Exhibit 4.15
YANKEE GAS SERVICES COMPANY
$20,000,000 aggregate principal amount
of First Mortgage Bonds,
6.75% Series D, due 2005
PURCHASE AGREEMENT
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June 22, 1995
To: Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Yankee Gas Services Company, a Connecticut corporation
(the "Company"), confirms its agreement with you (the
"Purchaser") as follows:
1. Description of Securities; Offering. The Company
has duly authorized the issuance and delivery of $20,000,000 in
aggregate principal amount of its First Mortgage Bonds, 6.75%
Series D, due 2005 (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 Trustee, as to be supplemented
and amended by a Third Supplemental Indenture dated as of June 1,
1995 (the "Supplemental Indenture") and 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 the
Supplemental Indenture; will be in the amount of $250,000 or any
amount in excess thereof which is an integral multiple of $5,000;
will bear interest on the unpaid principal balance thereof from
the date of the Bonds at the rate of 6.75% per annum, payable
semiannually on the first day of each June and December in each
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year, commencing on December 1, 1995, until the principal amount
thereof becomes due and payable. If all or any portion of the
principal of, or the premium (if any) or interest on, the Bonds
shall not be paid when due, the amount not so paid shall bear
interest at the rate of 6.75% per annum until paid; and will be
expressed to mature on June 1, 2005. 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 at
the option of the Company prior to their expressed maturity date.
The Indenture creates and will create a first mortgage
Lien on and a first security interest in the Property and
Property rights of the Company described therein as being
subjected to the Lien thereof (subject to Permitted Encumbrances
as therein defined), except such Property and Property rights as
may have been released from the Lien thereof in accordance with
the terms thereof (such Property and Property rights not so
released being hereinafter defined as the "Trust Estate").
The Bonds will be sold to the Purchaser without being
registered under the Securities Act, in reliance on an exemption
therefrom. The Company has prepared a private placement
memorandum dated June 22, 1995 (including the exhibits thereto
and documents incorporated by reference therein, the "Private
Placement Memorandum"), relating to the Bonds, which consists of
a description of the offering, a description of the Company, its
business and any material recent developments relating to the
Company and its business.
You have advised the Company that you intend to make
resales of the Bonds purchased by you hereunder on the terms set
forth in the Private Placement Memorandum, as soon as practicable
after the date of this Agreement as in your judgment is
advisable, but only to persons (other than persons in the State
of New Hampshire) whom you reasonably believe to be Qualified
Institutional Buyers. You will resell the Bonds to Qualified
Institutional Buyers initially at the price set forth on Schedule
I hereto.
2. Purchase, Sale and Delivery of Bonds. On the
basis of the representations, warranties and agreements herein
contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the Purchaser, and
the Purchaser agrees to purchase from the Company, $20,000,000
aggregate principal amount of Bonds at a purchase price equal to
99.210% of the principal amount thereof.
The Bonds shall be issued in book-entry form through
the facilities of The Depository Trust Company ("DTC"). Payment
for the Bonds shall be made to the Company, by certified or
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official bank check or checks in New York Clearing House (next
day) funds payable to the order of the Company, upon delivery to
DTC for credit to the account of the Purchaser of one global
security evidencing the Bonds in definitive form, registered in
the name of DTC or its nominee, at the offices of Xxxxxxx &
Xxxxxxx, One American Row, Hartford, Connecticut 06103-2819, at
10:00 A.M., Hartford, Connecticut time, on June 29, 1995 (or if
the New York or American Stock Exchanges or commercial banks in
The City of New York are not open on such day, the next day on
which such exchanges and banks are open), or at such other time
not later than eight full business days thereafter as you and the
Company determine, such time being herein referred to as the
"Closing Date."
3. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, the
Purchaser that as of the date of this Agreement and on the
Closing Date:
(a) The Company (i) is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Connecticut; (ii) 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 as now conducted and as presently proposed to be
conducted as described in the Private Placement Memorandum; and
(iii) 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.
(b) The Company has no subsidiaries. Each of the
Company's corporate or joint venture Affiliates are disclosed in
the Private Placement Memorandum.
(c) The Private Placement Memorandum does not and, on
the Closing Date, will not contain an untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they are made, not misleading (except that this representation
and warranty shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of the Purchaser or DTC
expressly for use in the Private Placement Memorandum); and no
stop order preventing the use of the Private Placement Memorandum
or any amendment or supplement thereto or any order asserting
that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Securities Act
has, to the knowledge of the Company, been issued.
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(d) The financial statements of the Company and the
related notes included as exhibits to the Private Placement
Memorandum present fairly the financial position of the Parent
and its subsidiaries as of the dates indicated, and the results
of its operations and its cash flow for the periods therein
specified. Such financial statements (including the related
notes) have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout
the periods therein specified, except as set forth therein. The
financial information and statistical data set forth in the
Private Placement Memorandum under the caption "Selected
Financial Information" are prepared on a basis consistent with
the financial statements of the Parent and its subsidiaries.
(e) Except as contemplated in the Private Placement
Memorandum, subsequent to the respective dates as of which
information is given in the Private Placement Memorandum, (i) the
Company has not incurred any liabilities or obligations, direct
or contingent, or entered into any transactions, not in the
ordinary course of business, that are material to the Company,
(ii) there has not been any change, or any development involving
a prospective change, in the business, prospects, Properties or
condition (financial or other) or results of operations of the
Company except changes in the ordinary course of business, none
of which, either individually or in the aggregate, has been
materially adverse.
(f) Except as set forth in the Private Placement
Memorandum, 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 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.
(g) 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
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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 which constitutes the Trust
Estate is located in the State of Connecticut. There is no
outstanding indebtedness of the Company or of any other Person
for the indebtedness of the Company or 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, which has or could become
the basis of a Lien prior to the Lien of the Indenture upon any
material portion or all of the Trust Estate, other than a
Permitted Encumbrance.
(h) 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.
(i) 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 presently 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 presently proposed to be conducted as
described in the Private Placement Memorandum, without, after due
inquiry, any known conflicts with the rights of others, which
either individually or in the aggregate could reasonably be
expected to materially adversely affect or materially interfere
with the operations of the Company's business.
(j) 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
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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.
(k) 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 that enforcement
thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws of general application
relating to or affecting the enforcement of the rights of
creditors or by equitable principles, regardless of whether
enforcement is sought in equity or at law.
(l) No event has occurred and no condition exists
which, upon the issuance 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.
(m) 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.
(n) The Company is exempt from the requirements of the
Public Utility Holding Company Act of 1935, as amended (except
Section 9(a)(2) thereof) pursuant to Section 3(a)(1) thereof.
The Company has filed all necessary exemption statements with the
SEC as of the date of this Agreement.
(o) The Company is not, and is not directly or
indirectly controlled by, or acting on behalf of any Person which
is, an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(p) Assuming the representation set forth in Section 9
is correct and the covenants contained therein are complied with,
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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
(i) the authorizations (received to date) of the DPUC for the
issuance and sale of the Bonds on the terms set forth in, or
contemplated by, this Agreement (collectively, the "DPUC Order"),
which authorizations have been duly obtained, are in full force
and effect, and have 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 (ii) the recording or filings, in respect of the Lien
of the Indenture, required under the Indenture. The Company has
furnished to your counsel true, correct and complete copies of
(a) said authorization and (b) all applications, petitions,
reports and other papers, and any amendments and supplements
thereto (hereinafter in this Subsection 3(p) 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 counsel all subsequent Applications,
if any.
(q) 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 the
Company.
(r) 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 II (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,
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prospects, Properties or condition (financial or otherwise) of
the Company.
(s) 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.
Sec. 22a-134 et seq.
(t) 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 it
has any liability or class of liability of the Company 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.).
(u) Neither the Company nor any affiliate (as defined
in Rule 501(b) of Regulation D under the Securities Act) of the
Company has directly, or through any agent, (i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect
of, any security (as defined in the Securities Act) which is or
will be integrated with the sale of the Bonds in a manner that
would require the registration under the Securities Act of the
Bonds or (ii) engaged in any form of general solicitation or
general advertising in connection with the offering of the Bonds,
or otherwise taken any action which would make the exemption
afforded by Section 4(2) of the Securities Act unavailable in
respect of the sale of the Bonds to the Purchaser.
4. Covenants. The Company covenants and agrees with
the Purchaser that:
(a) The Company will furnish you, without charge,
during the period mentioned in paragraph (c) below, as many
copies of the Private Placement Memorandum and any supplements
and amendments thereto as you may reasonably request.
(b) During such period after the date hereof and prior
to the completion of the placement of the Bonds as determined by
you, before amending or supplementing the Private Placement
Memorandum (including through filing with the SEC a document
which is deemed to be incorporated by reference therein), the
Company will furnish you a copy of each such proposed amendment
or supplement and for a period of 90 days from the date of
issuance of the Bonds, will not effect such amendment or
supplement without your consent.
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(c) If, during such period after the date hereof and
prior to the completion of the placement of the Bonds as
determined by you, any event shall occur as a result of which it
is necessary in your reasonable judgment to amend or supplement
the Private Placement Memorandum in order to make the statements
therein, in the light of the circumstances when the Private
Placement Memorandum is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Private
Placement Memorandum to comply with applicable law, the Company
will forthwith prepare and furnish, at its own expense, to you,
either amendments or supplements to the Private Placement
Memorandum so that the statements in the Private Placement
Memorandum as so amended or supplemented will not, in the light
of the circumstances when the Private Placement Memorandum is
delivered to a purchaser, be misleading or so that the Private
Placement Memorandum, as so amended or supplemented, will comply
with applicable law.
(d) The Company will use its best efforts to qualify
the Bonds for sale under the securities or Blue Sky laws of such
jurisdictions as you reasonably designate and to continue such
qualifications in effect so long as required for the distribution
of the Bonds, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to execute a
general consent to service of process in any jurisdiction.
(e) The Company shall, whether or not any sale of the
Bonds is consummated, pay the following: (i) the fees,
disbursements and expenses of the Company's counsel incurred in
connection with the offering, (ii) the expenses of preparation,
printing and distribution of this Agreement, the Private
Placement Memorandum and all amendments and supplements thereto,
and the Bonds, (iii) all expenses in connection with the
qualification of the Bonds for offering and sale under state
securities or Blue Sky laws in accordance with the provisions of
subsection (d) above, including filing fees and fees and
disbursements of your counsel in connection therewith and in
connection with the preparation of any Blue Sky memoranda, and
(iv) all other costs and expenses incident to the performance of
the Company's obligations hereunder which are not otherwise
specifically provided for in this subsection. It is understood,
however, that, except as provided in this subsection and Section
7 hereof, the Purchaser will pay all of its own costs and
expenses, including the fees of its counsel, except (i) as
provided in this subsection and Section 7 hereof and (ii) if this
Agreement is terminated in accordance with the provision of
clauses (i) or (ii) of Section 10 hereof, the Company will
reimburse the Purchaser for (x) the reasonable fees and
disbursements of counsel to the Purchaser in an amount not to
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exceed $30,000 and (y) the Purchaser's reasonable and documented
out-of-pocket expenses in an amount not to exceed $5,000,
incurred in contemplation of its performance of this Agreement.
The Company shall not in any event be liable to the Purchaser for
damages on account of loss of anticipated profits.
(f) Neither the Company nor any affiliate (as defined
in Regulation 501(b) of Regulation D under the Securities Act)
will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the
Securities Act) which will be integrated with the sale of the
Bonds in a manner which would require the registration under the
Securities Act of the Bonds.
(g) The Company will apply the net proceeds that it
receives from the offer and sale of the Bonds in the manner set
forth in the Private Placement Memorandum under the heading "Use
of Proceeds."
(h) Unless subject to a registration statement
effective under the Securities Act, for so long as any of the
Bonds are outstanding and are "restricted securities" within the
meaning of Rule 144(a) (3) under the Securities Act, the Company
will provide to any holder of Bonds and any prospective purchaser
of Bonds designated by a holder of such Bonds, upon the request
of such holder or prospective purchaser, the information required
to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Securities Act.
(i) The Company will not, directly or indirectly,
offer, sell, contract to sell, grant any option to purchase or
otherwise dispose of any Bonds or any securities that are
substantially similar to the Bonds or securities convertible into
or exchangeable or exercisable for, or any rights to purchase or
acquire, Bonds or such similar securities prior to the expiration
of 90 days from the date of the Private Placement Memorandum
without your prior written consent; provided, however, that the
foregoing restrictions shall not apply to the sale of Bonds as
contemplated herein.
5. Conditions to Closing of the Purchaser. The
obligations of the Purchaser to purchase and pay for the Bonds as
provided herein shall be subject to the accuracy, as of the date
hereof and the Closing Date (as if made at the Closing Date), of
the representations and warranties of the Company herein, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) Except as contemplated in the Private Placement
Memorandum, subsequent to the respective dates as of which
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information is given in the Private Placement Memorandum, (i) the
Company shall not have incurred any liabilities or obligations,
direct or contingent, or entered into any transactions, not in
the ordinary course of business, that are material to the Company
and (ii) there shall not have been any material adverse change,
or any development involving a prospective material adverse
change, in the condition (financial or other) or results of
operations of the Company that, in your judgment, makes it
impractical or inadvisable to offer or deliver the Bonds on the
terms and in the manner contemplated in the Private Placement
Memorandum.
(b) You shall have received the opinion of Xxxxxxx &
Xxxxxxx, counsel for the Company, dated the Closing Date, to the
effect that:
(i) The Company is a specially chartered
corporation duly organized, validly existing and in good standing
under the laws of the State of Connecticut and has all requisite
corporate power and authority to own its Property and to conduct
its business as presently owned and conducted and to issue and
sell the Bonds.
(ii) The Agreement and the Supplemental Indenture
have been duly authorized, executed and delivered by the Company,
and the Agreement and the Indenture constitute the legal, valid
and binding contracts and agreements of the Company enforceable
against the Company in accordance with their respective terms.
(iii) All conditions precedent contained in the
Indenture to the authentication and delivery of the Bonds have
been complied with, and the Bonds delivered on the Closing Date
have been duly authorized, executed, issued and delivered by the
Company and duly authenticated by the Trustee under the Indenture
and constitute the legal, valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms and are entitled to the benefits of the Indenture in
accordance with its terms.
(iv) The Bonds conform in all material respects
to the description thereof contained in the Private Placement
Memorandum.
(v) The execution and delivery of the
Supplemental Indenture by the Company and the issuance by the
Company of the Bonds pursuant to the Agreement and the Indenture
have, to the extent required by law, been authorized by the DPUC
in the DPUC Order, and the DPUC Order is in full force and
effect, constitutes sufficient governmental authorization for the
Bonds and is not subject to any suspension, modification or
appeal which could affect the validity or enforceability of the
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Bonds. No consent or approval of, or registration or filing
with, any other governmental or public regulatory body or
authority or other Person is required for the execution and
delivery by the Company of the Supplemental Indenture and the
consummation of the transactions contemplated thereby, including
the issuance of the Bonds.
(vi) The offer, issuance, sale and delivery of
the Bonds to the Purchaser and the reoffer, resale and delivery
of the Bonds by the Purchaser to the initial purchasers under the
circumstances contemplated herein do not require registration
under the Securities Act, and, in connection therewith, the
Indenture is not required to be qualified under the Trust
Indenture Act.
(vii) The Supplemental Indenture is acceptable
for recording, and has been recorded, in the office of the
Secretary of the State of the State of Connecticut and it is not
necessary to file the Supplemental Indenture in any other
location in order for there to exist a valid mortgage under
Section 49-5 of the Connecticut General Statutes.
(viii) The major gas plants, gate stations,
service and storage centers and gas transmission pipelines of the
Company as identified in a Schedule hereto, together with the
parcels of land upon which all of the foregoing are located (the
"Major Gas Properties") are on land in which the Company owns a
full or undivided fee interest, adequate to exclude all parties,
except possibly the state or federal governments, or, in the case
of gas transmission pipelines, are in the main on land owned in
fee by the Company or over which the Company has adequate
easements or rights of way from the apparent owner thereto, free
and clear of any major defects in title, any such defects in
title being in the main curable by the exercise of eminent
domain. Based upon searches of the land records of the towns
identified in a Schedule hereto as indexed in the name of the
Company (the "Title Bringdowns"), the Company has not conveyed
title to any of the Major Gas Properties.
(ix) The Indenture constitutes a direct and valid
mortgage lien upon the Property of the Company (other than
Excepted Property as defined in the Indenture) and, under
existing law, will constitute a similar lien at the time of
acquisition upon all Property of the Company acquired after the
date hereof located within the State of Connecticut and required
by the Indenture to be subjected to the lien thereof. The
Indenture and the Indenture Notices have been executed in forms
that are in accordance with the requirements of all applicable
laws in effect in the State of Connecticut, and are acceptable
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for recording in, respectively, the office of the Secretary of
the State of the State of Connecticut and the offices of town
clerks of the towns listed in a Schedule hereto (the "Recorders'
Offices"). The Indenture and the Indenture Notices have been
recorded in, respectively, the offices of the Secretary of the
State of the State of Connecticut and the Recorders' Offices,
such offices being the only places in which the Indenture and the
Indenture Notices must be recorded in order to constitute the
Indenture a valid and effectual mortgage lien upon the Property
of the Company (other than Excepted Property) located in the
State of Connecticut. Insofar as the lien of the Indenture
relates to the Major Gas Properties, such lien is subject only to
Permitted Encumbrances (as defined in the Indenture) and such
other liens and encumbrances, if any, created by any Person other
than the Company and existing at the time of the acquisition by
the Company of such properties. To such counsel's knowledge, the
Major Gas Properties are subject to no other lien or encumbrance
of record created after June 30, 1989, other than Permitted
Encumbrances (as defined in the Indenture).
(x) Neither the execution, delivery or
performance of the Agreement or the Supplemental Indenture, nor
the performance of the Indenture, nor the offer, issuance, sale
or delivery of or performance under the Bonds, does or will cause
the Company to be in violation of any published law or any order,
rule or regulation of any governmental or public authority or
agency of the State of Connecticut, any subdivision thereof, or
the United States of America having jurisdiction over the Company
or over its Properties.
(xi) Neither the execution, delivery or
performance of the Agreement, the Supplemental Indenture or the
Bonds, the consummation of the transactions therein contemplated,
nor the fulfillment of the terms thereof by the Company, nor the
performance of the Indenture, will (a) conflict with, violate,
constitute a default under, or result in the creation or
imposition of any Lien upon any of the Properties or assets of
the Company (other than the Lien of the Indenture) under the
terms of any indenture, mortgage, deed of trust, credit
agreement, franchise or other agreement or instrument known to
such counsel to which the Company is now a party or by which the
Company is bound by succession or otherwise or (b) conflict with
or violate the articles of incorporation or the bylaws of the
Company, as presently in effect.
(xii) To such counsel's knowledge, except as
disclosed in the Private Placement Memorandum, there is no action
at law, suit in equity or other proceeding or investigation in
any court or by or before any other governmental or public
authority or agency or any arbitrator against or affecting, or
13
threatened against, the Company or any of its Properties which
could reasonably be expected to have a materially adverse effect
on the ability of the Company to perform its obligations under
the Agreement, the Bonds or the Indenture.
(xiii) Yankee Energy System, Inc., a Connecticut
corporation which owns all of the outstanding voting stock of the
Company, is exempt from the provisions of the Public Utility
Holding Company Act of 1935, as amended, except for the
provisions of Section 9(a)(2) thereof. The Company is not a
"holding company" as such term is defined in the Public Utility
Holding Company Act of 1935, as amended, or an "investment
company" or a company "controlled" by an "investment company", as
such terms are defined in the Investment Company Act of 1940, as
amended.
(xiv) None of the transactions contemplated by
the 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, Regulation G (12 C.F.R., Part 207), as amended,
Regulation T (12 C.F.R., Part 220), as amended, and Regulation X
(12 C.F.R., Part 224), as amended, of the Board of Governors of
the Federal Reserve System.
(xv) A Uniform Commercial Code financing
statement (the "Financing Statement") has been properly filed in
the office of the Secretary of the State of the State of
Connecticut. The office of the Secretary of the State of the
State of Connecticut is the only place in the State of
Connecticut in which a financing statement is required to be
filed under the Connecticut Uniform Commercial Code in order
generally to perfect a security interest in personal property as
to which such security interest may be perfected by filing. Lien
searches indicate that, as of the date and time the Financing
Statement was filed, there were no other Uniform Commercial Code
financing statements on file with the office of the Secretary of
the State of the State of Connecticut which name the Company as
debtor and which cover any of the collateral described in the
Financing Statement.
(xvi) All Connecticut taxes and filing fees in
connection with the execution, delivery, recordation and filing
of the Supplemental Indenture, the Indenture Notices, the
Financing Statement, the execution, authentication, issuance and
delivery of the Bonds, and the mortgaging of the Trust Estate
under the Indenture have been paid.
14
In addition, such counsel shall state that they have
participated in conferences with officers and representatives of
the Company and the independent accountants of the Company at
which the contents of the Private Placement Memorandum and
related matters were discussed and, although they have assumed
the correctness and completeness of the statements made by the
Company and information included in the Private Placement
Memorandum and take no responsibility therefor, except insofar as
such statements relate to such counsel and as set forth in
paragraph (iv) above, on the basis of the foregoing, no facts
have come to such counsel's attention that would lead them to
believe that the Private Placement Memorandum, as of its date and
the date of such opinion, contains an untrue statement of a
material fact or omits to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
that such counsel need not express any opinion or belief with
respect to the financial statements, schedules and other
financial or statistical data included in or excluded from the
Private Placement Memorandum.
As to the due authorization, execution and delivery of
the Supplemental Indenture by the Trustee and the authentication
of the Bonds by the Trustee, such counsel may state that they
have relied, with your consent, upon the opinion of LeBoeuf,
Lamb, Xxxxxx and XxxXxx, counsel to the Trustee, to the effect
specified in Exhibit A hereto.
(c) You shall have received the opinion of Xxxx
Xxxxxx, Esq., Secretary and General Counsel of the Company, dated
the Closing Date, substantially in the form set forth in Exhibit
B hereto.
(d) You shall have received from Winthrop, Xxxxxxx,
Xxxxxx & Xxxxxxx, counsel for the Purchaser, an opinion or
opinions, dated the Closing Date, as to the applicability of the
Securities Act to the Bonds and other matters related to the
offering of the Bonds, in form and substance satisfactory to you,
and such counsel shall have received such documents and
information from the Purchaser as they request to enable them to
pass upon such matters. Such counsel, to the extent their
opinion involves matters of Connecticut law, may rely solely on
the opinion of Xxxxxxx & Xxxxxxx.
(e) You shall have received from LeBoeuf, Xxxx, Xxxxxx
and XxxXxx, counsel for the Trustee, an opinion, dated the
Closing Date, in form and substance satisfactory to you and your
counsel, to the effect specified in Exhibit A hereto.
15
(f) 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 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.
(g) 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
furnished to your counsel prior to the date 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, the Financing Statement 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.
(h) You shall have received from the Company a
certificate, signed by the principal financial and accounting
officers of the Company, dated the Closing Date, to the effect
that, to the best of their knowledge based upon reasonable
investigation, the representations and warranties of the Company
in this Agreement are true and correct, as if made at and as of
the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date.
(i) There shall have been issued, and there shall be
in full force and effect, on or prior to 5:00 p.m. on June 26,
1995, to the extent legally required for the issuance and sale of
the Bonds, all authorizations required to be obtained from the
DPUC, and such authorizations shall not have been revoked,
rescinded or repealed, and to the best of the Company's
knowledge, nor has such action been threatened, on or prior to
the Closing Date.
(j) At the Closing Date, Xxxxxx Xxxxxxxx LLP shall
have furnished to you a letter, dated as of the Closing Date, in
form and substance satisfactory to you, which sets forth certain
matters in accordance with the procedures agreed upon between you
and Xxxxxx Xxxxxxxx LLP.
16
(k) The Company shall have furnished to you such
further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are
reasonably satisfactory in form and substance to you. The
Company will furnish you with such conformed copies of such
opinions, certificates and other documents as you shall
reasonably request.
6. Condition to Closing of the Company. The
obligations of the Company to issue and sell the Bonds to the
Purchaser as provided herein shall be subject to the following
condition: There shall have been issued, and there shall be in
full force and effect, on or prior to 5:00 p.m. on June 26, 1995,
to the extent legally required for the issuance and sale of the
Bonds, all authorizations required to be obtained from the DPUC,
and such authorizations shall not have been revoked, rescinded or
repealed, and to the best of the Company's knowledge, nor has
such action been threatened, on or prior to the Closing Date.
7. Indemnification and Contribution. The Company
will indemnify and hold harmless the Purchaser, each person, if
any, who controls the Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the agents, employees, officers and directors of the
Purchaser and each such controlling person (the Purchaser, such
controlling persons and each such agent, employee, officer and
director are referred to collectively as the "Purchaser Group"),
against any losses, claims, damages, or liabilities to which any
member of the Purchaser Group may become subject, under the
Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or action in respect
thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any part
of the Private Placement Memorandum or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they are made,
not misleading, and will reimburse the Purchaser Group for any
legal or other expenses reasonably incurred by it in connection
with investigating or defending against such loss, claim, damage,
liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made therein in
17
reliance upon and in conformity with written information
furnished to the Company by the Purchaser specifically for use in
the preparation thereof; and provided, further, that the Company
shall not be liable to any member of the Purchaser Group under
the indemnity agreement in this subsection with respect to the
Private Placement Memorandum to the extent that any such loss,
claim, damage or liability of such member of the Purchaser Group
results solely from an untrue statement of a material fact
contained in, or the omission of a material fact from, the
Private Placement Memorandum which untrue statement or omission
was corrected in an amended or supplemented Private Placement
Memorandum, if the Purchaser sold Bonds to the person alleging
such loss, claim, damage or liability without sending or giving,
at or prior to the written confirmation of such sale, a copy of
the amended or supplemented Private Placement Memorandum if the
Company had previously furnished copies thereof to the Purchaser.
(b) The Purchaser will indemnify and hold harmless the
Company, its directors and officers and each person, if any, who
controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any
losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact
contained in the Private Placement Memorandum or any amendment or
supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made therein in reliance upon
and in conformity with written information furnished to the
Company by the Purchaser specifically for use in the preparation
thereof; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending against any such loss, claim, damage,
liability or action with respect to the foregoing as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement
of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party
under such subsection, notify the indemnifying party in writing
of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability that
it may have to any indemnified party otherwise than under such
18
subsection. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of
the commencement thereof, the indemnifying party shall be
entitled to participate in, and, to the extent that it shall
wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the
indemnifying party). In the event the indemnifying party shall
assume the defense thereof, any such indemnified party shall have
the right to employ separate counsel in such action and to
participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party has agreed to pay such fees and
expenses or (ii) the named parties to any such action or
proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, and such
indemnified party shall have been advised by counsel that there
may be one or more legal defenses available to such indemnified
party which are different from or additional to those available
to the indemnifying party (in which case, if such indemnified
party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume
the defense of such action or proceeding on behalf of such
indemnified party, it being understood, however, that the
indemnifying party shall not, in connection with any one such
action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising
out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time
for all such indemnified parties). Any such fees and expenses
payable by the indemnifying party shall be paid to the
indemnified party entitled thereto as incurred by such
indemnified party. The indemnifying party shall not be liable
for any settlement of any such action or proceeding effected
without its written consent (which shall not be unreasonably
withheld), but if settled with its written consent, or if there
is a final judgment for the plaintiff in any such action or
proceeding, the indemnifying party agrees to indemnify and hold
harmless each such indemnified party from and against any loss or
liability by reason of such settlement or judgment. The
indemnifying party shall not, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened litigation, proceeding or claim in respect of which
(if asserted against an indemnified party) indemnity might be
sought hereunder, unless such settlement includes an
unconditional release of all indemnified parties from all
liability with respect to claims which are the subject matter of
19
such litigation, proceeding or claim or which relate to or arise
out of the same or substantially similar facts or circumstances.
(d) If the indemnification provided for in this
Section 7 is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of the losses, claims,
damages or liabilities referred to in subsection (a) or (b)
above, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
Purchaser on the other from the offering of the Bonds or (ii) if
the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company on the one hand and
the Purchaser on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on
the one hand and the Purchaser on the other shall be deemed to be
in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear
to the compensation received by the Purchaser. The relative
fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Purchaser
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Purchaser agree that
it would not be just and equitable if contributions pursuant to
this subsection (d) were to be determined by pro rata allocation
or by any other method of allocation that does not take account
of the equitable consideration referred to in the first sentence
of this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending against any action or claim that is the subject of this
subsection (d). Notwithstanding the provisions of this
subsection (d), the Purchaser shall not be required to contribute
any amount in excess of the amount by which the Purchaser's
compensation exceeds the amount of any damages that the Purchaser
has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to
20
contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section
7 shall be in addition to any liability that the Company may
otherwise have; and the obligations of the Purchaser under this
Section 7 shall be in addition to any liability that the
Purchaser may otherwise have.
8. Representations and Agreements to Survive
Delivery. All representations, warranties and agreements of the
Company herein or in certificates delivered pursuant hereto, and
the agreements of the Company and the Purchaser contained in
Section 7 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of
any Purchaser Group, or the Company or any of its officers,
directors or any controlling persons, and shall survive delivery
of and payment for the Bonds hereunder.
9. Offering of Bonds; Restrictions on Transfer. The
Purchaser agrees with the Company that (i) it will not solicit
offers for, or offer or sell, the Bonds by any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving
a public offering within the meaning of Section 4(2) of the
Securities Act (except that it may publish a tombstone
advertisement at such time after the Closing Date as you may
elect), (ii) it will not effect resales, or offers to resell the
Bonds to any purchaser or prospective purchaser in the State of
New Hampshire and (iii) it will effect resales of the Bonds only
pursuant to Rule 144A under the Securities Act only from, and
will offer the Bonds only to, persons whom it reasonably believes
to be Qualified Institutional Buyers in that, by purchasing the
Bonds, they may be deemed to have represented and agreed as
provided for in the Private Placement Memorandum. The Purchaser
agrees to deliver a copy of the Private Placement Memorandum to
each Qualified Institutional Buyer purchasing the Bonds from it.
10. Termination. You shall have the right by giving
notice as hereinafter specified at any time at or prior to the
Closing Date to terminate this Agreement if (i) the Company shall
have failed, refused or been unable, at or prior to the Closing
Date, to perform in any material respect any agreement on its
part to be performed hereunder, (ii) any other condition of the
Purchaser's obligations hereunder is not fulfilled, (iii) trading
generally on the New York Stock Exchange or the American Stock
Exchange, or trading in the securities of the Parent shall have
been suspended, (iv) minimum or maximum prices for trading shall
have been fixed, or maximum ranges for prices for securities
shall have been required, on the New York Stock Exchange or the
21
American Stock Exchange, by such Exchange or by order of the
Commission or any other governmental authority having
jurisdiction, (v) a banking moratorium shall have been declared
by Federal or New York authorities, or (vi) an outbreak or
escalation of hostilities in which the United States is involved,
a declaration of war by Congress, any other substantial national
or international calamity or any other event or occurrence of a
similar character shall have occurred since the execution of this
Agreement that, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and
payment for the Bonds. Any such termination shall be without
liability of any party to any other party with respect to Bonds
not purchased by reason of such termination except that the
provisions of Subsection 4(e) and Section 7 hereof shall at all
times be effective. If you elect to terminate this Agreement as
provided in this section, the Company shall be notified promptly
by you by telephone or telecopy, confirmed by letter.
11. Notices. All notices or communications hereunder
shall be in writing and if sent to you shall be mailed,
delivered, telexed or telecopied and confirmed to you at your
address set forth on the cover page hereof or if sent to the
Company, shall be mailed, delivered or telecopied and confirmed
to the Company at Yankee Gas Services Company, 000 Xxxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000-0000, Attention: Chief
Financial Officer. Any party to this Agreement may change such
address for notices by sending to the parties in this Agreement
written notice of a new address for such purpose.
12. Legend. Each certificate for the Bonds shall
include legends in substantially the following form:
(i) THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). THE
HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE
BENEFIT OF YANKEE GAS SERVICES COMPANY (THE "COMPANY") AND
PRIOR HOLDERS THAT THIS SECURITY MAY BE OFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY
(UPON REDEMPTION THEREOF OR OTHERWISE), (2) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, WITHIN THE MEANING OF RULE 144A UNDER
THE 1933 ACT, IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE 1933 ACT, (4) PURSUANT TO AN
EXEMPTION FROM REGISTRATION IN ACCORDANCE WITH RULE 144 (IF
AVAILABLE) UNDER THE 1933 ACT, (5) IN RELIANCE ON ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933
ACT, SUBJECT TO THE RECEIPT BY THE COMPANY OF AN OPINION OF
COUNSEL TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE
22
WITH THE 1933 ACT OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT, SUBJECT (IN THE
CASE OF CLAUSES (2),(3),(4) AND (5)) TO THE RECEIPT BY THE
COMPANY OF A CERTIFICATION OF THE TRANSFEROR (WHICH, IN THE
CASE OF CLAUSE (4), MAY BE A COPY OF FORM 144 AS FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION) TO THE EFFECT THAT
SUCH TRANSFER IS 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.
(ii) Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company or its agent for
registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized
representative of DTC (and payment is made to Cede & Co. or
to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
13. Severability. The invalidity, illegality or
unenforceability of one or more of the provisions of this
Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of
this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations
of the parties hereunder shall be enforceable to the fullest
extent permitted by law.
14. Parties and Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the Company, the
Purchaser, the Purchaser Group (to the extent set forth in
Section 7 hereof) and their respective successors and (to the
extent set forth in Section 7 hereof) the controlling persons,
officers and directors referred to in Section 7 hereof, and no
other person will have any legal right or obligation hereunder.
15. Applicable Law. This Agreement shall be governed
by, and construed in accordance with, the internal laws of the
State of New York.
16. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be an original,
23
but such counterparts shall together constitute but one and the
same instrument.
17. 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 "Affiliate" with respect to any Person shall
mean a Person (a) which, directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under
common control with, such Person, (b) which, 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 "Applications" shall have the meaning assigned
thereto in Subsection 3(p) hereof.
The term "Bonds" shall have the meaning assigned
thereto in Section 1 hereof.
The term "Closing Date" shall have the meaning assigned
thereto in Section 2 hereof.
The term "Company" shall have the meaning assigned
thereto in the preamble hereof.
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 "Disclosed MGP Site" shall have the meaning
set forth in Subsection 3(r) hereof.
The term "DPUC" shall mean the Department of Public
Utility Control of the State of Connecticut.
The term "DPUC Order" shall have the meaning assigned
thereto in Subsection 3(p) hereof.
24
The term "DTC" shall have the meaning assigned thereto
in Section 2 hereof.
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 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. Sec. 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. Sec.
6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 U.S.C. Sec. 1251 et seq., Clean
Air Act of 1966, as amended, 42 U.S.C. Sec. 7401 et seq., Toxic
Substances Control Act of 1976, 15 U.S.C. Sec. 2601 et seq.,
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C.
Sec. 651 et seq., Emergency Planning and Community Right-to-Know
Act of 1986, 42 U.S.C. Sec. 11001 et seq., National Environmental
Policy Act of 1975, 42 U.S.C. Sec. 4321 et seq., Safe Drinking
Water Act of 1974, as amended, 42 U.S.C. Sec. 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 "Event of Default" shall mean one of the
"events of default" enumerated in Article Nine of the Indenture.
The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
The term "FERC" shall mean the Federal Energy
Regulatory Commission.
The term "Financing Statement" shall have the meaning
assigned thereto in Subsection 5(b)(xv) hereof.
The term "Hazardous Substance" shall mean any hazardous
or toxic chemical, waste, byproduct, pollutant, contaminant,
product, material or substance, including without limitation,
asbestos, polychlorinated biphenyls, petroleum (including crude
25
oil or any fraction thereof) and any substance defined as a
hazardous substance or waste pursuant to an Environmental Law.
The term "hereof", "herein", "hereunder" and other
words of similar import shall be construed to refer to this
Agreement as a whole and not to any particular Section or other
subdivision.
The term "heretofore" shall be construed to refer to
the time prior to the date of original execution and delivery by
the Company of this Agreement.
The term "holder" (with respect to any Bond) shall mean
the Person in whose name a bond is registered in the register of
Bonds maintained pursuant to the Indenture.
The term "Indenture" shall have the meaning assigned
thereto in Section 1 hereof.
The term "Indenture Notices" shall mean certificates of
mortgage with respect to the lien of the Indenture made pursuant
to Section 49-5 of the Connecticut General Statutes.
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 shall be
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 shall have
acquired or shall hold subject to a conditional sale agreement or
other arrangement (including a leasing arrangement) pursuant to
which title to the Property shall have been retained by or vested
in some other Person for security purposes.
The term "Major Gas Properties" shall have the meaning
assigned thereto in Subsection 5(b)(viii) hereof.
The term "MGP Site" shall mean any real property upon
which a manufactured gas plant or facility or manufacturing town
gas from coal or petroleum is or was located.
The term "Private Placement Memorandum" shall have the
meaning assigned thereto in Section 1 hereof.
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The term "Original Indenture" shall have the meaning
assigned thereto in Section 1 hereof.
The term "Parent" shall mean Yankee Energy System,
Inc., a Connecticut corporation, and its successors and assigns.
The term "Permitted Encumbrances" shall have the
meaning assigned thereto in Section 1.01 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 "Property" shall mean any interest in any kind
of Property or asset, whether real, personal or mixed, and
whether tangible or intangible.
The term "Purchaser" shall have the meaning assigned
thereto in the preamble hereof.
The term "Purchaser Group" shall have the meaning
assigned thereto in Subsection 7(a) hereof.
The term "Qualified Institutional Buyers" shall have
the meaning assigned thereto in Rule 144A under the Securities
Act.
The term "Recorders' Offices" shall have the meaning
assigned thereto in Subsection 5(b)(ix) hereof.
The term "SEC" shall mean the Securities and Exchange
Commission.
The term "Securities Act" shall mean the Securities Act
of 1933, as amended.
The term "Supplemental Indenture" shall have the
meaning assigned thereto in Section 1 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 "Title Bringdowns" shall have the meaning
assigned thereto in Section 5(b)(viii) hereof.
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The term "Trust Estate" shall have the meaning assigned
thereto in Section 1 hereof.
The term "Trust Indenture Act" shall mean the Trust
Indenture Act of 1939, as amended.
The term "Trustee" shall mean Shawmut Bank Connecticut,
National Association, and its successors and assigns.
If the foregoing correctly sets forth the understanding
between the Company and the Purchaser, please so indicate in the
space provided below for that purpose, whereupon this letter
shall constitute a binding agreement between the Company and the
Purchaser.
Very truly yours,
YANKEE GAS SERVICES COMPANY
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer
ACCEPTED as of the date
set forth above
BEAR, XXXXXXX & CO. INC.
By:_______________________________
Name:
Title:
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