Exhibit C.13.11
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
TABLE OF CONTENTS
SECTION 1. ISSUANCE OF BONDS.
Section 1.1. Issue of Bonds and Security
Section 1.2. Sale of Bonds
Section 1.3. Purchase for Investment
Section 1.4. Restrictions on Transfer; Legend
Section 1.5. Source of Funds; ERISA
Section 1.6. Ratification of Representations
SECTION 2 REPRESENTATIONS AND WARRANTIES.
Section 2.1 Subsidiaries
Section 2.2 Corporate Organization and Authority
Section 2.3 Business, Property and Indebtedness
Section 2.4 Financial Statements: Material Adverse Change Clause
Section 2.5 Full Disclosure
Section 2.6 Pending Litigation
Section 2.7 Title to Properties, Power of Eminent Domain
Section 2.8 Leases
Section 2.9 Patents, Trademarks. Licenses. Etc
Section 2.10 Sale is Legal and Authorized: Bonds are Enforceable
Section 2.11 No Defaults
Section 2.12 Regulation, Status under Holding Company Act. Investment
Company Act; and Foreign or Enemy Status
Section 2.13 Regulatory Approval Required
Section 2.14 Consents
Section 2.15 Taxes
Section 2.16 Use of Proceeds: No Margin Regulation Violation
Section 2.17 Private Offering
Section 2.18 Compliance with Law
Section 2.19 ERISA
Section 2.20 MGP Sites
Section 2.21 Application of Other Laws
Section 2.22 Compliance with Environmental Laws
SECTION 3 CONDITIONS OF OBLIGATION TO PURCHASE BONDS.
Section 3.1 Opinion of Your Special Counsel
Section 3.2 Opinions of Counsel for the Company
Section 3.3 Opinion of Counsel for the Trustee
Section 3.4 Letter of Acknowledgment
Section 3.5 Documents Required by Indenture: Basis for Authentication
Section 3.6 Recordings
Section 3.7 Representations and Warranties True
Section 3.8 Performance of the Company's Obligations
Section 3.9 No Pending Proceedings
Section 3.10 No Default
Section 3.11 Legality
Section 3.12 Private Placement Number
Section 3.13 Proceedings. Instruments Etc
SECTION 4 EXPENSES.
SECTION 5 CERTAIN SPECIAL RIGHTS.
Section 5.1 Direct Payment
Section 5.2 Delivery Expenses
Section 5.3 Indemnity for Destroyed. Lost. or Stolen Bonds
Section 5.4 Late Payments of Interest
Section 5.5 No Presentation of Bonds
SECTION 6 INFORMATION TO BE FURNISHED TO BONDHOLDERS.
Section 6.1 Financial and Other Statements
Section 6.2 Officers' Certificates
Section 6.3 Inspection
SECTION 7 COVENANTS.
Section 7.1 Purchase of the Bonds
Section 7.2 Bondholder Expenses on Acceleration
Section 7.3 Transmission of Funds
Section 7.4 Compensation and Reimbursement
Section 7.5 Defaults and Acceleration
SECTION 8 INTERPRETATION OF AGREEMENT.
Section 8.1 Definitions
Section 8.2 Directly or indirectly
Section 8.3 Accounting Terms
Section 8.4 Governing Law
Section 8.5 Headings
SECTION 9 MISCELLANEOUS.
Section 9.1 Notices
Section 9.2 Reproduction of Documents
Section 9.3 Survival; Severability
Section 9.4 Successors and Assigns
Section 9.5 Amendment and Waiver
Section 9.6 Amendment of DPUC Authorization
Section 9.7 Duplicate Originals; Execution and Counterpart
ATTACHMENTS TO BOND PURCHASE AGREEMENT:
Schedule I Name and Address of Purchaser and Amount of Commitment
Schedule 11 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
YANKEE GAS SERVICES COMPANY
000 Xxxxxxxx Xxxxxxx
Xxxxxxx. 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"). xxxxxx 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 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 an d 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 Xxxxxxx &
Xxxxxxx 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 it, 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." party-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 acknowledge (yes 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 Certification 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 adverse, 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 31(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 or 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 X.X. Xxxxxxx &
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. Section 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, Xxxxxxx, Xxxxxx & Xxxxxxx, 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 Xxxxxxx & Xxxxxxx LLP. counsel for the Company, and Xxxx X.
Xxxxxx, 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 Xxxxx & Xxxxxx, 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 or 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 and 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) X.X. Xxxxxxx and 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 thereof.
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 (Xxxxxxxxx, 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, 000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, 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 Xxxxxx Xxxxxxxx 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 Xxxxxx Xxxxxxxx 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 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 the use of such formation 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(1) (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 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(1) (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.
Section 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. Section et seq., Federal Water Pollution
Control Act, as amended by the Clean Water Act of 1977, 33 U.S.C. Section
1251 et seq., Clean Air Act of 1966, as amended, 42 U.S.C. Section 7401 et
seq., Toxic Substances Control Act of 1976, 15 U.S.C. Section 2601 et seq.,
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Section 651
et seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Section 11001 et seq.. National Environmental Policy Act of 1975, 42
U.S.C. Section 4321 et. seq., Safe Drinking Water Act of 1974. as amended.
42 U.S.C. Section 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. By product, pollutant, contaminant, product, material or
substance, including without limitation, asbestos, polychlorinated
biphenyl's, 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 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 "Multlemployer Pension Plan" shall mean any "multiemplover
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 an 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
assets 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(l) 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 Folders 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.
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:
Name:
Title:
The foregoing Agreement is hereby accepted:
NEW YORK LIFE INSURANCE COMPANY
By:
Name:
Title:
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:
Name:
Title:
The foregoing Agreement is hereby accepted:
NEW YORK LIFE INSURANCE COMPANY
By:
Name:
Title:
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
00 Xxxxxxx Xxxxxx
Xxx Xxxx. NY 10010-1603
Attn: Investment Department
Private Finance Group
Room 206
Fax: 000-000-0000
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: 000-000-0000
All Payment Notices to the Above Address and to:
Attn: Treasury Department
Securities Income Section
Room 2091
Fax: 000-000-0000
Instructions for Wire Transfer Payments
Chase Manhattan Bank
New York, New York 10019
ABA No. 000-000-000
For the account of New York Life Insurance Company
General Account No. 000-0-00000
Taxpayer ID Number: 00-0000000
Amount of Commitment of New York Life Insurance Company: $10,000.000
