1
Exhibit 4(d)
------------
-------------------------------------------------------------------------------
FALL RIVER GAS COMPANY
TO
STATE STREET BANK AND TRUST COMPANY,
SUCCESSOR IN INTEREST TO THE FIRST NATIONAL BANK OF BOSTON,
Trustee
----------
THIRTEENTH SUPPLEMENTAL INDENTURE
dated as of September 19, 1996
Supplementing the Indenture of First Mortgage
dated as of December 1, 1952,
the First Supplemental Indenture
dated as of January 1, 1955,
the Second Supplemental Indenture
dated as of September 1, 1957,
the Third Supplemental Indenture
dated as of December 1, 1957,
the Fourth Supplemental Indenture
dated as of February 1, 1958,
the Fifth Supplemental Indenture
dated as of May 1, 1959,
the Sixth Supplemental Indenture
dated as of May 1, 1961,
the Seventh Supplemental Indenture
dated as of November 1, 1961,
the Eighth Supplemental Indenture
dated as of November 1, 1966
the Ninth Supplemental Indenture
dated as of June 30, 1971
the Tenth Supplemental Indenture
dated as of June 1, 1981
the Eleventh Supplemental Indenture
dated as of December 15, 1989 and
the Twelfth Supplemental Indenture
dated as of December 20, 1989
----------
This is a Mortgage of Personal Property as well as a
Mortgage upon Real Estate
------------------------------------------------------------------------------
2
THIRTEENTH SUPPLEMENTAL INDENTURE, dated as of September 19, 1996, between
FALL RIVER GAS COMPANY, formerly named Fall River Gas Works Company, a
corporation organized and existing under the laws of The Commonwealth of
Massachusetts and having its principal place of business in the City of Fall
River in said Commonwealth (hereinafter called the "Company") and STATE STREET
BANK AND TRUST COMPANY, a trust company organized and existing under the laws of
The Commonwealth of Massachusetts (successor in interest to The First National
Bank of Boston, successor by merger to Old Colony Trust Company), having its
principal place of business in the City of Boston in The Commonwealth of
Massachusetts (hereinafter called the "Trustee").
WHEREAS, the Company has heretofore executed and delivered to Old Colony
Trust Company, trustee (State Street Bank and Trust Company, successor trustee,
successor in interest to The First National Bank of Boston, successor by merger
to Old Colony Trust Company), an Indenture of First Mortgage dated as of
December 1, 1952 (hereinafter called the "Original Indenture"), a First
Supplemental Indenture dated as of January 1, 1955 (hereinafter called the
"First Supplemental Indenture"), a Second Supplemental Indenture dated as of
September 1, 1957 (hereinafter called the "Second Supplemental Indenture"), a
Third Supplemental Indenture dated as of December 1, 1957 (hereinafter called
the "Third Supplemental Indenture"), a Fourth Supplemental Indenture dated as of
February 1, 1958 (hereinafter called the "Fourth Supplemental Indenture"), a
Fifth Supplemental Indenture dated as of May 1, 1959 (hereinafter called the
"Fifth Supplemental Indenture"), a Sixth Supplemental Indenture dated as of May
1, 1961 (hereinafter called the "Sixth Supplemental Indenture"), a Seventh
Supplemental Indenture dated as of November 1, 1961 (hereinafter called the
"Seventh Supplemental Indenture"), an Eighth Supplemental Indenture dated as of
November 1, 1966 (hereinafter called the "Eighth Supplemental Indenture"), a
Ninth Supplemental Indenture dated as of June 30, 1971 (hereinafter called the
"Ninth Supplemental Indenture"), a Tenth Supplemental Indenture dated as of June
1, 1981 (hereinafter called the "Tenth Supplemental Indenture"), an Eleventh
Supplemental Indenture dated as of December 15, 1989 (hereinafter called the
"Eleventh Supplemental Indenture") and a Twelfth Supplemental Indenture dated as
of December 20, 1989 (hereinafter called the "Twelfth Supplemental Indenture")
to secure, as provided therein, its bonds (therein and herein called the
"Bonds"), to be known generally as its "First Mortgage Bonds", and to be issued
in one or more series as provided in the Original Indenture; and
WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate
principal amount of First Mortgage Bonds, 4 1/4% Series due 1972, of the Company
have been heretofore issued, all of which Bonds were retired contemporaneously
with the issue and sale of First Mortgage Bonds, 3 3/4% Series due 1980,
referred to below; and
WHEREAS, Two Million Four Hundred Thousand Dollars ($2,400,000) aggregate
principal amount of First Mortgage Bonds, 3 3/4% Series due 1980 (in the First
Supplemental Indenture and herein called the "Bonds of the 1980 Series"), of the
Company have been heretofore issued, all of which Bonds have been retired; and
Exhibit A
---------
-1-
3
WHEREAS, One Million Dollars ($1,000,000) aggregate principal amount of
First Mortgage Bonds, 5 1/4% Series due 1980 (in the Second Supplemental
Indenture and herein called the "Bonds of the Second 1980 Series") of the
Company have been heretofore issued, all of which Bonds have been retired; and
WHEREAS, One Million Two Hundred Thousand Dollars ($1,200,000) aggregate
principal amount of First Mortgage Bonds, 5 1/4% Series due 1986 (in the Sixth
Supplemental Indenture and herein called the "Bonds of the 1986 Series") of the
Company have been heretofore issued, all of which Bonds have been retired; and
WHEREAS, Three Million Two Hundred Thousand Dollars ($3,200,000) aggregate
principal amount of First Mortgage Bonds, 8 3/4% Series due 1996 (in the Ninth
Supplemental Indenture and herein called the "Bonds of the 1996 Series") have
heretofore been issued, all of which Bonds have been retired; and
WHEREAS, Three Million Four Hundred Thousand Dollars ($3,400,000)
aggregate principal amount of First Mortgage Bonds, 15% Series due 1993 (in the
Tenth Supplemental Indenture and herein called the "Bonds of the 1993 Series")
of the Company have been heretofore issued, all of which Bonds have been
retired; and
WHEREAS, Six Million Five Hundred Thousand Dollars ($6,500,000) aggregate
principal amount of First Mortgage Bonds, 9.44% Series due 2020 (in the Twelfth
Supplemental Indenture and herein called the "Bonds of the 2020 Series") have
heretofore been issued of which Six Million Five Hundred Thousand Dollars
($6,500,000) are presently outstanding; and
WHEREAS, the Board of Directors of the Company has established under
Section 3.02 of the Original Indenture a new series of Bonds to be designated
First Mortgage Bonds, 7.99% Series due 2026 (hereinafter referred to as "Bonds
of the 2026 Series") and has authorized the issue of said Bonds of the 2026
Series in the aggregate principal amount of Seven Million Dollars ($7,000,000)
pursuant to the provisions of Article Two of this Thirteenth Supplemental
Indenture; and
WHEREAS, Section 18.01 of the Original Indenture provides, among other
things, that the Company, when authorized by a resolution of the Board of
Directors, and the Trustee, from time to time and at any time, subject to the
restrictions in the Original Indenture, as supplemented and modified, contained,
may, and when so required by the Original Indenture, shall, enter into
indentures supplemental to the Original Indenture and which thereafter shall
form a part thereof, for the purposes, among others, of (a) mortgaging,
pledging, conveying, transferring or assigning to the Trustee, and subjecting to
the lien of the Original Indenture additional properties acquired by the
Company, (b) adding to the Original Indenture other covenants and agreements to
be thereafter observed by the Company, (c) providing for the creation of any
Series of Bonds, designating the series to be created and specifying the form
and provisions of the Bonds of such series, and (d) changing, altering,
modifying, varying, or
Exhibit A
---------
-2-
4
eliminating any of the terms, provisions, restrictions or conditions of the
Original Indenture, subject as set forth therein; and
WHEREAS, Section 18.02 of the Original Indenture provides, among other
things, that the Company, when authorized by a resolution of the Board of
Directors, and the Trustee, may, from time to time and at any time, and subject
as set forth in said Section 18.02, enter into an indenture or indentures
supplemental to the Original Indenture for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Original Indenture or of any supplemental indenture and modifying certain rights
and obligations of the Company and certain rights of the holders of any of the
Bonds and coupons; and
WHEREAS, the Board of Directors and the Stockholders of the Company by
resolutions duly adopted authorized to the extent required by law the execution
of this Thirteenth Supplemental Indenture for the purposes of (a) subjecting to
the lien of the Original Indenture the additional properties acquired by the
Company since the execution of the Twelfth Supplemental Indenture, (b) creating
the Bonds of the 2026 Series, designating the series created and specifying the
form and the provisions of the Bonds of such series, and (c) changing certain of
the provisions of a supplemental indenture (the Original Indenture, as
supplemented and modified by the First through the Twelfth Supplemental
Indentures, inclusive, and as supplemented by this Thirteenth Supplemental
Indenture being herein sometimes called the "Indenture"); and
WHEREAS, all acts and proceedings required by law and by the Certificate
of Organization and Certificate of Incorporation and by-laws of the Company
necessary to secure the payment of the principal of and interest and premium, if
any, on the Bonds of the 2026 Series, to make the Bonds of the 2026 Series to be
issued hereunder, when executed by the Company, authenticated and delivered by
the Trustee and duly issued, the valid, binding and legal obligations of the
Company, and to constitute the Indenture a valid and binding mortgage for the
security of the Bonds, in accordance with its and their terms, have been done
and taken; and the execution and delivery of this Twelfth Supplemental Indenture
and the issue of the Bonds of the 2026 Series have been in all respects duly
authorized:
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of and premium, if any, and interest on all Bonds at
any time issued and outstanding under the Indenture, according to their tenor,
purport and effect, to confirm the lien of the Indenture upon property
purchased, constructed or otherwise acquired by the Company since the date of
execution of the Twelfth Supplemental Indenture and to secure the performance
and observance of all the covenants and conditions herein and in the Bonds and
in the Indenture contained, and to declare the terms and conditions upon and
subject to which the Bonds of the 2026 Series are and are to be issued and
secured, and for and in consideration of the premises and of the mutual
covenants herein contained and of the purchase and acceptance of the Bonds of
the 2026 Series by the holders thereof, and of the sum of Ten Dollars ($10) duly
paid to the Company by the Trustee, at or before the ensealing and delivery
hereof, and
Exhibit A
---------
-3-
5
for other valuable considerations, the receipt whereof is hereby acknowledged,
the Company has executed and delivered this Thirteenth Supplemental Indenture,
and by these presents, does grant, bargain, sell, alien, remise, release,
convey, assign, transfer, mortgage, pledge, set over and confirm unto STATE
STREET BANK AND TRUST COMPANY, Trustee, its successors in trust and its and
their successors and assigns, all property real, personal or mixed described in
the Original Indenture and the First through the Twelfth Supplemental Indentures
and thereby conveyed or mortgaged or intended so to be, including all such
property acquired since the execution and delivery of the Twelfth Supplemental
Indenture which by the terms of the Indenture is subjected or is intended to be
subjected to the lien thereof, including, without limiting the generality of the
foregoing, the following described property:
CLAUSE I.
All of the lands, gas plants and systems, gas works, buildings,
structures, garages, sheds, repair shops, storage houses, erections and
constructions now or hereafter placed on or under any of the real estate
described in Article Twenty of the Original Indenture or in the granting clauses
of the First through the Twelfth Supplemental Indentures or on or under any part
hereof, or on or under any real estate thereafter acquired by the Company, with
their fixtures and appurtenances, including (but without in any way limiting the
generality of the foregoing) the properties and rights more particularly
described in said Article Twenty of the Original Indenture, in Schedule A of the
Second Supplemental Indenture or in the granting clauses of the First through
the Twelfth Supplemental Indentures.
CLAUSE II.
Also all other real estate and all interests therein now owned or
hereafter acquired by the Company including (but without in any way limiting the
generality of the foregoing) the real estate and interests therein more
particularly described in Schedule A annexed hereto.
CLAUSE III.
All of the machinery, engines, boilers, furnaces, water xxxxx, motors,
compressors, conduits, mains, gates, tubes, drains, switchboards, services,
pumps, pumping stations, gas holders, reservoirs, expansion tanks, gas mains and
pipes, tunnels, subways, bridges, service pipes, pipe lines, fittings, reducers,
regulators, drips, valves, connections, implements, meters, tools, gas,
mechanical and all other appliances, instruments, apparatus, appurtenances and
facilities now owned by the Company or hereafter acquired by it, and
constituting or to constitute parts of its gas storage plant or gas distributing
system or the equipment thereof or used or provided for use in or appurtenant to
the manufacture, transportation, storage, distribution and sale of manufactured
gas, natural gas, propane gas, butane gas or a mixture of any thereof (other
than excepted property as hereinafter defined), and there is included herein
(but not to the exclusion of any other property now owned or hereafter acquired
by the Company), the gas manufacturing plants, gas storage plants and gas
distributing systems
Exhibit A
---------
-4-
6
owned by the Company, including (but without in any way limiting the generality
of the foregoing) the properties and rights more particularly described in said
Article Twenty of the Original Indenture, in Schedule A of the Second
Supplemental Indenture or in the granting clauses of the First through the
Twelfth Supplemental Indentures.
CLAUSE IV.
All easements, leases, rights, powers, privileges, indeterminate permits,
water and riparian rights, and all interests therein, dams and dam sites,
franchises, licenses, rights of way, immunities and concessions of the Company,
whether granted or acquired by virtue of its Charter, or by virtue of the acts,
resolutions, concessions, ordinances, contracts, or other grants of any
municipality, county, or other political subdivision or of any private person or
body corporate or otherwise, howsoever conferred, now owned or hereafter to be
acquired by the Company, to lay, erect, construct, maintain and repair any
plants or other property including conduits, mains, pipes, pipe lines, pumping,
compressor, regulator and measuring stations, meters, and other equipment to
vend gas, within the limits of any incorporated village or city, or elsewhere
(other than excepted property as hereinafter defined), and there is included
herein (but not to the exclusion of any other property now owned or hereafter
acquired by the Company) any indeterminate permits, franchises, permits, grants,
rights of way and easements owned by the Company for the transmission and
distribution of manufactured gas, natural gas, propane gas, butane gas or a
mixture of any thereof, and the laying, erection, construction, maintenance and
repair of conduits, mains, pipes, pipe lines, pumping, compressor, regulator and
measuring stations, meters and other equipment for that purpose, and wheresoever
situated (but not herein specifically excepted), including (but without in any
way limiting the generality of the foregoing) the properties and rights more
particularly described in said Article Twenty of the Original Indenture, in
Schedule A of the Second Supplemental Indenture or in the granting clauses of
the First through the Twelfth Supplemental Indentures.
CLAUSE V.
Also all property, real, personal and mixed (except as herein expressly
excepted), of every nature and description and wheresoever situated, whether or
not herein specifically described, and all interests therein, now owned or
hereafter acquired by or belonging to the Company or to which it now is, or may
at any time hereafter be, in any manner entitled at law or in equity.
CLAUSE VI.
Also all renewals, replacements, accessions, additions, improvements,
betterments, developments, extensions, and enlargements, hereafter made,
constructed or acquired by the Company to, of or upon any or all such
properties, equipment, systems and/or plants and all property used thereby or
useful therefor or incidental thereto or connected therewith now or at any time
hereafter subject to the lien of the Indenture, or required so to be by any
provision
Exhibit A
---------
-5-
7
herein contained, and also all franchises, permits and similar rights
acquired in connection therewith.
CLAUSE VII.
Also any and all property of every kind or description (including any
property which may be expressly excepted by Clause IX of these granting clauses)
which may at any time or from time to time after the date of this Thirteenth
Supplemental Indenture by delivery or by writing of any kind be conveyed,
mortgaged, pledged, assigned or transferred to the Trustee by the Company, or by
any person, firm, association or corporation with the consent of the Company, or
otherwise as expressly permitted by the terms of the Indenture, and accepted by
the Trustee, to be held as part of the mortgaged property; and the Trustee is
hereby authorized to accept and receive any such property and any such
conveyance, mortgage, pledge, assignment or transfer as and for additional
security hereunder, and to hold and apply any and all such property subject to
and in accordance with the terms and provisions upon which such delivery,
conveyance, mortgage, pledge, assignment or transfer shall be made, not
inconsistent with the terms of the Indenture.
CLAUSE VIII.
TOGETHER with all and singular the tenements, hereditaments and
appurtenances belonging or in anywise appertaining to the aforesaid properties
or any part thereof, with the reversion and reversions, remainder and
remainders, tolls, rents, revenues, issues, income, product and profits thereof,
and all the estate, rights, title, interest and claim whatsoever, at law as well
as in equity, which the Company now has or may hereafter acquire in and to the
aforesaid properties and every part and parcel thereof.
SUBJECT, HOWEVER, to the following (none of which, in the opinion of the
Company, materially interferes with the conduct of its business): the
reservations, exceptions, conditions, limitations and restrictions contained in
the several deeds, franchises and contracts or other instruments through which
the Company acquired or claims title to or enjoys the use of the mortgaged
property; such servitudes, easements, rights and privileges in, over, on, under
or through said properties as have been granted by the Company to other persons;
statutory and municipal requirements relating to land and buildings; the rights
of the public and others in streets, roads and highways, open or unopen, or laid
out but unopened, crossing or bounding any of the said parcels; the rights of
The Commonwealth of Massachusetts and of the United States of America, in and to
any streams, rivers or bodies of water abutting any of the said parcels; the
rights of electric, gas, water, telephone and telegraph companies (other than
the Company) to maintain and operate pole lines, conduits, and gas and water
mains over or through any of the said parcels or on or in the streets, roads or
highways abutting thereon as the same may now or hereafter be located; any
easements visible on the ground but not evidenced by recorded agreements or
grants; and permitted encumbrances as defined in Section 1.40 of the Original
Indenture; and, with respect to any property which the Company may hereafter
construct or acquire, to any liens then in effect thereon or placed thereon for
Exhibit A
---------
-6-
8
unpaid portions of the purchase money at the time of such acquisition, to the
extent permitted by Section 9.10 of the Original Indenture.
CLAUSE IX.
EXCEPTED PROPERTY
EXPRESSLY EXCEPTING AND EXCLUDING, HOWEVER, from the Indenture and from
the lien and operation thereof:
(a) any and all property expressly excepted and excluded from the
Original Indenture and from the lien and operation thereof by paragraph A and
all property of the character expressly excepted and excluded by paragraph B
through I of Clause IX of the Granting Clauses of the Original Indenture;
(b) all property, if any, expressly excepted from the lien of the
Indenture in the descriptions of the property contained in Schedule A of the
Second Supplemental Indenture;
(c) any and all property expressly excepted from the lien of the
Indenture in the Granting Clauses of the First through the Twelfth Supplemental
Indentures;
(d) any and all property expressly excepted in the Granting Clauses of
this Thirteenth Supplemental Indenture; and
(e) all property which prior to the execution and delivery of this
Thirteenth Supplemental Indenture has been released by the Trustee or otherwise
disposed of by the Company free from the lien of the Indenture in accordance
with the provisions thereof.
If upon the happening of any default as defined in Article Twelve of the
Original Indenture, the Trustee or a receiver or trustee shall enter upon and
take possession of the trust estate, the Trustee or such receiver or trustee
may, to the extent permitted by law, at the same time likewise take possession
of any and all of the property specifically excepted under the heading "Excepted
Property" of Granting Clause IX of the Original Indenture, other than paragraph
G thereof, together with any and all of the property specifically excepted in
the descriptions of the property contained in Schedule A of the Second
Supplemental Indenture, and any and all property expressly excepted in the
Granting Clauses of the First through the Twelfth Supplemental Indentures and in
the Granting Clauses of this Thirteenth Supplemental Indenture, then on hand and
use and administer the same to the same extent as if such property were part of
the trust estate, unless and until such default shall be remedied or waived and
possession of the trust estate restored to the Company.
TO HAVE AND TO HOLD all of the property, real, personal and mixed, and all
and singular the lands, properties, estates, rights, franchises, privileges and
appurtenances hereby granted, bargained, sold, aliened, remised, released,
conveyed, assigned, transferred,
Exhibit A
---------
-7-
9
mortgaged, pledged, set over or confirmed, or intended so to be, unto the
Trustee and its successors in trust and to its and their assigns, forever.
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate use, benefit,
security and protection of those who from time to time shall hold the Bonds and
coupons, or any of them, authenticated and delivered under the Indenture, and
duly issued by the Company, without any discrimination, preference or priority
of any one Bond or coupon over any other by reason or priority in the time of
issue, sale or negotiation thereof or otherwise, except as provided in Section
12.28 of the Original Indenture, so that, subject to said Section 12.28 each and
all of said Bonds and coupons shall have the same right, lien and privilege
under the Indenture and shall be equally and proportionately secured thereby
(except as any sinking, depreciation or other analogous fund established in
accordance with the provisions of the Indenture may afford additional security
for the Bonds of any particular series), with the same effect as if all of the
Bonds and coupons had been issued, sold and negotiated simultaneously on the
date of the delivery of the Original Indenture.
THE COMPANY HEREBY DECLARES that it holds and will hold and apply all
property and rights, described in paragraph G of Clause IX of the Original
Indenture as specifically reserved and excepted, upon the trusts as set forth in
the Indenture, and as the Trustee (or any purchaser upon any sale of the
mortgaged property) shall for such purpose direct from time to time to the
fullest extent permitted by law or in equity and by any instruments creating the
same, as fully as if the same could be and had been hereby granted, conveyed,
mortgaged, pledged, transferred and assigned to and vested in the Trustee.
It is hereby covenanted, declared and agreed by and between the parties
hereto that all Bonds and coupons, if any, are to be authenticated, delivered
and issued and that all property subject or to become subject to the Indenture
is to be held, subject to the further covenants, conditions, uses and trusts set
forth in the Indenture, and the Company for itself and its successors or assigns
does hereby covenant and agree to and with the Trustee and its successor or
successors in such trust, for the benefit of those who shall hold said Bonds, or
coupons, or any of them, as follows:
ARTICLE ONE.
BONDS OF THE 2026 SERIES
AND CERTAIN PROVISIONS RELATING THERETO.
Section 1.01. A. TERMS OF BONDS OF THE 2026 SERIES. There shall be and
hereby is created a new series of Bonds, known as and entitled "First Mortgage
Bonds, 7.99% Series due 2026" (herein referred to as the "Bonds of the 2026
Series"). The principal amount of the Bonds of the 2026 Series shall be and
hereby is limited, except for duplicate Bonds authenticated and delivered
pursuant to Section 3.12 of the Original Indenture, to Seven Million Dollars
($7,000,000) in aggregate principal amount.
Exhibit A
---------
-8-
10
The definitive Bonds of the 2026 Series shall be registered Bonds without
coupons of the denomination of $100,000 or any multiple thereof.
The Bonds of the 2026 Series will, notwithstanding the provisions of
Section 3.05 of the Original Indenture, be dated and bear interest from the date
of initial issue and payment to the Company by the purchaser or purchasers
thereof. All Bonds of the 2026 Series shall mature September 15, 2026, and will
bear interest at the rate of 7.99% per annum until the payment of the principal
thereof, such interest to be payable on March 15, 1997 and thereafter
semi-annually on March 15 and September 15 in each year. The principal of, the
premium, if any, and interest on, the Bonds of the 2026 Series will be paid in
any coin or currency of the United States of America which at the time of
payment is legal tender for the payment of public and private debts, at the
principal corporate trust office of the Trustee in Canton, Massachusetts. For
purposes of this Thirteenth Supplemental Indenture and the Bonds of the 2026
Series, the term "premium" shall include any "Make Whole Amount", as the latter
term is defined in such Bonds.
The definitive Bonds of the 2026 Series, notwithstanding the provisions of
Section 3.04 of the Original Indenture, may be printed, typed or otherwise
reproduced in any manner satisfactory to the Trustee without the use of
engraving or steel engraved borders.
As permitted by the provisions of Section 3.10 of the Original Indenture
and upon payment at the option of the Company of the charges provided in Section
3.11 of the Original Indenture, Bonds of the 2026 Series may be exchanged for a
new Bond or Bonds of different authorized denominations of like aggregate
principal amount.
The Trustee hereunder shall, by virtue of its office as such Trustee, be a
paying agent of the Company for the purpose of the payment of the principal of
and premium, if any, and interest on the Bonds of the 2026 Series and the
registrar and transfer agent of the Company for the purpose of registering and
transferring Bonds of the 2026 Series.
B. FORM OF BONDS OF THE 2026 SERIES The Bonds of the 2026 Series and the
Trustee's authentication certificate to be executed on all of the Bonds of said
series, shall be in substantially the following forms, respectively:
Exhibit A
---------
-9-
11
[FORM OF BOND OF THE 2026 SERIES]
This Bond has not been registered under the Securities Act of 1933 and may
not be sold, assigned or transferred in the absence of such registration
or a written opinion of counsel reasonably satisfactory to the Company to
the effect that such sale, assignment or transfer is not a transaction
requiring registration of this Bond under the Securities Act of 1933.
No. RG $
--------------- -----------------
FALL RIVER GAS COMPANY
FIRST MORTGAGE BOND, 7.99% SERIES DUE 2026
DUE SEPTEMBER 15, 2026
FALL RIVER GAS COMPANY, a Massachusetts corporation (hereinafter sometimes
called the "Company"), for value received, hereby promises to pay to _________,
or registered assigns, ______________Dollars ($___________ ) on September 15,
2026, and to pay to said payee, or registered assigns, interest hereon from the
date hereof at the rate of 7.99% per annum, semi-annually on the fifteenth day
of March and September in each year until payment of the principal hereof. To
the extent permitted by law, interest shall be payable on any overdue principal
or interest at the rate of 9.99% per annum; interest at the rate of 9.99% per
annum shall accrue from the date such principal or interest was due and payable,
disregarding for this purpose any period of grace used in determining the
existence of a default under the Indenture (as hereinafter defined).
The principal of and the premium, if any, and interest on this bond will
be paid in any coin or currency of the United States of America which at the
time of payment is legal tender for the payment of public and private debts, at
the principal corporate trust office of the Trustee, or its successor in trust,
in Canton, Massachusetts.
This bond is one of the bonds, of the above designated series, of an
authorized issue of bonds of the Company known as First Mortgage Bonds, all
issued or issuable in one or more series under and equally and proportionately
secured (except insofar as any sinking fund, depreciation fund or other fund
established in accordance with the provisions of the Indenture hereinafter
mentioned may afford additional security for the bonds of any specific series)
by an Indenture of First Mortgage dated as of December 1, 1952, as supplemented
and modified by a First Supplemental Indenture dated as of January 1, 1955, and
supplemented by a Second Supplemental Indenture dated as of September 1, 1957, a
Third Supplemental Indenture dated as of December 1, 1957, a Fourth Supplemental
Indenture dated as of February 1, 1958, a
Exhibit A
---------
-10-
12
Fifth Supplemental Indenture dated as of May 1, 1959, a Sixth Supplemental
Indenture dated as of May 1, 1961, a Seventh Supplemental Indenture dated as of
November 1, 1961 and an Eighth Supplemental Indenture dated as of November 1,
1966, each executed and delivered by the Company to Old Colony Trust Company,
Boston, Massachusetts, as Trustee, to which State Street Bank and Trust Company,
Boston, Massachusetts, is successor Trustee, as successor in interest to The
First National Bank of Boston, successor by merger to Old Colony Trust Company
(herein said State Street Bank and Trust Company, as said trustee, and its
successors under said Indenture sometimes called the "Trustee"), a Ninth
Supplemental Indenture dated as of June 1, 1971, a Tenth Supplemental Indenture
dated as of June 1, 1981, an Eleventh Supplemental Indenture dated as of
December 15, 1989, and a Twelfth Supplemental Indenture dated as of December 20,
1989, each executed and delivered by the Company to The First National Bank of
Boston, Boston, Massachusetts, as Trustee, to which State Street Bank and Trust
Company, Boston, Massachusetts, is successor Trustee, as successor in interest
to The First National Bank of Boston, and a Thirteenth Supplemental Indenture
dated as of September 19, 1996, executed and delivered by the Company to the
Trustee, and all indentures supplemental thereto (herein sometimes called the
"Indenture") reference to which is hereby made for a description of the property
mortgaged and pledged as security for said bonds, the nature and extent of the
security, and the rights, duties and immunities thereunder of the Trustee, the
rights of the holders of said bonds and of the Trustee and of the Company in
respect of such security, and the terms upon which said bonds may be issued
thereunder; but neither the foregoing reference to the Indenture nor any
provision of this bond or of the Indenture or of any indenture supplemental
thereto shall affect or permit any impairment of the obligation of the Company,
which is absolute and unconditional, to pay at the stated or accelerated times
herein provided, the principal of and the premium, if any, and the interest on
this bond as herein provided.
The bonds of this series are entitled to the benefits of a Guaranty and
Negative Pledge Agreement to which reference is made in the Bond Purchase
Agreement dated September 20, 1996 between the Company and the original holder
of the bonds of this series and the Endorsement endorsed hereon or attached
hereto.
The bonds of this series are subject to redemption prior to maturity as a
whole or in part at the option of the Company at any time on or after September
15, 2016 and prior to maturity, upon payment of the principal amount of bonds to
be redeemed plus (i) accrued interest thereon and (ii) an amount equal to the
Make Whole Amount. Notwithstanding the provisions of Section 8.05 of the
Indenture, no trust moneys (as such term is defined in the Indenture) may be
applied by the Trustee at any time to the redemption prior to maturity of any
bonds of this series.
As used herein, the following terms shall have the following respective
meanings:
The term "Make Whole Amount" shall mean at any time with respect to any
redemption of the bonds of this series, to the extent that the Treasury Rate
plus 50 basis points at such time is lower than 7.99% per annum, the excess of
(a) the present value of the
Exhibit A
---------
-11-
13
principal and interest payments on and in respect of the bonds of this series
being redeemed that would otherwise become due and payable (without giving
effect to such redemption), discounted at a rate which is equal to the Treasury
Rate plus 50 basis points over (b) the principal amount of the bonds of this
series being redeemed, at par. To the extent that the Treasury Rate plus 50
basis points at the time of such redemption is equal to or higher than 7.99% per
annum, the Make Whole Amount is zero.
The term "premium" shall include any Make Whole Amount.
The term "Treasury Rate" at any time with respect to any bonds of this
series being redeemed, shall mean and shall be determined by reference to the
applicable display on Bloomberg Financial Markets Service as of 10:00 A.M., New
York time, on the second business day prior to the date fixed for redemption
(or, if such display is no longer available, any publicly available source of
similar market data), and shall be the yield on actively traded United States
Treasury securities adjusted to a maturity equal to the then remaining Weighted
Average Life to Maturity of the bonds of this series being redeemed (the
"Remaining Life"). If the Remaining Life is not equal to the maturity of a
United States Treasury security for which a yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth
of a year) from the weekly average yields of the two closest United States
Treasury securities for which such yields are given, except that if the
Remaining Life is less than one year, the average yield on actively traded
United States Treasury securities adjusted to a constant maturity of one year
shall be used. The Treasury Rate shall be computed to the fifth decimal place
(one-thousandth of a percentage point) and then rounded to the fourth decimal
place (one-hundredth of a percentage point).
The term "Weighted Average Life to Maturity" shall mean, at any date, the
number of years obtained by dividing the then Remaining Dollar-years of the
bonds of this series being redeemed by the then outstanding principal amount of
such bonds. For purposes of this definition, the "Remaining Dollar-years" of any
bonds of this series being redeemed shall mean, at any date, the total of the
products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payment, including
payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) which will elapse between such date and
the making of such payment.
If this bond or any portion thereof ($1,000 or any multiple thereof) is
duly designated for redemption, if payment of the principal hereof or of such
portion, together with accrued interest, and the Make Whole Amount is
irrevocably provided for and if notice of such redemption is duly given or
provided for, all as specified in the Indenture, this bond or such portion shall
cease to be entitled to the lien of the Indenture from and after the date such
payment and notice are irrevocably so provided for and shall cease to bear
interest from and after the date fixed for redemption.
In the event of the selection for redemption of a portion only of the
principal of this bond, payment of the redemption price will be made at the
option of the registered owner,
Exhibit A
---------
-12-
14
either (a) upon notation hereon by the holder of this bond of such payment of
the portion of the principal of this bond so called for redemption, or (b) upon
surrender of this bond in exchange for a bond or bonds for the unredeemed
balance of the principal amount of this bond.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than sixty-six and two-thirds
percent in principal amount of the bonds at the time outstanding (determined as
provided in the Indenture) including, if more than one series of bonds shall be
at the time outstanding, not less than sixty-six and two-thirds percent in
principal amount of the bonds at the time outstanding of each series affected,
to effect, by an indenture or indentures supplemental to the Indenture,
modifications or alterations of the Indenture and of the rights and obligations
of the Company and of the holders of the bonds and coupons; provided, however,
that no such modification or alteration shall be made without the consent of the
registered owner hereof which will (a) extend the maturity of this bond or
reduce the rate or extend or otherwise change the time of payment of interest
hereon or reduce the amount of the principal hereof or reduce any premium
payable on the redemption hereof, or (b) permit the creation of any lien, not
otherwise permitted, prior to or on a parity with the lien of the Indenture, or
alter the equal and proportionate security afforded by the lien of the Indenture
for the bonds issued thereunder, or (c) reduce the number or percentage of the
principal amount of the bonds upon the consent of the holders of which
modifications or alterations may be made as aforesaid or defaults may be waived.
This bond is transferable by the registered owner hereof in person or by
his duly authorized attorney, on books of the Company kept for the purpose, at
the principal corporate trust office of the Trustee upon surrender of this bond
for cancellation and upon payment, if the Company shall so require, of the
charges provided for in the Indenture, and thereupon a new bond of the same
series of like principal amount will be issued to the transferee in exchange
therefor.
The registered owner of this bond at his option may surrender the same for
cancellation at said office and receive in exchange therefor the same aggregate
principal amount of bonds of the same series but of other authorized
denominations upon payment, if the Company shall so require, of the charges
provided for in the Indenture and subject to the terms and conditions therein
set forth.
If a default as defined in the Indenture shall occur, the principal of
this bond may become or be declared due and payable before maturity in the
manner and with the effect provided in the Indenture. The holders, however, of
certain specified percentages of the bonds at the time outstanding, including in
certain cases specified percentages of bonds of particular series, may in the
cases, to the extent and under the conditions provided in the Indenture, waive
past defaults thereunder and the consequences of such defaults.
No recourse shall be had for the payment of the principal of or the
premium, if any, or the interest on this bond, or expenses related thereto or
for any claim based hereon, or
Exhibit A
---------
-13-
15
otherwise in respect hereof or of the Indenture, against any incorporator,
stockholder, director or officer, past, present or future, as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or such predecessor or successor corporation, under any
constitution or statute or rule of law, or by the enforcement of any assessment
or penalty, or otherwise, all such liability of incorporators, stockholders,
directors and officers, as such, being waived and released by the holder and
owner hereof by the acceptance of this bond and as provided in the Indenture.
The Company and the Trustee, any paying agent and any bond registrar may
deem and treat the person in whose name this bond is registered, or his
registered assigns, as the absolute owner hereof, whether or not this bond shall
be overdue, for the purpose of receiving payment and for all other purposes and
neither the Company nor the trustee nor any paying agent nor any bond registrar
shall be affected by any notice to the contrary.
This bond shall not become or be valid or obligatory for any purpose until
the authentication certificate hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, FALL RIVER GAS COMPANY has caused these
presents, which are intended to take effect as a sealed instrument, to be
executed in its corporate name by its President or one of its Vice Presidents
and its Treasurer or one of its Assistant Treasurer, under its corporate seal or
a facsimile thereof, attested by its Clerk or one of its Assistant Clerks, all
as of ____________ ___, _____.
FALL RIVER GAS COMPANY
By:
---------------------------------
President
(Corporate Seal)
By:
---------------------------------
Treasurer
Attest:
----------------------------
Assistant Clerk
Exhibit A
---------
-14-
16
[FORM OF TRUSTEE'S AUTHENTICATION CERTIFICATE]
This is one of the bonds of the series designated therein, described in
the within mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, As Trustee
By
------------------------------
Authorized Signatory
[FORM OF ASSIGNMENT]
For value received, the undersigned hereby sells, assigns, and transfers
unto (whose Taxpayer Identifying Number is ) the within bond, and all
rights thereunder, hereby irrevocably constituting and appointing attorney to
transfer said bond on the books of the Company, with full power of substitution
in the premises.
Dated:
In the presence of:
NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within bond in every particular, without
alteration or enlargement or any change whatever.
[FORM OF ENDORSEMENT OF GUARANTOR]
ENDORSEMENT OF GUARANTOR
This First Mortgage Bond, 7.99% Series due 2026 is entitled to the
benefits of the Guaranty and Negative Pledge Agreement dated September 20, 1996
by and among Fall River Gas Company, Fall River Gas Appliance Company, Inc. and
Allstate Life Insurance Company.
Dated: FALL RIVER GAS APPLIANCE
-------------------- COMPANY, INC.
By
------------------------------
President
Exhibit A
---------
-15-
17
Section 1.02. REDEMPTION PROVISIONS FOR BONDS OF THE 2026 SERIES. The
Bonds of the 2026 Series shall be subject to redemption prior to maturity as a
whole or in part at the option of the Company at any time on or after September
15, 2016 and prior to maturity as set forth in the form of the Bonds of the 2026
Series set forth in Section 1.01 hereof. Notwithstanding the provisions of
Section 8.05 of the Original Indenture, the Company and the Trustee agree that
no trust moneys (as such term is defined in the Original Indenture) may be
applied by the Trustee at any time to the redemption prior to maturity of any
Bonds of the 2026 Series.
Whenever less than all of the outstanding Bonds of the 2026 Series are to
be redeemed, the principal amount of such Bonds to be redeemed shall be prorated
in units of $1,000 each among the holders of the Bonds of the 2026 Series in the
proportion that their respective holdings bear to the aggregate principal amount
of Bonds of the 2026 Series outstanding on the date of selection.
Section 1.03. RESTRICTION ON PAYMENT OF DIVIDENDS ON COMMON STOCK. The
Company shall not (a) declare or pay any dividend (other than dividends payable
in Common Stock of the Company) or make any other distribution on any shares of
Common Stock, (b) make any expenditures for the purchase, redemption or other
retirement for a consideration of any shares of capital stock of the Company
(other than in exchange for, or from the proceeds of, other and new shares of
capital stock of the Company and other than any class of preferred stock
required to be purchased, redeemed or otherwise retired for any sinking fund or
purchase fund for such class of stock), or (c) make any loans or advances to or
investments in any securities of any subsidiary of the Company (other than from
the proceeds of new shares of capital stock of the Company), if the aggregate
amount of all such dividends, distributions, expenditures, loans, advances and
investments made since September 30, 1995, would exceed the aggregate amount of
the net income of the Company accumulated after September 30, 1995, plus the sum
of $4,000,000.
Net income of the Company for the purpose of this Section shall mean (a)
the total operating revenues of the Company, less the total operating expenses,
taxes (including, without limitation, income, excess profits and other taxes
based on or measured by income or undistributed earnings or income), interest
charges and other appropriate items, including provision for maintenance and
provision for retirements, depreciation or obsolescence, which shall be the
amount actually charged by the Company on its books of account, but in respect
of depreciable gas utility property not subject to prior liens shall not be less
than the minimum provision for depreciation, as defined in Section 1.33 of the
Original Indenture, as amended to date, (b) other net non-operating income and
(c) other income (less any applicable expenses) of the Company and after
provision for all dividends accrued on any outstanding stock of the Company
having preference over the Common Stock as to dividends, assets or otherwise,
all of the foregoing determined in accordance with sound accounting practice,
PROVIDED, HOWEVER, that in determining the net income of the Company for the
purposes of this Section no deduction or adjustment shall be made for or in
respect of any charges or credits which under sound accounting practice are not
appropriate charges or credits in determining net income and, without limiting
the generality of the foregoing, no deduction or adjustment shall be made
Exhibit A
---------
-16-
18
for or in respect of (a) profits or losses from sales, abandonment or other
disposition of property or other capital assets or from the reacquisition of any
securities of the Company, or taxes on or in respect of any such profits; (b)
any change in or adjustment of the book value of any assets owned by the
Company; (c) any earned surplus adjustment (including tax adjustments)
applicable to any period prior to October 1, 1995; or (d) amortization,
retirement or elimination of gas utility plant adjustment accounts or
intangibles.
A subsidiary of the Company for the purposes of this Section shall mean
any corporation a majority of the stock of which having ordinary voting power
not contingent upon a condition of default is owned by the Company or any other
subsidiary of the Company.
Section 1.04. INDEBTEDNESS. Unless the holders of two-thirds in
principal amount outstanding of the Bonds of the 2026 Series shall otherwise
generally or specifically as to a particular instance consent thereto in
writing:
(a) the Company shall not permit its aggregate indebtedness for borrowed
money at any time during any period specified below to exceed the percentage
specified below for such period of the Company's total capitalization:
Period Maximum Permitted Percentage
------ ----------------------------
From and after September 15, 1996
through September 14, 2000 70%
From and after September 15, 2000
through September 14, 2002 68%
From and after September 15, 2002 65%; and
(b) the Company shall not at any time incur or become liable for any
bonded indebtedness, including, but not limited to, the issuance of any Bonds,
unless the net income available for interest of the Company for a period of 12
consecutive calendar months within the 15 calendar months immediately preceding
the month in which the Company proposes to incur or become liable for such
indebtedness is at least two times the fixed annual interest charges on all
indebtedness for borrowed money of the Company, including such bonded
indebtedness.
As used herein, the following terms shall have the following respective
meanings:
The term "total capitalization" shall mean at any time the sum of (a) the
principal amount of all outstanding indebtedness of the Company for borrowed
money, (b) the aggregate amount of par or stated capital represented by all
issued and outstanding capital stock of all classes of the Company having
preference as to dividends or upon liquidation over
Exhibit A
---------
-17-
19
its common stock, if any, and (c) the common stock equity of the Company.
The term "common stock equity" shall be the sum of the amount of par or
stated capital represented by all issued and outstanding common stock (excluding
treasury stock), all premiums on capital stock of the Company of all classes,
and the surplus (including retained earnings and paid-in or capital surplus) of
the Company, less (a) any unamortized debt discount and expense, unamortized
extraordinary property losses and capital stock discount and expense set forth
on the asset side of the balance sheet, and (b) the excess, if any, of the
aggregate amount payable on involuntary dissolution, liquidation or winding up
of the Company on any outstanding shares of the Company having a preference as
to dividends or upon liquidation over the common stock, over the aggregate
amount of par or stated capital represented by any such outstanding shares;
PROVIDED, HOWEVER, that no deduction shall be made in the determination of
common stock equity for any of the amounts or items referred to in clauses (a)
and (b) of this paragraph which are, at the time of the determination of the
common stock equity, being amortized or provided for by reserve.
The term "indebtedness for borrowed money" shall include all indebtedness
of the Company for borrowed money (whether long or short term) of every kind and
nature and any guaranty of the indebtedness of another but shall not include:
(1) Current liabilities of the Company (other than for money borrowed)
incurred in the ordinary course of its business;
(2) Indebtedness of the Company for taxes, assessments or governmental
charges or levies if the same shall not at the time be due and payable or can be
paid thereafter without penalty or shall concurrently be contested in good faith
by appropriate proceedings and if the Company shall have set aside on its books
reserves deemed by it adequate with respect thereto;
(3) Short term indebtedness for borrowed money incurred from time to time
for purposes of purchasing gas supplies, but only to the extent that the
Company's Cost of Gas Adjustment Clause then reflects an under-collection of
allowable costs equal to or greater than the outstanding balance of such
indebtedness; and provided further, however, that the exclusion within this
paragraph (3) shall not apply if such indebtedness, if otherwise included within
the definition of "indebtedness for borrowed money," would cause the Company's
aggregate indebtedness for borrowed money to exceed 70% of the Company's total
capitalization; or
(4) Judgments or awards in respect of which the Company shall in good
faith be prosecuting an appeal or proceedings for review and in respect of which
it shall have secured a subsisting stay of execution or sale pending such appeal
of proceedings.
The term "net income available for interest" of the Company shall mean (a)
the total operating revenues of the Company, less the total operating expenses,
taxes (excluding income, excess profits and other taxes based on or measured by
income or undistributed
Exhibit A
---------
-18-
20
earnings or income), and other appropriate items, including provision for
maintenance and provision for retirements, depreciation or obsolescence, which
shall be the amount actually charged by the Company on its books of account but
in respect of depreciable gas utility property not subject to prior liens shall
not be less than the minimum provision for depreciation, as defined in Section
1.33 of the Original Indenture, as amended to date, (b) other net non-operating
income and (c) other income (less any applicable expenses), of the Company, all
of the foregoing determined in accordance with sound accounting practice;
provided, however, that in determining the net income of the Company for the
purposes of this Section no deduction or adjustment shall be made for or in
respect of any charges or credits which under sound accounting practice are not
appropriate charges or credits in determining net income and, without limiting
the generality of the foregoing, no deduction or adjustment shall be made for or
in respect of (a) profits or losses from sales, abandonment or other disposition
of property or other capital assets or from the reacquisition of any securities
of the Company, or taxes on or in respect of any such profits; (b) any change in
or adjustment of the book value of any assets owned by the Company; (c) any
earned surplus adjustment (including tax adjustments) applicable to any period
prior to October 1, 1995; or (d) amortization, retirement or elimination of gas
utility plant adjustment accounts or intangibles.
Section 1.05. DEPRECIATION. So long as any of the Bonds of the 2026 Series
are outstanding (whether or not any Bonds of the 2020 Series are outstanding),
the term "minimum provision for depreciation" shall have the meaning defined in
Section 1.33 of the Original Indenture as modified by Clause (6) of Article Two
of the First Supplemental Indenture as to the period during which any Bonds of
the 1980 Series were outstanding.
Section 1.06. DURATION OF EFFECTIVENESS OF ARTICLE ONE. This Article
shall be of force and effect only so long as any Bonds of the 2026 Series are
outstanding.
ARTICLE TWO
Principal Amount of Bonds of the 2026 Series
Presently to be Issued
Section 2.01. The total aggregate principal amount of Bonds of the 2026
Series presently to be issued and outstanding under the provisions of and
secured by the Indenture, will be Seven Million Dollars ($7,000,000). Additional
Bonds, other than Bonds of the 2020 Series and Bonds of the 2026 Series or of
any other series established after the execution and delivery of this Thirteenth
Supplemental Indenture may from time to time be authenticated, delivered and
issued pursuant to the terms of the Indenture, except that no further Bonds
shall be issued pursuant to the provisions of the second paragraph of Section
5.01 of the Original Indenture inserted therein by the provisions of Article
Two, Clause (9) of the First Supplemental Indenture.
Section 2.02. Upon the execution and delivery of this Thirteenth
Supplemental
Exhibit A
---------
-19-
21
Indenture, or from time to time thereafter, Seven Million Dollars ($7,000,000)
principal amount of Bonds of the 2026 Series may be executed by the Company and
delivered to the Trustee and shall thereupon be authenticated and delivered by
the Trustee to and upon the written order of the Company, upon compliance by the
Company with the provisions of Article Five of the Original Indenture.
ARTICLE THREE
Amendment of the Indenture
Section 3.01. The Twelfth Supplemental Indenture is hereby modified by
deleting in its entirety the first paragraph of Section 1.04 of Article One of
the Twelfth Supplemental Indenture and inserting in lieu thereof the following
replacement first paragraph:
"Section 1.04. INDEBTEDNESS. Unless the holders of two-thirds in
principal amount outstanding of the Bonds of the 2020 Series shall
otherwise generally or specifically as to a particular instance consent
thereto in writing:
(a) the Company shall not permit its aggregate indebtedness for
borrowed money at any time during any period specified below to exceed the
percentage specified below for such period of the Company's total
capitalization:
Period Maximum Permitted Percentage
------ ----------------------------
From and after September 15, 1996
through September 14, 2000 70%
From and after September 15, 2000
through September 14, 2002 68%
From and after September 15, 2002 65%; and
(b) the Company shall not at any time incur or become liable for any
bonded indebtedness, including, but not limited to, the issuance of any
Bonds, unless the net income available for interest of the Company for a
period of 12 consecutive calendar months within the 15 calendar months
immediately preceding the month in which the Company proposes to incur or
become liable for such indebtedness is at least two times the fixed annual
interest charges on all indebtedness for borrowed money of the Company,
including such bonded indebtedness."
ARTICLE FOUR
Miscellaneous
Exhibit A
---------
-20-
22
Section 4.01. This Thirteenth Supplemental Indenture is executed and shall
be construed as an indenture supplemental to the Original Indenture as
supplemented and modified by the First Supplemental Indenture and supplemented
by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh and Twelfth Supplemental Indentures, and shall form a part thereof, and
the Original Indenture and the First, Second, Third, Fourth, Fifth, Sixth,
Seventh, Eighth, Ninth, Tenth, Eleventh and Twelfth Supplemental Indentures are
hereby confirmed. Except to the extent inconsistent with the express terms
hereof, all of the provisions, terms, covenants and conditions of the Original
Indenture as supplemented and modified by the First Supplemental Indenture and
supplemented by the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth,
Tenth, Eleventh and Twelfth Supplemental Indentures shall be applicable to the
Bonds of the 2026 Series to the same extent as if specifically set forth herein.
All terms used in this Thirteenth Supplemental Indenture shall be taken to have
the same meaning as in the Original Indenture as so supplemented and modified
except in cases where the context clearly indicates otherwise.
Section 4.02. All recitals in this Thirteenth Supplemental Indenture are
made by the Company only and not by the Trustee; and all of the provisions
contained in the Original Indenture as so supplemented and modified in respect
of the rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set forth
herein in full.
Section 4.03. The Company covenants that it is lawfully seized and
possessed at the date of execution of this Thirteenth Supplemental Indenture of
all the trust estate described in this Thirteenth Supplemental Indenture, except
as specifically otherwise stated in this Thirteenth Supplemental Indenture, and
that all the trust estate so described is free and clear of any lien other than
the lien of the Indenture and permitted encumbrances; that the Company will
warrant and forever defend all the trust estate so described to the Trustee
against the claims of all persons whomsoever except as in the Indenture
specifically otherwise stated, that it will maintain and preserve the lien of
the Indenture so long as any of the Bonds issued under the Indenture are
outstanding; and that it has good right and lawful authority to subject all the
trust estate so described to the lien of the Indenture as provided in and by the
terms of the Indenture.
Section 4.04. Notwithstanding any provisions of the Indenture or the Bonds
of the 2026 Series, so long as the original registered holder or any subsequent
registered holder of Bonds of the 2026 Series which is a bank, insurance company
or other institutional investor shall hold any of the Bonds of the 2026 Series,
all payments of interest on the Bonds of the 2026 Series, and all payments on
account of principal or premium, if any, shall be made directly to each such
registered holder or its nominee at such address as may from time to time be
furnished by such holder in writing without surrender or presentation of such
Bonds of the 2026 Series to the Trustee (except that such holder shall surrender
a Bond within a reasonable period of time following receipt of payment, by
redemption or otherwise, of such Bond of the 2026 Series in whole) and with
respect to each such original holder such payments shall be made in accordance
with the provisions of any written agreement between such original holder
Exhibit A
---------
-21-
23
and the Company which shall have been communicated and consented to by the
Trustee.
The Trustee hereby consents to the method of payment described in
"Schedule I" to the Bond Purchase Agreement dated September 20, 1996 between the
Company and such original holder. The Trustee also consents to the provisions of
sections 9.1, 9.2 and 9.3 of said Bond Purchase Agreement and agrees that if a
mutilated, destroyed or lost Bond of the 2026 Series was held by the original
holder or any other institutional holder of recognized standing and sound
financial condition reasonably satisfactory to the Company or any nominee for
the original holder or such other institutional holder (a) an agreement of
indemnity reasonably satisfactory to the Company from such original holder or
such other institutional holder, as the case may be, shall constitute indemnity
satisfactory to it for the purposes of the Indenture and (b) the Trustee will
look only to the Company for reimbursement of its expenses incurred in
connection with such replacement.
Section 4.05. This Thirteenth Supplemental Indenture may be executed in
several counterparts and on separate counterparts, and each of such counterparts
shall for all purposes be deemed to be an original, and all such counterparts,
or as many of them as the Company and the Trustee shall preserve undestroyed,
shall together constitute but one and the same instrument.
Exhibit A
---------
-22-
24
IN WITNESS WHEREOF, Fall River Gas Company has caused this Thirteenth
Supplemental Indenture to be signed in its corporate name and behalf by its
President or one of its Vice Presidents and by its Treasurer or one of its
Assistant Treasurers and its corporate seal to be hereunto affixed and attested
by its Clerk or one of its Assistant Clerks, and State Street Bank and Trust
Company in token of its acceptance of the trust hereby created has caused this
Thirteenth Supplemental Indenture to be signed in its name and behalf by one of
its ___________________ , and its corporate seal to be hereunto affixed and
attested by one of its_______________ , all on the ___ day of September, 1996,
but as of the day and year first above written.
FALL RIVER GAS COMPANY
By:
----------------------------------
, President
and By:
------------------------------
, Treasurer
Attest: (Corporate Seal)
------------------------------
Assistant Clerk
STATE STREET BANK AND TRUST
COMPANY, as successor in interest to
The First National Bank of Boston
By:
----------------------------------
[Title]
Attest: (Corporate Seal)
------------------------------
[Title]
Exhibit A
---------
-23-
25
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF SUFFOLK ) SS.:
At Boston on this 19th day of September, 1996, before me appeared
_______________________ and ___________________ , to me personally known, who,
being by me duly sworn, did say that they are the President and Treasurer,
respectively, of the Fall River Gas Company, and that the seal affixed to the
foregoing instrument is the corporate seal of said Company, and that the said
instrument was signed and sealed by them on behalf of said Company by authority
of its Board of Directors, and the said _______________and __________________
acknowledged said instrument to be the free act and deed of said Company.
-------------------------
Notary Public
My commission expires:
(Notarial Seal)
COMMONWEALTH OF MASSACHUSETTS )
COUNTY OF SUFFOLK ) SS.:
At Boston on this 19th day of September, 1996, before me appeared
_______________, to me personally known, who, being by me duly sworn, did say
that he is a ______________________of State Street Bank and Trust Company, and
that the seal affixed to the foregoing instrument is the corporate seal of said
State Street Bank and Trust Company, and that the said instrument was signed and
sealed on behalf of said State Street Bank and Trust Company by authority of its
Board of Directors and the said ___________________acknowledged said instrument
to be the free act and deed of said State Street Bank and Trust Company.
-----------------------
Notary Public
My commission expires:
(Notarial Seal)
Exhibit A
---------
-24-
26
SCHEDULE A
----------
Exhibit A
---------
-25-
