITY AND CAPITAL RESOURCES
Cash and temporary cash investments at March 31, 1999 totaled
$11.0 million. Cash provided by operating activities was $38.9
million in the second quarter of fiscal 1999. The increase in
cash provided by operating activities was primarily due to a
decrease in working capital requirements. The Company also
generated cash through financing activities, primarily by the
issuance of new common stock and issuance of long-term debt.
Cash from operating activities and financing activities was used
primarily for repayments of short-term debt, dividend payments
and capital expenditures in the first six months of fiscal 1999.
Expenditures for investment in plant, property and investments
totaled $13.8 million for the first six months of fiscal 1999.
The seasonal nature of gas revenues, inventory purchases and
construction expenditures creates a need for short-term borrowing
to supplement internally generated funds. As of March 31, 1999,
Yankee Gas had a revolving line of credit of $60 million with a
group of four banks. Under the agreement, funds may be borrowed
on a short-term revolving basis using either fixed or variable
rate loans. Yankee Gas also had uncommitted credit lines of $20
million as of March 31, 1999. At March 31, 1999, Yankee Gas had
no amounts outstanding under its agreements. Yankee Energy had
$16.5 million outstanding at March 31, 1999 under its $25 million
committed line of credit, which is used to fund development of
the Company's nonutilty businesses. In January 1999, Yankee Gas
completed a $50 million new long-term debt financing at 6.2
percent, for the purposes of replacing a portion of the existing
outstanding short-term debt. Yankee Gas plans to redeem its
Series A Tranche D First Mortgage Bonds in August 1999, with cash
on hand and short-term debt available at that time. Series A
Trance D First Mortgage Bonds become eligible for early
redemption in August 1999.
The long-term credit needs of Yankee Gas are being met by a first
mortgage bond indenture which provides for the issuance of bonds
from time to time, subject to certain issuance tests. At March
31, 1999, indenture requirements, including the required coverage
ratio, would allow for the issuance of an additional $174 million
of bonds at an assumed interest rate of 6.6 percent.
Yankee Gas has entered into fixed revenue-rate contracts with two
customers for the delivery of natural gas. Yankee Gas has hedged
these commitments with the purchase of natural gas swaps. In
order to satisfy certain provisions of the arrangement, Yankee
Gas has provided a letter of credit for $1.75 million, as of
March 31, 1999. The Company's results of operations are
unaffected by the hedge transaction given that it passes through
the cost of the hedge to either the commodity trading firm or its
customer depending on the difference in the fixed and floating
prices for gas.
The Company entered into an interest rate swap transaction in
February 1999. The $49,000,000 (notional amount) agreement had
the effect of converting the interest obligations on Yankee Gas'
$19,000,000, 10.07% Bonds and $30,000,000, 7.19% Bonds to
variable rates. Under the agreement, the Company receives the
stated fixed rate and pays a floating rate based on a "basket"
of interest rate indices, as determined in six month intervals.
Net receipts or payments under the agreement are recognized as
adjustments to interest expense.
YEAR 2000
The Company is currently implementing new information systems and
enhancing existing information systems to address Year 2000
issues, which could have significant adverse effects on the
Company if not properly resolved. In fiscal 1995, the Company
began testing and remediation for Year 2000 problems and has
assigned dedicated personnel to its Year 2000 project.
Remediated programs are being tested prior to being declared
compliant.
As of March 31, 1999, YES has completed the inventory and the
assessment of risk phases of the Year 2000 project for all
mainframe systems. The Company is currently in the remediation
and testing phases. As part of the process, a detailed inventory
of all hardware and software currently utilized by the Company
has been prepared, and a timetable has been established to ensure
testing of all applications. The scope of the assessment phase
also included the Company's interface systems with significant
suppliers, government agencies and other third parties. However,
there can be no guarantee that the systems of these third parties
will be converted on a timely basis and will not have an adverse
effect on the Company's operations or systems.
All mainframe systems that are being remediated are now in the
implementation phase, which as of March 31, 1999 was
approximately 98 percent complete. In addition to remediating
existing systems, the Company purchased a new human resource
information system (HRIS) and a new customer service (CS) system.
These systems were purchased to improve functionality of the
application software and to improve efficiency and customer
service. In addition, any Year 2000 issues associated with these
systems will be eliminated. The new HRIS system became
operational January 1, 1999 and the new CS system is expected to
be operational in July 1999.
For non-mainframe systems, the Company has developed a test
environment to carry out the remainder of the remediation
program. The inventory and risk assessment phase of all non-
mainframe systems has been completed. The completion of the
remediation/replacement and testing phases is expected by
September 1999. As of March 31, 1999, the Company installed a
new supervisory control and data acquisition system (SCADA
system), which monitors gas flows and pressures within the gas
distribution system. This eliminated any Year 2000 issues
associated within that system.
The Company currently estimates that total cost to update all of
the Company's systems for Year 2000 compliance will be
approximately $21.8 million, including approximately $0.6 million
for the new HRIS system, $19.4 million for the new CS system and
$1.3 million for the new SCADA system. All such costs associated
with system enhancements have and will continue to be expensed as
incurred and the costs of new systems will be capitalized as
appropriate. As of March 31, 1999, the Company expensed
approximately $0.5 million and capitalized approximately $19.0
million, of these costs. The remaining costs will be incurred
during fiscal 1999. These costs have been financed through
short-term borrowing and internally generated funds.
The primary business risk associated with Year 2000 is the
Company's ability to continue to transport and distribute gas to
its customers without interruption. In the event the Company
and/or its suppliers and vendors are unable to remediate the Year
2000 problem prior to January 1, 2000, operations of the Company
could be significantly impacted. In order to mitigate this risk,
the Company is developing contingency plans to continue
operations through manual intervention and other procedures
should it become necessary to do so. Such procedures are
expected to include back-up power supply for its critical
pipeline and storage operations and, if necessary, curtailment of
supply. The Company expects to complete its operational
contingency plans by the end of fiscal 1999.
Although the Company expects its systems to be Year 2000
compliant on or before December 31, 1999, it cannot predict the
outcome or the success of its Year 2000 program, or that the
costs required to address the Year 2000 issue, or that the impact
of a failure to achieve substantial Year 2000 compliance, will
not have a material adverse effect on the Company's business,
financial condition or results of operations.
ITEM 3. Quantitative and Qualitative Disclosures About Market
Risk
Commodity Market Risk
Yankee Gas is subject to market risk due to fluctuations in the
price of natural gas. All of Yankee Gas' sales are designed to
fully recover the cost of gas. Yankee Gas passes on to its firm
customers changes in gas costs from those reflected in its
tariffs under purchased gas adjustment provisions allowed by the
Connecticut Department of Public Utility Control. Interruptible
and off-system sales are priced competitively at not less than
the cost of gas associated with those sales plus applicable taxes
and margin.
Yankee Gas has entered into fixed revenue-rate contracts with two
customers for the delivery of natural gas. Yankee Gas has hedged
these commitments with the purchase of natural gas swaps. In
order to satisfy certain provisions of the arrangement, Yankee
Gas has provided a letter of credit for $1.75 million, as of
March 31, 1999. The Company's results of operations are
unaffected by the hedge transaction given that it passes through
the cost of the hedge to either the commodity trading firm or its
customer depending on the difference in the fixed and floating
prices for gas.
Interest Rate Risk
The Company entered into an interest rate swap transaction in
February 1999. The $49,000,000 (notional amount) agreement had
the effect of converting the interest obligations on Yankee Gas'
$19,000,000, 10.07% Bonds and $30,000,000, 7.19% Bonds to
variable rates. Under the agreement, the Company receives the
stated fixed rate and pays a floating rate based on a "basket"
of interest rate indices, as determined in six month intervals.
Net receipts or payments under the agreement are recognized as
adjustments to interest expense. The maximum exposure to the
Company is $250,000 per year.
In addition, both Yankee Energy and Yankee Gas have committed and
uncommitted lines of credit with variable interest rates.
PART II OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
The Annual Meeting of the Shareholders of the Company was held on
January 29, 1999. At the Annual Meeting, the shareholders elected
Sanford Cloud, Jr. and John J. Rando as directors to three year
terms expiring at the 2001 Annual Meeting of Shareholders. There
were 8,850,119 votes for and 156,466 votes against for Mr. Cloud
and 8,852,264 votes for and 154,321 votes against for Mr. Rando.
The shareholders also ratified the appointment by the Board of
Directors of Arthur Andersen LLP as the Company's independent
auditors for the fiscal year ending September 30, 1999. There
were 8,734,272 votes for, 185,544 votes against and 86,769
abstentions with respect to such ratification.
Item 6. Exhibits and Reports on Form 8-K
a. Exhibits
Exhibit 4.1 - Bond Purchase Agreement dated January
1, 1999between Yankee Gas and the Purchasers
identified therein.
Exhibit 4.2 - Fifth Supplemental Indenture of
Mortgage and of Trust dated January 1, 1999 between
Yankee Gas and The Bank of New York as trustee.
Exhibit 27 - Financial Data Schedule.
b. Reports on Form 8-K
None.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
YANKEE ENERGY SYSTEM, INC.
___________________________
(Registrant)
Date: May 12, 1999 /s/ James M. Sepanski
____________________________
James M. Sepanski
Vice President,
Chief Financial Officer
and Treasurer
Date: May 12, 1999 /s/ Nicholas A. Rinaldi
_____________________________
Nicholas A. Rinaldi
Controller
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<PERIOD-END> MAR-31-1999
<CASH> 10,986
<SECURITIES> 0
<RECEIVABLES> 70,183
<ALLOWANCES> (8,586)
<INVENTORY> 3,445
<CURRENT-ASSETS> 93,395
<PP&E> 586,605
<DEPRECIATION> 214,867
<TOTAL-ASSETS> 547,994
<CURRENT-LIABILITIES> 79,071
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0
0
<COMMON> 53,107
<OTHER-SE> 125,595
<TOTAL-LIABILITY-AND-EQUITY> 547,994
<SALES> 202,445
<TOTAL-REVENUES> 202,445
<CGS> 102,314
<TOTAL-COSTS> 102,314
<OTHER-EXPENSES> 57,030
<LOSS-PROVISION> 3,191
<INTEREST-EXPENSE> 7,263
<INCOME-PRETAX> 35,917
<INCOME-TAX> 16,621
<INCOME-CONTINUING> 19,296
<DISCONTINUED> 0
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<PAGE>
EXHIBIT 4.1
YANKEE GAS SERVICES COMPANY
599 Research Parkway
Meriden, Connecticut 06450-1030
BOND PURCHASE AGREEMENT
January 1, 1999
Re: $50,000,000 aggregate principal
amount of First Mortgage Bonds,
6.20% Series F, Due 2009
To the Purchaser named in Schedule I
of this Agreement
Ladies and Gentlemen:
The undersigned, YANKEE GAS SERVICES COMPANY, a specially
chartered Connecticut corporation (the Company), hereby
agrees with you as follows:
SECTION 1. ISSUANCE OF BONDS.
Section 1.1 Issue of Bonds and Security. The Company has
duly authorized the issuance and delivery of $50,000,000 in
aggregate principal amount of its First Mortgage Bonds, 6.20%
Series F, Due 2009 (collectively, the Bonds), to be issued
under and secured by that certain Indenture of Mortgage and Deed
of Trust dated as of July 1, 1989 (the Original Indenture) by
and between the Company and The Bank of New York (as successor to
Fleet National Bank, formerly known as The Connecticut National
Bank), as Trustee (the Trustee), as supplemented and amended
and as to be supplemented and amended by a Fifth Supplemental
Indenture dated as of January 1, 1999, (the Supplemental
Indenture) which will be substantially in the form attached
hereto as Exhibit A, but with such changes therein, if any, as
may be agreed upon by you and the Company, and will be entitled
to the benefits thereof. The Original Indenture, as heretofore
supplemented and amended including, without limitation, by the
Supplemental Indenture, is hereinafter referred to as the
Indenture. The terms of the Bonds shall be substantially as
set forth in Exhibit A to the Supplemental Indenture and will be
dated the date of issuance thereof; will be in the amount of
$1,000,000 or any amount in excess thereof that is an integral
multiple of $250,000 (except as may be necessary to reflect any
principal amount not evenly divisible by $250,000 remaining after
any partial redemption); will bear interest on the unpaid
principal balance thereof from the date of the Bonds at the rate
of 6.20% per annum, payable semiannually on the first day of
February and August in each year, commencing on August 1, 1999,
and when the principal amount thereof becomes due and payable;
and will bear interest on overdue principal (including any
optional prepayment of principal) and premium, if any, and (to
the extent legally enforceable) on any overdue installment of
interest at a rate equal to the lesser of (a) the highest rate
allowed by applicable law or (b) the higher of (i) the Prime Rate
or (ii) 7.20% per annum after the due date, whether by
acceleration or otherwise, until paid; and will be expressed to
mature on April 1, 2009. Interest on the Bonds shall be computed
on the basis of a 360-day year of twelve 30-day months. The
Bonds are not subject to prepayment or redemption prior to their
expressed maturity date except on the terms and conditions and in
the amounts and with the premium, if any, set forth in Section
2.03 of the Supplemental Indenture (Optional Redemption).
The Indenture creates and will create a first mortgage Lien
on and a first security interest in the Property of the Company
described therein as being subjected to the Lien thereof
(excluding Excepted Property and subject to Permitted
Encumbrances as therein defined), except such Property as may
have been released from the Lien thereof in accordance with the
terms thereof (such Property not so released being hereinafter
defined as the Trust Estate).
The terms used in this Agreement and not defined at the
point at which they are first used are defined in Section 8.1
(Definitions) hereof.
Section 1.2 Sale of Bonds. The Company agrees to sell to
you, and, subject to the terms and conditions herein set forth,
you agree to purchase from the Company, Bonds in the principal
amount set forth opposite your name on Schedule I hereto on the
Closing Date (as defined below) at a purchase price equal to 100%
of the principal amount thereof. The Bonds will be sold and
delivered at one closing to be held at the principal offices of
Shipman & Goodwin LLP, One American Row, Hartford, Connecticut
06103-2819, at 10:00 a.m. Hartford, Connecticut time, on January
25, 1999, or such other date as shall be mutually agreed upon
between you and the Company (the date and time for such closing
being hereinafter referred to as the Closing Date). On the
Closing Date, the Company will deliver to you one duly
authenticated Bond (or such other number of Bonds in such
denominations of not less than $1,000,000 as you may designate by
notice prior to the Closing Date), dated the Closing Date, in the
full principal amount of your purchase and registered in your
name (or in such nominee name as you shall designate to the
Company prior to the Closing Date), against payment to the
Company by wire transfer of immediately available funds to the
Company in the amount of the purchase price referred to above
pursuant to wire transfer instructions set forth in Schedule V
attached hereto.
Section 1.3 Purchase for Investment. You represent and
warrant to the Company that (a) you are an Accredited Investor
and (b) you are purchasing your Bonds for your own account for
investment and not with a view to the distribution thereof, and
that you have no present intention of distributing your Bonds or
any part thereof; provided, however, that the disposition of your
Property shall at all times be within your control and that your
right at all times to sell or otherwise dispose of all or any
part of your Bonds pursuant to applicable state securities laws
and to an effective registration statement under the Securities
Act or in accordance with an exemption from such registration
available under the Securities Act shall not be prejudiced. You
covenant and agree that you will only sell or otherwise dispose
of all or any part of your Bonds in compliance with applicable
federal and state securities laws and Section 1.4 (Restrictions
on Transfer; Legend) of this Agreement. Your acquisition of your
Bonds hereunder shall constitute a reaffirmation by you, as of
the Closing Date, of your representations set forth in this
Section 1.3.
Section 1.4 Restrictions on Transfer; Legend. The Bonds are
subject to restrictions on transfer as described in the private
placement memorandum prepared by the Company and dated December
1998, (including the Exhibits thereto and the documents
incorporated by reference therein, the Private Placement
Memorandum) and the legend to be endorsed on each certificate
for the Bonds. You covenant and agree when effecting resales of
the Bonds pursuant to Rule 144A under the Securities Act to make
offers and sales only to persons who you reasonably believe to be
Qualified Institutional Buyers. The legend on the Bonds will be
substantially in the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE 1933 ACT). THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE
BENEFIT OF YANKEE GAS SERVICES COMPANY (THE
COMPANY) AND PRIOR HOLDERS THAT THIS SECURITY MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (1) TO THE COMPANY (UPON REDEMPTION THEREOF OR
OTHERWISE), (2) SO LONG AS THIS SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER, WITHIN THE MEANING OF RULE 144A UNDER THE 1933
ACT, IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE 1933 ACT, (4) PURSUANT TO AN
EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144
(IF AVAILABLE) UNDER THE 1933 ACT, (5) IN RELIANCE ON
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE 1933 ACT, SUBJECT TO THE RECEIPT BY THE COMPANY OF
AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH TRANSFER
IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
1933 ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE 1933 ACT, SUBJECT (IN THE CASE OF
CLAUSES (2), (3), (4) AND (5)) TO THE RECEIPT BY THE
COMPANY OF A CERTIFICATION OF THE TRANSFEROR (WHICH, IN
THE CASE OF CLAUSE (4), MAY BE A COPY OF FORM 144 AS
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION) TO
THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
1933 ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY JURISDICTION OF THE
UNITED STATES. THE HOLDER OF THIS SECURITY WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO HEREIN.
Section 1.5 Source of Funds; ERISA. You further represent
and warrant that either: (a) no part of the funds to be used by
you to purchase the Bonds constitutes assets allocated to any
separate account maintained by you; or (b) no part of the funds
to be used by you to purchase the Bonds constitutes assets
allocated to any separate account maintained by you such that the
application of such funds constitutes a prohibited transaction
under Section 406 of ERISA; or (c) all or part of such funds
constitute assets of one or more separate accounts maintained by
you, and you have disclosed to the Company the names of such
employee benefit plans, whose assets in such separate account or
accounts exceed 10% of the total assets or are expected to exceed
10% of the total assets of such account or accounts as of the
date of such purchase, and the Company has advised you in writing
(and in making the representations set forth in this clause (c)
you are relying on such advice) that the Company is not a party-
in-interest nor are the Bonds employer securities with respect to
the particular employee benefit plans disclosed to the Company by
you as aforesaid (for the purpose of this clause (c), all
employee benefit plans maintained by the same employer or
employee organization are deemed to be a single plan). As used
in this Section 1.5, the terms separate account, "arty-in-
interest,employer securities and employee benefit plan
shall have the respective meanings assigned to them in ERISA.
If, as contemplated in the foregoing clause (c), you are
purchasing Bonds for one or more separate accounts maintained by
you, and if it is intended that any of such accounts shall be
deemed to be a separate holder of the Bonds allocated to such
account, you have identified each such account in Schedule I and
the principal amount of Bonds allocated to each such account, and
the Company acknowledges and agrees that for all purposes of this
Agreement, each such account shall be deemed to be a separate
holder of the Bonds allocated to such account as aforesaid.
Section 1.6 Ratification of Representations. If an agent
signs this Agreement on your behalf, your acceptance of delivery
of the Bonds shall be deemed a ratification of the
representations and warranties of Section 1.3 and Section 1.5 of
this Agreement and you acknowledge that you are in privity of
contract with the Company.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
To induce you to enter into this Agreement and to purchase
the Bonds listed on Schedule I to this Agreement opposite your
name, the Company warrants, represents and undertakes as follows:
Section 2.1 Subsidiaries. The Company has no Subsidiaries.
Each of the Company's corporate or joint venture Affiliates and
the nature of the affiliation are disclosed in the Private
Placement Memorandum.
Section 2.2 Corporate Organization and Authority. The
Company:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the State of Connecticut;
(b) has all requisite power and authority (corporate
and other) and all necessary licenses, permits and rights to own
and operate its Properties and to carry on its business
substantially as now conducted (except where the absence of any
such license, permit, or right would not, individually or in the
aggregate, have a material adverse effect on the Company's
business, prospects, Properties or condition (financial or
otherwise)); and
(c) has no Properties and carries on no activities in
any jurisdiction which would require qualification, licensing or
authorization to do business as a foreign corporation in such
jurisdiction.
Section 2.3 Business, Property and Indebtedness.
(a) Nature of Business; Properties. The Private
Placement Memorandum, which previously has been delivered to you,
correctly describes the general nature of the business and
principal Properties of the Company.
(b) Indebtedness. Schedule II to this Agreement
correctly lists all outstanding Indebtedness for borrowed money
(including, without limitation, purchase money obligations,
capital leases and contingent liabilities under guarantees) of
the Company as of September 30, 1998 (provided that short-term
Indebtedness may be expressed as an aggregate amount).
(c) Real Property. The Company does not own or lease
real Property or operate a sales or business office (or both) or
have any employees located in any jurisdiction other than the
State of Connecticut.
Section 2.4 Financial Statements; Material Adverse Change
Clause.
(a) Financial Statements. The unaudited financial
statements of the Company as of and for the period ended
September 30, 1998, contained in the Private Placement Memorandum
have been prepared in accordance with generally accepted
accounting principles consistently applied, and present fairly
the financial position of the Company as of such date and the
results of their operations for such period.
(b) Material Adverse Change. Since September 30, 1998,
there has been no change in the business, prospects, Properties
or condition (financial or otherwise) of the Company, except
changes in the ordinary course of business, none of which, either
individually or in the aggregate, has been materially adverse.
Section 2.5 Full Disclosure. The financial statements
referred to in Section 2.4 (Financial Statements; Material
Adverse Change), as of their respective dates and for the periods
presented, and the Private Placement Memorandum, as of the date
hereof, do not, nor does this Agreement or any written statement
furnished by or on behalf of the Company to you in connection
with the negotiation of the sale of the Bonds, contain any untrue
statement of a material fact or omit a material fact necessary to
make the statements contained therein or herein not misleading.
There is no fact that the Company has not disclosed to you in
writing that materially affects adversely nor, so far as the
Company can now reasonably foresee, shall materially affect
adversely the business, prospects, Properties or condition
(financial or otherwise) of the Company or the ability of the
Company to perform its obligations set forth in this Agreement,
the Indenture or the Bonds.
Section 2.6 Pending Litigation. There is no action at law,
suit in equity or other proceeding or investigation (whether or
not purportedly on behalf of the Company) in any court or by or
before any other governmental or public authority or agency or
any arbitrator, or, to the best knowledge of the Company,
threatened against, the Company or any of its Properties
(including, without limitation, any such action, suit, proceeding
or investigation relating to any action or omission of the
Company) which, if determined adversely to the Company, involves
the reasonable possibility of materially and adversely affecting
the business, prospects, Properties or condition (financial or
other) of the Company, or the ability of the Company to perform
its obligations under this Agreement, the Indenture or the Bonds.
To the best of its knowledge after due inquiry, the Company is
not in default in any material respect with respect to any
judgment, order, writ, injunction, rule or regulation or decree
or demand of any court or other governmental or public authority
or agency, or with respect to the award of any arbitrator.
Section 2.7 Title to Properties; Power of Eminent Domain.
(a) Title to Properties. The Trust Estate constitutes
substantially all the Property of the Company, other than the
Excepted Property (as defined in the Indenture). The Company has
such title (or may obtain such title by the exercise of its power
to condemn property) to its Property as is necessary to engage in
its business, and substantially all such Property is in good
repair, is properly maintained and is suitable for the use for
which it is intended. All real Property that constitutes Trust
Estate is located in the State of Connecticut. There is no
outstanding Indebtedness of the Company or of any other Person
for the purchase price or construction of, or for services,
materials and supplies rendered or delivered in connection with
the construction of, any Property, or for current operations,
that has or could become the basis of a Lien prior to the Lien of
the Indenture upon any portion or all of the Trust Estate, other
than a Permitted Encumbrance.
(b) Power of Eminent Domain. The Company has the power
of eminent domain which it may exercise, subject to the
requirements of law, in order to acquire any additional Property
that is necessary for it to perform its responsibilities as a
public service company.
Section 2.8 Leases. The Company has the right to, and does,
enjoy peaceful and undisturbed possession under all material
leases to which it is a party or under which it is operating.
All such leases are valid, subsisting and in full force and
effect, and the Company is not in default under any such lease,
and no event has occurred and is continuing, and no condition
exists, that, after notice or the passage of time or both, could
become a material default under any such lease. All material
leases to which the Company is a party or under which the Company
is operating are situated on real Property located in the State
of Connecticut.
Section 2.9 Patents, Trademarks, Licenses, Etc. The Company
holds all material franchises, patents, trademarks, service
marks, trade names, copyrights, certificates, permits, licenses,
rights-of-way, easements, consents and other rights, and holds,
or holds in effect by acquiescence and is in compliance in all
material respects with the terms of, all material franchises,
patents, trademarks, service marks, trade names, and copyrights
for its business and operations as currently conducted and
(except for such franchises, patents, trademarks, service marks,
trade names, copyrights, certificates, permits, licenses, rights-
of-way, easements, consents and other rights as may be required
to be obtained in the future) as currently proposed to be
conducted, without, after due inquiry, any known conflicts with
the rights of others, that either individually or in the
aggregate could reasonably be expected to materially adversely
affect or materially interfere with the operations of the
Company's business.
Section 2.10 Sale is Legal and Authorized; Bonds are
Enforceable.
(a) Sale is Legal and Authorized. Each of the sale of
the Bonds by the Company and compliance by the Company with all
of the provisions of this Agreement, the Indenture and the Bonds;
(i) is within the corporate powers of the Company;
and
(ii) is legal and does not conflict with, result in
any breach of any of the provisions of, constitute a default
under, or result in the creation of any Lien (other than the
Lien created by the Indenture) upon any Property of the
Company under the provisions of any agreement, charter
instrument, bylaw or other instrument to which it is a party
or by which it or any of its Property may be bound.
(b) Bonds are Enforceable. The obligations of the
Company under this Agreement, the Indenture and the Bonds have
been duly authorized by proper corporate action on the part of
the Company (no action by the shareholders of the Company being
required by law, any charter instrument or bylaws of the Company
or otherwise), and this Agreement, the Indenture and the Bonds
have been executed and delivered by the Company and are valid,
binding and enforceable in accordance with the terms of this
Agreement, the Indenture and the Bonds, except to the extent
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws of general
application relating to or affecting the enforcement of the
rights of creditors or by equitable principles, whether
considered in a proceeding in equity or at law.
Section 2.11 No Defaults. No event has occurred and no
condition exists that, upon the issue of the Bonds, would
constitute a Default or an Event of Default. The Company is not
in violation in any respect of any term of any charter instrument
or bylaw and is, to the best of its knowledge after due inquiry,
not in violation in any material respect of any term in any
agreement or other instrument to which it is a party or by which
it or any of its Property may be bound.
Section 2.12 Regulation; Status under Holding Company Act;
Investment Company Act; and Foreign or Enemy Status. (a) The
Company is subject to the jurisdiction of the DPUC and various
other state, federal and local governmental departments and
regulatory and environmental commissions, agencies, authorities
and bodies with respect to its business operations. Neither the
Company nor the Parent is directly subject to the jurisdiction of
the FERC. The nature and extent of such regulation are generally
described in the Private Placement Memorandum.
(b) The Company is exempt from the requirements of the
Public Utility Holding Company Act of 1935 (except Section
9(a)(2) thereof) pursuant to Section 3(a)(1) thereof. The Parent
has filed all necessary exemption statements with the SEC as of
the date of this Agreement.
(c) The Company is not, and is not directly or
indirectly controlled by, or acting on behalf of any Person that
is, an investment company within the meaning of the
Investment Company Act of 1940.
Section 2.13 Regulatory Approval Required. Assuming the
Bonds are offered and sold as described in the Private Placement
Memorandum and that the representations set forth in Section 1.3
(Purchase for Investment) of this Agreement are correct, no
consent of, approval or authorization by, filing or registration
with, or notice to any governmental or public authority or agency
is required for the issuance, sale or delivery of the Bonds or
the execution, delivery or performance of this Agreement or the
Indenture by the Company, other than (a) the authorization of the
DPUC, which authorization has been duly obtained, is in full
force and effect, and has not been appealed, abrogated, modified,
stayed or suspended and no subsequent appeal would, under
applicable law, affect the validity or enforceability of the
Bonds and (b) the recordings or filings, in respect of the Lien
of the Indenture, required under the Indenture. The Company has
furnished to your special counsel true, correct and complete
copies of (i) said authorization and (ii) as requested by you,
all applications, petitions, reports and other papers, and any
amendments and supplements thereto (hereinafter in this Section
2.13 referred to collectively as applications), heretofore
filed with or submitted to the DPUC by the Company in connection
with its action to obtain said authorization. The applications
did not contain, as of the respective dates of filing or
submission thereof, any untrue or incorrect statements of
material fact or omit to state any material fact necessary to
make the statements contained therein not misleading. Prior to
the Closing Date, the Company will furnish to your special
counsel all subsequent applications, if any.
Section 2.14 Consents. Neither the creation,
authorization, issuance or sale of the Bonds, nor the execution,
delivery or performance of this Agreement or the Supplemental
Indenture, will require any vote, consent or approval in any
manner of any creditor of, or investor in, the Company.
Section 2.15 Taxes. All federal, state and other tax
returns of the Company required by law to be filed have been duly
filed and all federal, state and other taxes, assessments, fees
and other governmental charges upon the Company or upon any of
its respective Properties or assets that are due and payable have
been paid, other than those not yet delinquent and except for
those being contested in good faith by appropriate proceedings.
There are no material Liens on any Properties or assets of the
Company imposed or arising as a result of the delinquent payment
or nonpayment of any such tax, assessment, fee or other
governmental charge. The charges, accruals and reserves on the
books of the Company in respect of federal and state income taxes
for all fiscal years since December 31, 1989, and in respect of
other taxes for all outstanding periods, are adequate and the
Company does not know of any additional assessments for such
years or any basis therefor. There are no applicable taxes, fees
or other governmental charges payable by the Company in
connection with the execution and delivery of this Agreement or
the offer, issuance, sale or delivery of the Bonds by the
Company.
Section 2.16 Use of Proceeds; No Margin Regulation
Violation.
(a) Use of Proceeds. The net proceeds from the sale
of the Bonds will be applied to and used to repay short term
indebtedness and for other corporate purposes.
(b) No Margin Regulation Violation. The Company does
not own, directly or indirectly, and does not have the present
intention of acquiring or owning, any margin stock (as such
term is defined in Regulation G of the Board of Governors of the
Federal Reserve System (12 C.F.R., Part 207, as amended)). The
Company will not use any part of the proceeds from the sale of
the Bonds, directly or indirectly, to purchase or carry
(within the meaning of said Regulation G) any security (as
defined in Section 3(10) of the Exchange Act) or to reduce or
retire any indebtedness originally incurred to purchase or
carry any such security. None of the transactions
contemplated by this Agreement (including, without limitation,
the direct or indirect use of the proceeds from the sale of the
Bonds) will violate or result in a violation of Section 7 of the
Exchange Act or any regulations issued pursuant thereto,
including, without limitation, said Regulation G, Regulation T
(12 C.F.R., Part 220, as amended) and Regulation X (12 C.F.R.,
Part 224, as amended) of said Board of Governors.
Section 2.17 Private Offering. Neither the Company nor
A.G. Edwards & Sons, Inc. (the only Person authorized or employed
by the Company as agent, broker, dealer or otherwise in
connection with the offering or sale of the Bonds or any similar
Security of the Company) has offered any of the Bonds or any
similar Security of the Company for sale to, or solicited offers
to buy any thereof from, or otherwise approached or negotiated
with respect thereto with, any prospective purchaser, other than
you and 69 other institutional investors, each of whom was
offered all or a portion of the Bonds at private sale for
investment.
Section 2.18 Compliance with Law. The Company:
(a) is not, to the best of its knowledge after due
inquiry, in violation of any laws, ordinances or governmental
rules or regulations to which it is subject, the violation of
which, either individually or in the aggregate, could reasonably
be expected to materially and adversely affect the business,
prospects, Properties or condition (financial or other) of the
Company, or
(b) has not failed to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the
ownership of its Property or to the conduct of its business,
which violation or failure could, either individually or in the
aggregate, reasonably be expected to materially and adversely
affect the business, prospects, Properties or condition
(financial or other) of the Company.
Neither the execution, delivery or performance of this Agreement
or the Supplemental Indenture, nor the performance of the
Indenture, nor the offer, issuance, sale or delivery of the
Bonds, will cause the Company to be in violation of any law or
any order, rule or regulation of any federal, state, county,
municipal or other governmental or public authority or agency
having jurisdiction over the Company or over its Properties, or
the award of any arbitrator.
Section 2.19 ERISA. (a) The Company has not, with
respect to any of the employee benefit plans established or
maintained, or to which contributions have been made, by the
Company (the Plans), engaged in a prohibited transaction
that could subject the Company to a tax or penalty on prohibited
transactions. No Plan that is subject to Part 3 of Subtitle B of
Title I of ERISA or Section 412 of the Code had an accumulated
funding deficiency, whether or not waived, as of the last day
of the most recent fiscal year of such Plan ended prior to the
date hereof. No liability to the PBGC has been or is expected by
the Company to be incurred by the Company with respect to any
Plan. There has been no reportable event with respect to any
Plan (including any Plan termination) since the effective date of
Section 4043 of ERISA for which a timely notice to the PBGC, not
otherwise waived by the PBGC, was not furnished, and since such
date no event or condition has occurred that presents a material
risk of termination of any Plan by the PBGC. As of January 1,
1998, the most recent valuation date, the actuarially determined
present value of all accrued benefits under each Plan that is
subject to Part 3 of Subtitle B of Title I of ERISA did not
exceed the then current value of the assets of the respective
Plan allocable to such benefits. Insofar as the representations
and warranties of the Company contained in the preceding
sentences of this subsection (a) relate to any Plan that is a
multiemployer plan, such representations and warranties are
made to the best knowledge of the Company after due inquiry.
(b) The execution and delivery of this Agreement and
the Supplemental Indenture, and the issuance and sale by the
Company, and the purchase by you hereunder, of the Bonds, will
not involve any prohibited transaction. This representation and
warranty is made in reliance on your representations in Section
1.5 (Source of Funds; ERISA) hereof as to the source of the funds
for your purchase of the Bonds. The Private Placement Memorandum
discloses all employee benefit plans with respect to which the
Company is a party in interest or with respect to which any
of the securities of the Company are employer securities.
If, at any time before the Closing Date, the Company becomes a
party in interest with respect to any other employee benefit plan
or if its securities become employer securities with respect to
any such employee benefit plan, then the Company will notify you
in writing of any such employee benefit plan within 15 days after
it becomes a party in interest or its securities become employer
securities with respect to any such employee benefit plan (but in
any event not later than the Closing Date).
(c) As used in this Section 2.19, the terms accrued
benefits, employee benefit plans, and party in interest
shall have the respective meanings assigned to such terms in
Section 3 of ERISA; the term accumulated funding deficiency
shall have the meaning assigned to such term in Section 302 of
ERISA and Section 412 of the Code; the term employer security
shall have the meaning assigned to it in Section 407(d)(1) of
ERISA; the term multiemployer plan shall have the meaning
assigned to such term in Section 4001 of ERISA; the term
prohibited transaction shall have the meaning assigned to
such term in Section 4975 of the Code and Section 406 of ERISA;
and the term "reportable event" shall have the meaning assigned
to such term in Section 4043 of ERISA.
Section 2.20 MGP Sites. The Company has conducted a
thorough investigation of all MGP Sites currently owned by it for
which it could accrue liabilities or have responsibilities
pursuant to Environmental Laws. The scope of its investigation
included all real Properties (i) for which the Company, to its
knowledge as of the date hereof, has responsibilities pursuant to
the Environmental Liability Sharing and Indemnity Agreement,
dated July 1, 1989, between the Company and Connecticut Light &
Power Company, and (ii) set forth in Schedule III (hereafter, the
Disclosed MGP Sites). As of the date hereof, the Company
knows of no MGP Sites other than the Disclosed MGP Sites for
which it could accrue liabilities or have responsibilities
pursuant to Environmental Laws. Based upon the present knowledge
of the Company, the Company does not believe that the Disclosed
MGP Sites, individually or in the aggregate, could reasonably be
expected to have a material adverse effect on the business,
prospects, Properties or conditions (financial or otherwise) of
the Company.
Section 2.21 Application of Other Laws. The issuance and
purchase of the Bonds and the security interest granted by the
Indenture and contemplated by this Agreement, are not subject to
the provisions of Connecticut's Hazardous Waste Establishment
Law, Conn. Gen. Stat. 22a-134 et seq.
Section 2.22 Compliance with Environmental Laws. The
Company is not in violation of applicable Environmental Laws,
which violation could reasonably be expected to have a material
adverse effect on the business, prospects, Properties or
condition (financial or otherwise) of the Company. The Company
has not received notification from any party that the Company has
any liability under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C.
Section 9601 et seq.), or the Resource Conservation and Recovery
Act of 1976, as amended (42 U.S.C. Section 6901 et seq.).
SECTION 3. CONDITIONS OF OBLIGATION TO PURCHASE BONDS.
Your obligation to purchase and pay for the Bonds to be
purchased by you on the Closing Date shall be subject to the
satisfaction, prior to or concurrently with such purchase and
payment, of the following conditions:
Section 3.1 Opinion of Your Special Counsel. You shall have
received from Winthrop, Stimson, Putnam & Roberts, who are acting
as special counsel for you in connection with the transactions
contemplated by this Agreement, an opinion, dated the Closing
Date, in form and substance satisfactory to you, to the effect
specified in Schedule IV-A hereof.
Section 3.2 Opinions of Counsel for the Company. You shall
have received from Shipman & Goodwin LLP, counsel for the
Company, and Mary J. Healey, Esq., Secretary and General Counsel
of the Company, opinions, each dated the Closing Date in form and
substance satisfactory to you and your special counsel, to the
effect specified in Schedule IV-B and Schedule IV-C,
respectively, hereof.
Section 3.3 Opinion of Counsel for the Trustee. You shall
have received from Gould & Wilkie, counsel for the Trustee, an
opinion, dated the Closing Date, in form and substance
satisfactory to you and your special counsel, to the effect
specified in Schedule IV-D hereof.
Section 3.4 Letter of Acknowledgment. You shall have
received a letter from, or acknowledged and accepted by, the
Trustee, in form and substance reasonably satisfactory to you and
your special counsel, acknowledging and accepting the terms of
Sections 5.1 (Direct Payment) and 5.3 (Indemnity for Destroyed,
Lost, or Stolen Bonds) hereof.
Section 3.5 Documents Required by Indenture; Basis for
Authentication. The Company shall have 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
Bonds pursuant to the provisions of the Indenture. The
Company shall have requested the Trustee to and the Trustee shall
have authenticated the Bonds pursuant to Article Five
(Authentication and Delivery of Additional Bonds) of the
Indenture. The Company shall be able to comply with all other
conditions with respect to the authentication of the Bonds
imposed by the Indenture.
Section 3.6 Recordings. On or prior to the Closing Date,
the Supplemental Indenture shall have been duly authorized,
executed and delivered by the Company and the Trustee,
substantially in the form of Exhibit A hereof (with such changes
therein as shall be agreed upon by you and the Company), 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
(the Financing Statements) and lien certificates pursuant to
Section 49-5 of the Connecticut General Statutes, 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 first mortgage Lien on and/or a first security interest in
the Trust Estate, subject only to Permitted Encumbrances.
Section 3.7 Representations and Warranties True. The
representations and warranties of the Company contained in
Section 2 (Representations and Warranties) hereof shall be true
on and as of the Closing Date with the same effect as though such
representations and warranties had been made on and as of the
Closing Date, and you shall have received an Officers'
Certificate, dated the Closing Date, to that effect.
Section 3.8 Performance of the Company's Obligations. The
Company shall have performed all of its obligations to be
performed hereunder and under the Indenture prior to or on the
Closing Date and you shall have received an Officers'
Certificate, dated the Closing Date, to that effect.
Section 3.9 No Pending Proceedings. The requisite
authorization of the DPUC referred to in Section 2.13 (Regulatory
Approval Required) hereof shall be in full force and effect and
shall not have been appealed, revoked, amended, stayed or
suspended and there shall not be pending or, to the Company's
best knowledge, contemplated any proceedings before or action of
the DPUC to abrogate or modify such authorization, and you shall
have received an Officers' Certificate, dated the Closing Date,
to that effect. Such authorization shall be legally sufficient
to authorize the offer, issuance, sale and delivery of the Bonds
and the execution, delivery and performance of this Agreement and
the Supplemental Indenture by the Company, and there can be no
abrogation or modification of such authorization after the
delivery of the Bonds that would invalidate the Bonds or alter,
diminish or void the obligations of the Company under this
Agreement, the Indenture or the Bonds.
Section 3.10 No Default. No event shall have occurred,
and no condition shall exist, which shall constitute a Default,
or, after notice or the passage of time or both, could become a
Default, and you shall have received an Officers' Certificate,
dated the Closing Date, to that effect.
Section 3.11 Legality. The Bonds shall qualify as a legal
investment for life insurance companies under the provisions of
the insurance law of any jurisdiction to which you are subject,
without reference to any so-called basket clause of such laws
(or any clause that imposes limitations on particular
investments, whether in the aggregate or individually), and you
shall have received from the Company such information or evidence
as you may reasonably request to enable you to determine whether
such purchase is so permitted.
Section 3.12 Private Placement Number. On or prior to the
Closing Date, your special counsel shall have duly made the
appropriate filings with Standard & Poor's CUSIP Service Bureau,
as agent for the National Association of Insurance Commissioners,
in order to obtain a private placement number for the Bonds.
Section 3.13 Proceedings, Instruments, Etc. All
proceedings and actions taken on or prior to the Closing Date in
connection with the transactions contemplated by this Agreement,
and all instruments incident thereto, shall be satisfactory in
form and substance to you and your special counsel, and you and
your special counsel shall have received copies of all such
documents that you or they may reasonably have requested in
connection with such proceedings, actions and transactions
(including, without limitation, evidence of the correctness of
representations and warranties contained herein and in the
Supplemental Indenture, and evidence of compliance with the terms
and the fulfillment of the conditions of this Agreement and the
Indenture), in form and substance satisfactory to you and your
special counsel.
SECTION 4. EXPENSES.
Whether or not the Bonds are sold or this Agreement is
terminated, the Company will pay, and will save you harmless
against liability for, all costs and expenses relating to this
Agreement, the Supplemental Indenture or the Bonds, to any
modification, amendment or alteration of this Agreement, the
Indenture or the Bonds (whether or not the same have become
effective), or to any enforcement of this Agreement, the
Indenture or the Bonds, including, without limitation:
(a) the cost of printing, preparing and reproducing
this Agreement, the Supplemental Indenture, the Bonds and every
instrument of modification, amendment or alteration, the cost of
all recordings and filings of or in respect of the foregoing, and
the cost of obtaining a private placement number from Standard
and Poor's CUSIP Service Bureau for the Bonds;
(b) the fees and disbursements of your special counsel,
of your local counsel, if any, of all counsel for the Company and
of the Trustee and counsel for the Trustee;
(c) your reasonable out-of-pocket expenses;
(d) the cost of delivering to your home office, insured
to your satisfaction, the Bonds purchased by you on the Closing
Date;
(e) all costs and expenses (including, without
limitation, legal fees and disbursements) relating to any
amendments, waivers or consents involving the provisions hereof,
of the Indenture or of the Bonds (whether or not the same have
become effective), including, without limitation, any amendments,
waivers or consents resulting from any work-out, renegotiation or
restructuring relating to the enforcement of this Agreement, the
Indenture or the Bonds;
(f) the broker's or finder's fees of any Person
retained by the Company in connection with the sale of the Bonds,
it being represented and warranted by the Company that: (i) A.G.
Edwards & Sons, Inc. is the only Person authorized by the Company
to act as agent on its behalf in connection with the sale of the
Bonds, and (ii) such Person acted solely as agent for the Company
and not as agent for you; and
(g) all taxes in connection with the issuance and
original sale by the Company of the Bonds and in connection with
any modification of the Bonds at the request of the Company, and
will save you and any subsequent holder of the Bonds harmless
without limitation as to time against any and all liabilities
with respect to all such taxes, including any interest or penalty
for nonpayment or delay in payment thereof and any income taxes
paid by you in connection with any reimbursement by the Company
therefor.
The obligations of the Company under this Section 4 shall
survive the payment of the Bonds and the termination of this
Agreement.
SECTION 5. CERTAIN SPECIAL RIGHTS.
In the event of any conflict between any provisions set
forth below and the Indenture, the provisions set forth below
shall control.
Section 5.1 Direct Payment. Notwithstanding anything to the
contrary contained in this Agreement, the Indenture or the Bonds,
the Company shall pay all amounts with respect to each Bond held
by each Institutional Holder of Bonds (without any presentment of
such Bond and without any notation of such payment being made
thereon) by crediting before 12:00 noon, New York time, by
Federal funds bank wire transfer, the account of such
Institutional Holder, in any bank in the United States of America
as may be designated in writing by such Institutional Holder, or
in such other lawful manner as may be directed or to such other
address in the United States of America as may be designated in
writing by such Institutional Holder. Your address on Schedule I
to this Agreement shall be deemed to constitute notice, direction
or designation (as appropriate) to the Company with respect to
direct payments as aforesaid.
Section 5.2 Delivery Expenses. If you surrender any Bond to
the Company or the Trustee pursuant to this Agreement or the
Indenture, or if the Company issues any new Bond pursuant to this
Agreement or the Indenture (other than pursuant to requests of
Bond holders for exchanges), the Company will pay the cost of
delivering to or from your office from or to the Company or the
Trustee, insured to your satisfaction, the surrendered Bond or
Bonds and any Bond or Bonds issued in substitution or replacement
for the surrendered Bond or Bonds, in each case insured to your
satisfaction.
Section 5.3 Indemnity for Destroyed, Lost, or Stolen Bonds.
The Company and the Trustee acknowledge that any holder of
Bonds that is an Institutional Holder may satisfy its obligation
to deliver security or indemnity in respect of destroyed, lost,
or stolen Bonds, as set forth in Section 3.08 (Mutilated,
destroyed, lost and stolen Bonds) of the Indenture, by delivering
its own unsecured letter of indemnity in respect thereof.
Section 5.4 Late Payments of Interest. The provisions of
Section 3.09 (Payment of interest on Bonds; interest rights
preserved) (other than the first and last paragraphs thereof) of
the Indenture shall not apply to the Bonds. Interest on any
Bond, other than that paid in accordance with first sentence of
such Section 3.09, shall be paid to the Person in whose name that
Bond (or one or more Predecessor Bonds (as defined in the
Indenture)) is registered at the close of business on the day
before such payment.
Section 5.5 No Presentation of Bonds. Notwithstanding any
provisions of the Indenture to the contrary, no holder of Bonds
shall be required to present or surrender such Bonds to the
Company, the Trustee or any other Person prior to, or as a
condition of, receiving any payment in respect thereof. You
agree that you will deliver to the Company all Bonds registered
in your name, at the time of final payment in full of all amounts
due in respect thereof, within a reasonable period after such
final payment.
SECTION 6. INFORMATION TO BE FURNISHED TO BONDHOLDERS.
Section 6.1 Financial and Other Statements. The Company
shall deliver to you, if at the time you or your nominee holds
any Bonds (or if you are obligated to purchase any Bonds), and to
each other Institutional Holder of the then outstanding Bonds
(and, in the case of the financial statements delivered pursuant
to Section 6.1(b) hereof, to the Securities Valuation Office,
National Association of Insurance Commissioners, 195 Broadway,
New York, New York 10007, provided that failure to do so shall
not constitute a Default or an Event of Default):
(a) Company Quarterly Statements - as soon as
practicable after the end of each quarterly fiscal period in each
fiscal year of the Company, and in any event within 45 days
thereafter, duplicate copies of:
(i) a balance sheet of the Company as at the end of
such quarter, and
(ii) a statement of income of the Company for such
quarter and (in the case of the second and third quarters)
for the portion of the fiscal year ending with such quarter,
and a statement of cash flows of the Company for the portion
of the fiscal year ending with such quarter, setting forth in each
case in comparative form the figures for the corresponding periods
in the previous fiscal year, all in reasonable detail and
certified as complete and correct, subject to changes resulting
from year-end adjustments, by a principal financial officer of the
Company; if the Company at any time has any Subsidiaries, all of
the foregoing financial statements shall be prepared on a
consolidated basis;
(b) Company Annual Statements - as soon as practicable
after the end of each fiscal year of the Company, and in any
event within 90 days thereafter, duplicate copies of:
(i) a balance sheet of the Company as at the end of
such year, and
(ii) statements of income, changes in shareholders'
equity and cash flows of the Company for such year,
setting forth in each case in comparative form the figures for
the previous fiscal year, all in reasonable detail, certified and
accompanied by a report thereon of Arthur Andersen LLP or other
independent public accountants of recognized national standing
selected by the Company, or other independent public accountants
acceptable to the holders of a majority in principal amount of
the Bonds then outstanding, which report shall state that such
financial statements fairly present the financial condition of
the companies being reported upon and have been prepared in
accordance with generally accepted accounting principles
consistently applied (except for changes in application in which
such accountants concur) and that the examination of such
accountants in connection with such financial statements has been
made in accordance with generally accepted auditing standards,
and accordingly included such tests of the accounting records and
such other auditing procedures as were considered necessary in
the circumstances; if the Company at any time has any
Subsidiaries, all of the foregoing financial statements shall be
prepared on a consolidated basis.
(c) Parent Quarterly Statements - as soon as practicable after
the end of each quarterly fiscal period in each fiscal year
of the Parent, and in any event within 45 days thereafter,
duplicate copies of:
(i) a consolidated balance sheet of the Parent and
its Subsidiaries as at the end of such quarter, and
(ii) a consolidated statement of income of the Parent
and its Subsidiaries for such quarter and (in the case of
the second and third quarters) for the portion of the fiscal
year ending with such quarter, and a consolidated statement
of cash flows of the Parent and its Subsidiaries for the
portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for
the corresponding periods in the previous fiscal year, all in
reasonable detail and certified as complete and correct, subject
to changes resulting from year-end adjustments, by a principal
financial officer of the Parent;
(d) Parent Annual Statements - as soon as practicable
after the end of each fiscal year of the Parent, and in any event
within 90 days thereafter, duplicate copies of:
(i) a consolidated balance sheet of the Parent and
its Subsidiaries, as at the end of such year, and
(ii) consolidated statements of income, changes in
shareholders' equity and cash flows of the Parent and its
Subsidiaries, for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in
reasonable detail, certified and accompanied by a report thereon
of Arthur Andersen LLP, or other independent public accountants of
recognized national standing selected by the Parent, or other
independent public accountants acceptable to the holders of a
majority in principal amount of the Bonds then outstanding, which
report shall state that such financial statements fairly present
the financial condition of the companies being reported upon and
have been prepared in accordance with generally accepted
accounting principles consistently applied (except for changes in
application in which such accountants concur) and that the
examination of such accountants in connection with such financial
statements has been made in accordance with generally accepted
auditing standards, and accordingly included such tests of the
accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(e) Audit Reports - promptly upon receipt thereof, a
copy of each other report submitted to the Company or any
Subsidiary of the Company by independent accountants in
connection with any annual, interim or special audit made by them
of the books of the Company or any Subsidiary of the Company;
(f) SEC and Other Reports - promptly upon their
becoming available one (1) copy of each financial statement,
report, notice or proxy statement sent by the Parent, the Company
or any Subsidiary of the Company to stockholders generally or
holders or trustees of its publicly-traded debt securities, and
of each regular or periodic report and any registration statement
or prospectus filed by the Parent, the Company or any Subsidiary
of the Company with the National Association of Securities
Dealers, any securities exchange or the SEC;
(g) ERISA - promptly after becoming aware of the
occurrence of any (i) reportable event (as such term is
defined in Section 4043 of ERISA), other than reportable events
with respect to which the 30-day notice period has been waived by
applicable regulation, or (ii) prohibited transaction (as
such term is defined in Section 406 or Section 4975 of the Code)
in connection with any Pension Plan or any trust created
thereunder, a written notice specifying the nature thereof, what
action the Company is taking or proposes to take with respect
thereto, and, when known, any action taken by the IRS, the
Department of Labor or the PBGC with respect thereto;
(h) ERISA Waivers - prompt written notice of and a
description of any request pursuant to Section 303 of ERISA or
Section 412 of the Code for, or notice of the granting pursuant
to said Section 303 or Section 412 of, a waiver in respect of all
or part of the minimum funding standard set forth in ERISA or the
Code, as the case may be, of any Pension Plan, and, in connection
with the granting of any such waiver, the amount of any waived
funding deficiency (as such term is defined in said Section 303
or said Section 412) and the terms of such waiver;
(i) Other ERISA Notices - prompt written notice of and,
where applicable, a description of (i) any notice from the PBGC
in respect of the commencement of any proceedings pursuant to
Section 4042 of ERISA to terminate any Pension Plan or for the
appointment of a trustee to administer any Pension Plan, (ii) any
distress termination notice delivered to the PBGC under Section
4041 of ERISA in respect of any Pension Plan, and any
determination of the PBGC in respect thereof, (iii) the placement
of any Multiemployer Pension Plan in reorganization status under
Title IV of ERISA, (iv) any Multiemployer Pension Plan becoming
insolvent (as such term is defined in Section 4245 of ERISA
under Title IV of ERISA), (v) the whole or partial withdrawal of
the Company or any ERISA Affiliate from any Multiemployer Pension
Plan and the withdrawal liability incurred in connection
therewith, and (vi) the withdrawal of the Company or any ERISA
Affiliate from any Pension Plan with respect to which it is a
substantial employer under, and as defined in, ERISA and the
withdrawal liability under ERISA incurred in connection
therewith;
(j) Notice of Default or Event of Default - immediately
upon a Designated Officer becoming aware of the existence of any
condition or event that constitutes a Default or an Event of
Default, a written notice specifying the nature and period of
existence thereof and what action the Company is taking or
proposes to take with respect thereto;
(k) Notice of Claimed Default - immediately upon
becoming aware of the existence of a Default in respect of any
Bond, or any default in respect of any evidence of indebtedness
or other Security of the Company or any Subsidiary of the Company
in an outstanding principal amount of at least $1,000,000, a
written notice specifying any notice given or action taken by any
holder thereof and the nature of the claimed Default or default
and what action the Company is taking or proposes to take with
respect thereto;
(l) Notice of Environmental Matters - (i) The Company
shall provide written notice to any holder of the Bonds within
thirty (30) days of the Company obtaining knowledge of:
(1) any proceeding, litigation, judgment or order by a
governmental authority involving any Disclosed MGP Site or
other MGP Site for which the Company is or is alleged to be
responsible; or,
(2) any of the following, that, individually or in the
aggregate, could reasonably be expected to have a material
adverse effect on the business, prospects, Properties (taken
as a whole) or condition (financial or otherwise) of the
Company:
(A) the violation of any Environmental Law;
(B) any claim, demand, investigation, proceeding,
cost recovery action, litigation, judgment, order or
lien arising pursuant to any Environmental Law or from
the release or disposal of any Hazardous Substance; or,
(C) any other environmental, health or safety
condition or occurrence.
(3) The Company shall deliver to any holder of the
Bonds any such documents or records regarding the above
matters that may be reasonably requested by any such holder
and that may be obtained without need to initiate legal
proceedings, except if such documents or records were
generated by the Company for litigation and are protected
from discovery or are otherwise protected from discovery or
if such documents or records are covered by a written
confidentiality agreement entered into by the Company for
the purpose of maintaining the confidentiality of
information provided to the Company by any Person other than
an Affiliate.
(m) Requested Information - with reasonable promptness,
such other data and information as from time to time may be
reasonably requested, including, without limitation, such
financial or other information as may reasonably be requested to
permit the holders of the Bonds to comply with the requirements
of Rule 144A promulgated under the Securities Act in connection
with a resale of the Bonds, provided that the transferee agrees
to be bound by the confidentiality provisions contained in
Section 6.3 (Inspection) of this Agreement.
You may supply copies of any financial statements or reports
furnished pursuant to this Section 6.1 to any regulatory
authority having jurisdiction over you. The Company agrees to
supply a reasonable number of additional copies of any of the
materials referred to in this Section 6.1 upon written request.
Section 6.2 Officers' Certificates. Each set of financial
statements delivered to you or any other holder of the Bonds
pursuant to Section 6.1(b) (Financial and Other Statements
(Company Annual Statements)) hereof shall be accompanied by a
certificate of the President or a Vice-President and the
Treasurer or an Assistant Treasurer of the Company setting forth
that the signers have reviewed the relevant terms of this
Agreement and the Indenture and have made, or caused to be made
under their supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the beginning
of the accounting period covered by the income statements being
delivered therewith to the date of the certificate and that such
review has not disclosed the existence during such period of any
condition or event that constitutes a Default or an Event of
Default or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what
action the Company has taken or proposes to take with respect
thereto.
Section 6.3 Inspection. The Company shall permit any of
your representatives, while you or your nominee holds any Bond,
or the representatives of any other Institutional Holder of the
Bonds, at your or such holder's expense (unless a Default or an
Event of Default has occurred and is continuing, in which case at
the Company's expense), to visit and inspect any of the
Properties of the Company or any Subsidiary of the Company, to
examine all their respective books of account, records, reports
and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with
their respective officers, employees and, if you reasonably
believe that a Default or an Event of Default exists, with
independent public accountants (and by this provision the Company
authorizes said accountants to discuss the finances and affairs
of the Company and its Subsidiaries) provided that prior notice
of the request by you for such discussions is given to the
Company (unless a Default has occurred, in which case no prior
notice shall be required) all at such reasonable times and as
often as may be reasonably requested.
All information that is furnished to or obtained by any
holder of Bonds pursuant to Section 6.1 (Financial and Other
Statements) hereof, Section 6.2 (Officers' Certificates) hereof,
or this Section 6.3 shall be received and held in confidence
unless or until the same has been publicly disclosed (other than
by or on behalf of any Bond holder); provided, however, that any
holder of Bonds shall not in any way be inhibited in the use of
such information in order to determine and enforce compliance
with the terms and conditions of this Agreement or the Indenture
or take any lawful action that it deems necessary to protect its
interests herein and in the Bonds or the Indenture, and provided,
further, that any holder of Bonds may furnish any such
information in compliance with any court order or the
requirements of any regulatory body, agency, authority or
commission to whose jurisdiction such holder may be subject, to
its independent accountants, attorneys or to any Person to whom
such holder owes any duty of disclosure, to the National
Association of Insurance Commissioners, rating agencies and to
any Institutional Holder to whom such holder is considering
selling any Bonds. It is understood that no Bond holder shall be
liable to the Company or to any other Person in damages for
failure to comply with the undertaking contained in this
paragraph except in any case involving gross negligence or
willful misconduct by such holder.
SECTION 7. COVENANTS.
In the event of any conflict between any provisions set
forth below and the Indenture, the provisions set forth below
shall control.
Section 7.1 Purchase of the Bonds. The Company shall not,
nor shall it permit any of its Subsidiaries or Affiliates to,
directly or indirectly, acquire or make any offer to acquire any
Bonds unless the Company or any such Subsidiary or Affiliate has
offered to acquire Bonds, pro rata, from all holders of Bonds,
upon the same terms.
Section 7.2 Bondholder Expenses on Acceleration. So long as
any Bond is outstanding, upon the rescission and annulment of a
declaration of acceleration and its consequences, as provided for
in Section 9.02 (Acceleration of Maturity; Rescission and
Annulment) of the Indenture, the Company shall pay the reasonable
expenses, disbursements and advances of each holder of Bonds
(including, without limitation, the reasonable fees and
disbursements of its counsel).
Section 7.3 Transmission of Funds. The Trustee shall
transmit to each holder of Bonds, by wire transfer of immediately
available funds as provided in Schedule I hereto, or in such
other manner as may be directed or to such other address in the
United States of America as may be designated in writing by such
holder, all funds received by it (whether by means of foreclosure
on the Trust Estate or otherwise) that are payable in respect of
the Bonds. (Nothing in this Section 7.3 shall be deemed to affect
the Company's obligation to make payments in the manner provided
in Section 5.1 (Direct Payment) of this Agreement.) Such wire
transmissions shall be made on the same day as the Trustee
receives collected funds if such receipt occurs prior to 12:00
noon Hartford, Connecticut time on such day and, in all other
cases, on the next succeeding Business Day.
Section 7.4 Compensation and Reimbursement. The Company
agrees to indemnify any holder of Bonds that has made a payment
to the Trustee as the result of any security or indemnity given
to the Trustee by such holder pursuant to Section 10.03(E)
(Certain rights of Trustee) of the Indenture in circumstances
where the Company would otherwise have been obligated under the
terms of the Indenture or this Agreement to reimburse the Trustee
or any holder of the Bonds for, or indemnify the Trustee or any
holder of the Bonds against, the costs, expenses and/or
liabilities for which such payment was made.
Section 7.5 Defaults and Acceleration. (a) Pursuant to the
Indenture, for purposes of determining whether a Default or Event
of Default exists with respect to the Bonds, but only with
respect to the Bonds, the following shall also constitute Events
of Default under the Indenture:
(i) default in the performance, or breach, of any
covenant or warranty in this Agreement (other than (1)
Section 6.1(l) (Financial and Other Statements (Notice of
Environmental Matters)) hereof or (2) a covenant or warranty
a default in the performance or breach of which is
specifically dealt with elsewhere in this Agreement), and
continuance of such default or breach for a period of 30
days after notice has been given in accordance with the
procedures described in Section 9.01C (Events of Default) of
the Indenture; or
(ii) default in any representation or warranty made
by the Company herein, or made by the Company in any
statement or certificate furnished by the Company in
connection with the consummation of the issuance and
delivery of the Bonds is untrue in any material respect as
of the date of the issuance or making thereof; or
(iii) the Company or any of its Subsidiaries defaults
in any payment, beyond any period of grace provided with
respect thereto, of principal of, or premium or interest on,
any obligation for borrowed money having an outstanding
principal amount of $10,000,000 or more; or
(iv) a final, non-appealable judgment in an amount in
excess of $10,000,000 above available insurance coverage (so
long as the insurer shall have agreed, in writing at the
time such judgment becomes final, that it is responsible for
payment of such judgment up to the limit of available
coverage) is rendered against the Company or any of its
Subsidiaries and, within 60 days after entry thereof, such
judgment is not discharged.
(b) In addition to the sums stated to be payable
pursuant to Section 9.06 (Covenant to pay Trustee amounts due on
Bonds and right of Trustee to judgment) of the Indenture upon the
occurrence of the defaults referred to therein, upon the
occurrence of an acceleration pursuant to Section 9.02
(Acceleration of Maturity; Rescission and Annulment) of the
Indenture, the Company shall pay the Make-Whole Amount,
calculated as of the time of such payment, to each holder of
Bonds in respect of the Bonds held by such holder.
Make-Whole Amount shall mean in connection with any
redemption or prepayment or acceleration of the Bonds, the
excess, if any, of (a) the aggregate present value as of the date
of such redemption or prepayment of each dollar of principal
being redeemed or prepaid and the amount of interest (exclusive
of interest accrued to the date of redemption or prepayment) that
would have been payable in respect of such dollar if such
redemption or prepayment or acceleration had not been made,
determined by discounting such amounts at the Reinvestment Rate
from the respective dates on which they would have been payable,
over (b) 100% of the principal amount of the outstanding Bonds
being redeemed, prepaid or paid. If the Reinvestment Rate is
equal to or higher than 6.20%, the Make-Whole Amount shall be
zero. For purposes of any determination of Make-Whole Amount:
Reinvestment Rate shall mean (1) the sum of .50%
plus the yield reported on page "USD" of the
Bloomberg/Treasury Money Market Monitor Screen (or, if
not available, any other nationally recognized trading
screen reporting on-line intraday trading in United
States government Securities) at 12:00 noon (New York
time) on such date for United States government
Securities having a maturity rounded to the nearest
month) corresponding to the remaining Weighted Average
Life to Maturity of the principal being redeemed,
prepaid or paid or (2) in the event that no such
nationally recognized trading screen reporting on-line
intraday trading in United States government Securities
is available, Reinvestment Rate shall mean .50 plus the
arithmetic mean of the yields under the respective
headings This Week and Last Week published in
the Statistical Release under the caption Treasury
Constant Maturities for the maturity (rounded to the
nearest month) corresponding to the Weighted Average
Life to Maturity of the principal being redeemed,
prepaid or paid. If no maturity exactly corresponds to
such Weighted Average Life to Maturity, yields for the
two published maturities most closely corresponding to
such Weighted Average Life to Maturity shall be
calculated pursuant to the immediately preceding
sentence and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a
straight-line basis, rounding in each of such relevant
periods to the nearest month. For the purposes of
calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
Statistical Release shall mean the then most
recently published statistical release designated
H.15(519) or any successor publication that is
published weekly by the Federal Reserve System and that
establishes yields on actively traded U.S. government
Securities adjusted to constant maturities or, if such
statistical release is not published at the time of any
determination hereunder, then such other reasonably
comparable index that is designated by the holders of
66-2/3% in aggregate principal amount of the
outstanding Bonds.
Weighted Average Life to Maturity of the
principal amount of the Bonds being redeemed, prepaid
or paid shall mean, as of the time of any determination
thereof, the number of years obtained by dividing the
then Remaining Dollar-Years of such principal by the
aggregate amount of such principal. The term
Remaining Dollar-Years of such principal shall mean
the amount obtained by (1) multiplying the amount of
principal that would have become due at the stated
maturity of the Bonds if such redemption, prepayment or
payment had not been made by the number of years
(calculated to the nearest one-twelfth) that will
elapse between the date of determination and such
stated maturity date of the Bonds.
SECTION 8. INTERPRETATION OF AGREEMENT.
Section 8.1 Definitions. Except as the context shall
otherwise require, the following terms shall have the following
meanings for all purposes of this Agreement (the definitions to
be applicable to both the singular and the plural forms of the
terms defined, where either such form is used in this Agreement):
The term Accredited Investor shall have the meaning
ascribed to such term in Section 2(15) or Rule 501(a) under the
Securities Act.
The term Affiliate with respect to any Person shall mean
a Person (a) that, directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such Person, (b) that, directly or indirectly,
beneficially owns or holds of record 10% or more of the shares of
any class of capital stock of or interest in such Person, (c) 10%
or more of the shares of any class of capital stock of or
interests in which is, directly or indirectly, beneficially owned
or held of record by such Person, or (d) who is an officer or
director of (or an individual performing similar management or
supervisory functions for) such Person. The term control
(including the related terms controlled by and under common
control with) shall mean the possession, direct or indirect, of
the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of capital
stock, by contract or otherwise.
The term Bonds shall have the meaning assigned thereto
in Section 1.1 (Issue of Bonds and Security) hereof.
The term Business Day shall mean a day other than a
Saturday, Sunday or legal holiday or the equivalent for banking
institutions generally (other than a moratorium) in Hartford,
Connecticut or New York, New York.
The term Closing Date shall have the meaning assigned
thereto in Section 1.2 (Sale of Bonds) hereof.
The term Code shall mean the Internal Revenue Code of
1986, as amended.
The term Company shall mean Yankee Gas Services Company,
a specially chartered Connecticut corporation, and its successors
and assigns.
The term Default shall mean any event or condition, the
occurrence of which would, with the lapse of time or the giving
of notice, or both, constitute an Event of Default.
The term Designated Officer shall mean any officer of
the Company who may sign an Officers' Certificate under the
Indenture.
The term Disclosed MGP Site shall have the meaning set
forth in Section 2.20 (MGP Sites) hereof.
The term DPUC shall mean the Department of Public
Utility Control of the State of Connecticut.
The term Environmental Law shall mean any federal, state
or local, statute, law, regulation, ordinance, order, consent
decree, judgment, permit, license, code, common law or other
legal requirement now or, for purposes of Section 6.1(l)
(Financial and Other Statements (Notice of Environmental
Matters)), hereafter enacted pertaining to protection of the
environment, health or safety of persons, natural resources,
conservation, wildlife, waste management, any Hazardous
Substance, and pollution (including, without limitation,
regulation of releases and disposals to air, land, water and
groundwater), and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Action
of 1986, 42 U.S.C. 9601 et seq., Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976 and
Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. et
seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. 1251 et seq., Clean Air Act
of 1966, as amended, 42 U.S.C. 7401 et seq., Toxic Substances
Control Act of 1976, 15 U.S.C. 2601 et seq., Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. 651 et
seq., Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. 11001 et seq., National Environmental Policy Act of
1975, 42 U.S.C. 4321 et. seq., Safe Drinking Water Act of 1974,
as amended, 42 U.S.C. 300(f) et seq., and any similar or
implementing state law, and all amendments, rules, regulations
and publications promulgated thereunder.
The term ERISA shall mean the Employee Retirement Income
Security Act of 1974, as amended.
The term ERISA Affiliate shall mean any corporation or
trade or business that (i) is a member of the same controlled
group of corporations (within the meaning of Section 414(b) of
the Code) as the Company or (ii) is under common control (within
the meaning of Section 414(c) of the Code) with the Company.
The term Event of Default shall mean one of the events
of default enumerated in Section 7.5(a) hereof or Article Nine
(Remedies) of the Indenture.
The term Exchange Act shall mean the Securities Exchange
Act of 1934.
The term FERC shall mean the Federal Energy Regulatory
Commission.
The term Hazardous Substance shall mean any hazardous or
toxic chemical, waste, byproduct, pollutant, contaminant,
product, material or substance, including without limitation,
asbestos, polychlorinated biphenyls, petroleum (including crude
oil or any fraction thereof) and any substance defined as a
hazardous substance or waste pursuant to an Environmental Law.
The term hereof, herein, hereunder and other words of similar
import shall be construed to refer to this Agreement as a whole
and not to any particular Section or other subdivision.
The term heretofore shall be construed to refer to the
time prior to the date of original execution and delivery by the
Company of this Agreement.
The term holder (with respect to any Bond) shall mean
the Person in whose name a bond is registered in the register of
Bonds maintained pursuant to the Indenture.
The term Indebtedness with respect to any Person shall
mean all items (other than capital stock and surplus) that, in
accordance with generally accepted accounting principles, would
be shown on the liability side of a balance sheet of such Person
as of the date on which indebtedness is to be determined. The
term Indebtedness shall also include, whether or not so
reflected, (a) debt, obligations and liabilities secured by any
Lien existing on Property owned by such Person if such Property
is subject to such Lien, whether or not the debt, obligations or
liabilities secured thereby have been assumed; (b) debt that has
been removed in substance from the balance sheet of the Company
as a result of the in-substance defeasance thereof; (c)
obligations of such Person under any lease that is required under
generally accepted accounting principles prevailing on the date
of determination to be shown on the liability side of a balance
sheet of such Person or that, whether or not required to be so
shown, contains terms that require the payment of lease rentals
whether or not the Property leased thereunder shall exist or can
be used for the purpose for which it has been leased, or provides
for a termination payment calculated to be sufficient to retire
any debt, obligations or liabilities secured by a Lien on such
lease or on the Property leased thereunder; (d) all obligations
of such Person guaranteeing or in effect guaranteeing any
indebtedness, dividend or other obligation of any other Person
and (e) all obligations of such Person to purchase any materials,
supplies or other Property, or to obtain the services of any
other Person, if the relevant contract or other related document
requires that payment for such materials, supplies or other
Property, or for such services, shall be made regardless of
whether or not delivery of such materials, supplies or other
Property is ever made or tendered or such services are ever
performed or tendered.
The term Indenture shall have the meaning assigned
thereto in Section 1.1 (Issue of Bonds and Security) hereof.
The term IRS shall mean the Internal Revenue Service and
any successor agency.
The term Institutional Holder shall mean (a) you and any
of your Affiliates or nominees, and (b) any insurance company,
bank, savings and loan association, trust company, investment
company, charitable foundation, employee benefit plan (as defined
in ERISA) or other institutional investor or financial
institution that is the record or beneficial owner of not less
than $1,000,000 in aggregate principal amount of the Bonds
outstanding, provided that this limitation shall not be
applicable in the event that the aggregate principal amount of
the outstanding Bonds is less than $1,000,000.
The term Lien shall mean any interest in Property
securing an obligation owed to, or a claim by, any Person other
than the owner of the Property, whether such interest is based on
the common law, statute or contract, and including the Lien or
security interest arising from a mortgage, encumbrance, pledge,
conditional sale or trust receipt, or from a lease, consignment
or bailment for security purposes. The term Lien shall also
include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases and
other title exceptions and encumbrances affecting Property. For
purposes of this Agreement, a Person shall be deemed to be the
owner of any Property that it has acquired or holds subject to a
conditional sale agreement or other arrangement (including a
leasing arrangement) pursuant to which title to the Property has
been retained by or vested in some other Person for security
purposes.
The term MGP Site shall mean any real property upon
which a manufactured gas plant or facility manufacturing gas from
coal or petroleum is or was located.
The term Multiemployer Pension Plan shall mean any
multiemployer pension plan (as defined in Section 3(37) of
ERISA) in respect of which the Company or any ERISA Affiliate is
an employer (as such term is defined in Section 3 of ERISA).
The term Multiple Employer Pension Plan shall mean any
employee benefit plan within the meaning of Section 3(3) of ERISA
other than a Multiemployer Pension Plan, subject to Title IV of
ERISA, to which the Company or any ERISA Affiliate and an
employer (as such term is defined in Section 3 of ERISA)
other than an ERISA Affiliate or the Company contribute.
The term Officers' Certificate shall mean a certificate
executed on behalf of the Company by the Chairman of the Board,
the President, any Vice President, the Treasurer, the Controller
or the chief financial officer of the Company.
The term Original Indenture shall have the meaning
assigned thereto in Section 1.1 (Issue of Bonds and Security)
hereof.
The term Parent shall mean Yankee Energy System, Inc., a
Connecticut corporation, and its successors and assigns.
The term "PBGC" shall mean the Pension Benefit Guaranty
Corporation and any successor corporation or governmental agency.
The term Pension Plan shall mean any employee pension
benefit plan (as such term is defined in Section 3 of ERISA)
maintained by the Company or any ERISA Affiliate for employees of
the Company or such ERISA Affiliate, excluding any Multiemployer
Pension Plan, but including, without limitation, any Multiple
Employer Pension Plan.
The term Permitted Encumbrances shall have the meaning
assigned thereto in Section 1.01 (Definitions) of the Indenture.
The term Person shall mean an individual, corporation,
partnership, trust, estate, unincorporated organization or
government or an agency or political subdivision thereof.
The term Prime Rate shall mean the prime rate of
interest as publicly announced from time to time by The Bank of
New York, New York, New York.
The term Private Placement Memorandum shall have the
meaning assigned thereto in Section 1.4 (Restrictions on
Transfer; Legend) hereof.
The term Property shall mean any interest in any kind of
property or asset, whether real, personal or mixed, and whether
tangible or intangible.
The term Purchasers shall mean and include each of the
purchasers of the Bonds named in Schedule I to this Agreement.
The term Qualified Institutional Buyer shall have the
meaning assigned thereto in Rule 144A under the Securities Act.
The term SEC shall mean the Securities and Exchange
Commission.
The term Security shall have the same meaning as in
Section 2(1) of the Securities Act of 1933.
The term Securities Act shall mean the Securities Act of
1933.
The term Subsidiary shall mean any corporation of which
more than 50% of the Voting Stock is at the time directly or
indirectly owned by the Company or the Parent, as the case may
be.
The term Supplemental Indenture shall have the meaning
assigned thereto in Section 1.1 (Issue of Bonds and Security)
hereof.
The term this Agreement shall mean this Bond Purchase
Agreement (including the annexed Schedules and Exhibits), as it
may from time to time be amended, supplemented or modified, in
accordance with its terms.
The term Trustee shall mean The Bank of New York and its
successors and assigns.
The term Voting Stock shall mean the stock of any class
or classes of a corporation the holders of which are ordinarily,
in the absence of contingencies, entitled to elect a majority of
the corporate directors (or persons performing similar
functions).
Section 8.2 Directly or Indirectly. Any provision in this
Agreement referring to action that any Person is prohibited from
taking shall be applicable whether such action is taken directly
or indirectly by such Person.
Section 8.3 Accounting Terms. All accounting terms used
herein that are not otherwise expressly defined herein or in the
Indenture shall have the meanings respectively given to them in
accordance with generally accepted accounting principles
applicable to a company in the same business as the Company,
including applicable accounting rules imposed by an regulatory
agency with jurisdiction over the Company.
Section 8.4 Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Connecticut.
Section 8.5 Headings. The headings of the Sections and
other subdivisions of this Agreement have been inserted for
convenience only and shall not be deemed to constitute a part
hereof.
SECTION 9. MISCELLANEOUS.
Section 9.1 Notices. (a) Unless otherwise expressly
specified by the terms hereof, all notices and other
communications under this Agreement shall be in writing and shall
be mailed by first class mail, postage prepaid, or by prepaid
overnight courier (i) if to you, to you at your address shown in
Schedule I to this Agreement, marked for attention as there
indicated, or at such other address as you may have furnished to
the Company in writing, (ii) if to any other holder of a Bond, to
it at the address listed in the books for the registration and
registration of transfer of Bonds, or at such other address as
such holder may have furnished to the Company in writing and
(iii) if to the Company, to it at its address shown at the head
of this Agreement, or at such other address as it may have
furnished in writing to you and all other holders of the Bonds at
the time outstanding.
(b) Any written communication so addressed and mailed
by registered or certified mail (in each case, with return
receipt requested) or prepaid overnight courier shall be deemed
to have been given when so mailed. All other written
communications shall be deemed to have been given upon receipt
thereof.
Section 9.2 Reproduction of Documents. This Agreement and
all documents relating hereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be
executed, (b) documents received by you at the closing of your
purchase of the Bonds (including specimens of the Bonds but not
the Bonds themselves) and (c) financial statements, certificates
and other information previously or hereafter furnished to you,
may be reproduced by you by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar
process and you may destroy any original documents so reproduced.
The Company agrees and stipulates that it will not object to the
admission in evidence of such reproduction as the original itself
in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was
made by you in the regular course of business) on the grounds
that it is a reproduction and that any enlargement, facsimile or
further reproduction of such reproduction shall have the benefit
of this Section 9.2.
Section 9.3 Survival; Severability.
(a) Survival. All representations, warranties, and
covenants made by the Company herein or in any certificate or
other instrument delivered by it or on its behalf under this
Agreement on or prior to the Closing Date shall be considered to
have been relied upon by you and shall survive the delivery to
you of the Bonds purchased by you, regardless of any
investigation made by you or on your behalf, and shall survive
the final payment at maturity of the Bonds with respect to causes
of action accruing after said date of final payment and maturity.
All statements in any such certificate or other instrument shall
constitute representations and warranties as of the Closing Date
by the Company hereunder.
(b) Severability. If any provision of this Agreement
is invalid or unenforceable under applicable law, such provision
is and shall be ineffective, to the extent to which it is
contrary to applicable law, but the remaining provisions of this
Agreement shall remain in effect and shall not be affected
thereby.
Section 9.4 Successors and Assigns. This Agreement shall
inure to the benefit of and shall be binding upon the successors
and assignees of each of the parties (including each subsequent
holder of the Bonds, unless otherwise provided herein). The
provisions of this Agreement are intended to be for your benefit
and for the benefit of all holders from time to time of the Bonds
and shall be enforceable by you and any other such holder,
whether or not an express assignment to such holder of rights
under this Agreement has been made by you or your successors or
assigns.
Section 9.5 Amendment and Waiver. This Agreement may be
amended, and the observance of any term of this Agreement may be
waived, with (and only with) the written consent of the Company
and holders of more than fifty percent (50%) in aggregate unpaid
principal amount of the Bonds at the time outstanding (exclusive
of Bonds then owned or held by the Company or any Subsidiary or
other Affiliate thereof); provided, however, that no such
amendment or waiver shall, without the written consent of the
holders of all the Bonds at the time outstanding (exclusive of
Bonds then owned or held by the Company or any Subsidiary or
other Affiliate thereof), (a) amend this Section 9.5 or (b) amend
Section 7.5 hereof. Nothing herein shall be deemed to amend
Article Thirteen (Supplemental Indentures) of the Indenture.
Section 9.6 Amendment of DPUC Authorization. The Company
hereby covenants that, without the prior written consent of the
holders of all the Bonds at the time outstanding, it will not
petition or otherwise request that the DPUC revoke or amend the
authorization of the DPUC referred to in Section 2.13 (Regulatory
Approval Required) hereof with respect to the issuance of the
Bonds in any manner that would invalidate the Bonds or alter,
diminish or void the obligations of the Company under this
Agreement, the Indenture or the Bonds.
Section 9.7 Duplicate Originals; Execution and Counterpart.
Two or more duplicate originals of this Agreement may be
signed by the parties, each of which shall be an original but all
of which together shall constitute one and the same instrument.
This Agreement may be executed in one or more counterparts and
shall be effective when at least one counterpart has been
executed by each party hereto, and each set of counterpart which,
collectively, show execution by each party hereto shall
constitute one duplicate original.
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
NEW YORK LIFE INSURANCE COMPANY
By /s/ David L. Bangs
Name: David L. Bangs
Title: Managing Director
<PAGE>
If the foregoing is satisfactory to you, please sign the form
of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this
letter, as so accepted, shall become a binding contract
between you and the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
TEACHERS INSURANCE AND ANNUITY ASSOCIATION
By /s/ Diane Hom
Name: Diane Hom
Title: Director-Private Placements
<PAGE>
If the foregoing is satisfactory to you, please sign the form
of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this
letter, as so accepted, shall become a binding contract
between you and the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
UNITED OF OMAHA LIFE INSURANCE COMPANY
By /s/ Edwin H. Garrison, Jr.
Name: Edwin H. Garrison, Jr.
Title: First Vice President
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
COMPANION LIFE INSURANCE COMPANY
By /s/ Edwin H. Garrison, Jr.
Name: Edwin H. Garrison, Jr.
Title: Assistant Treasurer
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
MINNESOTA LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ John L. Leiviska
Name: John Leiviska
Title: Vice President
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
COLORADO BANKERS LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ John Leiviska
Name: John Leiviska
Title: Vice President
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
THE CATHOLIC AID ASSOCIATION
By: Advantus Capital Management, Inc.
By /s/ John Leiviska
Name: John Leiviska
Title: Vice President
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
NATIONAL TRAVELERS LIFE COMPANY
By: Advantus Capital Management, Inc.
By /s/ Thomas G. Meyer
Name: Thomas G. Meyer
Title: Vice President
<PAGE>
If the foregoing is satisfactory to you, please sign the form of
acceptance on the enclosed counterpart or counterparts hereof and
return the same to the Company, whereupon this letter, as so
accepted, shall become a binding contract between you and the
Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
GUARANTEE RESERVE LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ Thomas G. Meyer
Name: Thomas G. Meyer
Title: Vice Presdient
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
PIONEER MUTUAL LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ Thomas G. Meyer
Name: Thomas G. Meyer
Title: Vice President
<PAGE>
If the foregoing is satisfactory to you, please sign the
form of acceptance on the enclosed counterpart or counterparts
hereof and return the same to the Company, whereupon this letter,
as so accepted, shall become a binding contract between you and
the Company.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
Name: James M. Sepanski
Title: Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted:
MUTUAL TRUST LIFE INSURANCE COMPANY
By: Advantus Capital Management, Inc.
By /s/ Thomas G. Meyer
Name: Thomas G. Meyer
Title: Vice President
<PAGE>
YANKEE GAS SERVICES COMPANY
$50,000,000 in Aggregate Principal Amount
of
First Mortgage Bonds, 6.20% Series F, Due 2009
BOND PURCHASE AGREEMENT
Dated as of January 1, 1999
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: New York Life Insurance
Company
Instructions for Delivery of All Notices and Correspondence
New York Life Insurance Company
51 Madison Avenue
New York, NY 10010-1603
Attn: Investment Department
Private Finance Group
Room 206
Fax: 212-447-4160
with a copy of any notices regarding defaults or Events of
Defaults under the operative documents to:
Attn: Office of General Counsel
Investment Section, Room 1104
Fax: 212-576-8340
All Payment Notices to the Above Address and to:
Attn: Treasury Department
Securities Income Section
Room 209|
Fax: 212-447-4160
Instructions for Wire Transfer Payments
Chase Manhattan Bank
New York, New York 10019
ABA No. 021-000-021
For the account of New York Life Insurance Company
General Account No. 008-9-00687
Taxpayer ID Number: 13-5582869
Amount of Commitment of New York Life Insurance Company:
$10,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Minnesota Life Insurance
Company
Instructions for Delivery of All Notices and Correspondence
Minnesota Life Insurance Company
400 Robert Street North
St. Paul, MN 55101
Attn: Advantus Capital Management, Inc.
Fax: 651-223-5959
Instructions for Wire Transfer Payments
U.S. Bank Trust National Association
Minneapolis, Minnesota
ABA #091000022
BNF Minnesota Life Insurance Company
Account #1801-10-00600-4
(with sufficient information to identify the source and
application of such funds)
Taxpayer ID Number: 41-0417830
Amount of Commitment of Minnesota Life Insurance Company:
$6,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Salkeld & Co.
Notes to be forwarded to the following address
Bankers Trust Company
16 Wall Street, 4th Floor
Securities Administration
Window 62
New York, NY 10015
Attn: George Flores
Instructions for Delivery of All Notices and Correspondence
Colorado Bankers Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Instructions for Wire Transfer Payments
Bankers Trust Company
New York, NY
ABA #021-001-033
For credit to: Account Number: 99-911145
For further credit to: Colorado Bankers Life Insurance Company
Account Number: 098125
Please reference sufficient information to identify the source
and application of such funds
Taxpayer ID Number: 84-0674027
Amount of Commitment of Colorado Bankers Life Insurance Company:
$1,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Var & Co.
Notes to be forwarded to the following address
U.S. Bank Trust National Association
180 East Fifth Street
St. Paul, MN 55101
Attn: Marilyn Goldberg (SPFT 0901)
Instructions for Delivery of All Notices and Correspondence
The Catholic Aid Association
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Instructions for Wire Transfer Payments
U.S. Bank, N.A.
Minneapolis, MN
ABA #091-000-022
For credit to: U.S. Bank Trust, N.A.
Account Number: 180121167365, TSU: 47300050
For further credit to: Catholic Aid Association (The)
Account Number: 12614950
Attn: Juleah Foss (651) 244-5958
Please reference sufficient information to identify source and
application of such funds.
Taxpayer ID Number: 41-0182070
Amount of Commitment of The Catholic Aid Association: $1,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Var & Co.
Notes to be forwarded to the following address
U.S. Bank Trust National Association
180 East Fifth Street
St. Paul, MN 55101
Attn: Connie Kemp (SPFT 0901)
Instructions for Delivery of All Notices and Correspondence
National Travelers Life Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Instructions for Wire Transfer Payments
U.S. Bank, N.A.
Minneapolis, MN
ABA #091-000-022
For credit to: U.S. Bank Trust, N.A.
Account Number: 180121167365, TSU: 47300050
For further credit to: National Travelers Life Company
Account Number: 12609110
Attn: Juleah Foss (651) 244-5958
Please reference sufficient information to identify source and
application of such funds.
Taxpayer ID Number: 42-0432940
Amount of Commitment of National Travelers Life Company:
$1,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Gant & Co.
Notes to be forwarded to the following address
Mercantile National Bank of Indiana
Ref: Guarantee Reserve Life Insurance Company
5243 Hohman Avenue
Hammond, IN 46320
Instructions for Delivery of All Notices and Correspondence
Guarantee Reserve Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Instructions for Wire Transfer Payments
Mercantile National Bank of Indiana
Hammond, IN
ABA #071-912-813
For credit to: Guarantee Reserve Life Insurance Company
Attn: Trust Department, Geneva DeVine
Account Number: 287000
Please reference sufficient information to identify source and
application of such funds.
Taxpayer ID Number: 35-0815760
Amount of Commitment of Guarantee Reserve Life Insurance Company:
$1,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Polly & Co.
Notes to be forwarded to the following address with reference to
"FREE DELIVERY"
The Bank of New York
One Wall Street - 3d Floor - Window A
New York, NY 10005
Account: NCT & Co. Fargo, #270576
Attn: Christine Burke
Tel: 212-635-4549
Instructions for Delivery of All Notices and Correspondence
Pioneer Mutual Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Instructions for Wire Transfer Payments
The Bank of New York
ABA #021-000-018
For credit to: Pioneer Mutual Life Insurance Company/NCT & Co.
Fargo
Account Number: 270576
Please reference sufficient information to identify source and
application of such funds.
Taxpayer ID Number: 45-0220640
Amount of Commitment of Pioneer Mutual Life Insurance Company:
$1,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: ELL & Co.
Notes to be forwarded to the following address
Northern Trust Company of New York
40 Broad Street, 8th Floor
New York, NY 10004
Attn: Settlements for Account #26-00621,
Mutual Trust Life Ins. Company
Instructions for Delivery of All Notices and Correspondence
Mutual Trust Life Insurance Company
c/o Advantus Capital Management, Inc.
400 Robert Street North
St. Paul, MN 55101
Attn: Client Administrator
Instructions for Wire Transfer Payments
The Northern Chgo/Trust
ABA #071-000-152
For credit to: Account Number: 5186041000
For further credit to: Mutual Trust Life Insurance Company
Account Number: 26-00621
Attn: Income Collections
Please reference sufficient information to identify source and
application of such funds.
Taxpayer ID Number: 36-1516780
Amount of Commitment of Mutual Trust Life Insurance Company:
$1,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: United of Omaha Life
Insurance Company
Address for delivery of Bonds
The Chase Manhattan Bank
North America Insurance - 6th Floor
Attn: Ann Marie Mazza
3 Chase Metrotech Center
Brooklyn, NY 11245
Instructions for Delivery of All Notices and Correspondence in
respect of payment of Principal and Interest, Corporate Actions,
and Reorganization Notifications
The Chase Manhattan Bank
4 New York Plaza - 13th Floor
New York, NY 10004
Attn: Income Processing - J. Pipperato
a/c: G07097
Address for all other communications (i.e., Quarterly/Annual
reports, Tax filings, Modifications, Waivers regarding the
indenture)
4 - Investment Loan Administration
United of Omaha Life Insurance Company
Mutual of Omaha Plaza
Omaha, NE 68175-1011
Instructions for Wire Transfer Payments
Chase Manhattan Bank
ABA #021000021
Private Income Processing
For credit to:
United of Omaha Life Insurance Company
Account # 900-9000200
a/c: G07097
CUSIP/PPN:
Interest Amount:
Principal Amount: $6,000,000
Taxpayer ID Number: 47-0322111
Amount of Commitment of United of Omaha Life Insurance Company:
$6,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Companion Life Insurance
Company
Address for delivery of Bonds
The Chase Manhattan Bank
North America Insurance - 6th Floor
Attn: Ann Marie Mazza
3 Chase Metrotech Center
Brooklyn, NY 11245
Instructions for Delivery of All Notices and Correspondence in
respect of payment of Principal and Interest, Corporate Actions,
and Reorganization Notifications
The Chase Manhattan Bank
4 New York Plaza - 13th Floor
New York, NY 10004
Attn: Income Processing - J. Pipperato
a/c: G07903
Address for all other communications (i.e., Quarterly/Annual
reports, Tax filings, Modifications, Waivers regarding the
indenture)
4 - Investment Loan Administration
United of Omaha Life Insurance Company
Mutual of Omaha Plaza
Omaha, NE 68175-1011
Instructions for Wire Transfer Payments
Chase Manhattan Bank
ABA #021000021
Private Income Processing
For credit to:
Companion Life Insurance Company
Account # 900-9000200
a/c: G07903
CUSIP/PPN:
Interest Amount:
Principal Amount: $2,000,000
Taxpayer ID Number: 13-1595128
Amount of Commitment of Companion Life Insurance Company:
$2,000,000
<PAGE>
SCHEDULE I
Name and Address of Purchaser and Amount of Commitment
Register securities in the name of: Teachers Insurance and
Annuity Association of America
Instructions for Delivery of All Notices and Correspondence
Teachers Insurance and Annuity Association of America
730 Third Avenue
New York, New York 10017
Attention: Securities Division, Re: Yankee Gas Services Company
Facsimile Number: 212-916-6667
Confirmation Number: 212-916-4311
All notices and communications to be addressed as above except
with respect to payments, which shall be addressed to:
Attention: Securities Accounting Division
Telephone number: 212-916-6004
Facsimile number: 212-916-6955
Instructions for Wire Transfer Payments
All payments on or in respect of the Bonds to be by bank wire
transfer of Federal or other immediately available funds
identifying each payment as "Yankee Gas Services Company First
Mortgage Bonds, 6.20% Series F, Due 2009, PPN# 98478* AK 3,
principal or interest" to:
The Chase Manhattan Bank
ABA Number: 021-000-021
New York, New York
Account Number: 900-0-000200
For further credit to TIAA Account No. G07040
Taxpayer ID Number: 13-1624203
Amount of Commitment of Teachers Insurance and Annuity
Association: $20,000,000
<PAGE>
SCHEDULE V
Wire Transfer Instructions for
Yankee Gas Services Company
Yankee Gas Services Company
599 Research Parkway
P.O. Box 1030
Meriden, CT 06450
Contact: Lori Conant
Cash Management Administrator
Telephone: (203) 6389-4358
Fax: (203) 639-4011
WIRE INSTRUCTIONS:
Yankee Gas Services Company
Fleet National Bank of Connecticut
777 Main Street
Hartford, CT 06115
ABA #011900571
Account #6608-5840
ACH INSTRUCTIONS:
Yankee Gas Services Company
Fleet National Bank of Connecticut
777 Main Street
Hartford, CT 06115
ABA #011900445
Account #6608-5840
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. ISSUANCE OF BONDS.
Section 1.1 Issue of Bonds and Security 1
Section 1.2 Sale of Bonds 2
Section 1.3 Purchase for Investment 2
Section 1.4 Restrictions on Transfer; Legend 3
Section 1.5 Source of Funds; ERISA 4
Section 1.6 Ratification of Representations 4
SECTION 2. REPRESENTATIONS AND WARRANTIES.
Section 2.1 Subsidiaries 5
Section 2.2 Corporate Organization and
Authority 5
Section 2.3 Business, Property and Indebtedness 5
Section 2.4 Financial Statements; Material
Adverse Change Clause 5
Section 2.5 Full Disclosure 6
Section 2.6 Pending Litigation 6
Section 2.7 Title to Properties; Power of
Eminent Domain 6
Section 2.8 Leases 7
Section 2.9 Patents, Trademarks, Licenses, Etc 7
Section 2.10 Sale is Legal and Authorized;
Bonds are Enforceable 7
Section 2.11 No Defaults 8
Section 2.12 Regulation; Status under Holding
Company Act; Investment Company
Act; and Foreign or Enemy Status 8
Section 2.13 Regulatory Approval Required 8
Section 2.14 Consents 9
Section 2.15 Taxes 9
Section 2.16 Use of Proceeds; No Margin
Regulation Violation 9
Section 2.17 Private Offering 9
Section 2.18 Compliance with Law. 10
Section 2.19 ERISA. 10
Section 2.20 MGP Sites. 11
Section 2.21 Application of Other Laws. 11
Section 2.22 Compliance with Environmental
Laws. 11
SECTION 3. CONDITIONS OF OBLIGATION TO PURCHASE BONDS.
Section 3.1 Opinion of Your Special Counsel. 12
Section 3.2 Opinions of Counsel for the
Company. 12
Section 3.3 Opinion of Counsel for the
Trustee. 12
Section 3.4 Letter of Acknowledgment. 12
Section 3.5 Documents Required by Indenture;
Basis for Authentication. 12
Section 3.6 Recordings. 12
Section 3.7 Representations and Warranties
True. 13
Section 3.8 Performance of the Company's
Obligations. 13
Section 3.9 No Pending Proceedings. 13
Section 3.10 No Default. 13
Section 3.11 Legality. 13
Section 3.12 Private Placement Number. 13
Section 3.13 Proceedings, Instruments, Etc. 13
SECTION 4. EXPENSES.
SECTION 5. CERTAIN SPECIAL RIGHTS.
Section 5.1 Direct Payment. 15
Section 5.2 Delivery Expenses. 15
Section 5.3 Indemnity for Destroyed, Lost,
or Stolen Bonds. 15
Section 5.4 Late Payments of Interest. 15
Section 5.5 No Presentation of Bonds. 16
SECTION 6. INFORMATION TO BE FURNISHED TO BONDHOLDERS.
Section 6.1 Financial and Other Statements. 16
Section 6.2 Officers' Certificates. 20
Section 6.3 Inspection. 20
SECTION 7. COVENANTS.
Section 7.1 Purchase of the Bonds. 21
Section 7.2 Bondholder Expenses on
Acceleration. 21
Section 7.3 Transmission of Funds. 21
Section 7.4 Compensation and Reimbursement. 21
Section 7.5 Defaults and Acceleration. 22
SECTION 8. INTERPRETATION OF AGREEMENT.
Section 8.1 Definitions. 24
Section 8.2 Directly or Indirectly. 29
Section 8.3 Accounting Terms. 29
Section 8.4 Governing Law. 29
Section 8.5 Headings. 29
SECTION 9. MISCELLANEOUS.
Section 9.1 Notices. 29
Section 9.2 Reproduction of Documents. 29
Section 9.3 Survival; Severability. 30
Section 9.4 Successors and Assigns. 30
Section 9.5 Amendment and Waiver. 30
Section 9.6 Amendment of DPUC Authorization. 30
Section 9.7 Duplicate Originals; Execution
and Counterpart. 31
<PAGE>
ATTACHMENTS TO BOND PURCHASE AGREEMENT:
Schedule I - Name and Address of Purchaser and Amount
of
Commitment
Schedule II - Indebtedness
Schedule III - Location of Disclosed MGP Sites
Schedule IV-A - Opinion of Your Special Counsel
Schedule IV-B - Opinion of Counsel for the Company
Schedule IV-C - Opinion of General Counsel of the Company
Schedule IV-D - Opinion of Counsel for the Trustee
Schedule V - Wire Transfer Instructions
Exhibit A - Form of Supplemental Indenture
<PAGE>
EXHIBIT 4.2
FIFTH SUPPLEMENTAL INDENTURE
from
YANKEE GAS SERVICES COMPANY
to
THE BANK OF NEW YORK
TRUSTEE
_________________________________
Dated as of January 1, 1999
Supplemental to Indenture of Mortgage
and Deed of Trust from
Yankee Gas Services Company to
The Bank of New York (successor as trustee to
Fleet National Bank, formerly known as
The Connecticut National Bank), Trustee,
dated as of July 1, 1989
<PAGE>
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated as of January 1, 1999
between YANKEE GAS SERVICES COMPANY, a specially chartered
Connecticut corporation (herein called the "Company"), and THE
BANK OF NEW YORK, a New York banking corporation, successor to
Fleet National Bank (formerly known as The Connecticut National
Bank), as Trustee (the "Trustee") under the Indenture of Mortgage
and Deed of Trust, dated as of July 1, 1989, executed and
delivered by the Company (herein called the "Original Indenture";
the Original Indenture and any and all indentures and instruments
supplemental thereto, including, without limitation, this Fifth
Supplemental Indenture, being herein called the "Indenture");
WHEREAS, pursuant to Sections 13.01(C), 13.01(G), 3.03 and
Article Five of the Original Indenture, the Company desires to
provide for the issuance under the Indenture of a new series of
Bonds, which Bonds will be secured by and entitled to the benefits
of the Indenture, and to add to its covenants and agreements
contained in the Original Indenture certain other covenants and
agreements; and
WHEREAS, all acts and things necessary to make this Fifth
Supplemental Indenture a valid, binding and legal instrument have
been performed, and the issuance of the new series of Bonds,
subject to the terms of the Original Indenture, has been duly
authorized by the Board of Directors of the Company and approved
by the Connecticut Department of Public Utility Control, and the
Company has requested and hereby requests the Trustee to enter
into and join the Company in the execution and delivery of this
Fifth Supplemental Indenture;
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH,
that, to secure the payment of the principal of (and premium, if
any) and interest on the Outstanding Secured Bonds, including the
new series of Bonds hereunder issued, and the performance of the
covenants therein and herein contained and to declare the terms
and conditions on which all such Outstanding Secured Bonds are
secured, and in consideration of the premises and of the purchase
of the Bonds by the Holders thereof, the Company by these presents
does grant, bargain, sell, alien, remise, release, convey, assign,
transfer, mortgage, hypothecate, pledge, set over and confirm to
the Trustee, all property, rights, privileges and franchises of
the Company of every kind and description, real, personal or
mixed, tangible and intangible, whether now owned or hereafter
acquired by the Company, wherever located, and grants a security
interest therein for the purposes herein expressed, except any
Excepted Property which is expressly excepted from the lien hereof
in the Original Indenture, and including, without limitation, all
and singular the following:
All property, rights, privileges and franchises particularly
described in the Original Indenture, and any and all indentures
and instruments supplemental thereto, including, without
limitation, the First Supplemental Indenture dated as of April 1,
1992, the Second Supplemental Indenture dated as of December 1,
1992, the Third Supplemental Indenture dated as of June 1, 1995,
the Fourth Supplemental Indenture dated as of April 1, 1997, and
in addition, all the property, rights, privileges and franchises
particularly described in Schedule A annexed to this Fifth
Supplemental Indenture, which are hereby made a part of, and
deemed to be described herein, as fully as if set forth herein at
length.
TO HAVE AND TO HOLD all said property, rights, privileges and
franchises of every kind and description, real, personal or mixed,
hereby and hereafter (by supplemental indenture or otherwise)
granted, bargained, sold, aliened, remised, released, conveyed,
assigned, transferred, mortgaged, hypothecated, pledged, set over
or confirmed as aforesaid, or intended, agreed or covenanted so to
be, together with all the appurtenances thereto appertaining (said
properties, rights, privileges and franchises, including any cash
and securities hereafter deposited or required to be deposited
with the Trustee (other than any such cash which is specifically
stated herein not to be deemed part of the Trust Estate), being
herein collectively called "Trust Estate") unto the Trustee and
its successors and assigns forever.
SUBJECT, HOWEVER, to Permitted Encumbrances (as defined in
Section 1.01 of the Original Indenture).
BUT IN TRUST, NEVERTHELESS, for the proportionate and equal
benefit and security of the Holders from time to time of all the
Outstanding Secured Bonds without any preference or priority of
any such Bond over any other such Bond.
UPON CONDITION that, until the happening of an Event of
Default (as defined in Section 1.01 of the Original Indenture) and
subject to the provisions of Article Six of the Original
Indenture, the Company shall be permitted to possess and use the
Trust Estate, except cash, securities and other personal property
deposited and pledged, or required to be deposited and pledged,
with the Trustee, and to receive and use the rents, issues,
profits, revenues and other income of the Trust Estate.
AND IT IS HEREBY DECLARED that in order to set forth the
terms and provisions of the new series of Bonds and in
consideration of the premises and of the purchase and acceptance
of such Bonds by the holders thereof, and in consideration of the
sum of One Dollar ($1.00) to it duly paid by the Trustee, and of
other good and valuable consideration, the receipt whereof is
hereby acknowledged, and for the purpose of securing the faithful
performance and observance of all the covenants and conditions of
the Indenture, the Company hereby covenants and agrees with the
Trustee and provides as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Terms from the Original Indenture. All
defined terms used in this Fifth Supplemental Indenture and not
otherwise defined herein shall have the respective meanings
ascribed to them in the Original Indenture.
Section 1.02. References are to Fifth Supplemental
Indenture. Unless the context otherwise requires, all references
herein to "Articles," "Sections" and other subdivisions are to the
designated Articles, Sections and other subdivisions of this Fifth
Supplemental Indenture, and the words "herein," "hereof,"
"hereby," "hereunder" and words of similar import refer to this
Fifth Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision hereof or to the Original
Indenture.
ARTICLE II
SERIES F BONDS
Section 2.01 Specific Title, Terms and Forms. There is
hereby created and shall be outstanding under and secured by the
Indenture a series of Bonds entitled "First Mortgage Bonds, 6.20%
Series F, Due 2009" (herein called the "Series F Bonds"), limited
in aggregate principal amount at any one time outstanding to Fifty
Million Dollars ($50,000,000). The form of the Series F Bonds
shall be substantially as set forth in Exhibit A hereto with such
insertions, omissions, substitutions and variations as may be
determined by the officers executing the same as evidenced by
their execution thereof.
The Series F Bonds shall be issued as fully registered Bonds
in denominations of $1,000,000 or any amount in excess thereof
which is an integral multiple of $250,000 (except as may be
necessary to reflect any principal amount not evenly divisible by
$250,000 remaining after any partial redemption). The Series F
Bonds shall be numbered F-1 and consecutively upwards, or in any
other manner deemed appropriate by the Trustee. The Series F
Bonds shall mature on April 1, 2009 and shall bear interest from
the date of issuance thereof (or from the most recent Interest
Payment Date to which interest has been paid or duly provided for)
at the rate of six and twenty one-hundredths percent (6.20%) per
annum (computed on the basis of a 360-day year of twelve 30-day
months). Interest Payment Dates for the Series F Bonds shall be
(i) February 1 and August 1 of each year, commencing August 1,
1999, and (ii) at the Stated Maturity of the principal.
Notwithstanding the otherwise applicable provisions of the
Indenture, the principal and the Redemption Price of, and interest
on, the Series F Bonds shall be payable by wire transfer of
immediately available funds so long as required by Section 5.1 of
the Bond Purchase Agreements, each dated as of January 1, 1999,
between the Company and the initial purchasers of the Series F
Bonds (the "Bond Purchase Agreements") or, in the event Section
5.1 shall no longer be applicable, at the office or agency of the
Company in New York, New York, in such coin or currency of the
United States of America as at the time of payment is legal tender
for public or private debts.
The Regular Record Date referred to in Section 3.09 of the
Original Indenture for the payment of the interest on the Series F
Bonds payable, and punctually paid or duly provided for, on any
Interest Payment Date shall be the 15th day (whether or not a
business day) of the calendar month next preceding such Interest
Payment Date.
Section 2.02 No Sinking Fund; No Mandatory Scheduled
Redemptions Prior to Final Maturity. The Series F Bonds shall not
be subject to any sinking fund or mandatory scheduled redemption
prior to final maturity.
Section 2.03 Optional Redemption. The Series F Bonds shall be
redeemable at the option of the Company in whole at any time or in
part from time to time prior to their Stated Maturity, at a
redemption price equal to the principal amount of the Series F
Bonds being prepaid plus accrued interest thereon to the date of
such redemption together with a premium equal to the then
applicable Make-Whole Amount.
The Company will give notice of any optional redemption of
the Series F Bonds pursuant to this Section 2.03 to each Holder
thereof not less than 30 days nor more than 60 days before the
date fixed for such optional redemption, specifying (a) such date,
(b) the principal amount of the Holder's Bond to be redeemed on
such date, (c) that a premium may be payable, (d) the estimated
premium, calculated as of the day such notice is given, and (e)
the accrued interest applicable to the redemption. Such notice of
redemption shall also certify all facts, if any, which are
conditions precedent to any such redemption. Notice of redemption
having been so given, the aggregate principal amount of the Series
F Bonds specified in such notice, together with accrued interest
thereon, and the premium, if any, payable with respect thereto
shall become due and payable on the redemption date specified in
such notice. Two business days prior to the redemption date
specified in such notice of optional redemption, the Company shall
provide the Trustee and each Holder of a Bond written notice of
whether or not any premium is payable in connection with such
redemption, the premium, if any, calculated as of the second
business day prior to the redemption date, and a reasonably
detailed computation of the Make-Whole Amount. The Trustee shall
be under no duty to inquire into, may conclusively presume the
correctness of, and shall be fully protected in acting upon the
Company's calculation of any Make-Whole Amount.
For purposes of this Section 2.03, the term "Make-Whole
Amount" shall mean in connection with any optional redemption of
the Series F Bonds the excess, if any, of (a) the aggregate
present value as of the date of such redemption of each dollar of
principal amount of Series F Bonds being redeemed and the amount
of interest (exclusive of interest accrued to the date of
redemption) that would have been payable in respect of such dollar
if such redemption had not been made, determined by discounting
such amounts at the Reinvestment Rate from the respective dates on
which they would have been payable, over (b) 100% of the principal
amount of the outstanding Series F Bonds being redeemed.
The "Reinvestment Rate" means (1) the sum of .50% plus the
yield reported on page "USD" of the Bloomberg Treasury/Money
Market Monitor Screen (or, if not available, any other nationally
recognized trading screen reporting on-line intraday trading in
United States government securities) at 12:00 noon (New York time)
on such date for United States government securities having a
maturity rounded to the nearest month corresponding to the
remaining Weighted Average Life to Maturity of the principal being
redeemed, prepaid or paid or (2) in the event that no such
nationally recognized trading screen reporting on-line intraday
trading in United States government Securities is available,
Reinvestment Rate means .50 plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week"
published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the Weighted Average Life to Maturity of
the principal being redeemed. If no maturity exactly corresponds
to such Weighted Average Life to Maturity, yields for the two
published maturities most closely corresponding to such Weighted
Average Life to Maturity shall be calculated pursuant to the
immediately preceding sentence, and the Reinvestment Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest
month. For purposes of calculating the Reinvestment Rate, the
most recent Statistical Release published prior to the date of
determination of the Make-Whole Amount shall be used.
For purposes of this Section 2.03, "Weighted Average Life to
Maturity" of the principal amount of the Series F Bonds being
redeemed shall mean, as of the time of any determination thereof,
the number of years obtained by dividing the then Remaining
Dollar-Years of such principal by the aggregate amount of such
principal. The term "Remaining Dollar-Years" of such principal
shall mean the amount obtained by multiplying the amount of
principal that would have become due at the Stated Maturity of the
Series F Bonds if such redemption had not been made by the number
of years (calculated to the nearest one-twelfth) which will elapse
between the date of determination and the Stated Maturity of the
Series F Bonds.
As used in this Section 2.03, "Statistical Release" shall
mean the then most recently published statistical release
designated "H.15(519)" or any successor publication which is
published weekly by the Federal Reserve System and which
establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such statistical
release is not published at the time of any determination
hereunder, then such other reasonably comparable index which shall
be designated by the holders of 66-2/3% in aggregate principal
amount of the outstanding Series F Bonds.
The principal amount, if any, of the Series F Bonds to be
redeemed pursuant to this Section 2.03 shall be selected on a pro
rata basis from all Series F Bonds Outstanding on the Redemption
Date.
The Series F Bonds shall not be redeemable at the option of
the Company prior to their Stated Maturity other than as provided
in this Section 2.03.
Section 2.04. Place of Payment. The principal and the
Redemption price of, and the premium, if any, and the interest on,
the Series F Bonds shall be payable at the principal corporate
trust office of The Bank of New York, in New York, New York.
Section 2.05. Exchangeability. Subject to Section 3.07 of
the Original Indenture, all Series F Bonds shall be fully
interchangeable, and, upon surrender at the office or agency of
the Company in a Place of Payment therefor, shall be exchangeable
for other Series F Bonds of a different authorized denomination or
denominations, as requested by the Holder surrendering the same.
The Company will execute, and the Trustee shall authenticate and
deliver, Series F Bonds whenever the same are required for any
such exchange.
Section 2.06. Bond Purchase Agreements. Reference is made
to Sections 5 and 7 of the Bond Purchase Agreement for certain
provisions governing the rights and obligations of the Company,
the Trustee and the Holders of the Series F Bonds. Such
provisions are deemed to be incorporated in this Article II by
reference as if set forth herein at length.
Section 2.07. Restrictions on Transfer. All Series F Bonds
originally issued hereunder shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF YANKEE GAS
SERVICES COMPANY (THE "COMPANY") AND PRIOR HOLDERS THAT THIS
SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (1) TO THE COMPANY (UPON REDEMPTION THEREOF OR OTHERWISE),
(2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
UNDER THE 1933 ACT, IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE 1933 ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 (IF AVAILABLE) UNDER THE
1933 ACT, (5) IN RELIANCE ON ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT, SUBJECT TO THE RECEIPT
BY THE COMPANY OF AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH
TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE 1933 ACT, SUBJECT (IN THE CASE OF CLAUSES (2), (3), (4) AND
(5)) TO THE RECEIPT BY THE COMPANY OF A CERTIFICATION OF THE
TRANSFEROR (WHICH, IN THE CASE OF CLAUSE (4), MAY BE A COPY OF
FORM 144 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION) TO
THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE 1933 ACT,
AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY JURISDICTION OF THE UNITED STATES. THE HOLDER OF THIS
SECURITY WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO HEREIN.
All Series F Bonds issued upon transfer or exchange thereof
shall bear such legend unless the Company shall have delivered to
the Trustee an Opinion of Counsel which states that the Series F
Bonds may be issued without such legend. All Series F Bonds
issued upon transfer or exchange of a Series F Bond or Bonds which
do not bear such legend shall be issued without such legend. The
Company may from time to time modify the foregoing restrictions on
resale and other transfers, without the consent of but upon notice
to the Holders, in order to reflect any amendment to Rule 144A
under the Securities Act of 1933 or change in the interpretation
thereof or practices thereunder.
Section 2.08. Authentication and Delivery. Upon the
execution of this Fifth Supplemental Indenture, the Series F Bonds
shall be executed by the Company and delivered to the Trustee for
authentication, and thereupon the same shall be authenticated and
delivered by the Trustee pursuant to and upon Company Request.
Section 2.09. Default. Pursuant to the Original Indenture
(and notwithstanding any provision of Section 9.22 thereof to the
contrary), for purposes of determining whether an Event of Default
exists with respect to the Series F Bonds, any default in payment
(whether due as a scheduled installment of principal or interest,
or at original maturity or earlier redemption or acceleration, or
otherwise) with respect to Bonds of any other series which
constitutes an Event of Default with respect to the Bonds of such
series shall also constitute an Event of Default with respect to
the Series F Bonds.
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 3.01. Effectiveness and Ratification of Indenture.
The provisions of this Fifth Supplemental Indenture shall be
effective from and after the execution hereof; and the Indenture,
as hereby supplemented, shall remain in full force and effect.
Section 3.02. Titles. The titles of the several Articles
and Sections of this Fifth Supplemental Indenture shall not be
deemed to be any part thereof, are inserted for convenience only
and shall not affect any interpretation hereof.
Section 3.03. Acceptance of Trust; Not Responsible for
Recitals; Etc. The Trustee hereby accepts the trusts herein
declared, provided, created or supplemented and agrees to perform
the same upon the terms and conditions herein and in the Original
Indenture, as heretofore supplemented, set forth and upon the
following terms and conditions:
The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Fifth
Supplemental Indenture or for or in respect of the recitals
contained herein, all of which recitals are made by the Company
solely. In general, each and every term and condition contained
in Article Ten of the Original Indenture shall apply to and form
part of this Fifth Supplemental Indenture with the same force and
effect as if the same were herein set forth in full with such
omissions, variations and insertions, if any, as may be
appropriate to make the same conform to the provisions of this
Fifth Supplemental Indenture.
Section 3.04. Successors and Assigns. All covenants,
provisions, stipulations and agreements in this Fifth Supplemental
Indenture contained are and shall be for the sole and exclusive
benefit of the parties hereto, their successors and assigns, and
(subject to the provisions of the Bond Purchase Agreement) of the
Holders and registered owners from time to time of the Bonds
issued and outstanding under and secured by the Indenture (except
that the provisions of Article II hereof are and shall be for the
sole and exclusive benefit of the Holders of the Series F Bonds).
Section 3.05. Counterparts. This Fifth Supplemental
Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 3.06. Governing Law. The laws of the State of
Connecticut shall govern this Fifth Supplemental Indenture and the
Series F Bonds, except to the extent that the validity or
perfection of the lien of the Indenture, or remedies thereunder,
are governed by the laws of a jurisdiction other than the State of
Connecticut.
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Fifth
Supplemental Indenture to be duly executed, sealed and attested as
of the day and year first above written.
YANKEE GAS SERVICES COMPANY
By /s/ James M. Sepanski
_____________________________
James M. Sepanski
Its Vice President and
Chief Financial Officer
Attest:
/s/ Mary J. Healey
__________________________________
Mary J. Healey
Secretary and General Counsel
Executed, sealed and delivered by
YANKEE GAS SERVICES COMPANY
in the presence of:
/s/ Lorraine T. Conant
__________________________________
/s/ Matthew J. Ide
__________________________________
THE BANK OF NEW YORK, as Trustee
By /s/ Micahel Culhane
_______________________________
Michael Culhane
Vice President
Attest:
/s/ Mary Beth Lewicki
______________________
Mary Beth Lewicki
Assistant Vice President
Executed, sealed and delivered by
THE BANK OF NEW YORK, as Trustee,
in the presence of:
/s/ Anthony Hitchman
_____________________________
/s/ Patrick O'Leary
______________________________
50994 v.05
STATE OF CONNECTICUT )
) ss.: Meriden
COUNTY OF NEW HAVEN )
On this 22 day of January, 1999, before me, William J. Cassells,
the undersigned officer, personally appeared James M. Sepanski and
Mary J. Healey, who acknowledged themselves to be Vice President
and Chief Financial Officer and Secretary and General Counsel,
respectively, of Yankee Gas Services Company, a Connecticut
corporation, and that they, as such officers, being authorized so
to do, executed the foregoing instrument for the purpose therein
contained, by signing the name of the corporation by themselves as
such officers, and as their free act and deed.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ William J. Cassels
________________________
Notary
Public
My commission expires: May 16, 2000
_____________
(SEAL)
50994 v.05
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 22nd day of January, 1999, before
me, Donna L. Brooks, the undersigned officer, personally
appeared James M. Speanski and Mary J. Healey, who
acknowledged themselves to be Vice President and Chief Financial
Officer and Secretary and General Counsel, respectively, of The
Bank of New York, a New York banking corporation, and that they,
as such officers, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by
signing the name of the association by themselves as such
officers, and as their free act and deed.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Donna L. Brooks
_______________________________
Notary Public
My commission expires: February 28, 1999
_________________
(SEAL)
50994 v.05
<PAGE>
EXHIBIT A
[FORM OF FIRST MORTGAGE BOND, 6.20% SERIES F, DUE 2009
FORM OF LEGEND]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "1933 ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF YANKEE GAS
SERVICES COMPANY (THE "COMPANY") AND PRIOR HOLDERS THAT THIS
SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY (1) TO THE COMPANY (UPON REDEMPTION THEREOF OR OTHERWISE),
(2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A, TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A
UNDER THE 1933 ACT, IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE 1933 ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 (IF AVAILABLE) UNDER THE
1933 ACT, (5) IN RELIANCE ON ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE 1933 ACT, SUBJECT TO THE RECEIPT
BY THE COMPANY OF AN OPINION OF COUNSEL TO THE EFFECT THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE 1933 ACT OR (6) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, SUBJECT (IN
THE CASE OF CLAUSES (2), (3), (4) AND (5)) TO THE RECEIPT BY THE
COMPANY OF A CERTIFICATION OF THE TRANSFEROR (WHICH, IN THE CASE
OF CLAUSE (4), MAY BE A COPY OF FORM 144 AS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION) TO THE EFFECT THAT SUCH
TRANSFER IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT, AND IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY JURISDICTION OF THE UNITED STATES. THE HOLDER OF THIS
SECURITY WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO HEREIN.
<PAGE>
Yankee Gas Services Company
First Mortgage Bonds,
6.20% Series F, Due 2009
CUSIP Number 98478* AK 3
No. F -
Principal Amount: $
Stated Maturity of Principal: April 1, 2009
Applicable Rate: 6.20%
Interest Payment Dates: August 1 and February 1, commencing
August 1, 1999 and at the Stated Maturity
of the principal
Yankee Gas Services Company, a specially chartered
Connecticut corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to
pay to [___________], or registered assigns, at the Stated
Maturity set forth above, the Principal Amount set forth above (or
so much thereof as shall not have been paid upon prior redemption)
and to pay interest (computed on the basis of a 360-day year of
twelve 30-day months) thereon from the date of issuance hereof or
from the most recent Interest Payment Date to which interest has
been paid or duly provided for, on each Interest Payment Date set
forth above in each year at the Applicable Rate set forth above.
The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in said Indenture,
be paid to the Person in whose name this Bond (or one or more
Predecessor Bonds, as defined in said Indenture) is registered at
the close of business on the Regular Record Date for such
interest, which shall be the 15th day (whether or not a business
day) of the calendar month next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided
for shall be paid to the Person in whose name this Bond is
registered on the business day immediately preceding the date of
such payment. If all or any portion of the principal of, or the
premium (if any) or interest on, this Bond shall not be paid when
due, the amount not so paid shall bear interest at the lesser of
(x) the highest rate allowed by applicable law or (y) the greater
of (i) the Prime Rate (as defined in the Bond Purchase Agreements)
or (ii) 7.20% (the Applicable Rate plus 1% per annum).
The principal and the Redemption Price of, and the interest
on, this Bond shall be payable at the principal corporate trust
office of The Bank of New York, in New York, New York. All such
payments shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for
payment of public and private debts.
This Bond is one of a duly authorized issue of Bonds of the
Company designated as its "First Mortgage Bonds" (herein called
the "Bonds"), issued and to be issued in one or more series under,
and all equally and ratably secured by, an Indenture of Mortgage
and Deed of Trust, dated as of July 1, 1989, (herein, together
with any indenture or instruments supplemental thereto, including
the First Supplemental Indenture dated as of April 1, 1992, the
Second Supplemental Indenture dated as of December 1, 1992, the
Third Supplemental Indenture dated as of June 1, 1995, the Fourth
Supplemental Indenture dated as of April 1, 1997, and the Fifth
Supplemental Indenture dated as of January 1, 1999, called the
"Indenture"), between the Company and The Bank of New York,
successor to Fleet National Bank (formerly known as The
Connecticut National Bank), as Trustee (herein called the
"Trustee," which term includes any successor Trustee under the
Indenture). Reference is hereby made to the Indenture for a
description of the properties thereby mortgaged, pledged and
assigned, the nature and extent of the security, the respective
rights thereunder of the Holders of the Bonds, the Trustee and the
Company, and the terms upon which the Bonds are, and are to be,
authenticated and delivered. All capitalized terms used in this
Bond which are not defined herein shall have the respective
meanings ascribed thereto in the Indenture. Reference is also
made to the Bond Purchase Agreements, as defined in the Fifth
Supplemental Indenture, for a further description of the
respective rights of the Holders of the Series F Bonds, the
Company and the Trustee, and the terms applicable to the Series F
Bonds.
As provided in the Indenture, the Bonds are issuable in
series which may vary as in the Indenture provided or permitted.
This Bond is one of the series specified in its title.
The Bonds are not subject to any sinking fund or mandatory
scheduled redemption prior to final maturity.
As provided in the Indenture, at the option of the Company,
the Series F Bonds shall be redeemable in whole at any time or in
part from time to time, prior to their Stated Maturity, at a
redemption price equal to the principal amount of the Series F
Bonds being prepaid plus accrued interest thereon to the date of
such redemption together with a premium equal to the then
applicable Make-Whole Amount.
The Company will give notice of any optional redemption of
the Series F Bonds pursuant to Section 2.03 of the Fifth
Supplemental Indenture to each Holder thereof not less than 30
days nor more than 60 days before the date fixed for such optional
redemption, specifying (a) such date, (b) the principal amount of
the Holder's Bond to be redeemed on such date, (c) that a premium
may be payable, (d) the estimated premium, calculated as of the
day such notice is given and (e) the accrued interest applicable
to the redemption. Notice of redemption having been so given, the
aggregate principal amount of the Series F Bonds specified in such
notice, together with accrued interest thereon, and the premium,
if any, payable with respect thereto shall become due and payable
on the redemption date specified in such notice. Two business
days prior to the redemption date specified in such notice of
optional redemption, the Company shall provide the Trustee and
each Holder of a Bond written notice of whether or not any premium
is payable in connection with such redemption, the premium, if
any, calculated as of the second business day prior to the
redemption date, and a reasonably detailed computation of the
Make-Whole Amount.
Bonds (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall thereupon
cease to be entitled to the lien of the Indenture and shall cease
to bear interest from and after the date fixed for redemption (in
each event, so long as the payment due on any such date shall be
made). The principal amount of the Series F Bonds to be redeemed
upon any optional redemption thereof shall be applied pro rata to
all such Series F Bonds Outstanding on the Redemption Date.
If an Event of Default, as defined in the Indenture, shall
occur, the principal of the Series F Bonds may become or be
declared due and payable in the manner and with the effect
provided in the Indenture and the Bond Purchase Agreements.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights
and obligations of the Company and the rights of the Holders of
the Bonds under the Indenture at any time by the Company with the
consent of the Holders of a majority in aggregate principal amount
of the Bonds of all series at the time Outstanding affected by
such modification. The Indenture also contains provisions
permitting the Holders of specified percentages in principal
amount of Bonds at the time Outstanding on behalf of the Holders
of all the Bonds, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver
agreed to as set forth above by the Holder of this Bond shall be
conclusive and binding upon such Holder and upon all future
Holders of this Bond and of any Bond issued upon the transfer
hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Bond.
No reference herein to the Indenture and no provision of this
Bond or of the Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay the
principal of (and premium, if any) and interest on this Bond at
the times, places and rates, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, this Bond is transferable on the
Bond Register of the Company, upon surrender of this Bond for
transfer at the office or agency of the Company in New York, New
York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Bond
Registrar, duly executed by the Registered Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new
Bonds of the same series, or authorized denominations and for the
same aggregate principal amount, will be issued to the designated
transferee or transferees.
All Bonds of this series shall be fully interchangeable, and,
upon surrender at the office or agency of the Company in a Place
of Payment therefor, shall be exchangeable for other Bonds of this
series of a different authorized denomination or denominations, as
requested by the Holder surrendering the same.
No service charge shall be made for any transfer or exchange
hereinbefore referred to, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
The Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Bond is registered
as the owner hereof for the purpose of receiving payment as herein
provided and for all other purposes, whether or not this Bond is
overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
Unless the certificate of authentication hereon has been
executed by the Trustee or Authenticating Agent by manual
signature, this Bond shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
[THIS SPACE INTENTIONALLY LEFT BLANK]
<PAGE>
SIGNATURES
[Signature page for Yankee Gas Services Company, First Mortgage
Bond, 6.20% Series F, Due 2009]
IN WITNESS WHEREOF, the Company has caused this Bond to be
duly executed under its corporate seal.
Dated: __________________ YANKEE GAS SERVICES
COMPANY
By __________________________
Attest:
_________________________
This is one of the Bonds of the series designated therein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By_______________________________
Authorized Officer
